Glover v. Palmer
Filing
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OPINION and ORDER CONDITIONALLY GRANTING the Petition for Writ of Habeas Corpus as to the petitioner's first claim for relief. The State must provide Petitioner an appeal as of right in the Michigan Court of Appeals or release him from custody under the sentence of conviction at issue here within 60 days of the date of this order. Signed by District Judge Nancy G. Edmunds. (CHem)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SANDY RUSSELL GLOVER,
Case No. 07-cv-11912
Petitioner,
HONORABLE NANCY G. EDMUNDS
v.
THOMAS M. BIRKETT,
Respondent.
/
OPINION AND ORDER CONDITIONALLY GRANTING
PETITION FOR WRIT OF HABEAS CORPUS
I.
Introduction
Petitioner Sandy Russell Glover, a Michigan Department of Corrections inmate
currently incarcerated at the Central Michigan Correctional Facility in St. Louis, Michigan,
has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner
challenges his conviction and sentence for assault with intent to cause great bodily injury,
entered following a jury trial in the Circuit Court for Livingston County, Michigan. The
petitioner was sentenced to 10 to 15 years imprisonment, to run consecutively to the sentence
imposed in another case.1 The petitioner claims that he was denied the effective assistance
of appellate counsel when his counsel failed to timely file an appeal as of right with the
1
The petitioner filed another habeas petition challenging his conviction and sentence in
the other case, Glover v. Palmer, No. 07-cv-11305, E.D. Mich. That habeas petition was
denied by the Honorable Patrick J. Duggan of this court on March 29, 2010. On February
2, 2011, the Sixth Circuit issued a certificate of appealability as to several issues raised by
the petitioner in his habeas before Judge Duggan, including the issue whether appellate
counsel was ineffective for failing to file a timely appeal.
Michigan Court of Appeals. The petitioner also claims that his trial was tainted by illegal
identification procedures and that his due process rights were violated when the trial court
relied on inaccurate information in his sentencing. The respondent asserts that relief is not
appropriate for the petitioner's first claim because he has failed to show that he was
prejudiced as a result of the failure to file a timely appeal, and that relief is barred as to the
petitioner's second and third claims because the petitioner procedurally defaulted those
claims in state court. Upon review of the record, the Court finds the petitioner is entitled to
habeas relief on his first claim, and therefore the petition will be conditionally granted as to
that claim. As the results of the appeal may moot the petitioner's other claims, the remaining
two claims in the petition will be dismissed without prejudice.
II.
Facts and Procedural History
The petitioner's conviction stems from an incident in the Livingston County jail in
which the petitioner, while jailed pending trial on other charges, participated in a prison
beating of an inmate charged with sexual offenses against a minor. The petitioner was tried
jointly with another prisoner also accused of participating in the assault. In the course of the
trial several inmates implicated the petitioner in the assault.
The petitioner was sentenced on January 22, 2001 to ten to fifteen years imprisonment,
to be served consecutively to the sentence imposed in the case he was awaiting trial at the
time of the incident. The sentence imposed was a substantial upward departure from the
applicable sentencing guidelines. The transcript of the sentencing hearing reflects that the
petitioner was advised of his right to appeal and the petitioner's trial counsel acknowledged
receipt of a form requesting appointment of counsel. However, the circuit court docket
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reflects that no notice of appeal was filed and appellate counsel was not appointed until the
time for appeal had lapsed.
A delayed application for leave to appeal was filed by the petitioner's court-appointed
appellate counsel on January 22, 2002, almost a year past the date the judgment of sentence
was entered. The application raised the following claims: (1) the presentencing report
contained inaccuracies; (2) emotionally charged language should have been deleted from the
presentencing report; (3) the sentencing guidelines were improperly scored; (4) the admission
of double-hearsay violated the petitioner's rights of confrontation; and (5) the petitioner's
sentence exceeded the sentencing guidelines. The Court of Appeals denied leave to appeal
"for lack of merit in the grounds presented." People v. Glover, No. 239080, (May 13, 2002).
The petitioner applied to the Michigan Supreme Court for leave to appeal the Court of
Appeals' order denying relief. The Michigan Supreme Court initially held the application in
abeyance pending disposition of two cases dealing with an issue raised in the petitioner's
application. People v. Glover, No. 121849, 655 N.W.2d 564 (Table) (Mich. 2002).2 The
Michigan Supreme Court ultimately denied the application for leave to appeal in a summary
order. People v. Glover, 469 Mich. 940 (Table) (2003).
The petitioner returned to the trial court and filed a motion for relief from judgment on
January 10, 2005. The motion raised the following claims: (1) the police conducted an
2
The cases cited in the Michigan Supreme Court order holding the petitioner's application
for leave to appeal in abeyance dealt with the proper interpretation of Michigan's statutory
sentencing guidelines, and in particular the circumstances in which a sentencing court abuses
its discretion in departing from the sentencing guidelines. See People v. Babcock, 469 Mich.
247 (2003); People v. Aliakbar, No. 228262, 2001 WL 1167474 (Mich. App. 2001),vacated,
469 Mich. 866 (2003) (vacating judgment of Court of Appeals in light of Babcock)
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illegal identification procedure in jail without defense counsel being present; (2) defense
counsel had a conflict of interest; (3) erroneous jury instructions regarding assault with intent
to commit great bodily harm; (4) ineffective assistance of appellate counsel in failing to file
a timely appeal; and (5) illegal enhancement of petitioner's sentence. The trial court denied
the motion on January 27, 2005. The Court of Appeals denied the petitioner's delayed
application for leave to appeal the trial court's order "for failure to meet the burden of
establishing entitlement to relief under MCR 6.508(D)." People v. Glover, No. 266108
(May 17, 2006). The Michigan Supreme Court also denied the petitioner's application for
leave to appeal, stating that the petitioner had failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D). People v. Glover, No. 131529 (Oct. 31, 2006).
The petitioner then filed the present petition for writ of habeas corpus. The petition
raises the following three claims: (1) appellate counsel was ineffective for failing to pursue
a timely appeal of right; (2) illegal identification procedures were conducted; and (3) the
petitioner was sentenced based on inaccurate information. The petition was dismissed by this
Court on statute of limitations grounds. This dismissal was subsequently vacated by
stipulation of the parties, the case was reopened, and the respondent answered the petition.
In the answer, the respondent asserts that the petitioner's first claim should be denied for lack
of merit because the petitioner has failed to show that he was prejudiced by the failure of his
appellate counsel to file his direct appeal in a timely manner. As for the petitioner's second
and third claims, the respondent argues that they are procedurally defaulted because the
petitioner failed to include them in his appeal of right and the Michigan courts relied on this
failure in denying relief.
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III. Standard of Review
The provisions of the Antiterrrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), govern this case. The
AEDPA "circumscribe[d]" the standard of review federal courts must apply when
considering applications for a writ of habeas corpus raising constitutional claims. Wiggins
v. Smith, 539 U.S. 510, 520 (2003). Where a state court has previously addressed the merits
of a federal claim, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the
state court decision on the federal issue "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States,"or it "resulted in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)(1)-(2). Under that review standard, mere error by the state court does
not justify issuance of the writ; rather, the state court's application of federal law "must have
been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor,
529 U.S. 362, 409 (2000) (internal quotes omitted)).
IV. Analysis
The petitioner claims in his first ground for relief that he was deprived the effective
assistance of counsel when his counsel failed to timely filed a direct appeal. Upon review
of the record, the Court finds that the petitioner is entitled to habeas relief on this claim.
The Supreme Court has held that defendants in criminal cases have a constitutional right
to the effective assistance of counsel in their first appeal of right. Evitts v. Lucey, 469 U.S.
387, 396 (1985). In Strickland v. Washington, 466 U.S. 668 (1984), the United States
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Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has
received ineffective assistance of counsel. First, a petitioner must prove that counsel's
performance was deficient. "This requires a showing that counsel made errors so serious that
he or she was not functioning as 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. Second, the petitioner must establish that the deficient
performance prejudiced the defense. Counsel's errors must have been so serious that they
deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside
the wide range of professionally competent assistance" in order to prove deficient
performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly
deferential. Id. at 689. Counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment. Id.
at 690.
In this case, the performance prong is not at issue, because the respondent does not
attempt to argue that the petitioner's counsel was not constitutionally deficient.3 Instead, as
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The record supports the petitioner's contention that his counsel performed deficiently in
failing to timely file a notice of appeal. The petitioner's verified pro se motion for relief from
judgment states that the petitioner had retained his trial counsel to pursue his direct appeal.
The petitioner asserts that he inquired about the status of his appeal during a court hearing
on a separate case, and at that time petitioner's trial counsel, who was representing the
petitioner with regard to the separate case, went to the court clerk and returned with forms
for a notice of appeal, and instructed the petitioner to complete the forms and request a court
appointed lawyer. The petitioner further asserts that he completed the forms but the time had
already expired for filing a notice of appeal. A review of the Livingston County docket
reflects an order on appointment of appellate counsel was docketed on March 27, 2001, past
the time set forth in the Michigan Court Rules for filing a notice of appeal, and no notice of
appeal was ever filed by either counsel. This record is evidence of ineffective assistance of
counsel. Cf. Evitts, 469 U.S. 387, 394, n. 6 (counsel's failure to present appeal in accordance
with state rules is "particularly egregious in that it essentially waived respondent's
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to the first claim in the petition, the respondent's sole argument is that the petitioner is not
entitled to habeas relief because he has failed to establish that he suffered prejudice as a
result of the failure of his counsel to perfect a timely appeal. The respondent has not argued
or briefed the question of whether the first prong of Strickland is met and thus this argument
has been waived. Cf. Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1172 (6th Cir.
1996) (issues not squarely presented to the trial court are considered waived); Barany-Snyder
v. Weiner, 539 F.3d 327, 331 (6th Cir. 2008) (same). The sole issue therefore is whether the
prejudice prong of Strickland is satisfied on these facts.
To satisfy the prejudice prong under Strickland, a petitioner must ordinarily show that
"there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." 466 U.S. 668, 694. A reasonable probability is
one that is sufficient to undermine confidence in the outcome. Id. In cases such as this,
when counsel's deficiency deprives a petitioner of an appeal by right, the Sixth Circuit has
held that the petitioner need not make a showing of prejudice because prejudice is presumed.
See Hardaway v. Robinson, __ F.3d __. 2011 WL 1405106 (6th Cir. April 14, 2011).
opportunity to make a case on the merits; in this sense it is difficult to distinguish
respondent's situation from that of someone who had no counsel at all."); Dietz v. Money, 391
F.3d 804, 810 (6th Cir. 2004) ("the failure to perfect a direct appeal, in derogation of a
defendant's actual request, is a per se violation of the Sixth Amendment"). There is no
suggestion in the record that the petitioner affirmatively declined to appeal after receiving
competent advice on the subject. The delayed application for leave to appeal filed in the
Michigan Court of Appeals by petitioner's appellate counsel suggests that the error was
caused by the failure of his client to request appellate counsel in a timely manner. While it
is not clear from the record which of the petitioner's attorneys is responsible for the failure
to file the appeal in a timely manner, the question here is not the culpability of the attorneys,
but rather whether the petitioner received the effective assistance of counsel on his first
appeal to which he was entitled.
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In Hardaway, the petitioner's counsel filed a timely appeal but failed to file an appellate
brief as required by the Michigan rules, resulting in the Michigan Court of Appeals
dismissing Hardaway's appeal. 2011 WL 1405106 at *2. Hardaway's new counsel filed a
delayed application for leave to appeal, which was dismissed as untimely. Id. The Michigan
Supreme Court denied leave to appeal, but suggested that Hardaway file a motion for relief
from judgment in the trial court, raising ineffective assistance of appellate counsel as cause
for his failure to raise his claims on direct appeal. Id. Hardaway filed a motion for postconviction relief in the trial court. Id. The trial court denied the motion on the merits, and
the Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal "for lack
of merit in the grounds presented." Id. Hardaway then filed a federal habeas corpus petition,
asserting that his appellate counsel was ineffective for failing to file a timely brief, resulting
in dismissal of his direct appeal. Id. The district court denied relief, holding that Hardaway
was not prejudiced by his appellate counsel's deficient performance because Michigan's
collateral post-conviction procedure was an adequate substitute for Hardaway's direct appeal.
Id.
The Sixth Circuit reversed. It held that Hardaway was prejudiced by the failure of his
appellate counsel to file a timely appellate brief "because the failure to file an appellate brief
rendered Hardaway's direct appeal 'entirely nonexistent,'" and in such circumstances,
prejudice is presumed. Id. at *4 ___ (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484
(2000)). The court further held that the availability of collateral review under section 6.500
of the Michigan Court Rules, and appeal from the denial of such collateral relief, could not
reasonably be deemed a sufficient substitute for the loss of the petitioner's right to a direct
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appeal. Id. The court remanded the petition to the district court with instructions to issue a
conditional writ directing the state to afford Hardaway a direct appeal. Id. at *6.
Hardaway requires this Court to issue a conditional writ in the present case. As in
Hardaway, the petitioner here was deprived of an appeal of right in the Michigan Court of
Appeals, a procedure to which he was entitled, as a result of the failure of his counsel to
comply with a straightforward state procedural rule governing appeals. As in Hardaway, it
is undisputed that this failure constituted ineffective assistance of appellate counsel under
Strickland. To the extent that Michigan courts ruled to the contrary, such a conclusion
unreasonably applied clearly established federal law. Hardaway, 2011 WL 1405106 at *4
& n.1. The petitioner is therefore entitled to habeas relief on his claim that he was denied the
effective assistance of appellate counsel.
The Court will not reach the petitioner's other habeas claims because the disposition of
his appeal may affect the remaining claims. Instead, the petitioner's other habeas claims will
be dismissed without prejudice to refiling them after the conclusion of the petitioner's state
appellate proceedings. The Court declines to issue the petitioner a certificate of appealability
as to this dismissal, because the petitioner cannot make a substantial showing that the
dismissal will deny him a constitutional right. See 28 U.S.C. § 2253(c).
ORDER
WHEREFORE, IT IS HEREBY ORDERED that the petition for writ of habeas
corpus is CONDITIONALLY GRANTED as to the first claim in the petition, that the
petitioner was deprived of effective assistance of counsel by the failure of his counsel to
timely file an appeal of right. The State must provide the petitioner an appeal as of right in
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the Michigan Court of Appeals or release him from custody under this judgment of sentence
at issue here within 60 days of the date of this order. If the State fails to take such action, this
Court shall consider the issuance of an additional writ unconditionally releasing the petitioner
from state custody under the judgment of sentence at issue here.
IT IS FURTHER ORDERED that Claims II and III of the petition are DISMISSED
WITHOUT PREJUDICE.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: April 25, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record on
April 25, 2011, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager
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