Ogilvie v. Gidley

Filing 24

ORDER (1) Granting a Conditional Writ of Habeas Corpus on Claim One, (2) Holding Petitioner's Remaining Claims in Abeyance, and (3) Closing This Case for Administrative Purposes re 1 Petition for Writ of Habeas Corpus. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC OGILVIE,
Petitioner,

Case No. 16-cv-11013
Hon. Matthew F. Leitman

v.
LORI GIDLEY,

Respondent.
__________________________________________________________________/
ORDER (1) GRANTING A CONDITIONAL WRIT OF HABEAS CORPUS
ON CLAIM ONE, (2) HOLDING PETITIONER’S REMAINING CLAIMS
IN ABEYANCE, AND (3) CLOSING THIS CASE FOR
ADMINISTRATIVE PURPOSES
In 2010, a Wayne County jury found Petitioner Eric Ogilvie guilty of
felonious assault and felony-firearm. In this action, Ogilvie seeks a writ of habeas
corpus under 28 U.S.C. § 2254. (See Pet., ECF No. 1.) Ogilvie raises a number of
claims for relief: (1) he was denied his right to the assistance of counsel during his
direct appeal of right; (2) the trial court erred when it instructed the jury on the use
of deadly force in self-defense and the duty to retreat; (3) the prosecutor deprived
him (Ogilvie) of a fair trial when the prosecutor (a) argued that Ogilvie used deadly
force and had a duty to retreat and (b) failed to produce exculpatory 911 calls; and
(4) he was deprived of the effective assistance of counsel by (a) trial counsel’s failure
to (i) investigate and obtain recordings and transcripts of certain 911 calls and (ii)
request appropriate jury instructions, and (b) counsel’s failure to argue during post1

conviction proceedings in the trial court that the prosecution had suppressed
favorable evidence about his wife’s 911 calls. (See id., PageID. 9-10.)
Respondent has conceded that Ogilvie is entitled to relief on his first claim –
that he was denied his right to the assistance of counsel on his direct appeal of his
convictions.1 (See Respondent’s Supp. Br., ECF No. 12, PageID.3232.) As both
parties agree, the proper remedy for that violation is a new appeal of right in the
Michigan Court of Appeals.2 See, e.g., Sanders v. Lafler, 618 F.Supp.2d 724, 735736 (E.D. Mich. 2009) (issuing a conditional writ of habeas corpus and granting
petitioner a new appeal because he was denied his right to the appointment of
counsel for his initial direct appeal).
For the reasons that the Court explained on the record during a status
conference held on June 24, 2020, the Court concludes that the proper course of
action is to hold the remainder of Ogilvie’s claims in abeyance while he pursues his
new appeal of right in the Michigan Court of Appeals.
Accordingly, IT IS ORDERED that the writ of habeas corpus is conditionally
GRANTED on Ogilvie’s claim that he was denied his constitutional right to the
assistance of counsel during his appeal of right in the Michigan Court of Appeals.

1

See Douglas v. California, 372 U.S. 353 (1963) (holding that indigent defendants
in state criminal cases have a right to appointment of counsel for an initial appeal of
right).
2

See Respondent’s Supp. Br., ECF No. 12, PageID.3235; Petitioner’s Supp. Br.,
ECF No. 13, PageID.3241. 
2

The State shall have ninety (90) days from the date of this order to (1) reinstate
Ogilvie’s appeal of right in the Michigan Court of Appeals and (2) provide him with
appointed appellate counsel, if he demonstrates that he qualifies for appointed
appellate counsel. The failure to comply with this order will result in this Court
vacating Ogilvie’s convictions.
IT IS FURTHER ORDERED that this Court will hold Ogilvie’s remaining
claims in abeyance while Ogilvie pursues his state-court appeal. Ogilvie may raise
those claims in his new appeal.
IT IS FURTHER ORDERED that this case is closed for administrative
purposes. Nothing in this order shall be construed as an adjudication of Ogilvie’s
remaining claims.
IT IS FURTHER ORDERED that, if Ogilvie is unsuccessful in his new
appeal of right, he shall file an amended habeas corpus petition and motion to reopen this case in this Court within ninety (90) days of the completion of that appeal
(in the Michigan Supreme Court or in the United States Supreme Court, if Ogilvie
files a petition for a writ of certiorari).
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 6, 2020

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 6, 2020, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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