Royster v. Trierweiler
Filing
27
OPINION AND ORDER denying petitioner's 10 Motion for Reconsideration ; denying 14 Motion for Certificate of Appealability; denying 15 Motion to Appoint Counsel ; denying 18 Motion for Reconsideration ; denying 26 Motion for Oral Argument. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRYANT LAMONT ROYSTER,
Petitioner,
Case No. 2:17-cv-10101
Hon. George Caram Steeh
v.
TONY TRIERWEILER,
Respondent.
_________________________/
OPINION AND ORDER DENYING PETITIONER’S (1) MOTION
FOR RECONSIDERATION [Dkts. 10, 18, 21, and 25],
(2) MOTION FOR CERTIFICATE OF APPEALABILITY,
(3) MOTION FOR APPOINTMENT OF COUNSEL,
AND (4) MOTION FOR ORAL ARGUMENT
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. §
2254. The Court denied the petition, but it granted Petitioner a certificate of
appealability with respect to his claim that his right to counsel was denied
during a second visit to the crime scene by the trial judge during his bench
trial. Before the Court are several post-judgment motions filed by Petitioner.
For the reasons stated below the motions will be denied.
Petitioner asserts in his motion for reconsideration that the Court
erroneously found his right-to-counsel claim procedurally defaulted
-1-
because Michigan does not have a firmly established procedural rule
requiring a contemporaneous objection for such errors. He also asserts
that the claim was never addressed by the Michigan Court of Appeals, and
so there was no basis for this Court to find that the state courts imposed its
procedural default rule.
Pursuant to Local Rule 7.1(h), a party seeking reconsideration must
demonstrate (i) a “palpable defect” by which the court and the parties have
been “misled,” and (ii) that “correcting the defect will result in a different
disposition of the case.” E.D. Mich. L.R. 7.1(h)(3). A “palpable defect” is an
error that is “obvious, clear, unmistakable, manifest or plain.” United States
v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001).
First, as a factual matter, the state appellate court imposed the
contemporaneous objection rule with respect to Petitioner’s claim that he
was denied his right to counsel at the second crime scene visit. The state
court found:
Like Edwards, Royster also challenges the trial court’s
second viewing of the crime scene, with the added wrinkle of an
alleged Confrontation Clause violation. This latter claim alleges
in essence that the trial court functioned as a witness during its
second viewing of the crime scene and should have been
subject to cross examination. Royster lodged no objection on
-2-
this novel theory (or on any other ground) below, and so we are
looking for outcome determinative error that adversely affected
the proceedings or resulted in the conviction of an innocent
defendant. Carines, 460 Mich. at 774. We see none.
People v. Royster, 2015 WL 1069275, at 14.
The state court specifically found with respect to the second visit that
Petitioner lodged no objection on any ground, and so review was limited to
the plain-error standard under People v. Carines, 460 Mich. 750 (1999).
The Sixth Circuit has held that when the Michigan Court of Appeals limits
review to plain error under Carines, it is invoking a firmly-established state
procedural review independent of federal law, that bars subsequent federal
habeas review. See Allen v. Harry, 497 F. App’x. 473, 479 (6th Cir. 2012)
(citing Taylor v. McKee, 649 F.3d 446, 450-51 (6th Cir. 2011) (“Michigan’s
contemporaneous objection rule is both a well-established and normally
enforced procedural rule.”)); Ambrose v. Booker, 684 F.3d 638, 645 (6th
Cir. 2012).
Relying primarily on Neal v. Wolfenbarger, 57 F. Supp. 3d 804 (E.D.
Mich. 2014) (Tarnow, J.), Petitioner asserts that Michigan’s
contemporaneous objection rule was not firmly established with respect to
right-to-counsel claims. In order to bar subsequent federal habeas review,
-3-
a state procedural rule must have been firmly established at the time of a
habeas petitioner’s default. See Ford v. Georgia, 498 U.S. 411, 424-25
(1991). The relevant inquiry is whether the petitioner could “be deemed to
have been apprised of [the procedural requirement’s] existence” at the time
he violated the rule. Id., at 423.
At the time of Petitioner’s 2013 bench trial, Michigan had a clearly
established contemporaneous objection rule applicable to all trial errors,
including so-called structural errors such as the denial of the right to
counsel. Under established Michigan law, unpreserved trial errors are
reviewed under the plain-error standard regardless of whether the error is
a violation of a court rule or a structural constitutional error. People v.
Vaughn, 491 Mich. 642, 665-667 (2012) (cited by People v. Cain, 498
Mich. 108, 117 n. 4 (2015)). The only difference with structural errors is that
the plain-error standard is modified so that no showing of actual prejudice
is required. People v. Shafier, 483 Mich. 205, 220 n. 15, (2009). Indeed,
the Sixth Circuit applied Michigan’s contemporaneous objection rule to bar
habeas review of other structural errors. See, e.g., Johnson v. Sherry, 586
F.3d 439, 444-445 (6th Cir. Mich. 2009) (finding Petitioner’s failure to object
-4-
to closure of courtroom resulted in procedural default). Petitioner was
apprised at the time of his trial of the requirement to preserve any alleged
errors by raising them in the trial court, and thereby affording the trial court
an opportunity to correct any errors.1
Petitioner’s reliance on Hunt v. Mitchell, 261 F.3d 575 (6th Cir. 2001),
as standing for the proposition that right-to-counsel claims categorically
cannot be subject to the procedural default doctrine, is incorrect. The state
court in that case did not purport to rely on a procedural rule to reject the
petitioner’s claim. Rather, in ruling on the merits of the claim the state
courts mentioned that neither the petitioner nor his counsel complained to
the trial court that they were unprepared for trial. See State v. Hunt, No.
69658, 1996 WL 502151, at *3 (Ohio Ct. App. Sept. 5, 1996). Hunt says
nothing about whether a right to counsel claim can be procedurally
defaulted. The Court therefore did not err in finding that Petitioner
procedurally defaulted his right-to-counsel claim.
1
There may be an exception, not applicable here, for a complete denial of the right to
counsel. In such cases, a defendant proceeding pro se at trial could have his right to
counsel “nullified by a determination that [his] ignorant failure to claim his rights
removes the protection of the Constitution.” Vaughn, 491 Mich. at 656-657. Here,
Petitioner was represented by counsel at trial who was present and remained silent
when the trial court informed the parties of his second visit to the crime scene.
-5-
Next, the Court denies Petitioner’s motion for a certificate of
appealability. For the reasons previously stated in the Court’s opinion and
order denying the petition, Petitioner’s other claims are without merit or
barred from review, and they fail to meet the standard for obtaining a
certificate of appealability.
Petitioner has also filed a pro se motion for the appointment of
counsel, asserting that he is no longer represented by counsel and seeks
appointment of an attorney to represent him in the Sixth Circuit. The Court
has broad discretion in determining whether counsel should be appointed.
Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987). A habeas
petitioner may obtain representation at any stage of the case “[w]henever
the United States magistrate or the court determines that the interests of
justice so require.” 18 U.S.C. § 3006A(a)(2)(B). After he filed the motion for
appointment of counsel, Petitioner’s counsel filed the motion for
reconsideration and other pleadings with the Court.
Finally, the Court denies Petitioner’s motion for oral argument as
moot.
Accordingly, the Court (1) DENIES Petitioner’s motion for
-6-
reconsideration [Dkts. 10, 18, 21, and 25], (2) DENIES Petitioner’s motion
for certificate of appealability, (3) DENIES Petitioner’s motion for
appointment of counsel, and (4) DENIES Petitioner’s motion for oral
argument.
SO ORDERED.
Dated: March 12, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record
on March 12, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?