679 F.3d 936
6th Cir.2012Background
- Glover, awaiting trial on multiple charges in Livingston County Jail, is implicated in the assault of another inmate and convicted at a jury trial for the jail assault.
- Glover retained trial counsel to pursue appeal, but counsel failed to timely file a notice of appeal.
- Glover sought post-conviction relief in state court, including a delayed application for leave to appeal and a motion for relief from judgment, all denied.
- He then filed a federal habeas petition; the district court granted relief, finding ineffective assistance of appellate counsel for failing to timely pursue the direct appeal.
- Respondent appeals the habeas decision; the issue is whether the state-court proceedings and post-conviction review can substitute for a direct appeal and whether prejudice is presumed.
- The Sixth Circuit affirms, holding that the failure to timely pursue a direct appeal by appellate counsel constitutes ineffective assistance with presumed prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to timely file an appeal warrants presumed prejudice. | Glover | Birkett | Prejudice presumed; relief granted |
| Whether state collateral post-conviction review can substitute for a direct appeal. | Glover | Birkett | Substitute review inadequate; direct appeal required |
| Whether Harrington v. Richter undermines Hardaway's conclusion on substitution for direct appeal. | Glover | Birkett | Hardaway controls; post-Harrington view not applicable |
Key Cases Cited
- Flores-Ortega v. United States, 528 U.S. 470 (2000) (presumes prejudice when counsel's deficient performance deprives defendant of an appeal)
- Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011) (collateral post-conviction review is not a substitute for a direct appeal)
- Harrington v. Richter, 131 S. Ct. 770 (2011) (addressed unexplained orders on merits; not controlling for substitute appeal)
- Jensen v. Romanowski, 590 F.3d 373 (6th Cir. 2009) (de novo review of district court's habeas grant)
- Brown v. United States, 462 F.3d 609 (6th Cir. 2006) (binding precedent on longstanding standard in this circuit)