573 F. App'x 415
6th Cir.2014Background
- Michael Vance was convicted in 2004 in Michigan of multiple counts of first- and second-degree criminal sexual conduct arising from two consolidated cases; he received concurrent lengthy prison terms.
- Under Michigan procedure a defendant preserves an appeal of right only by filing a notice of appeal or requesting appellate counsel within 42 days of judgment; the trial court provided an Advice of Rights form stating the 42‑day period.
- Vance timely requested appointment of appellate counsel in one case (03-193604-FC); counsel was appointed later in both cases but filed late applications for leave to appeal rather than appeals of right.
- State courts denied Vance’s post-conviction relief; Michigan courts treated Vance’s request for counsel as timely and denied relief under MCR 6.508(D).
- The district court granted habeas relief on two grounds: (1) ineffective assistance of appellate counsel for filing applications for leave to appeal instead of an appeal of right; and (2) trial court’s alleged failure to properly advise Vance that he needed to appeal each consolidated case separately.
- The Sixth Circuit affirmed habeas relief based on ineffective assistance of appellate counsel as to Case No. 03-193604-FC, but reversed as to the notice-of-rights claim for the other case and remanded.
Issues
| Issue | Vance's Argument | Warden's Argument | Held |
|---|---|---|---|
| Whether appellate counsel’s filing of applications for leave to appeal (instead of perfecting an appeal of right) was ineffective assistance when Vance timely sought appellate counsel | Filing for leave instead of an appeal of right was deficient and prejudicial because Vance preserved a direct appeal and counsel deprived him of it | Counsel’s choice was not deficient because Vance’s request for counsel was not timely (timeliness challenge) | Affirmed: Counsel’s filing for leave rather than an appeal of right was deficient and prejudice is presumed under Flores-Ortega; habeas relief granted for Case No. 03-193604-FC |
| Whether the state court’s denial of the ineffective-assistance claim was entitled to AEDPA deference | State courts misapplied federal law and should have found counsel deficient and prejudice shown | State courts adjudicated on the merits; federal court must defer absent unreasonable application of clearly established law | AEDPA deference applied, but the state-court rulings were unreasonable given Supreme Court precedent; relief appropriate |
| Whether the trial court failed to adequately advise Vance of appellate rights as to both consolidated cases (requiring separate notices) and whether that violated due process | Trial court’s advice was insufficient because it did not explicitly tell Vance to file separate notices for each consolidated case, causing forfeiture | Vance had independent notice/awareness (Advice of Rights form and other indicia); Peguero and related authority make deficient oral advice harmless when defendant knew of rights | Reversed as to this claim: Vance received adequate notice; no due process violation |
| Whether federal courts may relitigate state procedural determinations about timeliness of request for counsel | N/A (Vance relied on state court finding timeliness) | Warden argued timeliness could be litigated federally and contest late | Sixth Circuit declined to relitigate state procedural timing; bound by state court’s characterization of timeliness for habeas purposes |
Key Cases Cited
- Evitts v. Lucey, 469 U.S. 387 (Sup. Ct.) (Sixth Amendment guarantees effective assistance on first appeal of right)
- Douglas v. California, 372 U.S. 353 (Sup. Ct.) (right to counsel on first appeal of right)
- Flores-Ortega v. United States, 528 U.S. 470 (Sup. Ct.) (counsel’s failure to file a desired appeal can be deficient and prejudice may be presumed)
- Harrington v. Richter, 562 U.S. 86 (Sup. Ct.) (presumption that state court adjudicated claims on the merits absent indication otherwise; framework for AEDPA deference)
- White v. Woodall, 572 U.S. 415 (Sup. Ct.) (clarifies objective unreasonableness standard under AEDPA)
- Metrish v. Lancaster, 569 U.S. 351 (Sup. Ct.) (definition of "contrary to" and "unreasonable application" under AEDPA)
- Yarborough v. Alvarado, 541 U.S. 652 (Sup. Ct.) (distinction between applying and extending precedent)
- Peguero v. United States, 526 U.S. 23 (Sup. Ct.) (trial-court failure to advise appellate rights may be harmless if defendant independently knew rights)