DANIEL MARTIN PIRKEL, Petitioner-Appellant, v. DEWAYNE BURTON, Warden, Respondent-Appellee.
No. 19-1349
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: June 9, 2020
Decided and Filed: August 14, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0261p.06
Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:11-cv-00205—Robert J. Jonker, District Judge.
Before: CLAY, ROGERS, and DONALD, Circuit Judges.
COUNSEL
ARGUED: Sundeep Iyer, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant. Scott Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Sundeep Iyer, Neal Kumar Katyal, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant. Scott Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
BERNICE BOUIE DONALD, Circuit Judge. Daniel Pirkel has long been seeking appellate representation to help him attack his no contest plea to a series of crimes for which he was convicted in 2008. He filed pro se appeals before the Michigan Court of Appeals and the Michigan Supreme Court, but, without the benefit of appellate counsel, he lost those appeals. Next, he filed a pro se
I.
The State of Michigan charged Pirkel with seventeen different crimes in just a few short months. Michigan charged Pirkel with criminal sexual misconduct and accosting a minor based on Pirkel‘s actions on May 25, 2007. Next, on June 5, 2007, Pirkel entered a supermarket in Three Rivers, Michigan, and grabbed the buttocks of a female employee. Employees then reported seeing Pirkel pull the fire alarm. Police quickly arrested Pirkel in the store‘s parking lot while he was trying to gain entry into his car. Police recovered a loaded rifle from the car and found that Pirkel was wearing boots that had been stolen from the store. Based on this incident, the State of Michigan charged Pirkel with carrying a concealed weapon, possessing a loaded firearm in a vehicle, misdemeanor retail fraud, and misdemeanor assault and battery.
On June 16, 2007, Pirkel stole a four-wheeler. After crashing the four-wheeler in the woods, Pirkel began fleeing, but officers were tracking him. Pirkel exchanged gunfire with the police. During this exchange, Pirkel was struck in the buttocks with a bullet. Pirkel then jumped into the water, and the police could see only his head. The officers, now in boats, approached Pirkel and told him to keep his hands above the water, but Pirkel would not and yelled, “Just shoot me. You‘re going to have to shoot me. Just kill me.” At some point, Pirkel pulled out a knife. When Pirkel partially emerged from the water during the chase, an officer used his taser on Pirkel‘s back. After Pirkel started submerging again, the officer shut off the taser, but Pirkel came up again with his knife in hand. When Pirkel tried to climb into one of the boats, a different officer kicked Pirkel hard. The officer then used his taser several more times as Pirkel continued to swing the knife and refused to put it down. Eventually officers got the knife away from Pirkel. Pirkel continued to try to flee, and one of officers used mace on Pirkel. Pirkel continued to struggle and try to flee throughout the encounter, but eventually officers handcuffed him and transported him to the hospital for treatment for his wounds.
According to the police report, officers Mirandized and interrogated Pirkel right after they arrested him. Pirkel told officers where he dropped his gun. He also stated that he knew he was shooting at police and was trying to get them to shoot back and kill him. He noted that he had recently tried to commit suicide and reiterated his hope that the police would kill him.
Based on this incident, the State of Michigan charged Pirkel with eleven crimes: two counts of assault with intent to murder, resisting and obstructing an officer causing serious impairment, receiving and concealing stolen property, four counts of assault with a dangerous weapon, resisting and obstructing an officer causing injury, fleeing and eluding a police officer, and possession of a firearm during the commission of a felony.
Plea Hearing
The Michigan trial court held a plea hearing on January 24, 2008. Pirkel initially expressed some reservations about entering his plea: “I understand [the plea deal] but I don‘t know, I‘m just reading stuff right now for the first I‘ve ever read it—or known about it, but I—I feel like I‘m getting my arm twisted to do it.” The court then allowed Pirkel roughly ninety
Pirkel pleaded no contest to all of the charges except the criminal sexual conduct and accosting a minor charges, which the government agreed to drop in exchange for Pirkel‘s plea. The trial court explained that it would treat Pirkel‘s no contest plea the same as a guilty plea. Pirkel stated that he understood the plea agreement. The court listed the charges and the maximum punishments for each. Pirkel then pleaded no contest to each charge. Pirkel stated that no one had threatened him or promised him anything in exchange for his plea, and he agreed that he was pleading no contest of his own free will. With agreement from Pirkel‘s counsel, the government then made an offer of proof on the charges against Pirkel. While the government made a full offer of proof on the earlier charges against Pirkel, it simply admitted the police reports for the later charges without objection. Finally, the court accepted Pirkel‘s no contest plea.
Sentencing
Prior to sentencing, Pirkel sent a letter to the trial court expressing concerns with his representation and his plea. He wrote:
I am under duress by my own counsel and I feel from the start that they have not been working for me. I feel like a lamb being led to the slaughter. I am in no way comfortable with anything pertaining to my case such as my plea, my lawyers, and my mental state. All in all with the above court proceedings I feel it has been a lie and I don‘t trust my lawyers. I asked Mr. Bush to postpone my sentencing because I didn‘t understand all of my charges plus I feel that I was pressured to take an unfair plea that I did not want to take. It is my hopes that you will find in this letter reason enough to help me in any way you see fit.
At the beginning of the sentencing hearing, Pirkel‘s attorney also asked the court to adjourn sentencing because he and Pirkel had only recently received the pre-sentence report. In response to the letter, the trial court stated that it had reviewed a tape of Pirkel‘s plea hearing and would not allow Pirkel to withdraw his plea. The court refused to appoint new attorneys, but it gave Pirkel and his attorneys about forty minutes to talk through the pre-sentence report before reconvening. The court then heard arguments from both sides, including Pirkel himself, on the length of the sentence. Before announcing the sentence, the court stated that “[i]n reading the reports, it—it made sense to me, your behavior, when it came out that you were trying to get them to kill you and not intending to—to kill them necessarily, although you shot in their direction.” The court then sentenced Pirkel to 20 to 50 years in prison on the two counts of assault with intent to murder and to two years in prison for a firearms offense, run consecutively to the main sentence. The court ran the rest of the sentences concurrently to the sentence for the assault with intent to murder.
Appeal and Withdrawal
Pirkel requested and was appointed appellate counsel: John Ujlaky. In a letter, Ujlaky advised Pirkel that he “found no issue of even colorable merit to pursue on [Pirkel‘s] behalf,” finding that Pirkel‘s plea was freely, knowingly, and voluntarily given without any issues in the scoring of the sentencing guidelines. Ujlaky asked Pirkel to agree to terminate Ujlaky‘s appointment as appellate counsel. Although we do not have Pirkel‘s letter in return, Pirkel appears to have responded to Ujlaky‘s letter
The trial judge, who had also presided over Pirkel‘s plea and sentencing, held a hearing on Ujlaky‘s motion on June 30, 2008. Ujlaky reiterated the same things that he said in his motion. The court then asked if Pirkel had anything to add, and Pirkel asked if the court had received his letters. In one of the letters, Pirkel complained about Ujlaky‘s representation:
Mr. John Ujlaky . . . has failed to cooperate with Defendant and to give proper recommendations. . . . Within a month of being appointed as counsel, Mr. Ujlaky has shown a reluctance to allow Defendant time to research any possible issues and give copies of all transcripts. Counsel has failed to give any helpful advice. . . . Defendant has found issues pertaining to but not limited to major errors in the plea proceeding[,] [a]long with ineffective assistance of counsel . . . . I ask this court to dismiss this attorney and appoint new counsel.
Ujlaky explained that he had not yet given Pirkel the transcripts but planned to when he finished representing Pirkel. Ujlaky also addressed Pirkel‘s concerns about ineffective assistance of counsel:
Well, just with regard to ineffective assistance of trial counsel. This was a freely, voluntarily given plea by Mr. Pirkel, as appears on the record. I don‘t find anything off record because, as I understand the circumstances, Mr. Pirkel was reluctant to go to trial on the [sexual misconduct charges] that [were] ultimately dismissed.
. . .
Also, Mr. Pirkel went to the Forensic Center, both for the ability to stand trial and—and also with regard to criminal responsibility. He was found mentally capable of standing trial. They found that there—he was capable of being criminally responsible.
In light of the—the requirements that this Court has in taking the plea to make sure that it‘s freely, knowingly, and voluntarily given, and when a Defendant says, “Yes, it is, Your Honor,” they cannot come back later pursuant to court rule. And case interpretations that say freely, voluntarily given you can‘t come back at a later date and attack the plea.
At that point, Pirkel interrupted and said, “For that reason—for ineffective assistance of counsel, you can.” Neither the court nor Ujlaky responded to Pirkel. Instead, the trial court immediately announced its ruling: “Mr. Ujlaky is asking to withdraw so I‘ll grant his request to withdraw.” The trial court also declined “to appoint a new attorney.” The court explained that its “only obligation is to appoint one attorney for appellate review in a plea case. I don‘t have to appoint another attorney, especially after the first one has found no grounds for appeal.” The trial court also entered a written order allowing Ujlaky to withdraw without elaborating on its ruling.
State Court Appeals
Pirkel then filed a delayed pro se appeal. First, he argued that his trial counsel, Bush, was ineffective for failing to investigate whether his confession was voluntary, failing to investigate a possible defense to the assault with intent to murder charges, and failing to properly advise Pirkel that he would be waiving his right to appeal these issues. As a part of these claims, Pirkel stated that he told Bush that he did not remember making a confession, but Bush did not respond and only glared at him. Pirkel also claimed that he did not remember receiving medical attention or Miranda warnings before being interrogated and confessing.
Next, Pirkel argued that his appellate counsel, Ujlaky, was ineffective for failing to raise an ineffective assistance of counsel claim and for improperly withdrawing from the case. Finally, he argued that the trial court violated the Constitution by refusing to appoint new appellate counsel after Ujlaky withdrew.
The Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds presented.”
Pirkel then appealed to the Supreme Court of Michigan. Again, Pirkel argued that his trial counsel was ineffective for failing to investigate the voluntariness of his confession and for failing to explain that he would waive his right to challenge the confession by pleading no contest. He also argued that his appellate counsel, Ujlaky, was ineffective for the same reasons that he argued before the court of appeals. Finally, Pirkel again argued that the trial court violated the Constitution for failing to appoint new counsel after Ujlaky withdrew. The Supreme Court of Michigan declined to hear the appeal because it was “not persuaded that the questions presented should be reviewed by the Court.”
Habeas Petition
Pirkel filed a habeas petition before the district court on March 2, 2011. He moved for an evidentiary hearing and appointment of counsel, but the magistrate judge denied those motions. In his pro se habeas petition, Pirkel raised similar claims to those he had raised in his direct appeals. In response, the government agreed that Pirkel had “raised the instant claims on direct appeal and, therefore, exhausted his state remedies.” The magistrate judge, however, raised the exhaustion issue sua sponte.
As relevant to this appeal, the magistrate judge found that Pirkel failed to exhaust several claims: (1) the motion for withdrawal of appellate counsel was unfair because Pirkel‘s counsel did not represent his interests; (2) the trial court acted unfairly because it did not require Ujlaky to advocate on behalf of Pirkel; (3) the trial court abused its discretion by failing to appoint new appellate counsel; and (4) the Michigan Court of Appeals abused its discretion when it failed to appoint new appellate counsel.
Rather than dismissing Pirkel‘s habeas petition, the magistrate judge held the
The magistrate judge then made a report and recommendation on the claims that he determined that Pirkel had exhausted. The magistrate judge found that Pirkel exhausted the following arguments related to his claims that the Michigan courts violated his constitutional right to counsel on appeal: (1) the trial court allowed Ujlaky to withdraw without filing a proper brief; (2) the trial court did not have an adequate basis for determining that there were no arguable issues on appeal before allowing Ujlaky to withdraw; and (3) the trial court violated Pirkel‘s Fourteenth Amendment rights by adjudicating the deficient motion to withdraw. Again, the magistrate judge recommended denying Pirkel relief on these grounds, finding that the trial court “had adequate grounds to allow Ujlaky‘s withdrawal.”
Pirkel filed objections to the magistrate judge‘s report and recommendation. Although the objections were filed late, the district court accepted them and then performed a de novo review of the report and recommendation. The district court overruled the objections and adopted the magistrate‘s report and recommendation. The district court dismissed the claims and denied Pirkel a certificate of appealability (COA).
Certificate of Appealability
Pirkel then filed an application for a COA and for appointment of counsel from this Court. The Court granted the motion, appointed counsel, and allowed Pirkel to proceed on the following claims: (1) whether his plea was rendered involuntary by ineffective assistance of trial counsel; (2) whether appellate counsel performed ineffectively by failing to raise this claim of ineffective assistance of trial counsel; (3) whether the trial court violated Pirkel‘s constitutional rights by allowing appellate counsel to withdraw without arguing any issues on Pirkel‘s behalf and by failing to appoint replacement counsel; (4) whether the respondent waived any exhaustion defense; and (5) whether Pirkel was entitled to an evidentiary hearing.
II.
In reviewing a district court‘s decision to dismiss a habeas petition, we typically review its legal conclusions de novo and its factual findings for clear error. Fleming v. Metrish, 556 F.3d 520, 524 (6th Cir. 2009). “However, where, as here, the district court does not itself conduct an evidentiary hearing and relies instead exclusively on the state-court record, we review the district court‘s factual findings de novo.” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015) (per curiam). The district court‘s decision to raise exhaustion sua sponte is reviewed for an abuse of discretion. See Day v. McDonough, 547 U.S. 198, 210 (2006); Granberry v. Greer, 481 U.S. 129, 134-36 (1987). But we review the underlying exhaustion issue de novo. Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006).
The standard to be applied by the district court, however, is very deferential because Pirkel‘s habeas claims are reviewed pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA).1 Under AEDPA,
a federal court may not grant a writ of habeas to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state court‘s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or (2) the
state court‘s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (citation omitted) (quoting
III.
On appeal, Pirkel argues that the Michigan courts violated his constitutional rights by depriving him of counsel on direct appeal. Initially, we address exhaustion because the magistrate judge erred in finding that Pirkel failed to exhaust part of this claim. Meanwhile, Supreme Court case law makes it clear that certain procedures are constitutionally required before depriving an indigent defendant of his right to counsel on first-tier review of a criminal conviction. Here, the State of Michigan‘s procedures were clearly invalid under existing Supreme Court precedent. Because those procedures are invalid, Pirkel was left without counsel on appeal, and we, therefore, presume that Pirkel has suffered prejudice. Accordingly, Pirkel is entitled to a new appeal in the State of Michigan that complies with the
A. Exhaustion
Initially, we address exhaustion, as the magistrate judge and district court judge both found that Pirkel had failed to exhaust part of his deprivation-of-counsel claim. We review the substance of the lower court‘s decision de novo, as previously discussed in Section II. Among other claims, the magistrate judge found that Pirkel failed to raise his claim that “the trial judge abused his discretion when he failed [to] appoint new counsel to represent petitioner in his first-tier review of his conviction contrary to Halbert[v. Michigan], 545 U.S. 605 [(2005)],” before both the Michigan Court of Appeals and Supreme Court of Michigan. Pirkel objected, and the district court adopted the magistrate judge‘s recommendation to dismiss the unexhausted claims.
Thus, Pirkel did not fail to exhaust this claim, and we will review his claim.2
B. Right to Appellate Counsel and Constitutional Procedure for Withdrawal
There is no question that the Constitution required the State of Michigan to appoint appellate counsel to Pirkel. In Halbert v. Michigan, the Supreme Court held that “the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.” Id. 610. In reaching its decision, the Supreme Court noted the difficulties of “[n]avigating the appellate process without a lawyer‘s assistance” and how Michigan‘s appellate process can “intimidate the uncounseled.” Id. 621-22. Citing Anders v. California, 386 U.S. 738, 744 (1967), the Court noted that “when a defendant‘s case presents no genuinely arguable issue, appointed counsel may so inform the court.” Halbert, 545 U.S. at 623.
Before discussing Anders, we first address several cases leading to that decision. In Ellis v. United States, 356 U.S. 674, 675 (1958), the Supreme Court stated that “allowance of an appeal should not be denied until an indigent has had adequate representation by counsel.” The Supreme Court began sketching an outline for what an attorney and court must do before an attorney is allowed to withdraw: a “conscientious investigation” by counsel; the court‘s satisfaction that the attorney made a diligent investigation of the possible grounds of appeal; and the court‘s agreement with counsel‘s evaluation of the case. Id.
Next, in Douglas v. California, 372 U.S. 353, 354-55 (1963), the Supreme Court examined California‘s procedure for appointing counsel to indigent defendants, under which the California courts of appeal would go through the record and determine whether counsel would be helpful to the defendant or the court. If the court decided that counsel would “be of no value,” then the indigent defendant was left without counsel. Id. 355. The Supreme Court struck down this practice, reasoning that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Id. 357 (emphasis added). The Court concluded,
There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel‘s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is
unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.
Then, in Swenson v. Bosler, 386 U.S. 258, 259 (1967), the Supreme Court examined Missouri‘s procedure, which allowed appellate attorneys to withdraw if they filed a motion for new trial and notice of appeal. Even though a motion for new trial in Missouri required attorneys to set forth any grounds for relief, the Supreme Court found the practice unconstitutional. Id. 258-59. The Court reasoned that “[t]he assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant.” Id. 259. The Court concluded, “This advantage may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.” Id.
In its seminal case Anders v. California, the Supreme Court examined counsel‘s withdrawal after sending a short letter to the court, stating that he would not file a brief because he believed there was no merit to the appeal. 386 U.S. at 742. In the letter, counsel also advised that he had visited and communicated his views to Anders. Id. The Supreme Court found this procedure improper and then laid out the proper procedure: (1)
Notes
We also have other concerns, especially as to whether the Respondent deliberately waived its exhaustion defense here. See Wood v. Milyard, 566 U.S. 463, 466 (2012) (holding that it is an abuse of discretion for the court to raise a defense deliberately waived by the state). Here, Respondent made a statement regarding exhaustion in their response to Pirkel‘s habeas petition, stating that Pirkel “raised the instant claims on direct appeal and, therefore, exhausted his state remedies.” We have stated that there are no “magic words” for waiver, and we ask whether the party “intentionally gave up [his] right to raise exhaustion.” D‘Ambrosio v. Bagley, 527 F.3d 489, 497 (6th Cir. 2008). Meanwhile, other circuits have held that a state‘s concession of exhaustion before the district court is an express waiver of the exhaustion requirement under
The magistrate judge also did not consider the interests of comity and federalism. See Granberry, 481 U.S. at 134. Finally, we have concerns about whether the magistrate judge gave Pirkel fair notice and opportunity to present his position on the exhaustion issue. Day, 547 U.S. at 210.