Lead Opinion
Petitioner
Petitioner and his co-conspiratоrs were convicted on three counts of first degree felony murder in Michigan state court. Petitioner received the mandatory sentence of life imprisonment, M.C.L.A. § 750.316, on each count, without parole.
At trial the state judge gave the following instruction concerning felony murder:
The murder statute, as I have given it to you, provides in pertinent part the following:
All murder which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder in the first degree.
Now that’s the part of the statute that this prosecution has been brought. And I will read it again to you ...
Now you will note that I haven’t said anything at all about premeditation or malice aforethought. See in common law murder the prosecution would have hаd to prove that, premeditation, deliberation and malice aforethought.
The law automatically makes that type of a killing murder in the first degree. All the prosecution has to do under this law is to prove beyond a reasonable doubt to your satisfaction, the jurors, you jurors, that [unreadable] Biondo, Salvatore Biondo and Michael Biondo were killed during the perpetration of a robbery, or attempted] perpetration of a robbery. If they can [unreadable] satisfaction beyond a reasonable doubt, then the law says this is murder in the first degree.
(emphasis added).
Petitioner requests habeas corpus relief claiming that because the Michigan Supreme Court failed to apply a new rule of law retroactively, his constitutional rights were violated. Petitioner also claims ineffective аssistance of counsel on his original appeal as of right from his conviction. We Affirm the district court’s denial of habeas relief on all grounds.
In People v. Aaron,
[I]n order to convict a defendant of murder as that term is defined by Michigan case law, it must be shown that he acted with intent to kill or inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his bеhavior is to cause death or great bodily harm. We further hold that the issue of malice must always be submitted to the jury.
The first-degree murder statute will continue to operate in that all murder committed in the perpetration or attempted perpetration of the enumerated felonies will be elevated to first-degree murder.
This decision shall apply to all trials in progress and those occurring аfter the date of this opinion.
(emphasis added). The Michigan courts have steadfastly stuck to the decision not to give retroactive effect to the new rule. People v. King,
The Supreme Court has addressed in a civil context the propriety of refusing to make a new rule of law retroaсtive:
This is a case where a court has refused to make its ruling retroactive, and the novel stand is taken that the constitution of the United States is infringed by the refusal.
We think the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed, there are cases intimating, too broadly [citations omitted], that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted ____ The choice for any state [in deciding to or nоt to make a decision retroactive] may be determined by the juristic philosophy of the judges of her courts, the conceptions of law its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts. The State of Montana has told us by the voice of her highest court that with these alternative methods open to her, her preference is for the first [no retroactivity].
Great Northern Railway Co. v. Sunburst Oil & Refining Co.,
Under our cases it appears (1) that a change of law will be given effect while a case is on direct review, ... and (2) that the effect of the subsequent ruling of invalidity on prior final judgments when collaterally attacked is subject to no set “principle of absolute retroactive invalidity” but depends upon a consideration of “particular relations ... and particular conduct ... of rights claimed to have become vested, of status, of prior determinations deemed to have finality; and of public policy in the light of the nature both of the statute and of its previous application.”
Id.
The Ninth Circuit has addressed the identical issue presеnted here, and held:
the power of the judiciary to limit or preclude the retroactive application of a rule in appropriate cases cannot be questioned. Moreover, the decision of a state court to limit the retroactive effect of a rule involving state law does not raise a Federal question.
It is clear that petitioner’s constitutional rights were nоt violated by the State Supreme Court’s decision to apply its new rule only prospectively.
Intimately tied to his retroactivity argument is petitioner’s contention that his counsel’s failure to challenge the felony murder rule when petitioner specifically requested him to do so constitutes ineffective assistance of counsel in violation of his sixth amendment rights. During the pend-ency of petitionеr’s appeal from his conviction,
The Supreme Court, in Strickland v. Washington, — U.S. -,
The felony murder rule had long been accepted in the State of Michigan prior to the court of appeals decision in People v. Fountain,
We agree with Judge Newblatt’s carefully reasoned characterization of petitioner’s claim of prejudice as “far too speculative.” The abstract possibility that petitioner’s case could have been the vehicle for the abrogation of the felony murder rule does not meet the high Strickland standard. Thus we do not find that petitioner was denied effective assistance of counsel.
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on such direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected thе entire trial that the resulting conviction violates due process,” not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned.’ ”
Henderson v. Kibbee,
We conclude that these inappropriate remarks did not “infect the entire trial” under the circumstances of this case.
We carefully have considered the remainder of petitioner’s arguments, but find them without merit, essentially for the reasons expressed by the district court. Accordingly, we Affirm the lower court’s denial of habeas corpus relief.
Notes
. Petitioner has prosecuted this habeas action pro se. Although court appointed counsel represented him at oral argument, counsel adopted petitioner’s commendable appellate brief.
. Lanetia evidently drove the getaway car away from thе grocery after the attempted robbery,
. The same Sixth Amendment standards of reasonably effective assistance of counsel during trial is applicable to appeals as of right. Gilbert v. Sowders,
. Shortly after petitioner’s counsel filed his brief on direct appeal, petitioner wrote him and asked that he raise the felony murder issue, which the lawyer failed to do.
An accused does not have a сonstitutional right to have his counsel press nonfrivolous points requested by his client if counsel decides as a matter of professional judgment not to press those points. Jones v. Barnes,
Dissenting Opinion
dissenting.
Since the record in this case plainly discloses that рetitioner’s conviction was obtained through the efforts of appellate counsel which were both unreasonable and prejudicial, our Constitution and the expressed intention of our legislators, 28 U.S.C. § 2254, requires that the writ of habeas corpus be granted.
The Supreme Court has recently affirmed our conclusion that “[a] first appeal as of right ... is not adjudicated in accord with due procеss of law if the appellant does not have the effective assistance of an attorney.” Evitts v. Lucey, — U.S.-,
The standards articulated in Strickland, although designed for trial-type proceedings, can be adapted for application to appellate ineffectiveness claims and have guided other courts.
On the performance prong, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 2065. However, “[j]udicial scrutiny of counsel’s performance must be highly deferential____ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
Second, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is а probability sufficient to undermine confidence in the outcome.” Id. at 2068. However, “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id. In cases of error by appellate counsel, аn evaluation of prejudice will involve deciding whether the result of the appeal would have been different had counsel acted competently.
In judging the reasonableness of counsel’s decision not to raise a particular issue, courts have emphasized that “counsel’s failure to raise issues on appeal that only later gain ‘judicial recognition’ does not constitutе ineffectiveness.” Francois v. Wainwright,
That petitioner’s trial counsel may have been negligent in failing to demand an instruction on malice at trial does not excuse the incompetence of appellate counsel. Appellate counsel need not raise errors that the appellate court will not consider due to a procedural default such as failure to object at trial. Smith v. Wainwright,
there may be some cases in which triаl counsel’s failure to preserve error will not excuse appellate counsel’s failure to raise the error, if, for example, the state appeals courts only sporadically apply the procedural bar, or if the error is of such magnitude that the appellate court would likely consider it plain or fundamental error.
Id. at 1286. Therefore, whether an appellаte counsel acts reasonably in failing to raise errors not first raised at trial requires consideration of a state’s procedural rules.
M.C.L.A. § 768.29 provides in pertinent part that “[t]he failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” However, this procedural bar has not been consistently applied, еspecially in criminal cases with respect to questions of intent.
It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to estab*197 lish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient____ Similarly, without a request, a case may be reversed beсause of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point____ Defendant has a right to have a properly instructed jury pass upon the evidence.
People v. Liggett,
Accordingly, in light of the courts’ interpretation of the procedural bar and the Fountain, Martin, and Burton cases, it is clear that reasonably competent counsel familiar with Michigan law would have raised the malice issue despite the absence of an exception below. It is likewise clear that petitioner was prejudiced by counsel’s failure to raise the issue. This conclusion is compelled by the fact that Judge Bronson who concurred in the Fountain decision also sat on the panel that considered petitioner’s appeal and by the fact that a trial court’s failure to instruct on an element of the crime is not subject to harmless error analysis under Michigan law. People v. Allensworth,
The majority’s construction of the due process guarantee of effective assistance of appellate counsel in light of Lucey effectively limits that case to its particular facts. However, if the principles enunciated therein have any meaning beyond those facts, they certainly apply to the instant case. Rejecting so severe a limitation on recent precedent, I dissent.
. Courts assessing the alleged ineffectiveness of appellate counsel have followed the standards enunciated in Strickland or standards reasonably similar thereto. Schwander v. Blackburn,
. In Jones v. Barnes,
. Whatever action the Michigan Supreme Court would have taken with respect to petitioner's case is irrelevant. Petitioner’s contention is that he wаs deprived of effective assistance of counsel before the Michigan Court of Appeals, not the Supreme Court. While the fact that the Michigan Supreme Court might have been more likely to have considered petitioner’s appeal had counsel raised the absence of an instruction on malice indicates an increased likelihood of prejudice, this is not dispositive of the prejudice inquiry in this case.