Respondent appeals from the district court’s order granting petitioner habeas corpus relief. For the reasons set forth below, we vacate the district court’s order and remand for further proceedings consistent with this opinion.
I.
Pursuant to a plea agreement, petitioner Morse pleaded guilty in the Genesee County Michigan Circuit Court to one count of Possession with Intent to Deliver over 50 grams of Cocaine, in violation of M.C.L. 333.7401(2)(a)(iii). In exchange, the prosecution nolle prossed a supplemental information charging petitioner as a habitual offender, fourth, pursuant to M.C.L. 769.12. At the time of the plea hearing, Morse was represented by attorney David A. Nelson. At the hearing, the presiding judge conducted a proper plea colloquy. Following the entry of his plea, but before sentencing, Morse, now represented by retained counsel Harry S. Sherwin, filed a motion to withdraw the plea. Morse argued that he was confused at the plea hearing, and asserted that he thought he was pleading guilty to possession of less than 50 grams of cocaine. The trial court conducted an evidentiary hearing on the matter and denied the motion, concluding that the plea had been knowingly and vol
On direct appeal, Morse was represented by Lawrence R. Greene. Morse, through Attorney Greene, appealed his conviction to the Michigan Court of Appeals, presenting only the issue of whether the trial court violated the standard set forth in People v. Coles,
On November 1, 1991, the Michigan Court of Appeals affirmed Morse’s conviction and sentence. Morse, proceeding pro se, later filed a delayed application for leave to appeal in the Michigan Supreme Court, which was denied as untimely on April 6,1994.
Morse also filed, pro se, several post-conviction collateral motions. On January 21, 1992. Morse filed a motion for relief from judgment and a motion for a Ginther hearing with the trial court. Morse argued: 1) that his plea was coerced by the filing of a charge of habitual offender, fourth, when in actuality he had only two prior felony convictions, 2) that he was denied the effective assistance of counsel at the plea hearing, and 3) that his sentence was disproportionate and based upon inaccurate information. The trial court denied the motion. The court concluded that Morse was not entitled to a Ginther hearing because the court had already held an evidentiary hearing on the issue of the voluntariness of his plea and concluded that it was voluntarily and knowingly entered. (J.A. at 72.) Morse had shown no reason why that result should be changed, making only a bare allegation of ineffective assistance of counsel. The court further rejected Morse’s argument that his counsel should have raised the alleged inaccuracies of the Pre-Sentence Report, which showed three prior felony convictions. Finally, the court rejected Morse’s arguments concerning the proportionality of his sentence under Milboum.
Next, Morse filed a Request for Appointment of New Appellate Counsel or Counsel to File for Post Conviction Relief in the trial court. Morse argued that he was denied effective assistance of counsel because his appellate counsel, Greene, had been admonished by the Attorney Grievance Commission for failing to research the case law governing his claim of disproportionate sentence. The trial court denied this motion, holding that the admonishment was insufficient to establish that Morse received ineffective assistance of
On February 8, 1993, Morse filed a second motion for relief from judgment, presenting the following claims: 1) a promise-induced guilty plea, 2) his sentence violated Milbowm, 3) his guilty plea was not entered knowingly and voluntarily, 4) the court abused its discretion in denying his motion to withdraw the plea, 5) constitutional deprivation of effective assistance of trial counsel Nelson and Sherwin, and appellate counsel Greene, 6) cause and prejudice under Strickland v. Washington and M.C.R. 6.508(D)(3)(a), and 7) Morse was entitled to a hearing on ineffective assistance of counsel claims and cause and prejudice tests. On March 29, 1994, the trial court denied Morse’s second motion for relief from judgment. No appeal was taken.
On April 25, 1995, Morse filed a third motion for relief from judgment, arguing that his Constitutional rights were violated by “punishment of forfeiture and conviction and sentence for single offense and incident.” (J.A. at 177.) Following oral argument, the trial court denied this motion. The court also denied Morse’s subsequent motion to reconsider, in an order dated November 8,1995.
On March 7, 1996, Morse filed in the Michigan Court of Appeals a delayed application for leave to appeal the trial court’s November 8, 1995 order. Morse presented the following claims:
I. . [Petitioner] is entitled to have his conviction and sentence dismissed and vacated because the[y] were obtained in violation of his constitutional protection against double jeopardy as guaranteed by USCA Amend. 5 and 14, where he was punished first in a forfeiture proceeding and then again by being convicted and sentenced for the same conduct in a criminal proceeding.
II. [Petitioner] was denied his Sixth Amendment right to effective counsel when he was induced to plead guilty to an illusionary [sic] plea agreement wherein he was threatened with being tried as a habitual offender fourth offense which carried a maximum of life imprisonment where in fact [Petitioner] had only two prior convictions, thus rendering his plea both unintelligent and illusionary [sic], as a direct result of the inaccurate advice of counsel.
III. [Petitioner] was denied Sixth Amendment right to effective assistance of counsel when trial counsel failed to seek suppression of evidence obtained during pretextual traffic stop in violation of USCA Amend. 4 and 6 and due process of law USCA Amend. 14.
IV. [Petitioner] was denied effective assistance of counsel at sentencing and on appeal, where counsels failed to fully present to the trial and appeal court the factors for fair determination of his motion to withdraw his guilty plea because of illusionary [sic] and improper advice along with inadequate investigation that rendered appellate counsel ineffective as to the cumulative effect of double jeop*101 ardy violation, failure to seek suppression and illusionary [sic] plea bargain, thus entitling [Petitioner] to reversal of his conviction and remand for an evidentiary hearing and his conviction vacated or a new trial ordered.
At the same time, Morse filed in the Court of Appeals a motion for remand for evidentiary hearing regarding his ineffective assistance of counsel claim. On September 11, 1996, the Michigan Court of Appeals denied his delayed application for leave to appeal and his motion for remand. Morse filed a motion for rehearing, which was also denied.
On January 6, 1997, Morse filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting the issues raised to the Court of Appeals and one additional claim:
I. [Petitioner] was denied Sixth Amendment right to effective assistance of counsel, and fair review on this motion for relief from judgment, when the trial court failed to properly decide his motion and make a determination as to the acts and conduct of counsel at trial and on appeal, where both counsels were both deficient and prejudicial, allowing a miscarriage of justice to occur.
The Michigan Supreme Court denied Morse’s delayed application for leave to appeal on November 7, 1997. The court’s order read, in its entirety:
On order of the Court, the delayed application for leave to appeal is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
(J.A. at 171.)
On June 9, 1998, Morse filed a request for a new trial or an evidentiary hearing with the trial court, arguing: 1) prosecutorial misconduct due to the prosecutor’s misrepresentation to the court that Morse had three prior felony convictions, 2) his plea bargain was illusory, and 3) that one of Morse’s three prior convictions upon which the supplemental information was based was, in fact, a misdemeanor. The trial court denied Morse’s motion as an improper successive motion for relief from judgment.
Finally, Morse filed in the United States District Court this petition for habeas corpus relief, raising five claims for relief. Morse pursued his habeas case even after he had been released on parole. The district court granted Morse an evidentiary hearing. At the outset of the hearing, Morse indicated that he wished to pursue his habeas claims even though he was aware that if the district judge granted relief he could be prosecuted again for the original charges and perhaps given a greater sentence. (J.A. at 283-84). The district court ultimately granted Morse’s petition for a writ of habeas corpus. The court concluded that Morse was denied the effective assistance of counsel at the plea hearing because Morse was confused about what he was pleading guilty to, as a result of Attorney Nelson’s alcohol abuse and mental illness problems. The court also noted that Morse had used cocaine prior to the plea hearing, adding to his confusion. The court further held that Morse was denied the effective assistance of appellate counsel, noting that 1) Attorney Greene filed an appellate brief raising only one issue, and relying on Coles, a case that was no longer good law, 2) Attorney Greene waited an inexcusable six months to file a motion for leave to file a supplemental brief based on. Milboum, 3) Attorney Greene failed to raise the meritorious issue of ineffective assistance of trial counsel, 4) Attorney Greene filed only one other motion on Morse’s behalf — a “skeletal” motion to remand that was inadequately supported, 5) Attorney Greene failed to file a
II.
We review de novo the district court’s decision to grant or deny a writ of habeas corpus. See, e.g., Northrop v. Trippett,
A. Trial Counsel
Morse filed his petition for writ of habeas corpus on August 19, 1998. Thus, the 1996 amendments to 28 U.S.C. § 2254, embodied in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), are applicable to Morse’s petition. That statute provides, in relevant part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). The Supreme Court, interpreting this provision, has held that exhaustion of state remedies requires that petitioners give state courts a “full and fair opportunity” to resolve any federal constitutional questions before the federal court grants relief based on a federal constitutional violation. O’Sullivan v. Boerckel,
Although Respondent has not argued before this court that Morse failed to exhaust his state court remedies, this court may raise the issue. The AEDPA added the following provision to § 2254:
A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254(b)(3). Even before the AEDPA amendments became effective, however, the Supreme Court held that courts of appeals may “take a fresh look” at the issue of exhaustion where the state failed to raise it as a defense before the district court, and where the interests of comity and federalism would be served by the dismissal of unexhausted claims. See Granberry v. Greer,
As noted above, exhaustion requires that Petitioner provide the state courts with the opportunity to correct any constitutional violations by invoking “one full round” of the state’s appellate review process. O’Sullivan,
Under different circumstances, courts have found that new evidence presented to the federal district court altered the nature of the habeas claims presented to the district court. In Demarest v. Price,
In the present case, the nature of Morse’s ineffective assistance claim in the federal court was dramatically different,
Regardless of whether the district court’s conclusion on the merits was correct, its decision to grant the writ, relying on the evidence presented at the federal hearing, undermines the interests of comity and federalism. The Michigan state courts were never given a “full and fair” opportunity to address Morse’s ineffective assistance of counsel claim as it was presented to the federal district court. Morse’s claims of ineffective assistance in the state appellate courts focused on the illusory nature of the plea bargain. Morse argued that the prosecution improperly threatened him with a charge of habitual offender, fourth, when he had only two prior felony convictions. Morse had also argued on direct appeal that his plea was induced by Nelson’s promise that he would receive only one to five years imprisonment. In post-conviction appellate proceedings, Morse had also made a vague argument that his plea was not knowingly and voluntarily entered, and that his counsel was ineffective for failure to investigate and for failure to raise a specific evidentiary issue. After carefully searching the record before us, however, we find no indication that Morse ever fairly presented any claim to the Michigan Court of Appeals or to the Michigan Supreme Court that attorney Nelson was suffering from alcoholism or mental illness.
Normally, when a petitioner has not exhausted his state remedies, the appropriate action is to dismiss the petition without prejudice, so that the petitioner may present his claims to the state courts. See Demarest,
Prior to 1995, Michigan did not limit the number of motions for relief for judgment that a convicted defendant could file. In 1995. Michigan amended the Michigan Court Rules, adding Rule 6.502(G), which reads:
(G) Successive Motions.
(1) Except as provided in subrule (G)(2), regardless of whether a defendant has previously filed a motion for relief from judgment, after August 1, 1995, one and only one motion for relief from judgment may be filed with regard to a conviction. The court shall return without filing any successive motions for relief from judgment. A defendant may not appeal the denial or rejection of a successive motion.
(2) A defendant may file a second or subsequent motion based on a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion. The clerk shall refer a successive motion that asserts that one of these exceptions is applicable to the judge to whom the case is assigned for a determination whether the motion is within one of the exceptions.
Mich. Ct. Rule 6.502(G).
In this case, Morse has filed three previous motions for relief from judgment in the Michigan courts, as well as a motion for new trial. The Michigan circuit court interpreted the motion for new trial, filed
The federal district court may consider procedurally defaulted claims only if the petitioner demonstrates either 1) cause for the default and actual prejudice resulting from a violation of federal law, or 2) a fundamental miscarriage of justice if the merits of the federal claim are not considered. Coleman v. Thompson,
If the district court concludes that Morse has demonstrated cause and prejudice for his procedural defaults, then the
B. Appellate Counsel
The district court also found that Morse received ineffective assistance of appellate counsel, because attorney Greene: 1) failed to raise the meritorious ineffective assistance of trial counsel claim, 2) raised only one issue on direct appeal, relying on a case that was no longer good law, and 8) failed to file a motion for a Ginther hearing in the trial court. Further, the district court found that Morse suffered the actual absence of counsel on appeal because he was without appellate counsel from the date Greene’s motion to withdraw was granted to the date the Michigan Court of Appeals entered an order affirming Morse’s conviction.
Morse’s claims of ineffective assistance of appellate counsel and actual absence of appellate counsel arguably do not face the same exhaustion problem as his ineffective assistance of trial counsel claim. Several of the deficiencies in Greene’s representation of Morse that the district court relied on in granting the writ were presented to the Michigan courts.
As discussed above, in cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, a federal court will not review the
For the reasons discussed above, the district court, on remand, should consider whether Morse can demonstrate cause for his default and actual prejudice, or that refusal to hear his claim would amount to a fundamental miscarriage of justice.
III.
For the foregoing reasons, the order of the district court is hereby vacated, and this case is remanded to the district court for proceedings consistent with this opinion.
Notes
. There are surprisingly few places in the record even mentioning Nelson’s alcohol problem or mental illness, other than in the federal proceedings. First are the orders denying Morse’s motion to disqualify. (J.A. 80, 85.) These orders reveal that Morse had argued that Nelson appeared in court intoxicated. Initially, we note that this argument was not presented to the state courts in the form of a federal constitutional claim. More importantly, this argument was never advanced beyond the trial judge and the chief circuit judge. Neither the Michigan Court of Appeals nor the Michigan Supreme Court were presented with an opportunity to consider evidence of Nelson’s alcoholism or mental illness. Second is Morse’s Brief in Support of Delayed Application for Leave to Appeal to the Michigan Supreme Court. (J.A. at 34.) There, Morse refers to the Attorney Grievance Commission proceedings and notes that Nelson admitted to insanity and alcohol addiction during those proceedings. However, this argument was advanced in the context of a claim that Nelson was ineffective for failure to seek suppression of certain evidence obtained during an allegedly pretextual traffic stop. This does not amount to a full and fair presentation of the claim the district court found persuasive — that Nelson’s alcoholism and mental problems led to Morse’s confusion at the plea hearing. Third, and finally, are a few references to Nelson's alcoholism and mental problems in some of Morse's state post-conviction briefs filed in 1993. These briefs were not submitted in the original joint appendix filed by the parties, but were filed as
. The Michigan courts have interpreted Rule 5.602(G) to permit a petitioner to file one motion for relief from judgment after August 1, 1995, the effective date of the statute, even though he may have filed several such motions prior to that date. People v. Ambrose,
. We note, however, that the district court found that Greene’s ineffectiveness on appeal was prejudicial to Morse because the court had already concluded that Nelson was ineffective at trial (based on the new evidence). (J.A. at 204-05). Although Morse’s claim of ineffectiveness of appellate counsel had been presented to the Michigan courts, Greene's decision to not raise an ineffective assistance of trial counsel claim on appeal looks dramatically different in light of the new evidence produced in the federal hearing.
. As with the exhaustion issue, this court is free to raise the issue of procedural default
. Michigan Court Rule 6.508(D) is a procedural rule which precludes a Michigan court from granting relief from judgment in certain cases. One subsection of Rule 6.508(D) preeludes relief where the defendant's asserted grounds for relief, other than jurisdictional defects, could have been raised on appeal or a prior post-conviction motion, unless certain exceptions are met. Mich. Ct. Rule 6.508(D)(3)