Robert Lee CAVER, Petitioner-Appellee, v. Dennis M. STRAUB, Warden, Respondent-Appellant.
No. 01-2649.
United States Court of Appeals, Sixth Circuit.
Argued May 2, 2003. Decided and Filed Nov. 19, 2003.
348 F.3d 340
Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge.
Elizabeth L. Jacobs (argued and briefed), Detroit, MI, for Petitioner-Appellee. Debra M. Gagliardi (argued and briefed), Asst. Attorney General, Lansing, MI, for Respondent-Appellant. * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
Finally, the Second Circuit in an unpublished opinion found a one-year age difference to be sufficient, but based that conclusion on a supervisor‘s ageist comments. Nembhard v. Memorial Sloan Kettering Cancer Ctr., 104 F.3d 353, 1996 WL 680756, at *3-4 (2d Cir. 1996) (table). Nembhard is consistent with Hartley because under Hartley smaller age differences may still present a triable claim where there is evidence that the employer considered age to be significant.
Given this array of authority, and our circuit‘s precedent, we hold that, in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant. This rule will assist district courts in making a firm determination, yet does not encroach on our precedent holding that eight years can be a significant age difference. The standard is also at least as lenient towards plaintiffs as all decisions of our sister circuits with the exception of the standard-less Ninth Circuit and the three-year-standard Eleventh Circuit.
As Grosjean was not more than six years older than Riley or Gallagher and he presents no direct evidence that First Energy considered age to be significant, his federal age discrimination claim fails. “Under Ohio law, the elements and burden of proof in a state age-discrimination claim parallel the ADEA analysis.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998) (citing McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir. 1985), and Barker v. Scovill, Inc., 6 Ohio St. 3d 146, 451 N.E.2d 807, 808 (1983)). Therefore, as Grosjean‘s federal claim failed, so must his state law claim.
III
For the foregoing reason, we AFFIRM the judgment of the district court.
OPINION
HOOD, District Judge.
Robert Lee Caver was convicted for violating
I. Factual and Procedural History
On October 1, 1992, Robert Lee Caver was convicted in the Detroit Recorder‘s Court of assault with intent to commit armed robbery and two counts of attempted assault with intent to commit armed robbery. Caver was prosecuted for entering and looting a local drug house with two other men while impersonating federal law enforcement agents. Caver is currently imprisoned only for assault with intent to commit armed robbery, as he has completed his sentences on the remaining convictions.
Caver directly appealed his convictions, asserting that the trial court erred in instructing the jury and that there was insufficient evidence regarding assault to support the verdict. The Michigan Court of Appeals affirmed Caver‘s convictions. Caver then filed a delayed, pro se application for leave to appeal to the Michigan Supreme Court. Caver‘s application reasserted the earlier-alleged errors plus two new issues. One claim asserted that Caver‘s appellate counsel, Neil Leithauser, had failed to investigate certain allegedly meritorious issues. While he did generally state that he had wished to pursue an ineffective assistance of trial counsel claim, Caver did not allege that Leithauser failed to investigate or pursue the absence of Caver‘s trial counsel, Samuel Simon, during the court‘s response to the jury note or during the subsequent jury re-instruction. The Michigan Supreme Court denied Caver‘s delayed application for leave to appeal.
Next, Caver filed a motion for relief from judgment in the trial court, alleging, inter alia, the ineffectiveness of his trial and appellate counsel. The motion referred to two instances of trial counsel ineffectiveness relevant to this appeal:
Defendant Caver‘s Trial Counsel ...
(9) Failed to be present during Open Court proceeding‘s [sic] (during Jury Instructions), Counsel wasn‘t present and Defendant was placed back in [sic] bullpen, and Defendant nor Counsel [sic] present during open court proceedings of his trial;
...
(11) Failed to remain with Defendant immediately after jury retired to deliberate, where within minutes the Jury sent a note requesting to see evidence
etc.. [sic] and Counsel was not present....
Caver based his claim of ineffective appellate counsel on his appellate attorney‘s failure to raise these issues of ineffective trial counsel. The trial court denied Caver‘s motion, finding that Caver had not demonstrated the “good cause” or prejudice required under
Caver then filed an application for leave to appeal to the Michigan Supreme Court. This application was notably different from Caver‘s earlier briefs in that Caver separated the presentation of his ineffective assistance of trial counsel claims and his ineffective assistance of appellate counsel claims. In treating his trial counsel claims, Caver again presented paragraphs nine and eleven, which alleged the absence of trial counsel when the court received a note back from the jury and again when the court went on to re-instruct the jury. Caver‘s treatment of his appellate counsel claims, however differed from his earlier applications. In Caver‘s application to the Michigan Supreme Court, unlike his earlier claims, he failed to argue that appellate counsel was ineffective for failing to present the ineffectiveness of Caver‘s trial counsel for being absent during critical stages of the trial. Instead, Caver asserted that appellate counsel was ineffective in not alleging trial counsel‘s ineffectiveness in failing to object to certain testimony, failing to cross-examine witnesses, and failing to investigate the illegality of Caver‘s arrest and his alibi. Caver also asserted appellate counsel‘s ineffectiveness in failing to assert error respecting the trial court‘s refusal to allow the testimony of res gestae witnesses. Caver‘s application did also provide general statements of his appellate counsel‘s ineffectiveness,2 but these general statements appear to be in connection with his specifically-alleged instances of appellate counsel‘s ineffectiveness. The
On February 17, 2000, Caver filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan, alleging ineffective assistance of trial and appellate counsel, among other constitutional errors. After an evidentiary hearing, the district court granted Caver‘s petition. The district court found that Caver‘s appellate counsel had been ineffective in failing to raise the ineffectiveness of Caver‘s trial counsel on direct appeal, thus establishing both a separate constitutional defect and cause and prejudice sufficient to excuse the procedural default of Caver‘s claim of ineffective assistance of trial counsel. The Attorney General now appeals the decision of the district court.
II. Standard of Review
Appellate courts, in reviewing federal habeas corpus proceedings, examine the district court‘s legal conclusions de novo and its factual findings under a “clearly erroneous” standard. Lucas v. O‘Dea, 179 F.3d 412, 416 (6th Cir. 1999).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) was enacted on April 24, 1996. Antiterrorism and Effective Death Penalty Act of 1996,
III. Discussion
A. The Court Need Not Reach Whether or Not Caver Procedurally Defaulted His Ineffective Assistance of Appellate Counsel Claims Because the State Failed to Raise the Issue in Proceedings Before the District Court
The Attorney General asserts that Caver did not fairly present, in the state court collateral proceeding, the ineffective assistance of appellate counsel claim upon which the district court relied in granting Caver‘s petition and that the claim was, thus, procedurally defaulted. It is true that before seeking federal habeas corpus relief, a state prisoner must exhaust his available state remedies by fairly presenting all claims to the state courts.
Caver, however, counters the Attorney General‘s procedural default argument by noting that issues “raised for the first time on appeal are not properly before the court.” J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir. 1991).
B. Caver Did Not Procedurally Default His Ineffective Assistance of Trial Counsel Claim
The Attorney General also argues that Caver procedurally defaulted his trial counsel claim. As described above, exhaustion occurs where a petitioner gives the state courts a fair and full opportunity to rule on his claims by fairly presenting all claims to the highest court in the state in which the petitioner was convicted. See Rust, 17 F.3d at 160. The exhaustion requirement is also satisfied if it is clear that a claim is procedurally barred under state law. Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In such a case, however, the habeas petitioner must overcome the procedural default, an independent and adequate state-law ground for the conviction and sentence that prevents federal habeas corpus review, by demonstrating cause and prejudice for the default. Id. at 162, 116 S.Ct. 2074. This court has previously announced a four part test to determine whether a claim has been procedurally defaulted:
First, the court must determine that there is a state procedural rule that is applicable to the petitioner‘s claim and that the petitioner failed to comply with the rule.... Second, the court must decide whether the state courts actually enforced the state procedural sanction.... Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim.... [Fourth,] the petitioner must demonstrate under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) that there was “cause” for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Ultimately, then, the issue is whether Caver fairly presented the claim to the Michigan courts in his one and only motion for relief from judgment. Fair presentation of an issue requires that a petitioner give state courts a full opportunity to resolve any constitutional issues by invoking “one complete round” of the state‘s appellate review system. O‘Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (finding that “one complete round” includes discretionary appeal to state supreme court). Fair presentation also requires that “the same claim under the same theory be presented” for the state court‘s consideration. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987). Thus, to the extent that an ineffective assistance of counsel claim is
Certainly, the issue was not raised in his direct appeal to the Michigan Court of Appeals. He did, however, raise the issue in his pro se appeal to the Michigan Supreme Court, asserting that he had wanted to present an ineffective assistance of trial counsel claim in his intermediate appeal, but that appellate counsel had denied him that opportunity.3 Thus, the Attorney General‘s argument in this regard must fail. Given the less stringent standards and active interpretation that are afforded to the filings of pro se litigants, Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001), these aspects of Caver‘s application support a finding that Caver “fairly presented” the trial counsel ineffectiveness claim.
C. The District Court Did Not Err in Concluding That the State Court Unreasonably Applied Clearly Established Federal Law
The Attorney General makes two arguments in support of the contention that the district court erred by finding that the state court unreasonably applied clearly established federal law. First, the Attorney General maintains that the state court reasonably applied clearly established federal law in determining that Caver‘s appellate counsel did not fall below the required standard of professional competence. Next, the Attorney General asserts that the district court erroneously presumed prejudice under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), instead of conducting an individualized inquiry.4
As noted above, a habeas petition may issue only if the state court decision is contrary to ‘or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.
[H]e must do more than show that he would have satisfied Strickland‘s test ..., because under
§ 2254(d)(1) , it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citations omitted).
1. Strickland‘s Performance Component
The Supreme Court has made clear that in reviewing a lawyer‘s performance, a court‘s “scrutiny ... must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. 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 conduct from counsel‘s perspective at the time.” Id. In relation to appellate counsel, the Strickland performance standard does not require an attorney to raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, the process of “‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail ... is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S. at 751-752, 103 S.Ct. 3308). As the Supreme Court has recently observed, it is difficult to demonstrate that an appellate attorney has violated the performance prong where the attorney presents one argument on appeal rather than another. Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). In such cases, the petitioner must demonstrate that the issue not presented “was clearly stronger than issues that counsel did present.” Id. at 289, 120 S.Ct. 746.
In the instant case, there can be little doubt but that the omitted issue—trial counsel‘s alleged absence during jury re-instruction—was much stronger than the issues Caver‘s appellate counsel presented.5 As Caver notes, the first issue presented to the Michigan courts on appeal (whether the court erred in its aiding and abetting instruction) was subject to “plain error” review—a highly deferential standard, to put it mildly. Moreover, the second argument presented on direct appeal, the sufficiency of the evidence, was dependent upon the success of the first issue. (Absent liability as an aider/abettor, there could be no evidence to support a finding of the requisite intent.)
In contrast, because re-instruction of the jury is a critical stage of a proceeding, see discussion infra Part III.C.2, Caver would have had a far better chance of succeeding on his ineffective assistance claim. Indeed, the largest obstacle to such a claim would have been the vagueness of the trial record with regard to trial counsel‘s presence or absence during the actual re-instruction of the jury. See discussion infra Part III.D. While such second-guessing of appellate counsel‘s evaluation of the facts may seem like the forbidden product of the
2. Strickland‘s Prejudice Component
Having determined that the representation of Caver‘s appellate counsel fell below an objectively reasonable standard, we must assess whether this performance prejudiced Caver. The question presented here is whether an appellate counsel prejudices a client where the attorney fails to raise on appeal a claim that the trial counsel‘s representation was per se prejudicial because the trial counsel was absent during a critical stage of the proceedings, namely jury re-instruction. We answer in the affirmative, because but for the appellate counsel‘s ineffectiveness, there is a reasonable probability that the result of the state appeal may have been different.
On the same day that the Supreme Court in Strickland outlined the requirements for an ineffective assistance of counsel claim, it also determined that where counsel is absent at a critical stage of a criminal proceeding the trial will be deemed unfair and prejudice under Strickland presumed. United States v. Cronic, 466 U.S. 648, 659 & n. 26, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Attorney General challenges the district court‘s conclusion that jury re-instruction is a “critical stage” such that prejudice is presumed and no individual analysis is required.
A critical stage of a criminal proceeding is “a step of a criminal proceeding, such as arraignment, that h[olds] significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Where counsel is absent or denied in such instances, “the likelihood that the verdict is unreliable is so high that a case-by-case inquiry [of prejudice to the defendant] is unnecessary.” Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (citing Cronic, 466 U.S. at 658-59 & 659 n. 26, 104 S.Ct. 2039). The “individual inquiry into whether counsel‘s inadequate performance undermined the reliability of the verdict” is forgone only in such cases. Id.
Is jury re-instruction a “critical stage” under Cronic? While the Supreme
Because prejudice is presumed and because, as outlined above, appellate counsel was ineffective for failing to raise the absence of trial counsel issue, the district court was correct in finding that the state court‘s application of Strickland (that is, the state court‘s conclusion that appellate counsel was not ineffective) was an unreasonable application of clearly established federal law.
D. The District Court‘s Factual Finding That Caver‘s Trial Attorney Was Absent During Jury Re-instruction Was Not Clearly Erroneous
The Attorney General challenges not only the district court‘s legal conclusions—
Our review of the district court‘s factual findings is highly deferential. We start from the premise that a district court‘s factual findings in a habeas proceeding are reviewed for clear error. Lucas, 179 F.3d at 416. “‘Clear error’ occurs only when [the panel is] left with the definite and firm conviction that a mistake has been committed. If there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” United States v. Kellams, 26 F.3d 646, 648 (6th Cir. 1994). We are also mindful that in a habeas proceeding the petitioner “has the burden of establishing his right to federal habeas relief and of proving all facts necessary to show a constitutional violation.” Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001). Thus, the panel must determine whether or not the district court erred in determining that petitioner met the burden of establishing his right to federal habeas relief and of proving all facts necessary to show a constitutional violation on the record presented.
The collateral trial court opinion was the last reasoned opinion before the district court, and the opinion did not contain any findings of fact.9 The district court held an evidentiary hearing, in which the petitioner and both trial and appellate counsel were questioned. The petitioner was not asked by his counsel about his claim that his trial attorney was not present when the jury was re-instructed. For reasons that are unclear, trial counsel was not questioned respecting his alleged absence during jury re-instruction. Without any testimony on the matter, the district court was left with the following excerpt of the trial record:
(Back on the record at about 3:59 p.m.)
THE COURT: I‘m not really certain about this.
I‘m not quite certain about what this note from the jury means. It says definitions of Assault, and False Pretenses. And I‘m not quite certain, so I‘m going to ask them if they would be kind enough to write down exactly what is on the verdict form.
(Brief pause.)
THE COURT: Gentlemen, I have written a note.
Where is Mr. Simon?
[Attorney for Caver‘s co-defendant]: I just asked the same question.
THE COURT: Nevertheless, I am writing this note:
“Dear Jurors, I don‘t quite understand your question. Would you please mark on the verdict form the exact charge or charges that you want“.
And I‘m going to send them a form in there so they can write on here exactly what they want to hear.
After this exchange, the attorney for Caver‘s co-defendant stated that he believed that the court should define assault and false pretenses, rather than making an inquiry. A note was then sent to the jury at 4:03 p.m. The court reconvened from 4:06 p.m. to 4:08 p.m. to clarify that the juror requests were required to be in writing. From 4:19 p.m. to 4:27 p.m. the trial court responded to the jury‘s request and re-read the requested instruction. After the jury was excused to deliberate, Mr. Ernst, counsel for one of Caver‘s co-defendants, objected to the court‘s aiding and abetting re-instruction, and the court overruled the objection. The trial transcript does not reflect Mr. Simon‘s presence in the courtroom from the time of the court‘s initial question “Where is Mr. Simon?” to the conclusion of the proceeding that day at 4:29 p.m.
The Attorney General argues that the judge‘s question, “Where is Mr. Simon?” does not demonstrate that trial counsel was not present at the subsequent re-instruction, but merely reflects his absence at the time of the judge‘s statement in response to the jury‘s question. The Attorney General also cites the fact that the court went on and off the record twice after the judge‘s question, arguing that “it must be presumed that the judge would have pursued [counsel‘s absence] if counsel had remained absent.” Therefore, the Attorney General maintains, Caver has not met his burden of proof on this point.
We disagree. While we must find clear error where the record is thoroughly devoid of evidence to support a district court‘s finding, a district court‘s factual finding may survive appellate scrutiny where there is some supporting evidence. Naturally, the trial court judge‘s inquiry, “Where is Mr. Simon?“, raises the question of the trial attorney‘s whereabouts, particularly when coupled with the subsequent concern expressed by Caver‘s co-defendant‘s trial counsel. Thus, it can be understood to confirm Simon‘s absence from the courtroom at the time of the statement. There is no indication that Simon returned to the courtroom in the period of time after the statement was made and before the close of proceedings for the day, including the re-instruction of the jury. This interpretation of the evidence is buttressed by the fact that Simon neither commented on nor objected to the proceedings so as to appear in the record in the nearly thirty minute period following the trial judge‘s query about Simon‘s whereabouts. Of course, neither is there any further indication that Simon was not present at the re-instruction of the jury, such as another inquiry into or an explanation offered for his absence. This is to say that the record is susceptible to two permissible interpretations—either Simon‘s presence was not remarked upon or his continued absence was not remarked upon by those present. Thus, the district court judge could not have committed clear error in determining that petitioner‘s trial counsel was absent, and we must defer to the interpretation adopted by the district court judge in his decision to grant the request for a writ of habeas corpus.10
Caver‘s ineffective assistance of appellate counsel claim was not procedurally defaulted, and because jury re-instruction is a “critical stage” of a criminal proceeding, the district court properly presumed prejudice under Cronic. Further, the district court‘s factual finding that Caver‘s trial counsel was absent during jury re-instruction is supported by the record and, thus, not clearly erroneous. Accordingly, the decision of the district court is AF-FIRMED.
ROGERS, Circuit Judge, concurring.
I concur in the result, and in the majority opinion to the extent that it does not preclude a future panel from upholding as reasonable, under the deferential AEDPA standard, a reasoned state court opinion to the effect that a jury reinstruction might not amount to a critical stage under the reasoning of United States v. Cronic, 466 U.S. 648, 659 & n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Several factors make this a poor case in which to preclude such a holding in the future. First, only the most generous accommodation accorded pro se filings permits us even to conclude that petitioner adequately pursued in the state courts the issue of counsel‘s absence at jury reinstruction. Second, the state court rejected the argument in the most cursory terms, leaving us with the slimmest of indications of its reasoning on the issue. Third, the district court‘s factual finding that counsel was indeed absent at the time of jury reinstruction can be upheld only on the basis of a generous application of deference under the court‘s clearly erroneous standard, as the record is remarkably opaque on the question. Fourth, it is not even clear that the state in its brief to this court did not waive any argument that jury reinstruction is a critical stage under Cronic. Given this state of the record, I concur in the majority‘s result.
This case should not be read, however, to resolve the issue of whether it is ever possible to uphold, under the AEDPA standard, a reasoned state court holding that a defendant was not prejudiced by the absence of counsel at jury reinstruction. French v. Jones, 332 F.3d 430 (6th Cir. 2003), relied upon by the majority, does not necessarily require a negative answer to this question, because the state court
To be sure, the Supreme Court has indicated that a “critical stage” denotes “a step of a criminal proceeding, such as an arraignment, that h[olds] significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). If we assume that responding to a jury request to amplify a jury instruction inherently “holds significant consequences for the accused,” then it would arguably be unreasonable for a state court to conclude, where the defendant‘s attorney was absent at that time, that the Constitution did not require a new trial. I would leave resolution of the issue, however, to a case in which the state court more clearly made such a determination, and where the state more clearly defended it.
D.J. HOOD
UNITED STATES DISTRICT JUDGE
Notes
The court may not grant relief to the defendant if the motion:
...
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief.
Id.
For this reason, the Court also rejects the Attorney General‘s more nuanced argument; that is, that Caver in his state collateral proceedings did not state that trial counsel was absent during the actual re-instruction of the jury, only that counsel was absent when the trial judge received a note from the jury. Looking again to the less stringent standards and active interpretation that are afforded to the filings of pro se litigants, we are satisfied that Caver‘s reference to trial counsel‘s absence during receipt of the note is sufficient to cover the subsequent events leading up to and including jury re-instruction. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
Q. ....[C]an you tell us why you did not raise the denial of the right to counsel during the supplemental instruction issue?
A. Well, you have to be more specific.
Q. There came a time when the jury wanted to be instructed on certain elements of the offense after they had deliberated.
A. Uh-hum.
Q. And the transcript reflects that Mr. Caver‘s attorney was not present during that time period.
A. I don‘t see the merit in the issue, I guess would be ...
At that point, Petitioner‘s counsel interrupted the response by stating, “I have no further questions.” The Attorney General, prompted by the court, stated, “I have no questions for this witness.” Accordingly, we are left to wonder why Petitioner‘s appellate counsel did not pursue this claim on direct appeal—whether because appellate counsel did not appreciate the merit of the claim or because he understood that Petitioner‘s counsel was present. Notwithstanding Petitioner‘s counsel‘s interruption of the response, the state was left with an opportunity to explore the reasons for his failure to pursue the claim, an opportunity which the Attorney General permitted to slip away. As further discussed infra, at footnote 10, we are concerned with the state‘s failure to take up its residual burden of rebutting that evidence presented on behalf of the petitioner when it was necessary to do so.
Defendant has filed a Motion of Relief from Judgment, in which he raises several issues that were not raised in his prior appeal. Upon review of the Motion, this Court is satisfied that the defendant has not shown “good cause” for failure to raise these issues in his prior appeal, nor actual prejudice from these alleged errors. MCR 6.508(D)(3).
Defendant‘s claim of ineffective assistance of appellate counsel does not satisfy the “good cause” requirement because appellate counsel is not required to raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Defendant‘s Motion for Relief from Judgment is hereby Denied.