Guilmette v. Howes

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0333p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BRUCE GUILMETTE,

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Petitioner-Appellee,

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No. 08-2256

v.

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Respondent-Appellant. -

CAROL R. HOWES, Warden,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-72646—Victoria A. Roberts, District Judge.

Argued: June 9, 2010

Decided and Filed: October 21, 2010

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,

GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,

KETHLEDGE, and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Brad H. Beaver, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Kimberly Thomas, MICHIGAN CLINICAL LAW

PROGRAM, Ann Arbor, Michigan, for Appellee. ON BRIEF: Brad H. Beaver,

OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for

Appellant. Kimberly Thomas, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor,

Michigan, for Appellee.

ROGERS, J., delivered the opinion of the court, in which MARTIN, MOORE,

COLE, CLAY, GIBBONS, SUTTON, COOK, KETHLEDGE, and WHITE, JJ., joined,

and in which BATCHELDER, C.J., BOGGS, GILMAN, and McKEAGUE, JJ., joined

with respect to Parts I and II only. BOGGS, J. (pp. 10–17), delivered a separate opinion

concurring in part and dissenting in part, in which BATCHELDER, C.J., GILMAN, and

McKEAGUE, JJ., joined. GRIFFIN, J. (pp. 18–33), delivered a separate dissenting

opinion.

1

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OPINION

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ROGERS, Circuit Judge. A Michigan jury found petitioner Bruce Guilmette

guilty of first-degree home invasion. On state collateral review, Guilmette argued—for

the first time—that his trial counsel had been constitutionally ineffective. The state trial

court denied Guilmette’s claim on the merits, and both the state intermediate and

supreme courts denied leave to appeal in brief and substantively identical orders. A

federal district court granted Guilmette a conditional writ of habeas corpus after

determining that Guilmette’s trial attorneys were constitutionally ineffective. The state

now appeals, arguing that Guilmette procedurally defaulted his ineffective-assistance

claim by failing to raise it during his direct appeal, and that the state supreme court’s

brief order enforced that procedural rule. However, because the state supreme court’s

order was unexplained (by which we mean the text of the order fails to disclose the

reason for the judgment) and the last reasoned state court decision was on the merits, the

state courts never enforced a procedural bar to Guilmette’s claim. The state is therefore

not entitled to appellate relief.

I.

At approximately noon on January 7, 1999, a man forced open the locked front

door of Joan McCormick’s home while McCormick sat in her living room. McCormick

fell down during her attempt to flee into the interior of her house, and when she looked

back at the door after her fall, the man was already fleeing the scene. McCormick

identified the petitioner, Bruce Guilmette, out of two photographic lineups during the

following weeks. The state prosecuted Guilmette for first-degree home invasion. At

trial, the prosecution introduced two photographs that were purportedly of the

perpetrator’s footprints in the snow around McCormick’s home: one taken by a police

officer who had investigated the crime, and a second taken by McCormick after the

police officer had departed. McCormick’s photograph was of a footprint on the

threshold of her door, and the state relied upon that photograph at trial to establish the

No. 08-2256 Guilmette v. Howes Page 3

“entry” element of the alleged crime. See Mich. Comp. Laws § 750.110a(2). Rejecting

Guilmette’s arguments that McCormick had misidentified him, a jury found Guilmette

guilty of first-degree home invasion. For a more detailed recitation of the facts of the

alleged home invasion and Guilmette’s trial, see Guilmette v. Howes, 591 F.3d 505 (6th

Cir. 2010) (vacated pursuant to March 12, 2010 order granting rehearing en banc).

After an unsuccessful direct appeal, Guilmette filed for state post-conviction

review, arguing for the first time that his trial counsel had been ineffective for failing to

investigate differences between the two photographed footprints. Guilmette argued that

this error was prejudicial because the photographs were the only proof of entry.

Guilmette also argued that his appellate counsel had been ineffective for failing to argue

ineffective assistance of trial counsel. The state trial court denied these claims on the

merits, determining that Guilmette’s trial counsel had not been ineffective because

focusing on identification at the expense of arguing the elements of the crime was a

reasonable trial strategy, and that his appellate counsel had not been ineffective for

failing to raise a meritless claim of ineffective assistance of trial counsel. In the trial

court’s words, Guilmette “failed to meet his burden in demonstrating that either his trial

counsel’s or appellate counsel’s performance fell below an objective standard of

reasonableness.” Both the Michigan Court of Appeals and the Michigan Supreme Court

denied leave to appeal, issuing substantively identical orders stating that Guilmette had

failed “to meet the burden of establishing entitlement to relief under [Michigan Court

Rule] 6.508(D).”

Guilmette petitioned for habeas relief based on the two ineffective-assistance

claims that he raised on state collateral review. The district court granted a conditional

habeas writ, finding that Guilmette’s trial counsel were constitutionally ineffective

because they failed to investigate the differences between the two photographs.

Guilmette v. Howes, 577 F. Supp. 2d 904, 910-16 (E.D. Mich. 2008). The district court

determined that Guilmette had not procedurally defaulted this claim, citing Abela v.

Martin, 380 F.3d 915, 922-24 (6th Cir. 2004), for the proposition that some orders citing

Rule 6.508(D) do not invoke a procedural bar. Guilmette, 577 F. Supp. 2d at 909-10.

No. 08-2256 Guilmette v. Howes Page 4

The state appealed, arguing that Guilmette procedurally defaulted his ineffective-

assistance claim and that he failed to establish cause and prejudice for that default. A

panel of this court reversed the district court’s judgment. Guilmette, 591 F.3d 505. Over

a dissent, the panel held that, given the precise procedural history presented by this case,

precedent compelled the conclusion that Michigan had applied a procedural bar to

Guilmette’s claims for relief, and thus that Guilmette’s claims were procedurally

defaulted. Id. at 508-11. We granted en banc review to determine whether a brief

Michigan appellate court order citing Rule 6.508(D) is an explained order from which

federal courts can determine whether the basis of the state court decision was procedural

rather than merits-based.

II.

Brief orders citing Michigan Court Rule 6.508(D) are not explained orders

invoking a procedural bar. We reach this result because holdings from the Michigan

courts indicate that the language used by such summary orders can refer to the

petitioner’s failure to establish entitlement to relief either on the merits or procedurally,

and such ambiguity demands a determination that the orders are not explained. A habeas

petitioner procedurally defaults a claim if:

(1) the petitioner fails to comply with a state procedural rule; (2) the state

courts enforce the rule; (3) the state procedural rule is an adequate and

independent state ground for denying review of a federal constitutional

claim; and (4) the petitioner cannot show cause and prejudice excusing

the default.

Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th Cir. 2010) (citing Maupin v. Smith,

785 F.3d 135, 138 (6th Cir. 1986)). The second part of this rule requires federal courts

to determine the basis on which state courts rejected a given claim, and this court has

struggled with this interpretive task in the context of Michigan court orders citing Rule

6.508(D). See, e.g., Alexander v. Smith, 311 F. App’x 875, 882 (6th Cir. 2009)

(discussing how an “apparent conflict within this circuit’s precedent” has

“[c]omplicat[ed] matters” with respect to this question). Rule 6.508(D) provides:

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Entitlement to Relief. The defendant has the burden of establishing

entitlement to the relief requested. The court may not grant relief to the

defendant if the motion

(1) seeks relief from a judgment of conviction and sentence that still

is subject to challenge on [direct] appeal . . . ;

(2) alleges grounds for relief which were decided against the

defendant in a prior appeal or proceeding under this subchapter,

unless the defendant establishes that a retroactive change in the

law has undermined the prior decision;

(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 . . . , and

(b) actual prejudice . . . .

....

The court may waive the “good cause” requirement of subrule (D)(3)(a)

if it concludes that there is a significant possibility that the defendant is

innocent of the crime.

In some cases, the context of a brief order citing Rule 6.508(D) clearly indicates

that the state appellate court is affirming the lower court’s determination that a

petitioner’s claims are procedurally defaulted. See, e.g., Ivory v. Jackson, 509 F.3d 284,

292-93 (6th Cir. 2007) (“Never, at any point in Ivory’s postconviction proceedings, did

a Michigan court address the merits of his ineffective-assistance-of-trial-counsel

claim.”). Our earliest case directly addressing whether brief orders citing Rule 6.508(D)

are explained orders was such a case. See Simpson v. Jones, 238 F.3d 399, 403, 408 (6th

Cir. 2000).

But Michigan cases also reveal that some orders citing Rule 6.508(D) deny post-

conviction relief on the merits. In People v. Jackson, the Michigan Supreme Court held

that Rule 6.508(D) applied to convictions handed down before the effective date of that

rule. 633 N.W.2d 825, 826 (Mich. 2001). The petitioner in Jackson, Michael T.

Jackson, was sixteen at the time of his offense, and a juvenile court had waived

jurisdiction over his case before he had been tried as an adult. Id. at 827. Jackson

argued that this waiver was improper, and the state trial court on post-conviction review

denied this claim on the merits. Id. at 828-29. Before the Michigan Supreme Court,

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Jackson argued that the exception to Rule 6.508(D)(3) for jurisdictional defects applied

to his invalid waiver claim. Id. at 833. The state supreme court declined to decide this

issue; instead, the court reasoned:

Regardless of whether this claim is a jurisdictional one within the

meaning of [Rule] 6.508(D)(3), the defendant is not entitled to relief.

Pursuant to [Rule] 6.508(D), “[t]he defendant has the burden of

establishing entitlement to the relief requested.” The circuit judge’s

second opinion discussed the merits of the juvenile court waiver issue

and found it to be without merit. Accordingly, the defendant failed to

establish his entitlement to relief. Thus, the defendant has not been

deprived of review of that issue by the operation of subrule (D)(3).

Id. at 833-34 (third alteration in original). Under the analysis of this passage, Rule

6.508(D)’s introductory sentence requiring the petitioner to establish his entitlement to

relief applies to both the procedural and merits aspects of a petitioner’s claim. Further,

the Michigan Supreme Court used the phrase, “the defendant failed to establish his

entitlement to relief,” to refer to the petitioner’s failure to establish entitlement to relief

on the merits of his claim. This supports our precedent that Rule 6.508(D) has both a

procedural and a substantive component, see Ivory, 509 F.3d at 292, and demonstrates

that citations to a defendant’s failure to meet the burden of establishing entitlement to

relief can refer to a defendant’s failure to meet that burden on the merits.

Michigan practice confirms that brief orders citing Rule 6.508(D) in some cases

refer to a petitioner’s failure to meet his burden on the merits. The procedural-default

rule stated by Rule 6.508(D)(3) applies only to claims that could have been brought on

direct appeal, and thus—by necessity—it does not apply to claims of ineffective

assistance of appellate counsel. In People v. Allen, a Michigan petitioner seeking post-

conviction relief argued that the judge in his criminal trial had erroneously excluded

evidence and that he had been denied the effective assistance of appellate counsel. No.

249788, 2005 WL 1106498, at *1 (Mich. Ct. App. May 10, 2005). The appellate court

denied both of these claims on the merits. Id. The Michigan Supreme Court denied

review “because the defendant . . . failed to meet the burden of establishing entitlement

to relief under [Rule] 6.508(D).” People v. Allen, 706 N.W.2d 15 (Mich. 2005)

No. 08-2256 Guilmette v. Howes Page 7

(unpublished table decision). Because the petitioner in Allen could not have raised his

claim of ineffective assistance of appellate counsel in an earlier proceeding, the

Michigan Supreme Court’s form order necessarily rejected that claim on the merits.

Further, the present case involved the same situation. Guilmette’s petition for post-

conviction review in state court included both trial and appellate ineffective-assistance

claims. The form orders used by the state intermediate and supreme courts thus

necessarily rejected one of Guilmette’s claims on the merits. This fact refutes the

argument that such form orders can only, or do only, refer to procedural default.

Because the form orders in this case citing Rule 6.508(D) are ambiguous as to

whether they refer to procedural default or denial of relief on the merits, the orders are

unexplained. We must therefore look to the last reasoned state court opinion to

determine the basis for the state court’s rejection of Guilmette’s claim. In Ylst v.

Nunnemaker, the Supreme Court applied a presumption that “[w]here there has been one

reasoned state judgment rejecting a federal claim, later unexplained orders upholding

that judgment or rejecting the same claim rest upon the same ground.” 501 U.S. 797,

803 (1991). Where, as here, “an earlier opinion ‘fairly appear[s] to rest primarily upon

federal law,’ we will presume that no procedural default has been invoked by a

subsequent unexplained order that leaves the judgment or its consequences in place.”

Id. (citation omitted) (alteration in original) (quoting Coleman v. Thompson, 501 U.S.

722, 740 (1991)). Applying that presumption in this case results in a conclusion that the

Michigan courts denied Guilmette’s claim of ineffective assistance of trial counsel on

the merits.

Michigan’s primary argument that orders citing Rule 6.508(D) can only refer to

procedural default is untenable in light of Jackson and the procedural history of cases

like Allen and the present case. The state also suggests that the Michigan Supreme Court

necessarily considered and thus determined whether Guilmette had procedurally

defaulted his claims because Michigan courts are required to consider procedural default

before considering the merits of a collateral challenge to a criminal judgment. But the

cases the state cites do not support this assertion. Instead, they stand for the

No. 08-2256 Guilmette v. Howes Page 8

considerably simpler proposition that collateral petitioners cannot succeed without

establishing entitlement to relief both procedurally and on the merits. See People v.

McSwain, 676 N.W.2d 236, 256-57 (Mich. Ct. App. 2003); People v. Brown, 492

N.W.2d 770, 773 (Mich. Ct. App. 1992); People v. Watroba, 483 N.W.2d 441, 442

(Mich. Ct. App. 1992). This proposition does not prevent a state court from denying

collateral relief to a petitioner on the merits without reaching the issue of procedural

default. Further, the Michigan Supreme Court has implicitly rejected the state’s

assertion by deciding a case on the merits without considering procedural default.

Jackson, 633 N.W.2d at 833-34.

Today’s holding also does not undermine federalism, and it does not disregard

Michigan’s interest in the enforcement of its procedural rules. We are mindful of our

duty to “to safeguard the States’ interest in the integrity of their criminal and collateral

proceedings.” Williams v. Taylor, 529 U.S. 420, 436 (2000). But a duty to protect a

state’s interest in its procedural rules is only applicable once we determine that the state

has decided a given case on a procedural basis. The existence of this federalism interest

thus depends on the question we are asked to resolve. Because we are bound by the

Supreme Court’s holding in Ylst to determine that the state rejected Guilmette’s claim

of ineffective assistance of trial counsel on the merits, there is no state enforcement of

a procedural rule in this case to which the federal courts can defer.

III.

We do not reach the merits of Guilmette’s claim of ineffective assistance of trial

counsel because the state did not appeal that aspect of the district court’s judgment. Our

general rule is that “‘[a]n appellant abandons all issues not raised and argued in its initial

brief on appeal.’” United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006)

(quoting United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996)). Although this

court may overlook such forfeiture, we part company with the partial dissent because we

do not believe precedent requires us to look past the state’s default in these

circumstances, and we decline to do so. In its initial appellate brief, the state raised two

issues: (1) did Guilmette procedurally default his ineffective-assistance claim, and

No. 08-2256 Guilmette v. Howes Page 9

(2) had Guilmette demonstrated cause and prejudice for his procedural default. In his

brief, Guilmette noted the state’s failure to appeal the merits of his claim, and he argued

that the state had therefore abandoned this issue. The state did not file a reply brief. The

panel opinion concluded that the state had challenged the district court’s conclusion only

with respect to procedural default, Guilmette, 591 F.3d at 508, and the state neither

contested this premise nor argued the merits of the claim before the en banc court. The

state thus did not appeal the merits of the district court’s decision, did not respond to

Guilmette’s argument that such forfeiture precluded review, and did not argue before the

en banc court that the panel’s opinion should be reinstated on the alternative basis that

Guilmette’s counsel were not constitutionally ineffective. These circumstances do not

warrant an exercise of our discretion to overlook the state’s forfeiture of its merits

argument.

Because the state has not established that Guilmette procedurally defaulted his

claim of ineffective assistance of trial counsel, we affirm the judgment of the district

court.

No. 08-2256 Guilmette v. Howes Page 10

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

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BOGGS, Circuit Judge, concurring in part and dissenting in part. The majority

– quite correctly, in my view – concludes that the Michigan courts’ summary orders

citing Guilmette’s “fail[ure] to meet the burden of establishing entitlement to relief under

MCR 6.508(D)” are unexplained orders subject to look-through under Ylst v.

Nunnemaker, 501 U.S. 797 (1991). While Judge Griffin notes that these orders, which

do cite a code provision, do not literally “say nothing,” Dissent at 21 (quoting Ylst, 501

U.S. at 804) (emphasis added), the Court clearly did not intend to set the bar for finding

an order unexplained quite that high. See Ylst, 501 U.S. at 805 (holding order

unexplained where, “although . . . it was not utterly silent, neither was it informative

with respect to the question” of whether a procedural bar was actually applied). Because

MCR 6.508(D) appears to embrace both a substantive and a procedural component, see

Ivory v. Jackson, 509 F.3d 284, 292 (6th Cir. 2007), I agree that a bare citation to that

provision is simply not “informative with respect to the question before us.” Ylst, 501

U.S. at 805.1

I part company with the majority, however, as to the ultimate resolution of this

particular appeal. After rejecting the state’s procedural-bar argument, the majority

concludes that the state waived on appeal any objection to the district court’s merits

holding that Guilmette received ineffective assistance of counsel, and that the writ must

therefore issue. I cannot agree.

Part I of the state’s brief on appeal makes the argument – which we reject today

– that this court lacks jurisdiction over Guilmette’s habeas petition because the Michigan

courts’ summary orders establish that Guilmette’s claims are procedurally defaulted.

1

Had the state courts’ orders explicitly cited the subsection of the Rule that references procedural

default, the basis for the orders would have been clear. See MCR 6.508(D)(3) (stating that a court may

not grant relief to a defendant who “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”). In that case, a reviewing court could conclude that the state had applied a procedural bar.

No. 08-2256 Guilmette v. Howes Page 11

Part II of the state’s appellate brief then goes on to argue that the “cause and prejudice”

exception to the procedural-default bar does not apply because Guilmette did not receive

ineffective assistance of counsel. The heading of that portion of the state’s brief urges

us to conclude that “[b]ecause the State court’s decision that trial and appellate counsel

were not constitutionally ineffective is not contrary to established federal law, Petitioner

has failed to show good cause or prejudice . . . to excuse his procedural default.”

Appellant’s Br. at 22 (emphasis added). The body of that section contains a fully

developed argument, citing relevant federal case law, that trial counsel was not

ineffective – and, a fortiori, that the state post-conviction review court did not

unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), in so holding –

because counsel’s decision to assert a mistaken-identity defense rather than dispute the

element of entry was a “strateg[ic]” choice which “could have been successful.”

Appellant’s Br. at 25.

There is, of course, no separate section in the state’s appellate brief dedicated to

“the merits” of Guilmette’s underlying habeas claim premised on ineffective assistance

of counsel. In other words, the state does not say, in so many words, that even if we do

not read the Michigan courts’ summary orders as indicating reliance on procedural

default, Guilmette still loses “on the merits.” But this should be irrelevant, as the very

same ineffective-assistance claim serves “both as an independent [substantive ground for

habeas relief] and as cause and prejudice to excuse a procedural default . . . .” Becht v.

United States, 403 F.3d 541, 545 (8th Cir. 2005).2

2

See also DeYoung v. Schofield, 609 F.3d 1260, 1278 n.19 (11th Cir. 2010) (“DeYoung’s claim

of ineffective assistance . . . must fail both as a separate claim of relief and as cause to excuse the

procedural default . . . .”); Pignataro v. Poole, No. 09-1396-pr, 2010 WL 2501009, at *3 (2d Cir. June 18,

2010) (unpublished) (“Appellant is not entitled to habeas relief on his ineffective assistance of appellate

counsel claim and, for the same reasons, has not shown prejudice sufficient to excuse the procedural

default . . . .”); Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003) (“The district court found that Caver’s

appellate counsel had been ineffective . . . , thus establishing both a separate constitutional defect and

cause and prejudice sufficient to excuse the procedural default . . . .”); Hickman v. Spears, 160 F.3d 1269,

1273 (10th Cir. 1998) (“Because the same legal standards govern petitioner’s underlying claim of

ineffective assistance of counsel and his closely related burden to show cause for his state law procedural

default, we must determine whether petitioner has shown cause concurrently with the merits of his

ineffective assistance of counsel claim.”); Hardeman v. Boone, 51 F.3d 286, 1995 WL 147514, at *4 n.4

(10th Cir. 1995) (unpublished table decision) (“We consider Mr. Hardeman’s ineffective assistance of

appellate counsel claim . . . both [as] a substantive claim in its own right and as ‘cause’ for his procedural

default . . . .”); Carbello v. United States, 1 F.3d 1244, 1993 WL 269502, at *2 n.3 (7th Cir. 1993)

(unpublished table decision) (“For the same reason that we found that Carbello’s attorney’s performance

was not ‘cause’ for Carbello’s procedural default, we must reject Carbello’s independent claim that his

No. 08-2256 Guilmette v. Howes Page 12

In addressing the issue of procedural default, furthermore, the state invoked the

standard of review that applies when a federal court reviews a habeas petition on the

merits. Specifically, it is the law of this circuit that the “higher AEDPA standard of

review” applies when we address a habeas petitioner’s underlying ineffective-assistance

claim on the merits, but not when we address whether ineffective assistance of counsel

exists to excuse a procedural default. Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir.

2009). In other words, we do not defer to a state court’s determination of whether

ineffective assistance occurred for purposes of our cause-and-prejudice analysis,

although we do defer once we reach the merits of a habeas petitioner’s Sixth

Amendment claim. Ibid. In this case, although the state discussed ineffective assistance

only in the portion of its brief dealing with cause and prejudice, it nonetheless correctly

addressed Guilmette’s ineffective-assistance claim under the higher AEDPA standard

of review. See Appellant’s Br. at 25 (“It cannot be said that the [state] court’s decision

was an unreasonable application of Strickland . . . .”). The state would have had no need

to invoke the AEDPA “unreasonable application” standard if it actually intended to

waive its merits argument and pin its hopes for reversal entirely on procedural default.

This supports the conclusion that the state did not intend to waive its merits argument

in this case.

This court’s precedents further compel that conclusion. In fact, in another recent

habeas case, Thompkins v. Berghuis, a panel of this court rejected a waiver argument

substantially identical to the one the majority accepts today. 547 F.3d 572 (6th Cir.

2008), rev’d on other grounds, 130 S. Ct. 2250 (2010). In Thompkins, the petitioner’s

appellate brief addressed the merits of his ineffective-assistance claim, but “failed to

argue for the existence of cause and prejudice to excuse his procedural default.” Id. at

588. The warden submitted that any argument that cause and prejudice existed was

therefore waived. Ibid. Although the panel found the petitioner’s failure to explicitly

attorney rendered ineffective assistance.”); Williams v. McCarthy, 879 F.2d 866, 1989 WL 76884, at *2

(9th Cir. 1989) (unpublished table decision) (“For the same reasons that we reject the claimed ineffective

assistance of counsel as cause for procedural default, we reject it as an independent claim for relief.”);

Cook v. Foltz, 814 F.2d 1109, 1114 (6th Cir. 1987) (Merritt, J., concurring) (“Mr. Cook’s claim of

ineffective assistance is offered both as cause for his procedural default in state court and as a substantive

ground for habeas relief.”).

No. 08-2256 Guilmette v. Howes Page 13

address procedural default “troubling,” it noted that “the cause and prejudice inquiry for

the procedural default issue merges with an analysis of the merits of [the] ineffective

assistance of counsel claim” and, “given the overlapping analysis,”considered the

petitioner’s ineffective-assistance arguments for both purposes. Id. at 589. This case is

the same, except that it is the merits argument, rather than the “overlapping” procedural-

default argument, which has not been made explicit.

We have invoked this “merge[r]” or “overlapping analysis” rule numerous times

to reject waiver arguments asserted against appellants, irrespective of whether those

appellants were plaintiffs or defendants below. For example, in Stambaugh v. Corrpro

Companies, the district court had dismissed the plaintiff’s securities-fraud complaint

both (1) because it failed to plead adequately the statutory element of scienter, and

(2) because it failed to satisfy the requirement of Federal Rule of Civil Procedure 9(b)

that fraud claims be pleaded with particularity. 116 F. App’x 592, 595-96 (6th Cir.

2004). Even though the plaintiff’s appellate brief took issue with only one of the district

court’s two equally sufficient grounds for dismissal, we declined the defendant’s

invitation to “summarily affirm[]” the district court’s judgment “because [plaintiff]

failed to appeal an ‘alternate’ ground of that decision.” Id. at 596. Our reasoning

resembled the panel’s reasoning in Thompkins:

[T]he district court ruled both that Leviticus had failed to allege

particularized facts giving rise to a strong inference of scienter, as

required by the PSLRA, and that Leviticus failed to plead fraud with

particularity as required by Fed. R. Civ. P. 9(b). Corrpro now argues that

Leviticus, in its appellants’ brief, failed to dispute the district court’s

decision with respect to Fed. R. Civ. P 9(b), that this constitutes a waiver

of any argument that the Rule 9(b) ruling was incorrect, and that

therefore the district court’s decision should be summarily affirmed

because one basis of that decision has not been appealed.

If a party does not raise an issue in its appellant’s brief, then that issue is

waived. . . . Leviticus did not separately argue that its complaint satisfied

Rule 9(b); rather, Leviticus only argued that the complaint had

adequately pled scienter, as required by the PSLRA.

In this case, although the issue is close, Leviticus’s arguments regarding

scienter are sufficient to preserve its appeal of the Rule 9(b) dismissal.

No. 08-2256 Guilmette v. Howes Page 14

We do not generally condone making arguments by inference. [However,

i]n this case, the district court’s ruling that the complaint failed to satisfy

Fed. R. Civ. P. 9(b) revolved entirely around the requirement that a

plaintiff allege fraudulent intent. The district court’s explanation of how

the complaint failed to allege fraudulent intent mirrors its explanation

of how the complaint failed to plead scienter as required by the PSLRA.

Therefore, if Leviticus is correct that the complaint satisfies the PSLRA’s

pleading standard, then the complaint would also satisfy Rule 9(b). The

inference that Appellants also challenge the district court’s alternative

ground is thus sufficiently clear, and this court can consider the merits of

Leviticus’s appeal.

Id. at 596 (internal citations omitted) (emphasis added).

We relied on Stambaugh’s reasoning in United States v. Goforth, a published

decision involving the Federal Debt Collection Procedures Act. 465 F.3d 730 (6th Cir.

2006). There, the district court held that the defendant spouses had made fraudulent

transfers both (1) because “the payment of household expenses by [the wife] in return

for the monthly payments from her husband would not constitute ‘reasonably equivalent

value’ under [28 U.S.C. § 3304(a)],” and (2) because the payments “were made with the

intent to hinder, delay, and defraud the government, within the parameters of 28 U.S.C.

§ 3304(b)(1)(A).” Id. at 735-36. On appeal, we rejected a waiver argument – this time,

asserted against the defendants – for reasons that should be familiar by now:

The government argues that the Gilleys have waived any challenge to

[the district court’s] alternative holding [under § 3304(b)(1)(A)] because

they did not argue it in their opening brief. The Gilleys counter that their

extensive arguments as to “reasonably equivalent value” [under

§ 3304(a)] preserve their challenge to this alternative ground because the

FDCPA provides a defense to claims under § 3304(b) for transfers “with

respect to a person who took in good faith and for a reasonably

equivalent value or against any transferee or obligee subsequent to such

person.” 28 U.S.C. § 3307(a).

We have held that where an argument advanced in an appellant’s

opening brief applies to and essentially subsumes an alternative basis for

affirmance [or reversal] not separately argued therein, the appellant

does not waive that alternative basis for affirmance [or reversal].

Stambaugh v. Corrpro Co., Inc., No. 03-3904, 2004 WL 2625036, at *5

(6th Cir. Nov. 17, 2004). Because the Gilleys’ [expressly asserted]

arguments regarding “reasonably equivalent value” would apply equally

No. 08-2256 Guilmette v. Howes Page 15

to the defense under § 3307(a) [not expressly argued], this authority

would negate the government’s waiver argument.

Id. at 736-37 (emphasis added).3

We have quoted and applied the rule in Goforth in at least two other cases – one

published and one not. See Sunarto v. Mukasey, 306 F. App’x 957, 961-62 (6th Cir.

2009) (“Because the analysis of [petitioner] Sunarto’s [immigration] claims is largely

the same under both reconsideration and reopening, we believe that Sunarto’s arguments

with respect to the reopening claims [not expressly addressed in his appellate brief] are

sufficiently subsumed by his arguments on the reconsideration claims and that [the

Goforth] exception applies.”); Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d

666, 673 (6th Cir. 2008) (“[Defendant-appellant] fails to make any arguments in its

briefs as to [plaintiff’s Tennessee Human Rights Act] claims, [which the district court

found meritorious] . . . . [However, b]ecause the analysis of [plaintiff’s] claims is the

same under both Title VII and the THRA, we believe that [defendant-appellant’s latent]

arguments with respect to the THRA claims are sufficiently subsumed within its

[express] arguments on the Title VII claims for [the Goforth] exception to apply.”).

Again, I believe that these precedents compel the conclusion that the state did not

waive its merits argument, as that argument “merges with,” shares an “overlapping

analysis” with, “mirrors,” and/or is “essentially subsume[d]” within its cause-and-

prejudice argument. Accordingly, I would reach the merits of Guilmette’s ineffective-

assistance claim.

In so doing, I would find that Guilmette failed to establish ineffective assistance

of trial counsel (and thus, that appellate counsel was not ineffective for failing to argue

trial counsel’s ineffectiveness). As the panel majority compellingly explained,

“Guilmette’s counsel had a promising mistake-of-identity defense based upon the

3

While the opinion in Goforth used only the word “affirmance,” rather than “affirmance or

reversal,” it is clear that the panel meant to include reversal, because the allegedly waived argument that

the Goforth panel was addressing was asserted by the appellant – who obviously was seeking reversal, not

affirmance. Similarly, in Stambaugh, on which the Goforth panel relied, the argument that was found

unwaived sought reversal, not affirmance.

No. 08-2256 Guilmette v. Howes Page 16

victim’s questionable identification, Guilmette’s plausible alibi, and the inconsistency

between the victim’s description of Guilmette’s actions and the testimony regarding

Guilmette’s inoperable driver-side door.” Guilmette v. Howes, 591 F.3d 505, 510 (6th

Cir. 2010). Further, if Guilmette’s counsel had contested the element of entry, as

Guilmette now argues they should have done, “it might have either removed the focus

from or undermined the credibility of the defense’s misidentification argument.” Id. at

511.

Indeed, as the panel majority noted, Guilmette’s trial counsel strongly argued to

the jury in closing that “the jury ought to find the defense more credible because defense

counsel, unlike the prosecutor, had refrained from making inconsistent alternative

arguments.” Ibid. The defense began its closing argument by stating bluntly, “This is

a case about identification. Not about whether a burglary occurred. And whether a

suspect that has been brought in front of you, Mr. Bruce Guilmette[,] is the right person.”

The defense concluded with the following plea: “Don’t let the only thing worse . . . than

what happened to [the victim] happen to Mr. Guilmette. Because, the evidence shows

they’ve got the wrong person.” Defense counsel underscored the consistency of their

single theory, emphasizing that “[a]t no time has anyone on the defense . . . tr[ied] to

persuade you that what [the victim] said . . . didn’t happen.” By contrast, defense

counsel characterized the prosecution as “want[ing] it both ways,” since the prosecution

argued both that Guilmette had enlisted another person to impersonate him at a

methadone clinic in order to create a false alibi, and that enough time had elapsed

between the break-in and Guilmette’s sign-in at the methadone clinic for Guilmette to

have been at both places. This sensible attack would, of course, have been foreclosed had

the defense itself advanced inconsistent theories.

Trial counsel’s decision to present one consistent, relatively strong mistaken-

identity defense to the jury, rather than arguing that “Guilmette didn’t do it – but if he

did do it, he didn’t actually place any part of his body inside the victim’s house,” appears

to have been a reasonable strategic choice. An attorney “could reasonably choose to

avoid confusing the jury with alternative defenses . . . .” United States v. Smith, 10 F.3d

No. 08-2256 Guilmette v. Howes Page 17

724, 729 (10th Cir. 1993); see also Strickland, 466 U.S. at 689 (“[A] court must indulge

a strong presumption . . . that, under the circumstances, the challenged action might be

considered sound trial strategy.” (internal quotation marks omitted)). Guilmette,

therefore, cannot satisfy the Strickland standard; a fortiori, the state trial court’s decision

on post-conviction review that counsel was not ineffective was not unreasonable. See

Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (“The question [under AEDPA]

is not whether a federal court believes the state court’s determination under the

Strickland standard was incorrect but whether that determination was unreasonable – a

substantially higher threshold.” (internal quotation marks omitted)).

In conditionally granting the writ on the basis of ineffective assistance of

counsel, the district court incorrectly applied Strickland and AEDPA. The state’s

appellate brief explicitly argued just that. I therefore respectfully dissent from this

court’s ultimate decision to affirm the district court’s judgment.

No. 08-2256 Guilmette v. Howes Page 18

________________

DISSENT

________________

GRIFFIN, Circuit Judge, dissenting. “[T]he pedestal of the entire procedural-

default doctrine . . . is respect for state procedural rules.” Franklin v. Hightower,

215 F.3d 1196, 1200 (11th Cir. 2000). As the Supreme Court has repeatedly

emphasized,

Federal habeas corpus principles must inform and shape the historic and

still vital relation of mutual respect and common purpose existing

between the States and the federal courts. In keeping this delicate

balance we have been careful to limit the scope of federal intrusion into

state criminal adjudications and to safeguard the States’ interest in the

integrity of their criminal and collateral proceedings. See, e.g., Coleman

v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism.

It concerns the respect that federal courts owe the States and the States’

procedural rules when reviewing the claims of state prisoners in federal

habeas corpus”); McCleskey v. Zant, 499 U.S. 467, 493 (1991) (“[T]he

doctrines of procedural default and abuse of the writ are both designed

to lessen the injury to a State that results through reexamination of a state

conviction on a ground that the State did not have the opportunity to

address at a prior, appropriate time; and both doctrines seek to vindicate

the State’s interest in the finality of its criminal judgments.”).

Williams v. Taylor, 529 U.S. 420, 436 (2000).

Today’s en banc decision erodes the fundamental tenets of federalism by voiding,

for purposes of federal habeas corpus review, Michigan’s adequate and independent

rules of post-conviction procedure. In my view, our prior panel opinion, Guilmette v.

Howes, 591 F.3d 505 (6th Cir. 2010) (“Guilmette I”), rehearing en banc granted, opinion

vacated March 12, 2010, was correctly decided and, thus, rehearing en banc was

improvidently granted. Accordingly, I would reinstate our prior panel decision and

reverse the district court. I therefore respectfully dissent.

In Wainwright v. Sykes, 433 U.S. 72 (1977), the Supreme Court addressed the

following issue: “In what instances will an adequate and independent state ground bar

consideration of otherwise cognizable federal issues on federal habeas review?”

No. 08-2256 Guilmette v. Howes Page 19

433 U.S. at 78-79. Examining a Florida state contemporaneous-objection rule in this

context, the Supreme Court noted that “[t]he area of controversy which has developed

has concerned the reviewability of federal claims which the state court has declined to

pass on because not presented in the manner prescribed by its procedural rules.” Id. at

81-82 (emphasis added). In limiting federal habeas review to an analysis of “cause” and

“prejudice,” the Court held that Florida’s rule constituted “an independent and adequate

state procedural ground,” and thus involved “contentions of federal law which were not

resolved on the merits in the state proceeding due to respondent’s failure to raise them

there as required by state procedure.” Id. at 87.

Similarly, Michigan’s post-conviction rules, specifically M.C.R. 6.508(D), are

“independent and adequate state procedural grounds” that warrant enforcement by our

court. See Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005) (“It is well-

established in this circuit that the procedural bar set forth in Rule 6.508(D) constitutes

an adequate and independent ground on which the Michigan Supreme Court may rely

in foreclosing review of federal claims.”).

In Guilmette I, Judge Rogers, writing for the panel majority, held that

Guilmette’s claim of ineffective assistance of counsel “[was] procedurally defaulted

because, although the state trial court on collateral review addressed the merits of

Guilmette’s claim, both the state appellate and supreme courts denied the claim pursuant

to Mich. Ct. R. 6.508(D).” Guilmette I, 591 F.3d at 508. In so holding, Judge Rogers

cited our unanimous authority on this issue:

Guilmette did not raise his ineffective assistance of counsel claim on

direct appeal, as required by Mich. Ct. R. 6.508(D)(3). Our decision in

Munson v. Kapture, 384 F.3d 310 (6th Cir. 2004) requires the conclusion

that the Michigan courts enforced Rule 6.508(D)(3) in this case and thus

that Guilmette’s claim is procedurally defaulted. In Munson, as in the

present case, the petitioner did not raise certain claims on direct appeal.

384 F.3d at 312-13. In both cases, the petitioner then raised the claims

in a state trial court on collateral review, and the state trial court denied

the claims on the merits. Id. at 313. Then in both cases, the state

appellate and state supreme courts each denied leave to appeal in brief

orders, stating that the petitioner had “failed to meet the burden of

establishing entitlement to relief under MCR 6.508(D).” Id. In Munson,

No. 08-2256 Guilmette v. Howes Page 20

we held that Rule 6.508(D) constituted an adequate and independent state

ground and thus held the claims to be procedurally barred. No relevant

fact distinguishes Munson from the present case, and thus Guilmette’s

claim is similarly procedurally defaulted.

***

This conclusion is supported by five of this court’s other cases, . . . all of

which hold that habeas claims were procedurally defaulted in situations

materially indistinguishable from the present case. See Alexander v.

Smith, 311 Fed. Appx. 875 (6th Cir. 2009) . . . ; Spencer v. Booker, 254

Fed. Appx. 520 (6th Cir. 2007) . . . ; McCray v. Metrish, 232 Fed. Appx.

469 (6th Cir. 2007) . . . ; Burroughs v, Makowski, 282 F.3d 410 (6th Cir.

2002) . . . ; Luberda v. Triplett, 211 F.3d 1004 (6th Cir. 2000) . . . . In

each, the state trial court on collateral review denied the petitioner’s

claims on the merits, and then both the state appellate and state supreme

courts denied the claims pursuant to Mich. Ct. R. 6.508(D). We held that

the petitioner’s claims were procedurally defaulted in each case. The

binding nature of these precedents . . . is inescapable.

Id. at 509-10 (citations and footnotes omitted, emphasis added).1

A cornerstone of these cases is our proper categorization of the state court orders

at issue as “explained” orders – not “unexplained” orders that require further explication

and, hence, scrutiny by this court to determine whether the state court’s decision rested

primarily upon federal law. In Coleman, the Supreme Court, when confronted with an

ambiguous state court habeas order, refined the independent and adequate state ground

doctrine and held:

In habeas, if the decision of the last state court to which the petitioner

presented his federal claims fairly appeared to rest primarily on

1

The panel majority noted that:

This result is consistent with Abela v. Martin, 380 F.3d 915 (6th Cir. 2004). In that

case, both the Michigan trial court and the Michigan Court of Appeals denied the

petitioner’s collateral claims on the merits before the Michigan Supreme Court denied

review pursuant to Mich. Ct. R. 6.508(D). Id. at 920. In part because the lower state

courts had “repeatedly ruled on the merits,” we concluded in Abela that the invocation

of Mich. Ct. R. 6.508(D) by only the Michigan Supreme Court did not sufficiently

indicate that the court was invoking a procedural bar, and thus that the claim was not

procedurally defaulted. Id. at 923-24. In the present case, however, both the state

appellate and state supreme court denied leave to appeal pursuant to Rule 6.508(D); this

case is thus squarely controlled by our decision in Munson.

Guilmette I, 591 F.3d at 509.

No. 08-2256 Guilmette v. Howes Page 21

resolution of those claims, or to be interwoven with those claims, and did

not clearly and expressly rely on an independent and adequate state law

ground, a federal court may address the petition.

Coleman, 501 U.S. at 735.

In Ylst v. Nunnemaker, 501 U.S. 797 (1991), a companion case to Coleman, the

Supreme Court further clarified the doctrine’s application in cases involving

“unexplained” state court orders and created the following presumption:

Where there has been one reasoned state judgment rejecting a federal

claim, later unexplained orders upholding that judgment or rejecting the

same claim rest upon the same ground. If an earlier opinion “fairly

appear[s] to rest primarily upon federal law,” Coleman, 501 U.S. at 740

[], we will presume that no procedural default has been invoked by a

subsequent unexplained order that leaves the judgment or its

consequences in place. Similarly where, as here, the last reasoned

opinion on the claim explicitly imposes a procedural default, we will

presume that a later decision rejecting the claim did not silently disregard

that bar and consider the merits.

***

The maxim is that silence implies consent, not the opposite – and courts

generally behave accordingly, affirming without further discussion when

they agree, not when they disagree, with the reasons given below. . . .

We think that a presumption which gives them no effect – which simply

“looks through” them to the last reasoned decision – most nearly reflects

the role they are ordinarily intended to play.

Ylst, 501 U.S. at 803-04.

The Court in Ylst defined the term “unexplained” order as “an order whose text

or accompanying opinion does not disclose the reason for the judgment.” Id. at 802.

Otherwise stated, “[t]he essence of unexplained orders is that they say nothing.” Id. at

804.

In the present case, the state appellate court orders are neither ambiguous nor

“unexplained.” In Munson, we held that

[f]or purposes of procedural default, the “state judgment” with which we

are concerned is “the last explained state court judgment.” Ylst v.

No. 08-2256 Guilmette v. Howes Page 22

Nunnemaker, 501 U.S. 797, 805 (1991). Munson argues that the last

explained state court judgment is the trial court’s opinion denying his

post-conviction motion for relief. In that opinion, the court relied on

procedural default in rejecting only one of his claims; it denied the other

claims on their merits. Contrary to Munson’s assertion, however, the last

explained state court judgment in this case is the Michigan Supreme

Court’s order denying review of Munson’s claims based upon his failure

to comply with Rule 6.508(D). We have held that orders such as that

issued by the Michigan Supreme Court constitute “explained” state court

judgments for purposes of procedural default. See, e.g., Simpson v.

Jones, 238 F.3d 399, 407-08 (6th Cir. 2000) (holding that an order issued

by the Michigan Supreme Court stating that the petitioner had “failed to

‘meet the burden of establishing entitlement to relief under MCR

6.508(D)’” – though “brief” – constituted the last explained state court

judgment in the case).

Munson, 384 F.3d at 314 (footnote omitted, second emphasis added). Likewise, in

Hargrave-Thomas v. Yukins, 374 F.3d 383 (6th Cir. 2004), we observed that

[o]ur precedents establish that the state supreme court’s one-sentence

order – an order saying simply that Ms. Hargrave-Thomas “failed to meet

the burden of establishing entitlement to relief under MCR 6.508(D)” –

“was based on an independent and adequate state procedural rule.”

Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000); cf. Burroughs v.

Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002). Despite its brevity, the

order constituted a “reasoned” judgment that adequately explained its

procedural basis. Because the Michigan Supreme Court “expressly

stated” that Hargrave-Thomas’ claim was “barred by MCR 6.508(D),”

see Simpson, 238 F.3d at 408, the federal courts may not review that

claim absent “cause and prejudice” or a “fundamental miscarriage of

justice.” See Harris [v. Reed], 489 U.S. [255 (1989)] at 262-63.

Hargrave-Thomas, 374 F.3d at 387-88; see also Burroughs, 282 F.3d at 414 (“[T]he

Michigan Court of Appeals and Michigan Supreme Court’s statements that Burroughs

was not entitled to relief under M.C.R. 6.508(D) presents a sufficient explanation that

their rulings were based on procedural default.”); Alexander, 311 F. App’x at 884 (“The

Michigan Supreme Court’s order denying Alexander relief from the judgment [“under

MCR 6.508(D)”] constitutes an explained order invoking an independent and adequate

procedural bar to relief.”); Friedman v. Smith, 83 F. App’x 718, 724 n.8 (6th Cir. 2003)

(unpublished) (“The Michigan Supreme Court’s order disclosed the reason for its

No. 08-2256 Guilmette v. Howes Page 23

judgment – Mich. Ct. R. 6.508(D). The judgment, therefore, was not unreasoned or

unexplained. Consequently, we need not look to prior state court judgments on [the

petitioner’s] Brady claim.”). Cf., Correll v. Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998)

(citing Ylst and holding that “[b]y invoking state-law procedural grounds [analogous to

MCR 6.508(D)] for its dismissal of [the petitioner’s post-conviction] claims, the state

trial court barred later federal review of these claims on the merits.”).

In the present case, the orders of the Michigan Supreme Court and the Michigan

Court of Appeals – which denied Guilmette’s petitions because he failed to sustain his

“burden of establishing entitlement to relief under MCR 6.508(D)” – are, as Judge

Rogers notes in Guilmette I, “materially indistinguishable” from the “explained” orders

at the core of our substantial body of case law that requires, under these circumstances,

that we honor the state court judgments explicitly denying Guilmette’s claim on

independent and adequate state procedural grounds. We should not manufacture

ambiguity where there is none, and we need not ignore or “look through” these

unequivocal state court orders, which by their express language preclude collateral

review. In my view, Guilmette I and its abundant persuasive precedent were correctly

decided and therefore should not be overruled.

Like most jurisdictions, Michigan requires that all claims be brought on direct

appeal. See People v. Caston, 579 N.W.2d 368, 371 (Mich. Ct. App. 1998) (“[B]ecause

defendant failed to pursue an appeal as of right when he had the opportunity to do so,

and because the time limitations for filing an application for leave to appeal have

expired, defendant’s convictions are reviewable only in accordance with subchapter

6.500 of the Michigan Court Rules, dealing with postappeal relief. MCR 6.501.”); see

also subchapter 7.200 of the Michigan Court Rules (delineating Michigan’s appellate

practice and procedure).

Subchapter 6.500 of the Michigan Court Rules establishes procedural rules for

post-conviction appeals. These rules were promulgated by the Michigan Supreme Court

on March 30, 1989, effective October 1, 1989, as part of Michigan’s comprehensive

revision of its rules of criminal procedure:

No. 08-2256 Guilmette v. Howes Page 24

Before October 1, 1989, the procedure for collateral review of criminal

convictions in Michigan did not make any provisions for finality of

judgments. As a consequence, defendants could, and did, repeatedly

seek relief without limitation. To create a uniform system of procedure,

Michigan Court Rules 6.501 et seq. were enacted. The rules present a

carefully balanced scheme that liberally permits the assertion of claims

on direct appeal, whether timely or not, while at the same time

introducing a concept of finality to discourage repeated trips up and

down the appellate ladder.

People v. Reed, 535 N.W.2d 496, 503 (Mich. 1995); see also People v. Jackson,

633 N.W.2d 825, 829 (Mich. 2001). The rules “[were] designed to encourage raising

legal issues on initial appeal rather than in postconviction review,” recognizing that

“[n]either the guarantee of a fair trial nor a direct appeal entitles a defendant to as many

attacks on a final conviction as ingenuity may devise.” Reed, 535 N.W.2d at 503-04

(footnote omitted).

As rules of procedure, not substantive law, the provisions of subchapter 6.500

were given retroactive effect by the Michigan Supreme Court. Jackson, 633 N.W.2d at

831-33. In so holding, the Michigan Supreme Court stated that the rules of subchapter

6.500 are “modes of procedure” only, and that “[w]e can discern no theory upon which

the defendant can be said to have a vested right in the procedures – or lack thereof – for

bringing long-delayed challenges to criminal convictions extant before the adoption of

MCR subchapter 6.500.” Id. at 832-33.

In fact, although the Michigan Supreme Court is constitutionally empowered to

promulgate rules of practice and procedure pursuant to Article 6, § 5 of the Michigan

Constitution,2 it “‘is not authorized to enact court rules that establish, abrogate, or

modify the substantive law.’” People v. Glass, 627 N.W.2d 261, 269 (Mich. 2001)

(quoting McDougall v. Schanz, 597 N.W.2d 148, 154 (Mich. 1999)). “Rather, as is

evident from the plain language of art. 6, § 5, [the Michigan Supreme Court’s]

2

The Michigan Constitution provides in pertinent part: “The supreme court shall by general rules

establish, modify, amend and simplify the practice and procedure in all courts of this state.” Mich. Const.

1963, art. 6, § 5.

No. 08-2256 Guilmette v. Howes Page 25

constitutional rule-making authority extends only to matters of practice and procedure.”

McDougall, 597 N.W.2d at 154.

M.C.R. 6.508(D), at issue in the present case, provides, in full:

(D) Entitlement to Relief. The defendant has the burden of establishing

entitlement to the relief requested. The court may not grant relief to the

defendant if the motion

(1) seeks relief from a judgment of conviction and sentence that still is

subject to challenge on appeal pursuant to subchapter 7.200 or

subchapter 7.300;

(2) alleges grounds for relief which were decided against the defendant

in a prior appeal or proceeding under this subchapter, unless the

defendant establishes that a retroactive change in the law has undermined

the prior decision;

(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. As used in this subrule, “actual prejudice” means that,

(i) in a conviction following a trial, but for the alleged error, the

defendant would have had a reasonably likely chance of acquittal;

(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or

nolo contendere, the defect in the proceedings was such that it renders

the plea an involuntary one to a degree that it would be manifestly unjust

to allow the conviction to stand;

(iii) in any case, the irregularity was so offensive to the maintenance of

a sound judicial process that the conviction should not be allowed to

stand regardless of its effect on the outcome of the case;

(iv) in the case of a challenge to the sentence, the sentence is invalid.

The court may waive the “good cause” requirement of subrule (D)(3)(a)

if it concludes that there is a significant possibility that the defendant is

innocent of the crime.

No. 08-2256 Guilmette v. Howes Page 26

As the Michigan Court of Appeals explained in People v. McSwain, 676 N.W.2d

236 (Mich. Ct. App. 2003),

It is well settled that [s]ubchapter 6.500 of the Michigan Court Rules

establishes procedures for pursuing postappeal relief from a criminal

conviction. The subchapter is the exclusive means to challenge a

conviction in Michigan once a defendant has exhausted the normal

appellate process. Relief, however, may not be granted unless the

defendant demonstrates (a) good cause for failure to have raised the

grounds for relief on appeal or in a prior motion under the subchapter

and (b) actual prejudice from the alleged irregularities that support the

claim for relief. MCR 6.508(D)(3)(a) and (b).

***

MCR 6.508 is phrased in the negative and sets out three bars to relief

from judgment. The first bar, under MCR 6.508(D)(1), is that a court

may not grant relief from judgment if the criminal defendant’s motion

seeks relief from judgment of conviction and sentence that still is subject

[] to challenge on appeal under MCR 7.200 or MCR 7.300. This bar is

not applicable here; McSwain’s judgment of conviction and sentence is

not now subject to challenge on appeal pursuant to MCR 7.200 or 7.300.

The second bar, under MCR 6.508(D)(2), is that a court may not grant

relief from judgment if the criminal defendant’s motion alleges grounds

for relief that were decided against the defendant in a prior appeal or

proceeding under MCR 6.500, “unless the defendant establishes that a

retroactive change in the law has undermined the prior decision.” This

bar is also not applicable here; McSwain’s motion did not allege grounds

that were decided against her in a prior appeal or proceeding under MCR

6.500.

The third bar, under MCR 6.508(D)(3), is that a court may not grant

relief from judgment if the criminal defendant’s motion “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”

MCR 6.500. This bar clearly applies here as McSwain could have, but

did not, raise the issue of her alleged mental incapacity in her prior

appeal from her conviction and sentence. However, a criminal defendant

can avoid the application of this bar if that 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.

No. 08-2256 Guilmette v. Howes Page 27

***

The court rule also provides that the criminal defendant has the burden

of establishing entitlement to the relief requested and that the court may

waive the “good cause” requirement of MCR 6.508(D)(3)(a) if it

concludes that there is a significant possibility that the defendant is

innocent of the crime.

McSwain, 676 N.W.2d at 248-50 (emphasis added).

The Michigan Court of Appeals’ explanation that the petitioner bears the burden

to “demonstrate . . . ‘good cause’ . . . and ‘actual prejudice,’” id. at 249, is consistent

with the introductory sentence of M.C.R. 6.508(D), which provides: “The defendant has

the burden of establishing entitlement to the relief requested.” Thus, unless the

petitioner sustains his burdens of production and persuasion, he may not be granted relief

because he has not demonstrated actual prejudice and good cause.

In the present case, our en banc court has been influenced by Judge Martin’s

panel dissent, in which he opined, in part, as follows:

Although M.C.R. 6.508(D)(1), (2), and (3) list specific procedural

grounds for denying a defendant relief from judgment, these procedural

grounds are not the exclusive grounds for which a court may deny relief

pursuant to M.C.R. 6.508(D). A court may deny relief from judgment

under 6.508(D)(4) for the substantive, i.e. non-procedural, reason that the

defendant simply failed to meet his burden of “establishing entitlement

to the relief requested.” As such, the Michigan courts’ bare citation to

M.C.R. 6.508(D) in orders denying Guilmette leave to appeal does not

demonstrate that the courts denied him leave to appeal on the basis of a

procedural default, much less on the procedural ground described in

M.C.R. 6.508(D)(3), which the warden urges on this Court.

Guilmette I, 591 F.3d at 513 (Martin, J., dissenting).

Regarding the three subsections that are part and parcel of the rule, Judge Martin

correctly recognizes that “MCR 6.508(D)(1), (2), and (3) list specific procedural

grounds for denying a defendant relief from judgment . . . .” Id. (emphasis added).

However, contrary to the dissent’s assertion, there is no subsection (D)(4). Judge Martin

is presumably referring to M.C.R. 6.508(D)’s introductory sentence.

No. 08-2256 Guilmette v. Howes Page 28

In any event, we have already rejected the precise argument advanced by Judge

Martin. In Friedman, we stated:

We must next determine whether the Michigan Supreme Court utilized

Mich. Ct. R. 6.508(D)(3) to bar Friedman’s claim. The court only

referenced 6.508(D) generally as the basis for denying Friedman leave

to appeal the judgment of the Michigan Court of Appeals. Friedman

noted that 6.508(D) states that “[t]he defendant has the burden of

establishing entitlement to the relief requested.” Friedman admits that

6.508(D) goes on to list only procedural grounds for denying a defendant

relief from judgment, which include 6.508(D)(3). However, Friedman

claims that these procedural grounds are not the exclusive grounds for

which a court may deny relief under 6.508(D). According to Friedman,

a court may deny relief from judgment under 6.508(D) for the non-

procedural reason that defendant simply failed to meet his burden of

establishing entitlement to the relief requested. Friedman argues that the

Michigan Supreme Court’s citation to 6.508(D) in its order denying

Friedman leave to appeal does not demonstrate that the court denied him

leave to appeal on the basis of a procedural default, much less on the

procedural grounds included in 6.508(D).

We do not find Friedman’s argument persuasive. This court has held on

numerous occasions that 6.508(D) constitutes a procedural rule that,

when invoked by a Michigan court to deny a claim, signifies that the

claim is procedurally defaulted. See Burroughs, 282 F.3d at 413-14;

Simpson, 238 F.3d at 405-08; Moran v. Trippett, No. 96-2174, 1998 WL

382698, at *2 (6th Cir. June 8, 1998). . . . Therefore, adhering to this

precedent, we find that the Michigan Supreme Court’s order denying

Friedman leave to appeal enforced a state procedural rule to bar

Friedman’s Brady claim.

***

Friedman claims that, even if 6.508(D) constitutes a procedural rule,

citing only 6.508(D) does not sufficiently demonstrate that the state

procedural rule applicable to Friedman’s Brady claim – 6.508(D)(3) –

was actually invoked by the Michigan Supreme Court. Burroughs

directly refutes Friedman’s claim. In Burroughs, this court found that the

Michigan Supreme Court’s citation to 6.508(D) was sufficiently specific

to invoke the more precise procedural bar of 6.508(D)(3). 282 F.3d at

413; see also Moran, 1998 WL 382698, at *2 (finding that petitioner’s

habeas claim was procedurally barred by 6.508(D) where the Michigan

Supreme Court cited only 6.508(D) in denying petitioner’s leave to

appeal a state court decision regarding the federal claim at issue).

Friedman attempts to distinguish Burroughs on the basis that, in that

No. 08-2256 Guilmette v. Howes Page 29

case, the court noted it was undisputed that the petitioner failed to

properly present his arguments for state appellate review, whereas in the

case subjudice Friedman contends that he was not required to present his

Brady claim on direct appeal. Friedman’s attempt to distinguish

Burroughs is unavailing. Burroughs states without qualification that the

invocation of 6.508(D) by a Michigan court to deny a petitioner relief is

a determination that the petitioner’s claim is procedurally barred, and that

invoking 6.508(D) is sufficiently specific to bar a claim under

6.508(D)(3). 282 F.3d at 413-14. At no point does the court limit its

holding to instances where it is undisputed that the claims at issue were

not properly presented for state appellate review. Our conclusion that the

Michigan Supreme Court actually invoked 6.508(D)(3) to bar Friedman’s

claim is supported by the fact, which was conceded by Friedman at oral

argument, that none of the other procedural bases for denying Friedman’s

Brady claim under 6.508(D) are applicable to that claim. The clear

implication, then, is that – by citing 6.508(D) in its order denying

Friedman leave to appeal – the Michigan Supreme Court was invoking

6.508(D)(3) specifically.

Friedman, 83 F. App’x at 725-26.

While this unpublished decision is not precedentially binding, see Longaberger

Co. v. Kolt, 586 F.3d 459, 468 (6th Cir. 2009), I certainly find it to be persuasive and

consistent with this court’s longstanding interpretation of M.C.R. 6.508(D) in the context

of habeas review. More importantly, Friedman properly rebuffed the petitioner’s

attempt to artificially interject a substantive component into a court rule that is purely

a procedural bar. Unfortunately, the en banc majority in the present case now makes this

legal misstep.

In promulgating M.C.R. 6.508(D)(3), the Michigan Supreme Court emulated the

federal habeas corpus practice for addressing procedurally defaulted claims. As the

Michigan Supreme Court has explained:

The requirements of showing good cause for failure to raise the issue on

direct appeal and prejudice from the alleged error to entitle a defendant

to relief are derived from United States Supreme Court decisions

involving federal habeas corpus challenges to state convictions and

collateral review of federal ones. See Wainwright v. Sykes, 433 U.S. 72,

97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); United States v. Frady, 456 U.S.

No. 08-2256 Guilmette v. Howes Page 30

152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); Davis v. United States,

411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973).

Jackson, 633 N.W.2d at 830.

Just as our review of procedural defaulted claims for “cause,” “prejudice,” and

“fundamental miscarriage of justice,” see Coleman, 501 U.S. at 750, is not an

adjudication of the merits of the federal constitutional claims, neither is Michigan’s post-

conviction review. Rather, an adjudication pursuant to M.C.R. 6.508(D)(3) entails a

“cause,” “prejudice,” and “miscarriage of justice” analysis and disposition. In the

present case, our panel, in its vacated majority opinion, properly engaged in such an

analysis and held:

Guilmette has therefore failed to establish cause and prejudice for his

procedural default of his claim of ineffective assistance of trial counsel,

and thus he is barred from raising that issue on habeas review.

Guilmette I, 591 F.3d at 512.

The Michigan post-conviction procedure is the same. The Michigan appellate

courts do not adjudicate the merits of federal constitutional claims when dismissing such

claims for failure to sustain the “burden of establishing entitlement to relief under MCR

6.508(D).” See People v. Brown, 492 N.W.2d 770 (Mich. Ct. App. 1992) and People

v. Watroba, 483 N.W.2d 441 (Mich. Ct. App. 1992) (reversing trial court decisions

adjudicating the merits of the substantive claims raised on post-conviction appeals,

rather than addressing the narrower issues of “cause” and “prejudice” required by

M.C.R. 6.508(D)(3)).

In Paprocki v. Foltz, 869 F.2d 281 (6th Cir. 1989), a decision that pre-dated the

promulgation of M.C.R. 6.508(D), we encouraged the Michigan state courts to undertake

post-conviction review and held that the Michigan Court of Appeals’ review of the

petitioner’s constitutional claims for “manifest injustice” did not constitute an

adjudication of the substantive merits of the claims or waive the procedural bar of the

state’s contemporaneous objection rule:

No. 08-2256 Guilmette v. Howes Page 31

What the state court of appeals did, as we understand it, was to enforce

the procedural bar while reserving the right to excuse it if necessary to

prevent manifest injustice. We would be loath to adopt an exception to

the “cause and prejudice” rule that would discourage state appellate

courts from undertaking the sort of inquiry conducted by the Michigan

court, and we do not believe that the state court’s explanation of why the

jury instructions resulted in no manifest injustice can fairly be said to

have constituted a waiver of the procedural default. Even if there had

been such a waiver, however, Mr. Paprocki would not be entitled to the

relief he seeks in this case – for the instructions, as we view them, would

not warrant habeas relief in any event.

Paprocki, 869 F.2d at 284-85.

Moreover, I find the “cause and prejudice” analysis and disposition, under either

our habeas corpus practice or Michigan’s post-conviction procedure, to be analogous to

a plain-error adjudication. On this issue, in Scott v. Mitchell, 209 F.3d 854 (6th Cir.

2000), we rejected the petitioner’s argument that a plain-error ruling entails an

adjudication of the merits of the underlying federal claim:

[H]e claims that because the contemporaneous-objection rule does not

preclude the state appellate courts from performing a plain-error review,

the rule itself is dependent on federal law and is therefore not an

“independent and adequate state ground” . . . .

Scott, 209 F.3d at 866.

In doing so, we stated that were we to adopt petitioner’s position, we “would

eviscerate the very foundations of the adequate and independent state ground doctrine,

which are federalism, finality and comity.” Id. at 867. Later, in Lundgren v. Mitchell,

440 F.3d 754 (6th Cir. 2006), we made our holding explicit:

Petitioner argues that the Ohio Supreme Court waived any procedural

default that may have existed by conducting a plain error analysis on

some of Petitioner’s claims upon direct appeal, even though Petitioner

had failed to preserve those claims through contemporaneous objections

during trial. . . . [T]his Court has held that a state court’s plain error

analysis does not save a petitioner from procedural default. See Scott v.

Mitchell, 209 F.3d 854, 866 (6th Cir. 2000). Plain error analysis is more

properly viewed as a court’s right to overlook procedural defects to

prevent manifest injustice, but is not equivalent to a review of the merits.

No. 08-2256 Guilmette v. Howes Page 32

Lundgren, 440 F.3d at 765 (emphasis added); see also Williams v. Bagley, 380 F.3d 932,

968-69 (6th Cir. 2004) (“[T]his court has repeatedly held, in published decisions, that

plain error review by an appellate court constitutes enforcement of Ohio’s

contemporaneous objection rule.”); Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 423

(6th Cir. 2003) (holding that the state appellate court’s occasional reference to

“reversible error” and citation to federal law did not foreclose a finding that the state

court invoked a state procedural bar to preclude habeas review on an independent state

procedural ground, where the state court noted the petitioner’s failure to comply with a

contemporaneous objection rule and discussed only plain error); Hinkle v. Randle,

271 F.3d 239, 244 (6th Cir. 2001) (“[W]e view a state appellate court’s review for plain

error as the enforcement of a procedural default”); Seymour v. Walker, 224 F.3d 542,

557 (6th Cir. 2000) (“Controlling precedent in our circuit indicates that plain error

review does not constitute a waiver of state procedural default rules.”).

The majority overrules precedent and reaches its holding by misreading People

v. Jackson, 633 N.W.2d 825 (Mich. 2001).3 In doing so, my colleagues erroneously

conclude that the Michigan Supreme Court ruled on the substantive merits of Jackson’s

federal constitutional claims. It did not. Rather, the Michigan Supreme Court analyzed

Jackson’s claim under the “cause” and “prejudice” procedural bar of M.C.R.

6.508(D)(3). Like the present case, it was the state trial court in Jackson – not the

Michigan Supreme Court – that decided the federal issues on their merits. In affirming

the judgment, only, of the lower court, the Michigan Supreme Court clearly applied the

higher, and more-demanding procedural bar of “cause” and “prejudice”:

As noted earlier, the circuit judge carefully reviewed and discussed the

merits of these claims, finding them without merit. This, in effect,

amounts to a determination that defendant failed to establish the

prejudice aspect of the MCR 6.508(D)(3) standard. That made it

unnecessary for the court to address the good cause question. See Reed,

supra at 400-401, 535 N.W.2d 496.

3

Similarly, my colleagues read far too much into a single denial order of the state court for which

a claim of ineffective assistance of appellate counsel was purportedly raised.

No. 08-2256 Guilmette v. Howes Page 33

We find no error in the judge’s analysis of the prejudice question and

therefore affirm.

Jackson, 633 N.W.2d at 834. The result, not rationale, of the trial court’s decision, was

affirmed by the Michigan Supreme Court.

In the present case, the majority has overruled our well-established precedent on

the basis of their misinterpretation of a single paragraph of a state court per curiam

opinion. However, the ultimate arbitrator of Michigan law, the Michigan Supreme

Court, has not similarly misread its own decision. I would follow Michigan’s well-

established construction of its post-conviction procedural rules. I therefore respectfully

dissent from the novel construction of the Michigan court rules created by my

colleagues.

In my view, today’s decision usurps the role of the Michigan appellate courts and

defies the principles of comity and federalism that underlie the independent and adequate

state ground doctrine. It will open the floodgates for expansive habeas review because:

Without the rule, a federal district court would be able to do in habeas

what this [Supreme] Court could not do on direct review; habeas would

offer state prisoners whose custody was supported by independent and

adequate state grounds an end run around the limits of this Court’s

jurisdiction and a means to undermine the State’s interest in enforcing its

laws.

Coleman, 501 U.S. at 730-31.

For these reasons, I would hold the vacated panel opinion correctly determined

that under Michigan’s independent and adequate rules of criminal procedure, petitioner

Guilmette’s federal constitutional claims were procedurally defaulted and, thus, for

purposes of federal habeas review, were analyzed for cause and prejudice, which the

majority properly found lacking. Accordingly, I respectfully dissent. I would reinstate

the panel majority opinion and reverse the district court.