Opposition Brief — Metrish v. Hatchett

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APR 11 2005

No. 04-1134 OFFICE OF THE CLERK

ee

In the

Supreme Court of the Anited States

LINDA METRISH, WARDEN,

Petitioner,

DARRIN T. HATCHETT,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JOHN F. Roya

Counsel of Record

THE Forp BUILDING

615 GriswoLpD St., Surre 1724

Detroir, MI 48226

(313) 962-3738

Counsel for Respondent

Becker Gallagher Legal Publishing, Inc., 800.890.5001

i

QUESTION PRESENTED

I. Where the Order of the Wayne County Juvenile Court

Waiving the Court’s Jurisdiction and Transferring the

Respondent’s Delinquency Prosecution to the Adult

Criminal Court Was, Under Michigan Law, a Final

Judgment Directly Appealable by Right to the Wayne

Circuit Court; and Where Retained Counsel’s Failure to

Timely Pursue a Direct Appeal of the Waiver Decision

Forfeited the Appeal Under Michigan Law Because Legal

Challenges to the Waiver Decision Could Not Be First

Asserted in the Respondent’s Appeal from His Conviction

in the Adult Criminal Court; the United States Court of

Appeals for the Sixth Circuit Correctly Held, Pursuant to

Roe v. Flores-Ortega, 528 U.S. 470 (2000), That the

Respondent, to Establish Ineffective Assistance of

Appellate Counsel Justifying the Issuance of the Writ,

Need Not Prove There Was a Substantial Probability He

Would Have Prevailed in His Appeal of the Juvenile

Court’s Order Waiving Jurisdiction, but Need Only Show

He Wanted to Appeal, Retained an Attorney to Appeal,

and the Attorney Never Filed the Appeal.

il

TABLE OF CONTENTS

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TABLE OF CAPNSRPES 6.5 65 ks Ko aes Swen es

TABLE OF ALSTRIRRRE Me 6.65 34s Sk dice eens

COUNTER STATEMENT OF THE CASE ........

REASONS FOR DENYING THE WRIT ..........

I.

Where the Order of the Wayne County Juvenile Court

Waiving the Court’s Jurisdiction and Transferring the

Respondent’s Delinquency Prosecution to the Adult

Criminal Court Was, Under Michigan Law, a Final

Judgment Directly Appealable by Right to the Wayne

Circuit Court; and Where Retained Counsel’s Failure

to Timely Pursue a Direct Appeal of the Waiver

Decision Forfeited the Appeal Under Michigan Law

Because Legal Challenges to the Waiver Decision

Could Not Be First Asserted in the Respondent’s

Appeal from His Conviction in the Adult Criminal

Court; the United States Court of Appeals for the

Sixth Circuit Correctly Held, Pursuant to Roe v.

Flores-Ortega, 528 U.S. 470 (2000), That the

Respondent, to Establish Ineffective Assistance of

Appellate Counsel Justifying the Issuance of the Writ,

Need Not Prove There Was a Substantial Probability

He Would Have Prevailed in His Appeal of the

Juvenile Court’s Order Waiving Jurisdiction, but Need

Only Show He Wanted to Appeal, Retained an

Attorney to Appeal, and the Attorney Never Filed the

AO Wk oink Oe

A. An Appeal from a Michigan Juvenile Court

Order waiving jurisdiction over a juvenile is

not an “Interlocutory Appeal.” ...... |. 6

1. In Michigan, a Juvenile has an appeal of

right from a Juvenile Court Order waiving

jurisdiction ............,,...2—~” 6

2. The Attorney appointed to represent the

Respondent after his conviction in the adult

criminal court could not have challenged

the Juvenile Court Order waiving

I nv oe bs See vebieee ns 9

3. The failure of the attorney retained to

directly appeal the Juvenile Court Order

waiving jurisdiction over Respondent to

file the appeal, forfeited the issues which

could have been raised in that appeal ... 12

B. The policies underlying Roe v Flores. Ortega,

528 U.S. 470 (2000) fully apply to this case,

and logically lead to the same result... __ . 19

C. The Order of the Juvenile Court waiving

jurisdiction over Mr. Hatchett to the Detroit

Recorder’s Court is not analogous to an Order

issued by a trial court following an

evidentiary hearing on a defense motion to

Suppress certainevidence ........... 24

“ati wena ECR Oe RN ee 25

iV

APPENDIX

Appendix A - MCL 600.861 ................ lb

Appendix B - MCL 600.863 ................ 2b

Appendix C - MCL 600.866 ................ 3b

Vv

TABLE OF AUTHORITIES

Cases

In the Matter of Arthur C. Evans, 99 Mich App 466,

aT PEW OTF PMO 6 ko oo ok va ee ok cas 15

Evitts v Lucey, 469 U.S. 387(1985) ............. 21

Foster v Johnston, 293 F3d 766 (5" Cir. 2002) ...... 24

People v Billington, 116 Mich App. 220,

323 NW2d 343 (1982) ........2............ 16

People v Bowers, 54 Mich App 565,

aah POWSE S72 (IGP) oc i ce ec cn kos 13

People v Figlus, 86 Mich App 552

272 NW2d 722 (1978) ............... 15, 16, 18

People v Jackson, 171 Mich App 191,

429 N.W. 2d 849 (1988) ............. 8, 14, 18

People v Jeffrey Dunbar, 423 Mich 380,

OFT NW 28 POP CSRS) 2g. ass 17, 19, 20

People v Mahone, 75 Mich. App. 407,

254 N.W. 2d 907 (1977) ........ 8, 12, 14, 16, 18

People v Schumacher, 75 Mich App 505,

Ame OWE SD CGT) no oi cc ck ede eccen, 14

Rodriquez v. United States, 395 U.S. 327 (1969) ..... 20

Roe v. Flores-Ortega, 528 U.S. 470 (2000) ..... passim

vi

Spytma v Howes, 313 F3d 363 (6" Cir. 2002) ....... 23

Strickland v Washington, 466 U.S. 668 (1984) ...... 23

Statutes andCourt Rules

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l

COUNTER-STATEMENT OF THE CASE

Respondent Darrin T. Hatchett (hereinafter “Respondent”

or “Mr. Hatchett”) was involved in the shooting death of a

friend on December 29, 1986, when Respondent was 15

years, 3 months old. The Respondent was a juvenile under

Michigan Law at the time of this incident, so the Wayne

County Prosecuting Attorney commenced delinquency

proceedings against Respondent in the Juvenile Division of

the Wayne County Probate Court (hereinafter: “Juvenile

Court”). Hearings were held on January 20 and March 10,

1987 to determine whether the Juvenile Court should waive

jurisdiction over Mr. Hatchett, and Order this case

transferred to the appropriate adult felony court, the

Recorder’s Court for the City of Detroit (hereinafter:

“Recorder’s Court”). Following these hearings, the Juvenile

Court issued an Opinion and Order waiving its jurisdiction,

and transferring this case to the Recorder’s Court. (See

Petitioner’s Appendix, at 78a-83a).

The Petition for Writ of Certiorari (hereinafter: “The

Petition”) filed by the Michigan Attorney General on behalf

of Petitioner Warden Linda Metrish (hereinafter:

“Petitioner”), erroneously describes the events which

followed the Juvenile Court’s waiver of jurisdiction, as

follows: “The late Charles Campbell was then appointed to

represent Respondent.” (Petition, at 4). This is inaccurate.

Attorney Charles Campbell was not appointed to represent

Mr. Hatchett by any court, but was retained by Mr. Hatchett’s

family to both represent him on the pending felony charges

in the Recorder’s Court for the City of Detroit, and to appeal

the Juvenile Court’s Order Granting Waiver to the Wayne

County Circuit Court. The Opinion of the United States

Court of Appeals for the Sixth Circuit (hereinafter: “Sixth

Circuit”) describes these facts correctly as follows:

2

Hatchett retained attorney Charles Campbell to

represent him after the waiver hearing. Campbell

represented Hatchett at the preliminary examination in

state district court, but he did not appeal the juvenile

court’s decision to waive jurisdiction. ... (Petitioner’s

Appendix, at 3a).

The record in this case does not indicate why

Campbell did not appeal the juvenile court’s waiver of

jurisdiction. One of Hatchett’s uncles has indicated in

an affidavit that he and his brother retained Campbell

to appeal the juvenile court’s waiver of jurisdiction.

Campbell moved to adjourn the preliminary

examination in the state district court, stating that this

was a waiver from juvenile court and “[w]e have to

study all of that and consider our options there and

here...” Later, however, he agreed to proceed with

the preliminary examination. Because Hatchett’s

uncle retained counsel to appeal, it is clear that

Hatchett would have appealed. (Petitioner’s

Appendix, at 6a)

The Respondent was then convicted as an adult of two

charges following a trial in the Recorder’s Court: Second-

Degree Murder and Possession of a Firearm During a Felony.

He was sentenced to life in prison, plus two years. The

Respondent was represented on direct appeal from his

Recorder’s Court criminal convictions to the Michigan Court

of Appeals by a Court-Appointed appellate attorney, Mr.

Roman Karwowski, who challenged on appeal the sufficiency

of the evidence to sustain the convictions and also argued that

the sentence was excessive under Michigan Law (Opinion and

Order Denying Habeas Corpus Petition, (hereinafter:

“District Court Opinion”), Petitioner’s Appendix, at 8a-9a).

3

Attorney Karwowski did not and could not have raised any

challenge to the Juvenile Court Order waiving jurisdiction

over Mr. Hatchett to the Recorder’s Court in the appeal he

filed on behalf of Mr. Hatchett in the Michigan Court of

Appeals, because Michigan law required that the Juvenile

Court decision to waive jurisdiction must first be appealed

directed to the county circuit court, in this case, the Wayne

County Circuit Court. The failure of attorney Charles

Campbell to file such a direct appeal of the Juvenile Court

Order waiving jurisdiction in the Wayne County Circuit

Court, which Attorney Campbell had been specifically

retained to do, forfeited Mr. Hatchett’s legal right to appeal

the Juvenile Court Order. Mr. Hatchett’s right to appeal and

challenge the decision of the Juvenile Court to transfer

jurisdiction over this case to the Recorder’s Court, a right

protected by Michigan Law, was therefore lost as a result of

Attorney Campbell’s failure to file the appeal that he had been

hired to pursue.

Ultimately, Mr. Hatchett initiated further post-conviction

proceedings arguing, inter alia, that he had been deprived of

the effective assistance of appellate counsel by Attorney

Campbell’s failure to appeal the decision of the Juvenile Court

to waive jurisdiction to the Recorder’s Court. This claim was

properly pursued through the state courts of Michigan, and

was then the subject of a Petition for Habeas Corpus filed in

the United States District Court, commencing the instant

proceedings. (See District Court Opinion, Petitioner’s

Appendix, at 9a-lla). The District Court denied relief,

finding that Mr. Hatchett had failed to establish that, even if

Attorney Campbell had filed and pursued an appeal in the

Wayne Circuit Court from the Juvenile Court Order waiving

jurisdiction over Mr. Hatchett, that there was a “reasonable

probability that, but for [Attorney] Campbell’s failure to

appeal the probate court’s decision, the result of the

4

proceeding would have been different.” (District Court

Opinion, Petitioner’s Appendix, at 23a).

Mr. Hatchett appealed to the Sixth Circuit, arguing that

the District Court had applied the wrong legal standard in

light of Roe v Flores-Ortega, 528 U.S. 470 (2000). The Sixth

Circuit agreed, reversed the District Court, and specifically

found, based upon Flores-Ortega, supra, that “prejudice is

presumed from counsel’s failure to file a Notice of Appeal

when requested by his client.” (Sixth Circuit Opinion,

Petitioner’s Appendix, at 6a)

The Petition filed in this case by the Michigan Attorney

General misinforms this Court, and mischaracterizes the

appellate remedy provided in Michigan Law for Mr. Hatchett

to challenge the Juvenile Court’s waiver of jurisdiction. The

Attorney General’s Petition repeatedly and erroneously refers

to such an appeal as an “Interlocutory Appeal.” (See Petition,

at i, ii, 5, 6, 7, 10, 11, 13). This is completely wrong. The

applicable Michigan statutes (Respondent’s Appendices, A, B,

and C) establish a right of direct review from a Juvenile Court

order waiving jurisdiction over a juvenile accused of a serious

delinquent act, to the appropriate county circuit court.

This is the only avenue of appellate review provided for

such an order. Controlling Michigan cases which both

precede and follow the Juvenile Court proceedings in Mr.

Hatchett’s case have clearly established that any challenge to

the waiver of jurisdiction by the Juvenile Court could not be

first raised in the Michigan Court of Appeals during Mr.

Hatchett’s appeal from his convictions in the Recorder’s

Court, because the failure to first take an appeal of right to

the county circuit court forfeits the right to appeal the Order

of the Juvenile Court. If such an appeal were an

“interlocutory appeal,” then there would be no bar to raising

5

such issues on direct appeal from the convictions in the adult

felony court. Thus, it is completely erroneous to refer to an

appeal of the Juvenile Court’s waiver decision as an

“Interlocutory Appeal.”

Further, the Petition in this case also mischaracterizes the

opinion of the Sixth Circuit (Petitioner’s Appendix, at 2a-7a)

in this case as representing an unwarranted expansion of

Flores-Ortega, supra. (See Petition, at 7-8, 10, 16). This is

an erroneous interpretation of the Sixth Circuit’s Opinion.

The Sixth Circuit did not expand Roe v Flores-Ortega, but

simply appropriately and logically applied that decision to the

facts of the instant case. This Court in Flores-Ortega, supra,

concluded that a defendant who asserts he was deprived of his

right to appeal altogether by the ineffective assistance of

appellate counsel need not establish a reasonable probability

that he would have prevailed on the appeal; the same

reasoning should clearly apply to this case.

Since, under Michigan law, the appeal from a Juvenile

Court decision to waive jurisdiction over a juvenile accused

of a serious delinquent act to the appropriate adult felony

court is not an Interlocutory Appeal, but it is a separate

appeal of right which must be pursued or it is forfeited, the

reasoning and logic of Flores-Ortega, supra, should clearly

apply. The Sixth Circuit correctly applied the rule

established by Flores-Ortega, supra, to this case, and

therefore there is no need for this Court to grant Certiorari

and address this case. If this Court should see fit to grant

Certiorari, the Judgment of the Sixth Circuit should be

affirmed.

6

REASON’S FOR DENYING THE WRIT

I. Where the Order of the Wayne County Juvenile Court

Waiving the Court’s Jurisdiction and Transferring the

Respondent’s Delinquency Prosecution to the Adult

Criminal Court Was, Under Michigan Law, a Final

Judgment Directly Appealable by Right to the Wayne

Circuit Court; and Where Retained Counsel’s Failure

to Timely Pursue a Direct Appeal of the Waiver

Decision Forfeited the Appeal Under Michigan Law

Because Legal Challenges to the Waiver Decision Could

Not Be First Asserted in the Respondent’s Appeal

from His Conviction in the Adult Criminal Court; the

United States Court of Appeals for the Sixth Circuit

Correctly Held, Pursuant to Roe v. Flores-Ortega, 528

U.S. 470 (2000), That the Respondent, to Establish

Ineffective Assistance of Appellate Counsel Justifying

the Issuance of the Writ, Need Not Prove There Was a

Substantial Probability He Would Have Prevailed in

His Appeal of the Juvenile Court’s Order Waiving

Jurisdiction, but Need Only Show He Wanted to

Appeal, Retained an Attorney to Appeal, and the

Attorney Never Filed the Appeal.

A. An Appeal from _a Michigan Juvenile Court

Order waiving jurisdiction over a juvenile is not

an “Interlocutory Appeal.”

1. In Michigan, a Juvenile has an appeal of right

from __a_ Juvenile Court Order waiving

jurisdiction.

The Petition for Writ of Certiorari filed in this case

repeatedly and erroneously mischaracterizes the appellate

procedures provided in Michigan to juveniles who wish to

Rliaieriaiitins ors aera r

7

challenge on appeal a decision by the Juvenile Court to waive

jurisdiction over them to the appropriate adult felony court.

Under Michigan law, an Order of a Juvenile Court waiving

jurisdiction over a juvenile charged with a serious delinquent

act to the appropriate adult felony court is a final Order of

that Court, appealable by right to the circuit court for the

county where the Juvenile Court sits. If the appeal of right

is not pursued in a timely manner, the right to raise a legal

challenge to the waiver decision of the Juvenile Court is

forfeited and lost forever. This procedure does not fit the

definition of an: “Interlocutory Appeal.” The phrase

“Interlocutory Appeal” is used to refer to appeals taken prior

to the final judgment of the case, where the appellant requests

a higher court to exercise its discretion, and review an

interlocutory order, based upon a belief that the progress of

the litigation will be expedited or advanced if a particular

issue or issues are decided before trial.

Pursuant to Michigan statutes which were in effect at the

time of Mr. Hatchett’s case, and which are still in effect

today, an appeal of a Juvenile Court Order waiving

jurisdiction is not an Interlocutory Appeal; it is an appeal

from a final judgment issued by the Juvenile Division of the

county Probate Court. The time limitations and other

requirements for appealing from a final judgment must be

met, or the juvenile’s legal right to appeal the Juvenile

Court’s decision to waive jurisdiction is forfeited.

The mischaracterization of this procedure in the Petition

is particularly unfortunate and troubling, since the Opinion of

the District Court in this matter accurately describes Michigan

Law on this very point, as follows:

A juvenile was entitled to an appeal of right in circuit

court from the probate court’s waiver of jurisdiction.

8

People v Jackson, 171 Mich App 191, 195-96; 429

N.W. 2d 849, 852 (1988). After the deadline for

filing a claim of right expired, he could apply for

leave to appeal in the circuit court. /d., 171 Mich

App at 196; 429 N.W. 2d at 852. Failure to appeal

the juvenile court’s decision to waive jurisdiction

barred review of the issue in the Michigan Court of

Appeals. Id.; People v Mahone, 75 Mich. App. 407,

410; 254 N.W. 2d 907, 909 (1977). (District Court

Opinion, Petitioner’s Appendix, at 23a)(emphasis

supplied).

The District Court clearly and correctly understood that

Attorney Campbell, who was retained to represent Mr.

Hatchett after the Juvenile Court waived jurisdiction over him

to the Detroit Recorder’s Court, forfeited Mr. Hatchett’s

ability to challenge the decision of the Juvenile Court by not

timely pursuing an appeal to the Wayne Circuit Court from

the Juvenile Court Order waiving jurisdiction. The District

Court went on to point out:

Attorney Charles Campbell did not appeal the juvenile

court’s waiver of jurisdiction, and his failure to do so

precluded Petitioner from raising the issue in the

Michigan Court of Appeals. Jackson, 171 Mich.

App. at 195; 429 N.W. 2d at 852. Petitioner alleges

that Campbell squandered his best chance at avoiding

exposure to a life sentence. [footnote omitted] (District

Court Opinion, Petitioner’s Appendix, at 16a).

The District Court Opinion also describes the facts in the

record supporting Mr. Hatchett’s contention that attorney

Campbell was in fact hired to appeal the final judgment of the

Juvenile Court waiving jurisdiction over Mr. Hatchett, as

follows:

9

The record does not indicate why Campbell did not

appeal the juvenile court’s waiver of jurisdiction. One

of Petitioner’s uncles has indicated in an affidavit that

he and his brother retained Campbell to appeal the

juvenile court’s waiver of jurisdiction. Campbell

moved to adjourn the preliminary examination in state

district court, stating that this was a waiver from

juvenile court and “[W]e have to study all of that and

consider our options there and here...” (Tr. Mar. 23,

1987, at 3). Later, however, he agreed to proceed

with the preliminary examination. (District Court

Opinion, Petitioner’s Appendix, at 16a) _

Thus, the Petitioner, by mischaracterizing the procedures

in Michigan governing an appeal from a Juvenile Court Order

waiveing jurisdiction over a juvenile accused of delinquent

acts, inappropriately minimizes the legal effect of the

deficient performance of attorney Campbell in failing to file

and pursue such an appeal.

2. The Attorney appointed to represent the

Respondent after his conviction in the adult

criminal court could not have challenged the

Juvenile Court Order waiving jurisdiction.

The Petitioner further misleads this court by inaccurately

stating that after Mr. Hatchett was convicted and sentenced in

the adult felony court, the attorney who represented him on

appeal from his convictions in the Recorder’s Court could

have, in that appeal, challenged the decision of the Juvenile

Court to waive jurisdiction. ‘The Petition erroneously states:

Furthermore, Respondent was afforded new counsel

on appeal from his conviction, who was able to review

the record to determine if there was an issue of

10

ineffective assistance of counsel that caused his client

actual prejudice. (Petition, at 8).

This statement is completely wrong, for several reasons.

First, Mr. Karwowski, the attorney assigned to represent Mr.

Hatchett after his conviction in the Recorder’s Court, would

not have been able to challenge the order of the Juvenile

Court to waive jurisdiction over Mr. Hatchett because, as

pointed out by the Opinion of the District Court in the

excerpts quoted, supra, Michigan law establishes that the

failure to pursue a direct appeal of the Juvenile Court

decision to the county circuit court “precludes the defendant

from raising the issue again in the Michigan Court of

Appeals.” (District Court Opinion, Petitioner’s Appendix, at

16a).

In addition, the appellate attorney representing Mr.

Hatchett following his convictions in the Detroit Recorder’s

Court, was appointed by the Detroit Recorder’s Court; s/ he

would not have been able to obtain copies of the records and

transcripts of the proceedings in the Juvenile Court at Court

expense. In Michigan, in the vast majority of cases, the

Court whose Judgment is being challenged is the Court that

appoints counsel for an indigent defendant. Individual courts

jealously guard the prerogative to appoint counsel.

Had attorney Campbell properly filed an appeal from the

Juvenile court’s decision to waive jurisdiction, the appeal

would have gone to the Wayne County Circuit Court, and

been heard in a separate court by a separate Judge from the

Judge assigned to preside over the adult criminal prosecution

in the Detroit Recorder’s Court. Further, attorney Campbell,

as retained counsel, would have had to pay the necessary

costs to the Juvenile Court Reporter and to the Juvenile Court

Clerk to obtain copies of the transcripts and the records.

11

Had the Wayne County Juvenile Court assigned counsel

to represent Mr. Hatchett on appeal from its decision to waive

jurisdiction, the Juvenile Court would have provided its own

Court-assigned attorney with copies of the transcripts and

court records at court expense. However, Attorney Roman

Karwoski, the attorney who was assigned by the Detroit

Recorder’s Court to represent Mr. Hatchett on appeal after his

trial in the adult felony court (Sixth Circuit Opinion,

Petitioner’s Appendix, at 3a), would not have been provided

transcripts and records from the Juvenile Court at Court

expense, because he was not appointed by that Court.

Further, by the time Mr. Karwowski was assigned to

represent Mr. Hatchett on appeal from his convictions in the

Detroit Recorder’s Court, the time limit for filing an appeal

of right from the Juvenile Court waiver decision had long

expired. This is made clear both by the District Court’s

Opinion, supra, and by the applicable Michigan statutes which

provide for appeals from decisions of the County Probate

Court. MCL 600.861; MSA 27A.861 (attached as Appendix

A), provides that certain decisions of the Michigan Probate

Courts can be appealed directly to the Michigan Court of

Appeals. Importantly, a decision of the Juvenile Division of

the Probate Court to waive jurisdiction over a juvenile

accused of delinquent acts is not among the decisions that can

be appealed directly to the Michigan Court of appeals. MCL

600.863; MSA 27A.863 (attached as Appendix B), provides

that:

“a person aggrieved by an order, sentence, or

judgment of the probate court other than an order

appealable under section 861 (MCL 600.861; MSA

27A.861, supra), may appeal to the circuit court in the

county in which the order, sentence or judgment is

rendered.”

12

Such an appeal is on the Juvenile Court record, and is not

de novo. MCL 600.866; MSA 27A.866 (attached as Appendix

Cc.

Thus, appeals of Orders of the Juvenile Court waiving

jurisdiction over juveniles accused of delinquent acts must

go to the county circuit court for the county where the probate

court was sitting. At the time Respondent’s case was heard,

the adult felony court which acquired jurisdiction over Mr.

Hatchett following the waiver of jurisdiction by the Juvenile

Division was the Detroit Recorder’s Court. This is a separate

Court, with different Judges, who would not have had

jurisdiction to entertain the appeal from the Juvenile Court’s

waiver of jurisdiction; such an appeal had to be filed in the

Wayne Circuit Court.

3. The failure of the attorney retained to directly

appeal _the Juvenile Court Order waiving

jurisdiction over Respondent forfeited the

issues which could have been raised in that

appeal.

The cases cited by the District Court, supra, clearly

establish that an appeal of the Juvenile Division’s decision to

waive jurisdiction must be taken directly to the County Circuit

Court, or the appeal is forfeited. In Mahone, supra, the

Michigan Court of Appeals discusses the predecessor statutes

to the statutes which were in effect in 1986 and 1987, when

Mr. Hatchett’s case was before the Juvenile Court.

The more recent statutes are attached in the Respondent’s

Appendix, infra. However, the substance of these statues did

not change. The Michigan Court of Appeals, in Mahone,

supra., described the effect of those statues on the right to

13

appeal a Juvenile Court decision to waive jurisdiction in a

juvenile delinquency case, as follows:

Based on our reading of the above statutes, as well as

the cited court rules, we hold that where, as here, a

probate court waives jurisdiction over a juvenile in

order that he be tried as an adult, the juvenile must

first seek review of that decision in the circuit court

before this Court will consider the question.

Defendant advances no suitable reason why he should

be allowed to circumvent the statutory scheme; he

cites no cases where this Court exercised review on

similar facts. Cf, People v Bowers, 54 Mich App

565, 566; 221 NW2d 472 (1974). Hence we refuse to

engraft on the foregoing statues a judicial exception

which would sap them of their force. [footnote

omitted].

Review by the circuit court, we believe, serves three

salutary functions: (1) it permits consideration by a

court in the same locale as the juvenile court,

presumably a court more intimately familiar than are

we with the available regional facilities for

rehabilitation of juveniles, see MCL 712A.4(4)(d);

MSA 27.3178(598.4)(4)(d) and JCR 1969, 11.1(B)(4);

(2) it bears the potential that an erroneous waiver

decision will be more speedily considered and

reversed than is possible in this Court (thus ensuring

that a minor over whom jurisdiction is mistakenly

waived, will be returned quickly to juvenile

rehabilitation); and (3) it provides the Court of

Appeals with an analysis, independently undertaken,

of the probate court’s reasons for waiver. With these

functions in mind, we conclude that defendant may not

subvert the legislative plan.'

14

'We note, however, that a defendant who does

invoke circuit-court review of a waiver order

may, upon his later conviction, raise anew the

propriety of waiver in his appeal of right

before this Court. See People v Schumacher,

75 Mich App 505; 256 NW2d 39 (1977)....

Mahone, supra, at 410-411. (emphasis added)

Mahone, is particularly important because it was decided in

1977, and is the applicable precedent that controlled at the

time Mr. Hatchett’s case was before the Juvenile Court.

Further, as pointed out by the District Court, supra, the

Michigan Court of Appeals reaffirmed Mahone in 1988 in

People v Jackson, supra., an opinion which was handed down

by the Michigan Court of Appeals approximately | and “2

years after the Juvenile Court waived jurisdiction over Mr.

Hatchett. Jackson , supra, at 195-196, clearly states:

This Court will not rule on the propriety of a waiver

of jurisdiction by the probate court unless the juvenile

first seeks review in the circuit court. The review

procedure is governed by the statutes and court rules

pertaining to appeals. People v Mahone, 75 Mich

App 407, 410; 254 NW2d 907 (1977).

GCR_ 1963, 701.2(a), now MCR 7.101(B)(1),

provided for an appeal as of right to the circuit court

from a probate court order if appeal was taken within

twenty days of the entry date of the order (twenty-one

days under the new rule). Where the twenty-day

period had expired, the circuit court could grant leave

to appeal if requested pursuant to GCR 1963,

701 .2(c), 703.2, now MCR 7.101(B)(2), 7.103(B).

15

Here, defendant appealed from the probate court’s

August 20, 1984, order waiving jurisdiction within the

twenty-day time limitation of former GCR 1963,

701.2(a). However, defendant subsequently abandoned

the appeal, which has been dismissed. Moreover,

defendant never sought leave to appeal in the circuit

court. Because no appeal has been pursued in the

circuit court, this Court may not consider the

propriety of the probate court’s order waiving

jurisdiction. [footnote omitted]

These principles are well settled in Michigan Law. Thus,

in People v Figlus, 86 Mich App 552; 272 NW2d 722 (1978),

the Michigan Court of Appeals refused to hear an appeal from

a juvenile who was convicted in the adult felony court

following a waiver of the Juvenile Court’s jurisdiction,

because of the failure of the defendant to take a direct appeal

from the juvenile court decision. The Court stated: “no

appeal from the probate court’s decision to waive jurisdiction

was taken in the Circuit Court [citations omitted].” Thus, the

Michigan Court of Appeals refused to review the propriety of

the Juvenile Court’s decision to waive jurisdiction.

in another case, entitled: Jn the Matter of Arthur C.

Evans, 99 Mich App 466; 297 NW2d 873 (1980), the

Michigan Court of Appeals did review the propriety of the

Juvenile Court’s decision to waive jurisdiction over a juvenile

accused of acts of delinquency, where the juvenile did timely

challenge the waiver decision in the Wayne County Circuit

Court, and where the Circuit Court in fact reversed the

Judgment of the Juvenile Court. Upon consideration of the

merits, the Michigan Court of Appeals reversed the Circuit

Court’s decision, and reinstated the Juvenile Court’s decision

to waive jurisdiction. [Note: undersigned counsel represented

16

juvenile, Arthur C. Evans, in the above case during the

waiver of jurisdiction proceedings in the Juvenile Court.]

In People v Billington, 116 Mich App. 220; 323 NW2d

343 (1982), the Michigan Court of Appeals noted that the

1979 statutory changes did not alter the law in Michigan that

a decision of the Juvenile Court to waive jurisdiction over a

juvenile charged with delinquent acts is a final judgment

which must be appealed directly to the county circuit court.

Billington, supra, at 229-230, states as follows:

There is no showing on the record that defendant’s

prior juvenile convictions were constitutionally infirm.

Defendant admits that the waiver was not initially

challenged in the circuit court on the present grounds.

In People v Mahone, 75 Mich App 407; 254 NW2d

907 (1977), the Court held that where a probate court

waives jurisdiction over a juvenile to try him as an

adult, the juvenile must first seek review of that

decision in the circuit court before this Court will

consider the question. In People v Figlus, 86 Mich

App 552; 272 NW2d 722 (1978), and in Mahone, this

Court held that where the defendant did not invoke the

circuit court’s review of the probate court’s decision

to waive jurisdiction, defendant waived any challenge

he might have had to the infirmity of the probate court

proceedings.

The above-cited cases in which the defendants were

found to have waived any challenge to the infirmity of

the probate court proceedings were all based upon

MCL 712A.22, 701.45a; MSA 27.3178(598.22),

27.3178(45.1). These statutes have now been

superseded by the Revised Judicature Act, specifically

by MCL 600.863; MSA 27A.863, which states that a

17

person aggrieved by a final order, sentence or

judgment of a probate court may appeal from that

order to the circuit court; appeal to this Court in a

case of this type is by application and not as a matter

of right. Leave to appeal not having been granted,

this issue is not properly before this Court.

Finally, the seminal decision in Michigan setting forth,

discussing, and applying the criteria which must be looked at

to determine whether Juvenile Court jurisdiction is properly

waived is People v Jeffrey Dunbar, 423 Mich 380; 377

N.W.2d 262 (1985), which opinion was handed down

approximately two years before the Juvenile Court

proceedings in Mr. Hatchett’s case. [NOTE: undersigned

counsel represented juvenile Jeffrey Dunbar during the waiver

of jurisdiction proceedings in the Juvenile Court]. The Jeffrey

Dunbar opinion summarized the appellate progress of that

case, explaining how the appeal of the Juvenile Court decision

to waive jurisdiction came before the Michigan Supreme

Court. The Court stated as follows:

Jurisdiction was waived in September, 1978, and

defendant promptly appealed this determination. The

circuit court did not decide the appeal until July, 1979,

several months after defendant was tried and

sentenced. The Court of Appeals affirmed the waiver

order and the conviction two years later. Jeffrey

Dunbar, supra, 423 Mich at 398, n. 8.

Thus, defendant Dunbar properly appealed the final

judgment of the Juvenile Court to the Wayne Circuit Court,

which ultimately affirmed the decision of the Juvenile Court

to waive jurisdiction, although the circuit court did not issue

its opinion until after defendant Dunbar had gone to trial in

the Detroit Recorder’s Court and been convicted of First

18

Degree Felony Murder. Both the Juvenile Court’s Order

waiving jurisdiction, and the murder conviction in the adult

court, were appealed to the Michigan Court of Appeals,

which rejected all claims for relief. The Michigan Supreme

Court then granted leave to appeal, and ultimately issued its

seminal opinion in Juvenile Law, and determined that the

Juvenile Court had improperly waived its jurisdiction over

Mr. Dunbar, and ordered his adult felony conviction vacated.

Similarly, in the instant case, the Order of the Juvenile

Court waiving its jurisdiction over Respondent Darrin

Hatchett was a final Order, which, under Michigan law, Mr.

Hatchett had a right to appeal. Mr. Hatchett attempted to

exercise his right of appeal. His family retained attorney

Charles Campbell to both represent him on the pending

charges in the Detroit Recorder’s Court, and to appeal the

decision of the Juvenile Court waiving jurisdiction over him.

However, as found by the District Court, Attorney

Campbell never filed an appeal from the Juvenile Court Order

in the Wayne Circuit Court. (District Court Opinion,

Petitioner’s Appendix, at 16a). Thus, it is not correct to say,

as contended by Petitioner, that Attorney Roman Karwowski,

who was assigned to represent Mr. Hatchet following his trial

conviction in the Detroit Kecorder’s Court, could have

challenged the Order of the Juvenile Court to waive

jurisdiction. (Petition, at 10-11, 13). The time limits for an

appeal of right from the Order of the Juvenile Court had

expired by that time. Even if Attorney Karwowski had raised

a challenge to the Juvenile Court’s Order waiving jurisdiction

in the Michigan Court of Appeals, the Michigan Court of

Appeals would have refused to consider it, in light of Mr.

Hatchett’s failure to first take an appeal of right to the Wayne

County Circuit Court. Mahone, supra, Figlus, supra, and

Jackson, supra. Further, the Juvenile Court Order was not

19

issued by the Detroit Recorder’s Court, which is the court

which had appointed Mr. Karwowski to represent Mr.

Hatchett; therefore an appeal of the Juvenile Court Order was

outside the scope of the Order appointing Mr. Karwowski to

represent Mr. Hatchett. In addition, since Mr. Karwowski

had not been appointed by the Juvenile Court, the Juvenile

Court would not have recognized his assignment as_ counsel

for Mr. Hatchett, and would have refused to provide Mr.

Karwowski with copies of the transcripts of the Juvenile Court

hearings, or copies of documents in the Juvenile Court file, at

court expense. Without access to the transcripts or records of

the proceedings in the Juvenile Court, Mr. Karwowski,

assigned by the Detroit Recorder’s Court, would have been

completely unable to mount any substantive challenge to the

Juvenile Court’s Order waiving jurisdiction over Mr.

‘Hatchett. |

B. The policies underlying Roe v Flores-Ortega, 528

U.S. 470 (2000) fully apply to this case, and

logically lead to the same result.

The Petitioner erroneously presents this as a case of first

impression. It is not, because, as determined by the Sixth

Circuit, this case presents un uncontroversial and eminently

logical application of the rule in Flores-Ortega, supra, to the

final judgment of the Juvenile Court waiving jurisdiction over

the Respondent. The Juvenile Court issued this Order

following a contested hearing, involving the presentation of

evidence, and arguments by counsel.

The complexity of the issues and arguments that can be

appropriately raised in appeal from such a Juvenile Court

Order is illustrated by the seminal opinion of the Michigan

Supreme Court in People v Jeffrey Dunbar, 423 Mich 380,

385-86; 377 NW2d 262 (1985), which was the leading case in

20

Michigan concerning the waiver of juvenile court jurisdiction

at the time of the Juvenile Court hearings in the instant case.

In Dunbar, supra, the Michigan Supreme Court discussed at

length the record of the testimony presented at the hearing

before the Juvenile Court, and applied the legal standards

which govern the decision to waive jurisdiction as established

by Michigan law, to the facts as presented. The Opinion of

the Michigan Supreme Court in Dunbar takes up 15 pages of

the Michigan reporter. Dunbar, supra., 423 Mich at 383-

398. The dissenting opinion takes up 12 pages of the

Michigan reporter. Dunbar, supra, 423 Mich at 398-410

(Dissenting Opinion of Boyle, J.). Thus, the issues which can

be raised in such an appeal are many, and complex.

For these reasons, the policies underlying this Court’s

decision in Roe v Flores-Ortega, supra, fully apply to the

instant case. In Flores-Ortega, supra, this Court clearly

rejected any suggestion that a Habeas Petitioner, such as Mr.

Hatchett, who has been deprived of his right to appeal by the

ineffective assistance of appellate counsel, must articulate the

arguments that would have been raised in such an appeal, had

it been taken, or demonstrate a likelihood that the appeal

would have probably been successful had it been properly

and timely pursued. In Roe v Flores-Ortega, supra, this

Court stated: -

Similarly, in Rodriquez [v. United States, 395 U.S.

327 (1969)], counsel failed to file a notice of appeal,

despite being instructed by the defendant to do so.

See Rodriquez, 395 U.S., at 328. We held that the

defendant, by instructing counsel to perfect an appeal,

objectively indicated his intent to appeal and was

entitled to a new appeal without any further showing.

Because “[t]hose whose right to an appeal has been

frustrated should be treated exactly like any other

21

appellan[t],” we rejected any requirement that the

would-be appellant “specify the points he would raise

were his right to appeal reinstated.” Jd., at 330. See

also Evitts v Lucey, 469 U.S. 387 (1985) (defendant

entitled to new appeal when counsel’s deficient failure

to comply with mechanistic local court rules led to

dismissal of first appeal).....

For these reasons, this Court reached the following

conclusion in Roe v Flores- Ortega, supra:

By the same token, although showing nonfrivolous

grounds for appeal may give weight to the contention

that the defendant would have appealed, a defendant’s

inability to “specify the points he would raise were his

right to appeal reinstated,” Rodgriquez, 395 U.S., at

330, will not foreclose the possibility that he can

satisfy the prejudice requirement where there are other

substantial reasons to believe that he would have

appealed. See ibid.; see also Peguero [v. United

States], 526 U.S. [23], at 30 [1999] (O’Connor, J.,

concurring) (“To require defendants to specify the

grounds for their appeal and show that they have some

merit would impose a heavy burden on defendants

who are often proceeding pro se in an initial [habeas]

motion”). We similarly conclude here that it is unfair

to require an indigent, perhaps pro se, defendant to

demonstrate that his hypothetical appeal might have

had merit before any advocate has ever reviewed the

record in his case in search of potentially meritorious

grounds for appeal. Rather, we require the defendant

to demonstrate that, but for counsel’s deficient

conduct, he would have appealed.

yf

Mr. Hatchet has met the test set forth by this Court in Roe

v Flores-Ortega, supra. The Opinion of the District Court

clearly found that Mr. Hatchett has established that he

wanted to appeal, and that in fact Attorney Charles Campbell

was hired to pursue the appeal. (District Court Opinion,

Petitioner’s Appendix, at 8a-9a, 12a, 16a, 23a-24a). This

aspect of the District Court’s Opinion was upheld by the Sixth

Circuit (Opinion of the Sixth Circuit, Petitioner’s Appendix,

at 3a, Sa, 6a-7a).

For these reasons, the Petitioner’s argument that the Sixth

Circuit erroneously applied the “presumed prejudice”

standard of Roe v Flores-Ortega, supra, to this case, is off

base. The Petitioner argues: “Here a record exists from

which actual prejudice can be ascertained from that failure [to

appeal the Juvenile Court’s Order waiving jurisdiction].

(Petition, at 10). Contrary to this assertion, the issue

presented in this case is no different from the issue presented

to this Court in Roe v Flores-Ortega, where the Petitioner had

lost his right to appeal his adult felony conviction because his

attorney failed to file and pursue the appeal.

It is true that in the instant case, just as in Flores-Ortega,

there are transcripts and court records available from which

Mr. Hatchett could have attempted to, on his own, identify

ind articulate possible appeal issues which could have been

raised in an appeal of right from the Juvenile Court decision

waiving jurisdiction. However, in Flores-Ortega, this court

decided as a matter of policy that a Habeas Petitioner should

not be put into the position of trying to articulate the appellate

issues, and establish that these issues would probably have

resulted in a different outcome of the proceeding; this Court

reached this decision based upon a recognition that the

essence of the violation of the Petitioner’s rights was the

deprivation of a procedure, an appeal; an appeal which he

23

had a right to, but which he was deprived of altogether. Just

as the Habeas Petitioner in Flores-Ortega, supra, had a right

to have an appeal from the final judgement convicting him of

certain crimes, so too did Mr. Hatchett have a right to appeal

the final judgment of the Juvenile Court waiving jurisdiction

over him to the adult court, where he would confront the full

weight of substantially more severe penalties.

The Petitioner also implies that Mr. Hatchett does not

have any meritorious grounds to present on appeal from the

Order of the Juvenile Court waiving jurisdiction, by

incorrectly asserting that Mr. Hatchett does not contest

anything that transpired at either of the two hearings held in

the Juvenile Court on January 20 and March 10, 1987, that

resulted in the Juvenile Court Order waiving jurisdiction.

(See Petition, at 3-4). To the contrary, Mr. Hatchett has

numerous objections to the proceedings that took place in the

Juvenile Court, but has not raised them in the course of these

proceedings because he is not required establish that he has

issues which will probably result in a different outcome.

Flores-Ortega, supra. To show prejudice, all Mr. Hatchett

must establish is that he was deprived of his right to appeal by

the deficient performance of his counsel. The prejudice Mr.

Hatchett must show, and has shown, is that he has been

deprived of his right of appeal the Juvenile Court Order

waiving jurisdiction to the Detroit Recorder’s Court. Mr.

Hatchett need not, at this stage of the proceedings, prove

meritorious grounds for the appeal that could have been

asserted had the appeal been taken in a timely fashion.

The Petitioner cites two cases as standing for the

proposition that, to establish the prejudice prong of the

ineffective assistance of counsel standard established by

Strickland v Washington, 466 U.S. 668 (1984), where an

appellate attorney fails to pursue an appeal from a Juvenile

24

Court Order waiving jurisdiction over a juvenile to an adult

criminal court, a Petitioner must establish a reasonable

prot ability that the appeal would have been successful.

Spytma v Howes, 313 F3d 363, 372 (6" Cir. 2002); Foster v

Johnston, 293 F3d 766, 789 (5" Cir. 2002)(See Petition at

12). However, for whatever reason, neither of these cases

discusses, or even mentions the application of Flores-Ortega,

supra, to the issue before it. Thus, neither case provides any

insight as to why the court felt the issue presented for decision

was not controlled by Flores-Ortega, supra. Therefore,

neither of these cases’ establishes a rule of law which

distinguishes the facts of those cases from the facts and

holding of Flores-Ortega, supra. For the reasons stated,

Flores-Ortega clearly applies here, and mandates affirmance

of the Opinion of the Sixth Circuit.

C. The Order of the Juvenile Court waiving

jurisdiction over Mr. Hatchett to the Detroit

Recorder’s Court is not analogous to an Order

issued _ by a trial court following an evidentiary

hearing on a defense motion to suppress certain

evidence.

The Petitioner is also off base in trying to analogize the

decision of the Juvenile Court to waive jurisdiction over Mr.

Hatchett to the Detroit Recorder’s Court to an Order

following pretrial hearing by the trial court on a defense

motion to suppress certain evidence. (Petition, at 10-13).

The failure to take interlocutory review of pretrial decisions

of the trial court regarding the suppression of eviGence does

not limit the ability of a convicted defendant to raise those

same arguments on direct appeal from a trial court conviction.

However, in this case, Attorney Campbell’s failure to

directly appeal to the Wayne Circuit Court the Juvenile

Court Order waiving jurisdiction over Mr. Hatchett to the

25

Detroit Recorder’s Court effectively deprived Mr. Hatchett

of his right to appeal.

CONCLUSION

The Sixth Circuit correctly applied this Court’s ruling in

Roe v Flores-Ortega, supra., to the instant case, and correctly

determined that Respondent Hatchet did not need to prove that

his appeal from the Final Judgment of the Juvenile Court

waiving jurisdiction over him to the Recorder’s Court for the

City of Detroit would have probably been successful; he need

only demonstrate that he intended to appeal, that he retained

an attorney to perfect his appeal from the Juvenile Court

Order, and that the attorney never filed the appeal.

RELIEF REQUESTED

Therefore, for all the above reasons, the Petition filed by

the Michigan Attorney General for a Writ of Certiorari should

be denied; or, in any event, the Judgment of the United States

Court of Appeals for the Sixth Circuit should be affirmed.

Respectfully submitted,

JOHN F. ROYAL

Counsel of Record

The Ford Building

615 Griswold, Suite 1724

Detroit, MI 48226

(313) 962-3738

Dated: April 11, 2005

lb

APPENDIX A

CHAPTER 600 REVISED JUDICATURE ACT OF 1961

REVISED JUDICATURE ACT OF 1961

CHAPTER 8. PROBATE COURTS

MCL § 600.861

§ 600.861; MSA 27A.861. Appeals to court of appeals

Sec. 861. A party to a proceeding in the probate court

may appeal the following orders as a matter of right to the

court of appeals:

(a) A final order affecting the rights or interests of any

interested person in an estate or trust.

(b) An order entered in an adoption proceeding under

chapter X of Act No. 288 of the Public Acts of 1939, being

sections 710.21 to 710.70 of the Michigan Compiled Laws,

and appealed in accordance with section 65 of chapter X of

Act No. 288 of the Public Acts of 1939, being section 710.65

of the Michigan Compiled Laws.

(c) The following final orders entered by the juvenile

division of the probate court:

(i) An order of disposition placing a child under

the supervision of the court or removing the child from his or

her home.

(ii) An order terminating parental rights.

(d) A final order in a condemnation case entered under the

drain code of 1956, Act No. 40 of the Public Acts of 1956,

being sections 280.1 to 280.630 of the Michigan Compiled

Laws.

Amended by P.A. 1982, No. 318, § 1, Imd. Eff. Oct. 18, 1982.

2b

APPENDIX B

MCL § 600.863

§ 600.863; MSA 27A.863 Appeals to circuit court

Sec. 863. (1) Except when prohibited by statute, a person

aggrieved by an order, sentence, or judgment of the probate

court, other than an order appealable under section 861, may

appeal from that order, sentence, or judgment to the circuit

_ court in the county in which the order, sentence, or judgment

is rendered. An interlocutory appeal under this subsection

shall be by application and not as a matter of right.

(2) An appeal to the court of appeals from a judgment

entered by the circuit court on an appeal from the probate

court under subsection (1) shall be by application.

(3) Instead of appeal under subsection (1), a party may

appeal directly to the court of appeals upon certification of the

issue Or issues by the probate judge. An appeal under this

subsection shall be by application and not as a matter of right.

3b

APPENDIX C

MCL § 600.866

§ 600.866; MSA 27A.866. Appeal on record

Sec. 866. (1) All appeals from the probate court shall be

on a written transcript of the record made in the probate court

or on a record settled and agreed to by the parties and

approved by the court. An appeal shall not be tried de novo.

(2) Notice of appeal shall be given to all interested parties

as provided by supreme court rule.

(3) Except as otherwise provided in sections 861 to 867,

appeals from the probate court or a judge thereof shall be

governed by supreme court rule.