Opinion
ADM File No. 2003-04.
June 26, 2006.
On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendments of Rules 6.502, 6.503, 6.504, 6.506, and 6.509 of the Michigan Court Rules are adopted, effective September 1, 2006.
[The present language is amended as indicated below by underlining for new text and strikeover for text that is deleted.]
Rule 6.502 Motion for Relief from Judgment
(A)-(B) [Unchanged.]
(C) Form of Motion. The motion may not be noticed for hearing, and must be typed or legibly handwritten and include a verification by the defendant or defendant's lawyer in accordance with MCR 2.114. Except as otherwise ordered by the court, the combined length of the motion and any memorandum of law in support may not exceed 50 pages double-spaced, exclusive of attachments and exhibits. If the court enters an order increasing the page limit for the motion, the same order shall indicate that the page limit for the prosecutor's response provided for in MCR 6.506(A) is increased by the same amount. The motion must be substantially in the form approved by the State Court Administrative Office, and must include:
(1)-(15) [Unchanged.]
Upon request, the clerk of each court with trial level jurisdiction over felony cases shall make available blank motion forms without charge to any person desiring to file such a motion.
(D) Return of Insufficient Motion. If a motion is not submitted on a form approved by the State Court Administrative Office, or does not substantially comply with the requirements of these rules, the court may shall either direct that it be returned to the defendant with a statement of the reasons for its return, along with the appropriate form, or adjudicate the motion under the provisions of these rules. The clerk of the court shall retain a copy of the motion.
(E) Attachments to Motion. The defendant may attach to the motion any affidavit, document, or evidence, or memorandum of law to support the relief requested.
(F)-(G) [Unchanged.]
Rule 6.503 Filing and Service of Motion
(A) Filing; Copies.
(1) A defendant seeking relief under this subchapter must file a motionand a copy of the motion , together with two copies, with the clerk of the court in which the defendant was convicted and sentenced.
(2) [Unchanged.]
(B) Service. The clerk defendant shall serve a copy of the motion and notice of its filing on the prosecuting attorney. Unless so ordered by the court as provided in this subchapter, the filing and service of the motion does not require a response by the prosecutor.
Rule 6.504 Assignment; Preliminary Consideration by Judge; Summary Denial
(A) Assignment to Judge. The motion shall be presented to the judge to whom the case was assigned at the time of the defendant's conviction. If the appropriate judge is not available, the motion must be assigned to another judge in accordance with the court's procedure for the reassignment of cases. The chief judge may reassign cases in order to correct docket control problems arising from the requirements of this rule.
(B) Initial Consideration by Court.
(1) [Unchanged.]
(2) If it plainly appears from the face of the materials described in subrule (B)(1) that the defendant is not entitled to relief, the court shall deny the motion without directing further proceedings. The order must include a concise statement of the reasons for the denial. The clerk shall serve a copy of the order on the defendant and the prosecutor. The court may dismiss some requests for relief or grounds for relief and direct further proceedings as to others while directing a response or further proceedings with respect to other specified grounds.
(3)-(4) [Unchanged.]
Rule 6.506 Response by Prosecutor
(A) Contents of Response. On direction of the court pursuant to MCR 6.504(B)(4), the prosecutor shall respond in writing to the allegations in the motion. The trial court shall allow the prosecutor a minimum of 56 days to respond. If the response refers to transcripts or briefs that are not in the court's file, the prosecutor shall submit copies of those items with the response. Except as otherwise ordered by the court, the response shall not exceed 50 pages double-spaced, exclusive of attachments and exhibits.
(B) [Unchanged.]
Rule 6.509 Appeal
(A)-(B) [Unchanged.]
(C) Responsibility of the Prosecutor. If the prosecutor has not filed a response to the defendant's application for leave to appeal in the appellate court, the prosecutor must file an appellee's brief if the appellate court grants the defendant's application for leave to appeal. The prosecutor must file an appellee's brief within 56 days after an order directing a response pursuant to subrule (D). (D) Responsibility of the Appellate Court. If the appellate court grants the defendant's application for leave to appeal and the prosecutor has not filed a response in the appellate court, the appellate court must direct the prosecutor to file an appellee's brief, and give the prosecutor the opportunity to file an appellee's brief pursuant to subrule (C), before granting further relief to the defendant. Staff Comment: On March 12, 2002, the Court appointed the Committee on the Rules of Criminal Procedure to review the rules to determine whether any of the provisions should be revised. The committee issued its report on June 16, 2003, recommending numerous amendments of existing rules, plus some new rules. A public hearing on the committee's recommendations was held May 27, 2004.
The Court adopted the committee's recommendations with respect to the amendments of Rules 6.503 and 6.504.
With regard to Rules 6.502 and 6.506, the Court adopted a 50-page limitation rather than the 25-page limitation recommended by the committee. The Court did not adopt the committee's recommendation that the successive motion limitation of Rule 6.502(G) be eliminated; however, the Court did adopt remaining amendments of Rules 6.502 and 6.506 as recommended by the committee.
Instead of adopting the committee's recommendations regarding amendments of Rule 6.509, the Court adopted alternative language similar to language recommended by the Court of Appeals.
The Court did not adopt the committee's recommendation to amend Rules 6.501 and 6.508.
The staff comment is not an authoritative construction by the Court.
I respectfully dissent from the Court's rejection of the proposal of the Committee on the Rules of Criminal Procedure to amend our court rules to provide a 25-page limit for motions for relief from judgment and to institute a one-year time limit for filing them. I agree with the recommendation of the Committee on the Rules of Criminal Procedure to adopt (1) a page limit of 25 pages under MCR 6.502(C) and MCR 6.506(A) and (2) a time limit of one year under MCR 6.508(E) for pursuing motions for relief from judgment. Our failure to value finality and impose page and time limits on cases on collateral review reminds me of Chief Justice Rehnquist's statement: "We believe the adoption of the Francis rule [requiring cause and prejudice] in this situation will have the salutary effect of making the state trial on the merits the `main event,' so to speak, rather than a `tryout on the road' for what will later be the determinative federal habeas hearing." Wainwright v. Sykes, 433 US 72, 90 (1977). Following rejection of the committee's recommendation, Michigan courts will continue to make trial the road-show tryout for the collateral hearings to follow.
As amended, MCR 6.502(C), in relevant part, would have provided:
Form of Motion. The motion may not be noticed for hearing, and must be typed or legibly handwritten and include a verification by the defendant or defendant's lawyer in accordance with MCR 2.114. Except as otherwise ordered by the court, the combined length of the motion and any memorandum of law in support may not exceed 25 pages double spaced, exclusive of attachments and exhibits. An expansion of the pages permitted shall apply also to any answer ordered by the court. . . .
As amended, MCR 6.506(A) would have provided:
Contents of Response. On direction of the court pursuant to MCR 6.504(B)(4), the prosecutor shall respond in writing to the allegations in the motion. The trial court shall allow the prosecutor a minimum of 56 days to respond. If the response refers to transcripts or briefs that are not in the court's file, the prosecutor shall submit copies of those items with the response. Except as otherwise ordered by the court, the response shall not exceed 25 pages double spaced, exclusive of attachments and exhibits.
As amended, MCR 6.508(E) would have provided:
Time Limitation.
(1) If brought under subsection (D)(1), the motion must be filed within 1 year
(a) after the fully retroactive change in the law is established when relief is sought under subsection (D)(1)(a);
(b) after the judgment of conviction is final when relief is sought under subsection (D)(1)(b), unless the facts on which the claim is predicated were unknown to the defendant and could not have been discovered earlier with due diligence, in which case the claim must be brought within 1 year of the discovery of these facts.
(2) If brought under subsection (D)(2), the motion must be filed within 1 year
(a) of the discovery of the new evidence, or the discovery of the significance of existing evidence, when relief is sought under subsection (D)(2)(a);
(b) after the judgment of conviction is final when relief is sought under subsection (D)(2)(b).
I. Page Limits
Regarding the new 50-page limit of MCR 6.502(C) and its corollary in MCR 6.506(A), I respectfully dissent. Instead, I support the committee's recommendation of 25 pages. Circuit judges in Michigan have heavy trial dockets and little assistance on motions for collateral attack. They frequently operate without even responses to such petitions from prosecutors because those offices also operate with scarce resources. Generally, under civil practice rules, trial courts receive briefs limited to 20 pages. See MCR 2.119(A)(2). In contrast to the federal courts or to our state appellate courts, our trial courts lack a comparable support and research staff, so lengthy briefs on collateral review create a systemic burden.
Before filing a motion for relief from judgment, the petitioner has already exhausted his or her direct appeals. The appellate briefs have a limit of 50 pages. See MCR 7.212(B). The subsequent pursuit of collateral relief ought not require the same length of argument and so warrants a shorter page limit.
By imposing the same page limit that governs direct appeals, our Court suggests that collateral relief is nothing more than a second appeal. We do not require petitioners to narrow their focus on issues that reach the heightened standard of good cause and actual prejudice. In so doing, our Court repeats the error that misguides the efforts of many pro se petitioners. The new page limit will encourage a relitigation of issues. It invites litigants to ritual incantation of previously appealed issues. By this rules decision, our Court also now directs scarce resources away from current criminal cases, in the form of ensuring a second full bite at the apple in matters where criminal defendants have already enjoyed the full and fair opportunity of a direct appeal.
As a means to avoid ceaseless relitigation of issues, I propose that we require that petitioners attach to motions for relief from judgment the statement of issues from the direct appeal, so courts can easily identify whether the petitioner previously raised an issue.
II. Time Limit
Regarding MCR 6.508(E), I support a one-year time limit on filing motions for relief from judgment, as proposed by the committee. This time limit promotes consistency with the federal requirements for habeas corpus relief under the provisions of the federal Anti-Terrorism and Effective Death Penalty Act. Under 28 USC 2244(d)(1), petitioners have one year to file for federal habeas corpus relief from a state sentence. Under 28 USC 2244(d)(2), pursuing state postconviction relief tolls that limitations period. Requiring petitioners to act within one year ensures that they will not inadvertently forfeit a claim to federal habeas corpus relief, because pursuing a state claim within one year tolls the federal limitations period. MCR 6.508(E), under the proposed amendment, would have encouraged timely pursuit of state court relief and would have prevented pro se petitioners from inadvertently losing the option to later pursue federal relief. Thus, adopting a one-year time limit here would coordinate state and federal postconviction relief and so promote the full availability of both remedies.
See n. 3 of this statement.
Additionally, incorporating a one-year time limit promotes our interest in finality. "No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved." Mackey v. United States, 401 US 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part). Beyond requiring petitioners to eventually reconcile themselves to their sentences, the deterrent effect of criminal law owes much to the certainty of finality. See Teague v. Lane, 489 US 288, 309 (1989) (Opinion by O'Connor, J.). Also, the failure to provide finality would permit the continued expenditure of limited judicial, prosecutorial, and defense resources on collateral proceedings, even as other defendants awaited initial proceedings. See Mackey, supra at 691. Further, the absence of any time limit increases the likelihood that prosecutors will bear the burden of responding to long-stale motions. Although claims of actual innocence could still proceed under the committee's approach, the attacks on the trial and appellate procedure, after a petitioner receives a full and fair opportunity to litigate, should end. Thus, the importance of finality in criminal proceedings further supports the adoption of a time limit for seeking postconviction relief.
Although significant, this interest in finality need not foreclose postconviction relief sought on the basis of later discovered evidence. As proposed, the one-year time limit would only commence upon the discovery of new evidence or the discovery of the significance of existing evidence.
For the foregoing reasons, I respectfully dissent. I would adopt a 25-page limit under MCR 6.502(C) and MCR 6.506(A) and a one-year time limit under MCR 6.508(E).
YOUNG and MARKMAN, JJ., concurred with CORRIGAN, J.
I concur fully in Justice Corrigan's statement and write only to elaborate briefly on the issue of "reconciliation." Until a criminal offender finally "reconciles" himself to the wrongfulness of his conduct, I believe that there cannot be any reasonable hope for his personal rehabilitation. As long as there is yet another legal brief to be filed, and yet another lawbook to be scoured, I do not believe that this renewing process can truly begin.
Although an offender must always be allowed to introduce genuinely new evidence of actual innocence, absent such evidence, there must come some reasonable point at which the criminal appellate process is finalized. As the United States Supreme Court observed in Kuhlmann v. Wilson, 477 US 436, 453 (1986), "finality serves the State's goal of rehabilitating those who commit crimes because `[r]ehabilitation demands that the convicted defendant realize that "he is justly subject to sanction, that he stands in need of rehabilitation. "'" (Opinion by Powell, J.; citations omitted.) Yet, as the result of innumerable judicial decisions in recent decades, this point of finality has increasingly been delayed. While there may be limits to what this Court on its own can do to repair this situation, the committee proposal reasonably points in the right direction.
Justice Harlan has written, "Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the [offender] can be restored to a useful place in the community." Sanders v. United States, 373 US 1, 24-25 (1963) (Harlan, J., dissenting). Similarly, Justice Powell has written, "At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with a view to resurrecting every imaginable basis for further litigation but rather should look forward to rehabilitation and to becoming a constructive citizen." Schneckloth v. Bustamonte, 412 US 218, 262 (1973) (Powell, J., concurring).
By imposing a shortened time frame for the filing of a motion for relief from judgment, while preserving existing exceptions from such a deadline, the committee's proposal would maintain fundamental protections for the criminal offender while ensuring that the reconciliation, and rehabilitation, processes begin earlier rather than later. The committee's proposal would reasonably hasten the point at which the criminal, rather than looking into yet another lawbook, would be compelled to confront the wrong that he has committed by looking into his own soul.
CORRIGAN, J., concurred with MARKMAN, J.
I oppose the addition of MCR 6.509(D). No need for this subrule has been demonstrated to us. Moreover, it could be viewed by prosecutors as an invitation to stop filing answers to appeals from orders denying a petition for relief from judgment. Because of this new subrule, prosecutors will know that the Court of Appeals will tell them when, if at all, it is necessary for them to respond to such an appeal. This renders the Court of Appeals a case screener for prosecutors, giving prosecutors a favored status as compared with other litigants in that Court. For example, if a prosecutor appeals from a grant of relief from judgment, a defendant must answer within 21 days. The rules make no provision for the defendant to have a second bite of the apple.
CAVANAGH, J., concurred with KELLY, J.