Opinion
SC 165253 COA 362496
10-27-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL JAY JACKSON, Defendant-Appellant.
Kent CC: 05-009369-FC
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
By order of May 2, 2023, the prosecuting attorney was directed to answer the application for leave to appeal the November 29, 2022 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted.
ZAHRA, J. (dissenting).
Under MCR 6.428, defendant argues that he was improperly denied the appointment of appellate counsel after he was first convicted over 15 years ago. I take no position at this time on the underlying merits of that claim. Instead, because defendant has raised this exact claim several times, at different stages of litigation and using a variety of procedural vehicles, I would hold that defendant's instant appeal is procedurally foreclosed. The trial court was within its authority to deny defendant's motion, a motion which used revised language under MCR 6.428 to try to reopen a repeatedly litigated issue that was previously addressed in Michigan's court system and for all intents and purposes, appeared to be fully resolved. Therefore, I would deny leave to appeal.
In June 2006, defendant was convicted by jury of conspiracy to commit armed robbery, conspiracy to commit first-degree home invasion, first-degree home invasion, four counts of armed robbery, and five counts of carrying a firearm during the commission of a felony. After being sentenced, defendant filed a request for appointment of appellate counsel, which was denied based on certain facts the trial court found relating to defendant's income. Specifically, the trial court noted that defendant stated to his presentence investigator that he expected to receive between $4,000 to $8,000 per month as "residuals" from the sale of certain compact discs. Defendant did not appeal the trial court's decision.
Defendant filed several reconsideration motions challenging the denial of appointed appellate counsel. Those too were not appealed.
In October 2016, over 10 years after his initial conviction, defendant moved for reissuance of the judgment under MCR 6.428. Defendant argued that the trial court erred in 2006 when it denied his request for appointment of appellate counsel. At the time of the motion, MCR 6.428 permitted trial courts to reissue criminal judgments in cases where appellate counsel inexcusably fails to perfect a timely appeal on a defendant's behalf:
If the defendant did not appeal within the time allowed by MCR 7.204(A)(2) and demonstrates that the attorney or attorneys retained or appointed to represent the defendant on direct appeal from the judgment either disregarded the defendant's instruction to perfect a timely appeal of right, or otherwise failed to provide effective assistance, and, but for counsel's deficient performance, the defendant would have perfected a timely appeal of right, the trial court shall issue an order restarting the time in which to file an appeal of right.
MCR 6.428, as adopted July 13, 2005, 473 Mich. xlii, lxx (2005).
This standard was aligned with established constitutional law that, "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." However, the rule did not apply to denial of appointment of appellate counsel, as opposed to ineffective performance of appellate counsel in filing an appeal. Therefore, the trial court and Court of Appeals rejected defendant's arguments and denied relief, and this Court denied leave to appeal.
Roe v Flores-Ortega, 528 U.S. 470, 484 (2000).
In early 2020, defendant moved for relief from judgment under MCR 6.502. Defendant again argued that the trial court erred in 2006 when it denied defendant appointment of appellate counsel at state expense. The trial court rejected that claim, refuting arguments made by defendant that his counsel was ineffective in filing the prior motion under MCR 6.428. Reviewing defendant's arguments under MCR 6.502, the trial court concluded that defendant's claims for appointment of counsel were at that stage "meritless." The Court of Appeals denied leave because defendant "failed to establish that the trial court erred." Again, this Court denied leave to appeal.
In 2021, this Court expanded MCR 6.428. Of note in this case, the Court allowed trial courts to "restore" the time to file an appeal if the appointment of appellate counsel was denied as the result of "errors by . . . the court":
If the defendant, whether convicted by plea or at trial, was denied the right to appellate review or the appointment of appellate counsel due to errors by the defendant's prior attorney or the court, or other factors outside the defendant's control, the trial court shall issue an order restarting the time in which to file an appeal or request counsel.
In early 2022, over 15 years after his initial conviction, defendant has moved for relief under the revised MCR 6.428. Yet again, he claimed that he was improperly denied appellate counsel at state expense in 2006. The trial court denied defendant's request for reinstatement of his time to appeal, noting the numerous times defendant had sought and been denied relief for the same alleged error. The Court of Appeals denied leave for lack of merit on the grounds presented.
Prior to 2021, defendant had two methods by which he could challenge the trial court's denial of appointment of appellate counsel: (1) he could have appealed that decision (or the denials of his numerous reconsideration motions filed after that decision); or (2) he could have filed a motion for relief from judgment. It is basic law in Michigan that defendants can raise constitutional claims in motions for relief from judgment. It is equally well established that denial of a right to appellate counsel for an indigent individual violates the United States Constitution. However, defendant cannot bring a motion for relief from judgment if he "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 [another motion for relief from judgment]." Yet this procedural bar does not apply if defendant has "good cause" for failing the raise the issue on direct appeal and was "prejudiced" as a result. Looking to federal law governing the writ of habeas corpus, Michigan courts have interpreted "good cause" to include the effective denial of counsel as well as other "factor[s] external to the defense." Both these categories of good cause are satisfied when a defendant is improperly denied the assistance of counsel as an indigent. Furthermore, prejudice is "presumed" when the accused is left "without the assistance of counsel on appeal[.]"
See, e.g., People v Christian, 510 Mich. 52 (2022) (vacating convictions after the Court found a violation under Brady v Maryland, 373 U.S. 83 (1963)); People v Gardner, 482 Mich. 41 (2008) (considering and rejecting on the merits a claim of ineffective assistance asserted under a motion for relief from judgment).
Halbert v Michigan, 545 U.S. 605, 610 (2005) ("[I]n first appeals as of right, States must appoint counsel to represent indigent defendants."), citing Douglas v California, 372 U.S. 353 (1963).
Id.
See Gardner, 482 Mich. at 49 n 11 (describing how ineffective assistance provides "good cause"); People v Reed, 449 Mich. 375, 382 (1995) (opinion by BOYLE, J.) (citing federal law and explaining circumstances that could satisfy the "good cause" requirement).
Coleman v Thompson, 501 U.S. 722, 754 (1991) ("[I]t is not the gravity of the attorney's error that matters, but that it constitutes a violation of petitioner's right to counsel, so that the error must be seen as an external factor, i.e., 'imputed to the State.' "); Shinn v Ramirez, 596 U.S. 366, 380 (2022) ("[A] violation of the right to counsel must be seen as an external factor to the prisoner's defense.") (quotation marks and citation omitted); Martinez v Ryan, 566 U.S. 1, 14 (2012) (holding that the failure to appoint counsel in collateral proceedings that function as direct appeals constitutes "good cause"); see also Strickland v Washington, 466 U.S. 668, 686 (1984) ("[T]he right to counsel is the right to the effective assistance of counsel.") (quotation marks and citation omitted).
Garza v Idaho, 586 US__, __; 139 S.Ct. 738, 744 (2019), quoting Penson v Ohio, 488 U.S. 75, 88 (1988).
Therefore, if defendant was in fact indigent in 2006 and the trial court wrongfully denied appointment of appellate counsel, defendant could have argued that a failure to challenge that decision on direct review did not bar a motion for relief from judgment. If defendant had been improperly denied appointment of appellate counsel, he would have been entitled to relief through a motion for relief from judgment, likely in the form of a reopened deadline to appeal with appointment of counsel.
Id. Michigan courts followed a similar approach when the United States Supreme Court ordered the appointment of appellate counsel in Halbert, 545 U.S. 605. See People v Halbert, unpublished order of the Court of Appeals, entered August 5, 2005 (Docket No. 244756).
First, defendant did not file an appeal of the trial court's decision in 2006. In 2016, he appealed the same claim using a procedurally improper motion under MCR 6.428. And in 2020, his motion for relief from judgment alleged that same claim. Defendant's arguments were presented, considered, and denied at all levels of Michigan's court system. Now in 2023, defendant has had a full and complete opportunity to litigate his argument against the trial court's 2006 decision. He has repeatedly taken the opportunity to file motions for relief and has been repeatedly unsuccessful.
It is fundamental to the effective and efficient adjudication of disputes that courts deny relief to parties who seek to relitigate claims that have either failed in prior proceedings or could have been raised in those prior proceedings but were not. At the heart of this principle is the importance of finality of court judgments and decisions. The "principle of finality," especially after a dispute has been reduced to judgment, is "essential to the operation of our criminal justice system." By the time a conviction is entered and affirmed, the state and the public whom it represents have made a substantial investment in the protection, value, and proper adjudication of a defendant's guilt. Challenging, revising, or vacating a conviction, potentially years after the initial disposition, undermines this value and the integrity of judicial decision-making, which is fundamental to the interests of justice. "Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens," and "the passage of time only diminishes the reliability of criminal adjudications." Further, permitting repeat litigation of previously settled issues can serve to undermine public respect for the judicial system. Laypeople can interpret a party's serially requesting relief, and eventually obtaining relief, as a successful attempt to get "before a different judge in multijudge courts." Central to public deference to the law is the understanding that the judiciary defines "what is the law," not what a judge thinks it should be.
Edwards v Vannoy, 593 US__,__; 141 S.Ct. 1547, 1554 (2021) (quotation marks and citation omitted); accord People v Carpentier, 446 Mich. 19, 29 (1994) ("[B]oth the Michigan judiciary singularly, and the citizenry whose collective rights and protections it is obligated to protect, have a compelling interest in championing the finality of criminal judgments.").
Herrera v Collins, 506 U.S. 390, 401, 403 (1993) (quotation marks and citation omitted); see also Kuhlmann v Wilson, 477 U.S. 436, 453 (1986) (opinion of Powell, J.), superseded on other grounds by 28 USC 2244 (explaining that, if courts permitted repeated and consistent attacks on criminal judgments, the state might "forgo conviction of a guilty defendant through the erosion of memory and dispersion of witnesses that occur with the passage of time that invariably attends collateral attack") (quotation marks and citations omitted).
28 USC 2254, Rules Governing Section 2254 Cases in the United States District Courts, advisory committee commentary to Rule 9 (noting abuse of postconviction habeas motions).
Detroit v Blackeby, 21 Mich. 84, 118 (1870) (COOLEY, J., dissenting), overruled on other grounds by Williams v Detroit, 364 Mich. 231 (1961).
A lack of finality harms the public's interest in the respect and value of criminal dispositions, but it especially harms victims." 'Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the powerful and legitimate interest in punishing the guilty, an interest shared by the State and the victims of crime alike.' "Finally, uprooting established court judgments and revisiting cases long settled as final produces substantial harm to defendants. "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."
Shinn, 596 U.S. at 376-377, quoting Calderon v Thompson, 523 U.S. 538, 556 (1998) (describing the importance of limits on collateral attacks on final criminal decisions).
Mackey v United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part); see also Kuhlmann, 477 U.S. at 452-453 (opinion of Powell, J.) (explaining how allowing consistent collateral relitigation of issues can undermine "the deterrent force of penal laws" by allowing a "person[] contemplating criminal activity [to] believe there is a possibility that they will escape punishment" upon seeing repeated collateral attacks of a sentence and undermines "rehabilitation" because "rehabilitation demands that the convicted defendant realize that he is justly subject to sanction, that he stands in need of rehabilitation") (quotation marks and citations omitted).
Accordingly, advancing the principle of finality and effective administration of justice, courts have the authority to decline relief for issues that were previously raised and resolved, and for issues that should have been raised previously but were not. That includes the law-of-the-case doctrine, which provides that "a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue ...." The doctrine also extends in similar ways to habeas proceedings, collateral proceedings, motions for new trial, motions for relief from judgment, motions for reconsideration, and successive cases presenting the same issue, to name a few. For the sake of the strong public interest in respecting judgments, the effective administration of criminal justice, and to prevent abuse from repeat litigation, claims under the revised MCR 6.428 are not without limits-they can be similarly bound by prior court decisions. This basic guardrail would apply not only to claims raised in prior proceedings and motions such as those under MCR 6.502, but also to prior motions filed under the new MCR 6.428. Without such limitations, defendants could repeatedly file previously resolved claims for appointment of appellate counsel under MCR 6.428, based on events occurring years if not decades in the past, in the continued hope that serial litigation will eventually produce a favorable decision.
Brownlow v McCall Enterprises, Inc, 315 Mich.App. 103, 110 (2016) (quotation marks and citation omitted) (explaining the need for finality of judgments); see also CAF Investment Co v Saginaw Twp, 410 Mich. 428, 454 (1981) ("The law of the case doctrine dispenses with the need for this Court to again consider legal questions determined by our prior decision and necessary to it."); Johnson v White, 430 Mich. 47, 53 (1988) ("Where a case is taken on appeal to a higher appellate court, the law of the case announced in the higher appellate court supersedes that set forth in the intermediate appellate court. Rulings of the intermediate appellate court, however, remain the law of the case insofar as they are not affected by the opinion of the higher court reviewing the lower court's determination."); United States v Mullet, 822 F.3d 842, 847 (CA 6, 2016) ("In criminal case after criminal case, we have declined to allow a criminal defendant who fails to challenge part of a conviction in an earlier appeal to raise it in a later appeal. This approach is well-settled, prevents perpetual litigation, and encourage[s] compliance with fair and efficient procedure-above all by encouraging defendants to raise all challenges to a conviction in one appeal.") (quotation marks and citations omitted); United States v Adesida, 129 F.3d 846, 850 (CA 6, 1997) ("A party who could have sought review of an issue or a ruling during a prior appeal is deemed to have waived the right to challenge that decision thereafter ...."); United States v Husband, 312 F.3d 247, 250 (CA 7, 2002) ("[A]ny issue that could have been but was not raised on appeal is waived and thus not remanded."); accord Doe v Chao, 511 F.3d 461, 465 (CA 4, 2007); United States v Wallace, 573 F.3d 82, 90 (CA 1, 2009); United States v Philip Morris USA Inc, 419 U.S. App DC 273, 280 (2015).
Sawyer v Whitley, 505 U.S. 333, 338 (1992) (drawing on common-law analogues, explaining that "unless a habeas petitioner shows cause and prejudice, a court may not reach the merits of: (a) successive claims that raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims, not previously raised, which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims") (citations and emphasis omitted); Wong Doo v United States, 265 U.S. 239, 241 (1924) ("The petitioner had full opportunity to offer proof of it at the hearing on the first petition, and, if he was intending to rely on that ground, good faith required that he produce the proof then."); Sanders v United States, 373 U.S. 1, 16 (1963) (explaining that, under habeas law, successive motions can be denied where they include "identical grounds" which are proved by "different factual allegations," "different legal arguments," or "different language").
Foster v Foster, 509 Mich. 109, 125 (2022) ("[O]nly judgments entered without personal jurisdiction or subject-matter jurisdiction are void and subject to collateral attack[.]"), citing In re Ferranti, 504 Mich. 1, 22 (2019); Massaro v United States, 538 U.S. 500, 504 (2003) ("[C]laims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice," which is a judicial doctrine intended "to conserve judicial resources and to respect the law's important interest in the finality of judgments"); DuPont v United States, 76 F.3d 108, 110 (CA 6, 1996) (stating that a federal postconviction motion under 28 USC 2255 "may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances") (quotation marks and citation omitted); Delatorre v United States, 847 F.3d 837, 843 (CA 7, 2017) (explaining that "[a]ny claim that could have been raised originally in the trial court and then on direct appeal that is raised for the first time on collateral review is procedurally defaulted" unless a § 2255 petitioner demonstrates "(1) actual innocence or (2) cause and prejudice").
Sarkes Tarzian, Inc v U.S. Trust Co of Fla Savings Bank, 168 Fed.Appx. 108, 113 (CA 7, 2006) ("[A] motion for a new trial 'is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a "second bite at the apple."' "), quoting Sequa Corp v GBJ Corp, 156 F.3d 136, 145 (CA 2, 1998); Phelps v Hamilton, 122 F.3d 1309, 1324 (CA 10, 1997) (declining to consider argument under motion for new trial standard that simply requested "reconsideration of matters properly encompassed in a decision on the merits" and instead considering them) (quotation marks and citations omitted); Kranich & Bach v Lobell, 227 Mich. 288, 290 (1924) ("Questions may not be raised for the first time on a motion for a new trial."). This is not to take away from the discretion trial courts inherently possess to grant new trials "in the interest of justice or to prevent a miscarriage of justice ...." People v Lemmon, 456 Mich. 625, 634-635 (1998) (quotation marks and citations omitted).
Exxon Shipping Co v Baker, 554 U.S. 471, 485 n 5 (2008) (explaining that the broad federal rule permitting motions to "alter or amend a judgment . . . may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment") (quotation marks and citation omitted); McNeil v United States, 113 F Appx 95, 97-98 (CA 6, 2004) (reasoning that the federal motion for relief from judgment "may be denied if it is merely an attempt to relitigate previously decided issues"), citing Mastini v American Tel & Tel Co, 369 F.2d 378, 379 (CA 2, 1966); MCR 6.508(D)(2) (barring motions for relief from judgment on claims that "allege[] grounds for relief which were decided against the defendant in a prior appeal or proceeding under this subchapter").
Graham v Washtenaw Co, 358 F.3d 377, 385 (CA 6, 2004) (rejecting arguments that raised legal issues "that were already ruled upon"); McConocha v Blue Cross & Blue Shield Mut of Ohio, 930 F.Supp. 1182, 1184 (ND Ohio, 1996) (reasoning that motions for reconsideration are "especially" discouraged when they "merely restyle or re-hash the initial issues") (quotation marks and citation omitted); MCR 2.119(F)(3) ("[A] motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted."); Woods v SLB Prop Mgt, LLC, 277 Mich.App. 622, 629-30 (2008) ("We find no abuse of discretion in denying a motion resting on a legal theory and facts which could have been pled or argued prior to the trial court's original order.") (quotation marks and citations omitted); Evanston Ins Co v Cogswell Props, LLC, 683 F.3d 684, 692 (CA 6, 2012) ("A motion for reconsideration may not be used to raise issues that could have been raised in the previous motion.") (quotation marks, citation, and brackets omitted).
Barrow v Pritchard, 235 Mich.App. 478, 480 (1999) (stating that "[c]ollateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding" and holding that an ineffective-assistance legal ruling was binding on the defendant in later proceedings) (quotation marks and citation omitted).
Defendant argued at the time of his conviction that he should have received appointed appellate counsel at state expense. That request was denied, and defendant did not appeal the decision. He argued in 2016 that he should have been appointed appellate counsel when he filed a motion under the prior MCR 6.428, and in 2020 when he moved for relief from judgment. Both decisions were appealed; both requests were denied. Now defendant yet again argues that he should have had appellate counsel appointed in 2006. Defendant has had the opportunity to present-and has in fact presented-that same claim in the Michigan court system, and it was resolved against him at least three times. Defendant may not now repackage his claim and again assert that the trial court's decision at the time of his conviction was in error under the revised MCR 6.428. While I express no opinion on the underlying merits of defendant's claim, the trial court was within its authority to deny defendant's motion on procedural grounds. Therefore, I would deny leave to appeal.