Opinion
SC: 162684 COA: 355548
01-28-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Raymond NEIBLER, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the February 4, 2021 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
McCormack, C.J. (concurring).
I agree with the Court's decision to deny leave because I do not believe that the defendant, Robert R. Neibler, can show that he was prejudiced by his appellate counsel's failure to litigate his trial counsel's ineffectiveness. But the trial court's reason for denying the motion—that Neibler did not show good cause for failing to litigate his appellate counsel's ineffectiveness on direct appeal—was erroneous.
Neibler pled guilty to two counts of armed robbery and was sentenced to 270 to 450 months in prison. He appealed with the assistance of appellate counsel in the Court of Appeals raising one claim of error about his sentence; he did not claim that his trial counsel was constitutionally ineffective. The Court of Appeals denied his application for leave to appeal for lack of merit. People v Neibler , unpublished order of the Court of Appeals, entered August 14, 2013 (Docket No. 313734). Then, representing himself, Neibler filed an application for leave in this Court raising the same sentencing claim, which we denied. People v. Neibler , 495 Mich. 916, 840 N.W.2d 339 (2013).
Still representing himself, Neibler filed this motion for relief from judgment. In it he raises two claims of error: ineffective assistance of trial counsel and ineffective assistance of appellate counsel.
In reviewing the motion, the trial court determined that both of Neibler's claims—ineffective assistance of trial counsel and appellate counsel—were "new claims" and, therefore, he needed to establish good cause to bring them in his motion. The trial court denied the motion, finding that Neibler had failed to establish good cause for either claim. The Court of Appeals denied his application for leave to appeal. People v Neibler , unpublished order of the Court of Appeals, entered February 4, 2021 (Docket No. 355548).
In a motion for relief from judgment, a litigant may raise a claim that has not previously been presented to the courts if they can establish "good cause" to explain why the claim wasn't raised on direct appeal. MCR 6.508(D)(3)(a). If good cause is established, a court can only grant relief if the litigant demonstrates prejudice from the error. MCR 6.508(D)(3)(b). One way a litigant can show good cause for failing to bring a claim on direct appeal is if their appellate counsel should have raised it but did not. See People v. Reed , 449 Mich. 375, 378, 535 N.W.2d 496 (1995). This makes sense: the Sixth Amendment right to effective assistance of counsel requires that if an attorney misses a meritorious claim on direct appeal, the remedy for that constitutional violation is to allow the litigant to raise the claim in a motion for relief from judgment. Neibler's motion argues that his appellate counsel was constitutionally ineffective because he failed to raise a meritorious claim of ineffective assistance of trial counsel in his direct appeal. In denying his motion, the trial court never addressed whether Neibler was prejudiced by this failure—it held that Neibler did not demonstrate good cause because he did not raise ineffective assistance of appellate counsel in his pro se application for leave to this Court.
While Neibler raises ineffective assistance of appellate counsel for the first time in this motion, it is not a claim "which could have been raised on appeal from [his] conviction and sentence ...." MCR 6.508(D)(3). Ineffective assistance of appellate counsel can't be raised in the Court of Appeals because it hasn't happened yet. And in a leave application to this Court, a litigant cannot raise a new claim. See MCR 7.305(B)(5)(a) (a leave application must show why the decision of the Court of Appeals was "clearly erroneous"); Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents , 444 Mich. 211, 234 n 23, 507 N.W.2d 422 (1993) ("This Court has repeatedly declined to consider arguments not presented at a lower level, including those relating to constitutional claims.").
Even if there were a process for raising brand new appellate issues in a leave application to this Court, I doubt it would be constitutional to place the burden to determine and raise the issue of ineffective assistance of appellate counsel on pro se indigent litigants. Consider what such a rule would mean: If a criminal defendant could afford to pay an appellate lawyer to file a leave application and if that paid lawyer did not raise a meritorious claim (like the lawyer's Court of Appeals brief), the criminal defendant would undoubtedly be able to show cause when raising the missed claim in a motion for relief from judgment. But a pro se litigant would have to sort out what errors their appellate counsel made in the Court of Appeals and properly brief them within the time window for filing a leave application, or they lose the opportunity to raise a meritorious claim that their appellate counsel was ineffective in a motion for relief from judgment. And since ineffective assistance of appellate counsel is the only method of establishing good cause for many other claims of error, they would also lose the opportunity to have a court adjudicate many meritorious claims for relief. It can't be that those who can afford to pay a lawyer to represent them throughout the entire direct appeal process have greater constitutional rights than those who can't afford the same.
The trial court's denial of Neibler's motion for failing to establish good cause because he did not raise ineffective assistance of appellate counsel in his pro se application for leave to this Court was erroneous. Because Neibler hasn't shown prejudice, however, I concur with the Court's order denying leave.