RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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JOHN ANDREW DORN,
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Petitioner-Appellant,
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No. 08-1594
v.
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Respondent-Appellee. -
BLAINE LAFLER, Warden,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-11993—Nancy G. Edmunds, District Judge.
Argued: January 19, 2010
Decided and Filed: April 5, 2010
Before: SILER, MOORE, and CLAY, Circuit Judges.
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COUNSEL
ARGUED: Gene Crawford, JONES DAY, Columbus, Ohio, for Appellant. Debra M.
Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee. ON BRIEF: Gene Crawford, JONES DAY, Columbus, Ohio, for Appellant.
Debra M. Gagliardi, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. John A. Dorn, Coldwater, Michigan, pro se.
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OPINION
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SILER, Circuit Judge. John Andrew Dorn appeals the district court’s denial of his
28 U.S.C. § 2254 petition for habeas corpus. The district court certified two issues for
appeal—whether Dorn was denied effective assistance of counsel and whether he was denied
an appeal as of right in violation of his constitutional right to access the courts. For the
following reasons, we REVERSE and REMAND.
1
No. 08-1594 Dorn v. Lafler Page 2
I. BACKGROUND
Dorn was charged in Kalamazoo County, Michigan with three counts: (1) assault
with intent to commit murder, (2) being a felon in possession of a firearm, and (3) possession
of a firearm during the commission of a felony. The charges arose out of a physical
1
altercation he had with Walter Anderson, whom he shot. On the first day of trial, the
prosecutor dismissed the felon-in-possession charge. The jury convicted Dorn of the
lesser included offense, assault with intent to commit great bodily harm less than murder,
Mich. Comp. Laws § 750.84, and felony firearm, Mich. Comp. Laws § 750.227b. He
was sentenced as a fourth habitual offender to two years’ imprisonment for the felony
firearm conviction and to fifteen to thirty years’ imprisonment for the assault conviction,
to be served consecutively.
At the conclusion of his trial, Dorn waived appointment of appellate counsel and
indicated that he intended to retain his own counsel for appeal. Having not yet secured
appellate counsel, Dorn was responsible for filing his claim of appeal, which was due
in the Michigan Court of Appeals on June 22, 1998. He requested disbursement of the
filing fee from a prison official on June 11, 1998. On June 15, 1998, he provided the
same official with his claim of appeal, for notarizing and mailing, along with his
disbursement. However, the Michigan Department of Corrections did not process the
disbursement or mail the claim of appeal until June 23, 1998, one day after it was due.
The Court of Appeals dismissed his claim for lack of jurisdiction, because it was filed
late. It also denied Dorn’s motion to reinstate or reconsider its order dismissing his
claim of appeal. Dorn then filed a pro per delayed application for leave to appeal raising
seven issues, including both issues raised here. In this application, he requested the
court remand his case to the trial court for an evidentiary hearing on his ineffective
assistance of counsel claims. The Court of Appeals summarily denied his application
“for lack of merit in the grounds presented.” He appealed this decision to the Michigan
Supreme Court. Although the court initially held his application in abeyance pending
1
Because we do not reach Dorn’s ineffective assistance of counsel claim, a more thorough
description of the incident leading to his conviction and the evidence presented at trial is not relevant.
No. 08-1594 Dorn v. Lafler Page 3
decisions in two other cases, it ultimately denied his application for leave to appeal,
because it was “not persuaded that the questions presented should be reviewed.”
Dorn filed for state post-conviction relief pro per. The trial court analyzed some
of Dorn’s claims, including his argument that the Michigan Supreme Court should adopt
the “prison mailbox rule” of Houston v. Lack, 487 U.S. 266 (1988). It denied his motion
for relief, noting that Dorn was attempting to “reargu[e] issues that were brought in his
various motions and applications for leave to appeal.” The Michigan Court of Appeals
denied Dorn’s delayed application for leave to appeal, stating that he “fail[ed] to meet
the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D).”
The Michigan Supreme Court also denied leave to appeal.
Dorn then filed a pro se petition for habeas corpus before the Eastern District of
Michigan. The district court denied his petition and granted a certificate of appealability
on the two issues presented here. We sua sponte appointed counsel for Dorn.
II. STANDARD OF REVIEW
Dorn filed his federal habeas petition after Congress passed the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, when a state court
has adjudicated the merits of the claims presented, we may not grant a petition for writ
of habeas corpus unless the state-court adjudication of the claim “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). “Where . . . the state court did not assess the merits of a claim properly
raised in a habeas petition,” however, “the deference due under AEDPA does not apply.”
Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Williams v. Coyle, 260 F.3d
684, 706 (6th Cir. 2001)). Where there was no state-court adjudication on the merits of
a habeas claim, we review that claim de novo. Id. at 436-37.
Dorn argues that the Michigan Court of Appeals’s and the Michigan Supreme
Court’s orders denying his applications for leave to appeal, and subsequently the trial
court’s order denying his motion for post-conviction relief and both the Michigan Court
No. 08-1594 Dorn v. Lafler Page 4
of Appeals’s and Supreme Court’s orders denying leave to appeal therefrom, were not
adjudications on the merits such that AEDPA deference applies. The Michigan Court
of Appeals denied his application for delayed appeal—which included the two claims
presented here—“for lack of merit in the grounds presented.” The Michigan Supreme
Court denied review because it was not “persuaded that the questions presented should
be reviewed.” In addition, the state trial court declined to reach his right-to-appeal
argument presented in his motion for post-conviction relief, ruling that it “[had] already
been addressed on appeal.” The Michigan Court of Appeals and Supreme Court
summarily denied his discretionary appeal of that ruling.
In McAdoo v. Elo, 365 F.3d 487 (6th Cir. 2004), we concluded that de novo
review of a petitioner’s habeas claims was warranted, because there was no adjudication
on the merits when no state court had discussed the merits of the claims and the
Michigan Court of Appeals and Supreme Court “denied leave to appeal in orders of one
sentence.” Id. at 498. The orders issued in McAdoo appear to be identical to those
issued here. The warden argues that Halbert v. Michigan, 545 U.S. 605 (2005), indicates
Dorn’s claims were adjudicated on the merits. In Halbert, the Supreme Court explained
that “using the stock phrase ‘for lack of merit in the grounds presented’ . . . necessarily
entails some evaluation of the merits of the applicant’s claims.” Id. at 618. However,
the Court recognized that the stock phrase at issue here “may not be equivalent to a ‘final
decision’ on the merits, i.e., the disposition may simply signal that the court found the
matters asserted unworthy of the expenditure of further judicial resources.” Id.
Moreover, the Court was not considering the appropriate standard of review in habeas
proceedings when a state court uses such stock language. Because the state court may
have various reasons for denying an application for leave to appeal “for lack of merit in
the grounds presented,” and we cannot discern from that language alone whether that
decision was based on the merits of the case, we cannot conclude that it was an
“adjudication on the merits” pursuant to 28 U.S.C. § 2254(d). Accordingly, de novo
review is appropriate.
No. 08-1594 Dorn v. Lafler Page 5
III. DISCUSSION
Dorn argues that the prison officials’ mishandling of his appeal papers caused
him to lose his appeal of right, thereby violating the Fourteenth Amendment and his right
of access to the courts. The right of access to the courts is fundamental. See Johnson
v. Avery, 393 U.S. 483, 485 (1969); see also Bounds v. Smith, 430 U.S. 817, 821 (1977)
(“It is now established beyond doubt that prisoners have a constitutional right of access
to the courts.”); Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (noting that
“[i]t is well established that prisoners have a constitutional right of access to the courts,”
which extends to direct appeals). This right prohibits regulations that prevent state
prisoners from filing habeas corpus petitions unless they were found “properly drawn”
by the “legal investigator” for the parole board, Ex parte Hull, 312 U.S. 546, 549 (1941);
requires that indigent prisoners be allowed to file appeals and habeas corpus petitions
without paying docket fees, Burns v. Ohio, 360 U.S. 252, 257 (1959); requires that States
provide trial records to inmates who are unable to purchase them, Griffin v. Illinois, 351
U.S. 12, 20 (1956); demands counsel be appointed to indigent inmates in pursuit of
appeals as of right, Douglas v. California, 372 U.S. 353, 358 (1963); and mandates that
prisons assist inmates in preparing and filing legal papers by providing access to
adequate law libraries or assistance from persons trained in the law, Bounds, 430 U.S.
at 828. In addition, the Supreme Court has found a Fourteenth Amendment violation
where a prison’s ban on sending papers from the prison resulted in petitioner’s dismissal
of his appeal of right, because he could not file his appeal documents before the filing
deadline. Dowd v. United States ex rel. Cook, 340 U.S. 206, 208 (1951).
States have “affirmative obligations to assure all prisoners meaningful access to
the courts.” Bounds, 430 U.S. at 824. Consistent with their other affirmative
obligations, prisons have an obligation to timely mail court documents when prisoners
have been diligent and punctual in submitting them to prison officials.2 Dorn gave
prison officials his appeal papers seven days before they had to be received by the court.
2
We need not determine at this point what constitutes a reasonable time within which prison
officials should receive documents from prisoners for their proper submission to the courts.
No. 08-1594 Dorn v. Lafler Page 6
This gave the prison a reasonable amount of time within which to mail the papers such
that they would be received before his filing deadline. The Warden argues that Dorn’s
right to access the courts was not violated because, unlike in Dowd, 340 U.S. at 208, and
Cochran v. Kansas, 316 U.S. 255, 256 (1942), prison officials did not intentionally
suppress Dorn’s legal papers. This distinction is irrelevant. Regardless whether prison
officials intended to prevent Dorn from pursuing his appeal of right, the effect was the
same. The prison’s handling of Dorn’s papers precluded him from pursuing his statutory
right of appeal.
Dorn has also demonstrated that the prison’s failure to handle his mail in a timely
manner prejudiced him. See Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (“In
order to state a claim for denial of meaningful access to the courts . . . plaintiffs must
plead and prove prejudice stemming from the asserted violation.”). Under M.C.R.
7.202(2), the date of filing is defined as “the date of receipt of a document by a court
clerk.” Michigan does not follow the “prison mailbox rule” adopted in Houston. See
Walker-Bey v. Dep’t of Corrs., 564 N.W.2d 171, 173 (Mich. Ct. App. 1997).
Accordingly, even though Dorn gave his appellate papers to prison officials seven days
before they were due to the court, prison officials did not mail them until eight days
later, and they were not deemed filed until the court received them, four days after they
were due. Thus, Dorn’s initial appeal was dismissed as untimely. The district court
denied habeas relief on this claim because, in its view, Dorn’s “appeal process was not
entirely nonexistent, nor ‘presumptively unreliable’ such that a presumption of prejudice
has occurred.” We disagree.
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court considered
whether a habeas petitioner alleging ineffective assistance of counsel had demonstrated
prejudice when his counsel’s failure to file a notice of appeal resulted in the dismissal
of his appeal as of right. Id. at 483. Although we are considering prejudice in a different
context, the Court’s discussion of prejudice is instructive. It concluded that a
presumption of prejudice applies where counsel’s deficiency resulted in the denial of an
entire judicial proceeding: “The even more serious denial of the entire judicial
No. 08-1594 Dorn v. Lafler Page 7
proceeding itself, which a defendant wanted at the time and to which he had a right, . . .
demands a presumption of prejudice.” Id. Thus, Dorn is entitled to a presumption of
prejudice.
Even if Dorn were not entitled to a presumption of prejudice, he has
demonstrated prejudice. Although he subsequently filed a delayed application for leave
to appeal and motions for post-conviction relief in state court, those motions have
additional hurdles that a prisoner must jump before receiving consideration of his claims.
For example, in deciding whether to grant delayed applications for leave to appeal, the
Michigan Court of Appeals considers factors other than those presented by the
petitioner’s claims, such as “the length of and the reasons for delay.” Mich. Ct. R.
7.205(F). Michigan courts have even acknowledged that “[c]onsideration of a petition
to file a delayed appeal is not equivalent to an appeal as of right.” See, e.g., People v.
Gorka, 164 N.W.2d 30, 32 n.1 (Mich. 1969). Additionally, unlike in discretionary
appeals such as a delayed application for leave to appeal or a petition for habeas corpus,
a prisoner has a right to appellate counsel in an appeal granted as of right.3 See Douglas,
372 U.S. at 355-56. Although Dorn presented his claims in various other proceedings,
the distinctions between those proceedings and an appeal as of right are significant
enough for us to conclude that he was prejudiced by the prison’s actions. Pilgrim,
92 F.3d at 416. Accordingly, Dorn is entitled to federal habeas relief on this claim.4
3
The fact that Dorn may have initially waived his right to appellate counsel does not matter. Dorn
may have re-evaluated this decision, in which case he may have been entitled to appointment of counsel
pursuant to Douglas, 372 U.S. at 355-56.
4
We decline to reach the merits of Dorn’s ineffective assistance of counsel claim. Because we
are granting Dorn’s habeas petition based on his right to access claim, Michigan will have to either
reinstate his appeal as of right or release him. Accordingly, the Michigan courts may be given the
opportunity to address Dorn’s ineffective assistance claim or they may make particularized findings that
would alter our analysis of his ineffective assistance of counsel claim. Given our decision on his right to
access claim, any discussion of his ineffective assistance claim would be premature.
No. 08-1594 Dorn v. Lafler Page 8
IV. CONCLUSION
We REVERSE the judgment of the district court and REMAND to the district
court to issue “such orders as are appropriate to allow [Michigan] a reasonable time in
which to afford [Dorn] the full appellate review he would have received but for the
untimely submission of his papers, failing which he shall be discharged.” Dowd, 340
U.S. at 210.