Guilmette v. Howes

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0333p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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BRUCE GUILMETTE,
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Petitioner-Appellee,
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No. 08-2256
v.
,
>
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Respondent-Appellant. -
CAROL R. HOWES, Warden,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 05-72646—Victoria A. Roberts, District Judge.
Argued: June 9, 2010
Decided and Filed: October 21, 2010
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,
GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
KETHLEDGE, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Brad H. Beaver, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Kimberly Thomas, MICHIGAN CLINICAL LAW
PROGRAM, Ann Arbor, Michigan, for Appellee. ON BRIEF: Brad H. Beaver,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellant. Kimberly Thomas, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor,
Michigan, for Appellee.
ROGERS, J., delivered the opinion of the court, in which MARTIN, MOORE,
COLE, CLAY, GIBBONS, SUTTON, COOK, KETHLEDGE, and WHITE, JJ., joined,
and in which BATCHELDER, C.J., BOGGS, GILMAN, and McKEAGUE, JJ., joined
with respect to Parts I and II only. BOGGS, J. (pp. 10–17), delivered a separate opinion
concurring in part and dissenting in part, in which BATCHELDER, C.J., GILMAN, and
McKEAGUE, JJ., joined. GRIFFIN, J. (pp. 18–33), delivered a separate dissenting
opinion.

1
No. 08-2256 Guilmette v. Howes Page 2

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OPINION
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ROGERS, Circuit Judge. A Michigan jury found petitioner Bruce Guilmette
guilty of first-degree home invasion. On state collateral review, Guilmette argued—for
the first time—that his trial counsel had been constitutionally ineffective. The state trial
court denied Guilmette’s claim on the merits, and both the state intermediate and
supreme courts denied leave to appeal in brief and substantively identical orders. A
federal district court granted Guilmette a conditional writ of habeas corpus after
determining that Guilmette’s trial attorneys were constitutionally ineffective. The state
now appeals, arguing that Guilmette procedurally defaulted his ineffective-assistance
claim by failing to raise it during his direct appeal, and that the state supreme court’s
brief order enforced that procedural rule. However, because the state supreme court’s
order was unexplained (by which we mean the text of the order fails to disclose the
reason for the judgment) and the last reasoned state court decision was on the merits, the
state courts never enforced a procedural bar to Guilmette’s claim. The state is therefore
not entitled to appellate relief.

I.

At approximately noon on January 7, 1999, a man forced open the locked front
door of Joan McCormick’s home while McCormick sat in her living room. McCormick
fell down during her attempt to flee into the interior of her house, and when she looked
back at the door after her fall, the man was already fleeing the scene. McCormick
identified the petitioner, Bruce Guilmette, out of two photographic lineups during the
following weeks. The state prosecuted Guilmette for first-degree home invasion. At
trial, the prosecution introduced two photographs that were purportedly of the
perpetrator’s footprints in the snow around McCormick’s home: one taken by a police
officer who had investigated the crime, and a second taken by McCormick after the
police officer had departed. McCormick’s photograph was of a footprint on the
threshold of her door, and the state relied upon that photograph at trial to establish the
No. 08-2256 Guilmette v. Howes Page 3

“entry” element of the alleged crime. See Mich. Comp. Laws § 750.110a(2). Rejecting
Guilmette’s arguments that McCormick had misidentified him, a jury found Guilmette
guilty of first-degree home invasion. For a more detailed recitation of the facts of the
alleged home invasion and Guilmette’s trial, see Guilmette v. Howes, 591 F.3d 505 (6th
Cir. 2010) (vacated pursuant to March 12, 2010 order granting rehearing en banc).

After an unsuccessful direct appeal, Guilmette filed for state post-conviction
review, arguing for the first time that his trial counsel had been ineffective for failing to
investigate differences between the two photographed footprints. Guilmette argued that
this error was prejudicial because the photographs were the only proof of entry.
Guilmette also argued that his appellate counsel had been ineffective for failing to argue
ineffective assistance of trial counsel. The state trial court denied these claims on the
merits, determining that Guilmette’s trial counsel had not been ineffective because
focusing on identification at the expense of arguing the elements of the crime was a
reasonable trial strategy, and that his appellate counsel had not been ineffective for
failing to raise a meritless claim of ineffective assistance of trial counsel. In the trial
court’s words, Guilmette “failed to meet his burden in demonstrating that either his trial
counsel’s or appellate counsel’s performance fell below an objective standard of
reasonableness.” Both the Michigan Court of Appeals and the Michigan Supreme Court
denied leave to appeal, issuing substantively identical orders stating that Guilmette had
failed “to meet the burden of establishing entitlement to relief under [Michigan Court
Rule] 6.508(D).”

Guilmette petitioned for habeas relief based on the two ineffective-assistance
claims that he raised on state collateral review. The district court granted a conditional
habeas writ, finding that Guilmette’s trial counsel were constitutionally ineffective
because they failed to investigate the differences between the two photographs.
Guilmette v. Howes, 577 F. Supp. 2d 904, 910-16 (E.D. Mich. 2008). The district court
determined that Guilmette had not procedurally defaulted this claim, citing Abela v.
Martin, 380 F.3d 915, 922-24 (6th Cir. 2004), for the proposition that some orders citing
Rule 6.508(D) do not invoke a procedural bar. Guilmette, 577 F. Supp. 2d at 909-10.
No. 08-2256 Guilmette v. Howes Page 4

The state appealed, arguing that Guilmette procedurally defaulted his ineffective-
assistance claim and that he failed to establish cause and prejudice for that default. A
panel of this court reversed the district court’s judgment. Guilmette, 591 F.3d 505. Over
a dissent, the panel held that, given the precise procedural history presented by this case,
precedent compelled the conclusion that Michigan had applied a procedural bar to
Guilmette’s claims for relief, and thus that Guilmette’s claims were procedurally
defaulted. Id. at 508-11. We granted en banc review to determine whether a brief
Michigan appellate court order citing Rule 6.508(D) is an explained order from which
federal courts can determine whether the basis of the state court decision was procedural
rather than merits-based.

II.

Brief orders citing Michigan Court Rule 6.508(D) are not explained orders
invoking a procedural bar. We reach this result because holdings from the Michigan
courts indicate that the language used by such summary orders can refer to the
petitioner’s failure to establish entitlement to relief either on the merits or procedurally,
and such ambiguity demands a determination that the orders are not explained. A habeas
petitioner procedurally defaults a claim if:

(1) the petitioner fails to comply with a state procedural rule; (2) the state
courts enforce the rule; (3) the state procedural rule is an adequate and
independent state ground for denying review of a federal constitutional
claim; and (4) the petitioner cannot show cause and prejudice excusing
the default.

Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th Cir. 2010) (citing Maupin v. Smith,
785 F.3d 135, 138 (6th Cir. 1986)). The second part of this rule requires federal courts
to determine the basis on which state courts rejected a given claim, and this court has
struggled with this interpretive task in the context of Michigan court orders citing Rule
6.508(D). See, e.g., Alexander v. Smith, 311 F. App’x 875, 882 (6th Cir. 2009)
(discussing how an “apparent conflict within this circuit’s precedent” has
“[c]omplicat[ed] matters” with respect to this question). Rule 6.508(D) provides:
No. 08-2256 Guilmette v. Howes Page 5

Entitlement to Relief. The defendant has the burden of establishing
entitlement to the relief requested. The court may not grant relief to the
defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still
is subject to challenge on [direct] appeal . . . ;
(2) alleges grounds for relief which were decided against the
defendant in a prior appeal or proceeding under this subchapter,
unless the defendant establishes that a retroactive change in the
law has undermined the prior decision;
(3) 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 this subchapter, unless the
defendant demonstrates
(a) good cause . . . , and
(b) actual prejudice . . . .
....
The court may waive the “good cause” requirement of subrule (D)(3)(a)
if it concludes that there is a significant possibility that the defendant is
innocent of the crime.

In some cases, the context of a brief order citing Rule 6.508(D) clearly indicates
that the state appellate court is affirming the lower court’s determination that a
petitioner’s claims are procedurally defaulted. See, e.g., Ivory v. Jackson, 509 F.3d 284,
292-93 (6th Cir. 2007) (“Never, at any point in Ivory’s postconviction proceedings, did
a Michigan court address the merits of his ineffective-assistance-of-trial-counsel
claim.”). Our earliest case directly addressing whether brief orders citing Rule 6.508(D)
are explained orders was such a case. See Simpson v. Jones, 238 F.3d 399, 403, 408 (6th
Cir. 2000).

But Michigan cases also reveal that some orders citing Rule 6.508(D) deny post-
conviction relief on the merits. In People v. Jackson, the Michigan Supreme Court held
that Rule 6.508(D) applied to convictions handed down before the effective date of that
rule. 633 N.W.2d 825, 826 (Mich. 2001). The petitioner in Jackson, Michael T.
Jackson, was sixteen at the time of his offense, and a juvenile court had waived
jurisdiction over his case before he had been tried as an adult. Id. at 827. Jackson
argued that this waiver was improper, and the state trial court on post-conviction review
denied this claim on the merits. Id. at 828-29. Before the Michigan Supreme Court,
No. 08-2256 Guilmette v. Howes Page 6

Jackson argued that the exception to Rule 6.508(D)(3) for jurisdictional defects applied
to his invalid waiver claim. Id. at 833. The state supreme court declined to decide this
issue; instead, the court reasoned:

Regardless of whether this claim is a jurisdictional one within the
meaning of [Rule] 6.508(D)(3), the defendant is not entitled to relief.
Pursuant to [Rule] 6.508(D), “[t]he defendant has the burden of
establishing entitlement to the relief requested.” The circuit judge’s
second opinion discussed the merits of the juvenile court waiver issue
and found it to be without merit. Accordingly, the defendant failed to
establish his entitlement to relief. Thus, the defendant has not been
deprived of review of that issue by the operation of subrule (D)(3).

Id. at 833-34 (third alteration in original). Under the analysis of this passage, Rule
6.508(D)’s introductory sentence requiring the petitioner to establish his entitlement to
relief applies to both the procedural and merits aspects of a petitioner’s claim. Further,
the Michigan Supreme Court used the phrase, “the defendant failed to establish his
entitlement to relief,” to refer to the petitioner’s failure to establish entitlement to relief
on the merits of his claim. This supports our precedent that Rule 6.508(D) has both a
procedural and a substantive component, see Ivory, 509 F.3d at 292, and demonstrates
that citations to a defendant’s failure to meet the burden of establishing entitlement to
relief can refer to a defendant’s failure to meet that burden on the merits.

Michigan practice confirms that brief orders citing Rule 6.508(D) in some cases
refer to a petitioner’s failure to meet his burden on the merits. The procedural-default
rule stated by Rule 6.508(D)(3) applies only to claims that could have been brought on
direct appeal, and thus—by necessity—it does not apply to claims of ineffective
assistance of appellate counsel. In People v. Allen, a Michigan petitioner seeking post-
conviction relief argued that the judge in his criminal trial had erroneously excluded
evidence and that he had been denied the effective assistance of appellate counsel. No.
249788, 2005 WL 1106498, at *1 (Mich. Ct. App. May 10, 2005). The appellate court
denied both of these claims on the merits. Id. The Michigan Supreme Court denied
review “because the defendant . . . failed to meet the burden of establishing entitlement
to relief under [Rule] 6.508(D).” People v. Allen, 706 N.W.2d 15 (Mich. 2005)
No. 08-2256 Guilmette v. Howes Page 7

(unpublished table decision). Because the petitioner in Allen could not have raised his
claim of ineffective assistance of appellate counsel in an earlier proceeding, the
Michigan Supreme Court’s form order necessarily rejected that claim on the merits.
Further, the present case involved the same situation. Guilmette’s petition for post-
conviction review in state court included both trial and appellate ineffective-assistance
claims. The form orders used by the state intermediate and supreme courts thus
necessarily rejected one of Guilmette’s claims on the merits. This fact refutes the
argument that such form orders can only, or do only, refer to procedural default.

Because the form orders in this case citing Rule 6.508(D) are ambiguous as to
whether they refer to procedural default or denial of relief on the merits, the orders are
unexplained. We must therefore look to the last reasoned state court opinion to
determine the basis for the state court’s rejection of Guilmette’s claim. In Ylst v.
Nunnemaker, the Supreme Court applied a presumption that “[w]here there has been one
reasoned state judgment rejecting a federal claim, later unexplained orders upholding
that judgment or rejecting the same claim rest upon the same ground.” 501 U.S. 797,
803 (1991). Where, as here, “an earlier opinion ‘fairly appear[s] to rest primarily upon
federal law,’ we will presume that no procedural default has been invoked by a
subsequent unexplained order that leaves the judgment or its consequences in place.”
Id. (citation omitted) (alteration in original) (quoting Coleman v. Thompson, 501 U.S.
722, 740 (1991)). Applying that presumption in this case results in a conclusion that the
Michigan courts denied Guilmette’s claim of ineffective assistance of trial counsel on
the merits.

Michigan’s primary argument that orders citing Rule 6.508(D) can only refer to
procedural default is untenable in light of Jackson and the procedural history of cases
like Allen and the present case. The state also suggests that the Michigan Supreme Court
necessarily considered and thus determined whether Guilmette had procedurally
defaulted his claims because Michigan courts are required to consider procedural default
before considering the merits of a collateral challenge to a criminal judgment. But the
cases the state cites do not support this assertion. Instead, they stand for the
No. 08-2256 Guilmette v. Howes Page 8

considerably simpler proposition that collateral petitioners cannot succeed without
establishing entitlement to relief both procedurally and on the merits. See People v.
McSwain, 676 N.W.2d 236, 256-57 (Mich. Ct. App. 2003); People v. Brown, 492
N.W.2d 770, 773 (Mich. Ct. App. 1992); People v. Watroba, 483 N.W.2d 441, 442
(Mich. Ct. App. 1992). This proposition does not prevent a state court from denying
collateral relief to a petitioner on the merits without reaching the issue of procedural
default. Further, the Michigan Supreme Court has implicitly rejected the state’s
assertion by deciding a case on the merits without considering procedural default.
Jackson, 633 N.W.2d at 833-34.

Today’s holding also does not undermine federalism, and it does not disregard
Michigan’s interest in the enforcement of its procedural rules. We are mindful of our
duty to “to safeguard the States’ interest in the integrity of their criminal and collateral
proceedings.” Williams v. Taylor, 529 U.S. 420, 436 (2000). But a duty to protect a
state’s interest in its procedural rules is only applicable once we determine that the state
has decided a given case on a procedural basis. The existence of this federalism interest
thus depends on the question we are asked to resolve. Because we are bound by the
Supreme Court’s holding in Ylst to determine that the state rejected Guilmette’s claim
of ineffective assistance of trial counsel on the merits, there is no state enforcement of
a procedural rule in this case to which the federal courts can defer.

III.

We do not reach the merits of Guilmette’s claim of ineffective assistance of trial
counsel because the state did not appeal that aspect of the district court’s judgment. Our
general rule is that “‘[a]n appellant abandons all issues not raised and argued in its initial
brief on appeal.’” United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006)
(quoting United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996)). Although this
court may overlook such forfeiture, we part company with the partial dissent because we
do not believe precedent requires us to look past the state’s default in these
circumstances, and we decline to do so. In its initial appellate brief, the state raised two
issues: (1) did Guilmette procedurally default his ineffective-assistance claim, and
No. 08-2256 Guilmette v. Howes Page 9

(2) had Guilmette demonstrated cause and prejudice for his procedural default. In his
brief, Guilmette noted the state’s failure to appeal the merits of his claim, and he argued
that the state had therefore abandoned this issue. The state did not file a reply brief. The
panel opinion concluded that the state had challenged the district court’s conclusion only
with respect to procedural default, Guilmette, 591 F.3d at 508, and the state neither
contested this premise nor argued the merits of the claim before the en banc court. The
state thus did not appeal the merits of the district court’s decision, did not respond to
Guilmette’s argument that such forfeiture precluded review, and did not argue before the
en banc court that the panel’s opinion should be reinstated on the alternative basis that
Guilmette’s counsel were not constitutionally ineffective. These circumstances do not
warrant an exercise of our discretion to overlook the state’s forfeiture of its merits
argument.

Because the state has not established that Guilmette procedurally defaulted his
claim of ineffective assistance of trial counsel, we affirm the judgment of the district
court.
No. 08-2256 Guilmette v. Howes Page 10

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________

BOGGS, Circuit Judge, concurring in part and dissenting in part. The majority
– quite correctly, in my view – concludes that the Michigan courts’ summary orders
citing Guilmette’s “fail[ure] to meet the burden of establishing entitlement to relief under
MCR 6.508(D)” are unexplained orders subject to look-through under Ylst v.
Nunnemaker, 501 U.S. 797 (1991). While Judge Griffin notes that these orders, which
do cite a code provision, do not literally “say nothing,” Dissent at 21 (quoting Ylst, 501
U.S. at 804) (emphasis added), the Court clearly did not intend to set the bar for finding
an order unexplained quite that high. See Ylst, 501 U.S. at 805 (holding order
unexplained where, “although . . . it was not utterly silent, neither was it informative
with respect to the question” of whether a procedural bar was actually applied). Because
MCR 6.508(D) appears to embrace both a substantive and a procedural component, see
Ivory v. Jackson, 509 F.3d 284, 292 (6th Cir. 2007), I agree that a bare citation to that
provision is simply not “informative with respect to the question before us.” Ylst, 501
U.S. at 805.1

I part company with the majority, however, as to the ultimate resolution of this
particular appeal. After rejecting the state’s procedural-bar argument, the majority
concludes that the state waived on appeal any objection to the district court’s merits
holding that Guilmette received ineffective assistance of counsel, and that the writ must
therefore issue. I cannot agree.

Part I of the state’s brief on appeal makes the argument – which we reject today
– that this court lacks jurisdiction over Guilmette’s habeas petition because the Michigan
courts’ summary orders establish that Guilmette’s claims are procedurally defaulted.

1
Had the state courts’ orders explicitly cited the subsection of the Rule that references procedural
default, the basis for the orders would have been clear. See MCR 6.508(D)(3) (stating that a court may
not grant relief to a defendant who “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 this
subchapter”). In that case, a reviewing court could conclude that the state had applied a procedural bar.
No. 08-2256 Guilmette v. Howes Page 11

Part II of the state’s appellate brief then goes on to argue that the “cause and prejudice”
exception to the procedural-default bar does not apply because Guilmette did not receive
ineffective assistance of counsel. The heading of that portion of the state’s brief urges
us to conclude that “[b]ecause the State court’s decision that trial and appellate counsel
were not constitutionally ineffective is not contrary to established federal law, Petitioner
has failed to show good cause or prejudice . . . to excuse his procedural default.”
Appellant’s Br. at 22 (emphasis added). The body of that section contains a fully
developed argument, citing relevant federal case law, that trial counsel was not
ineffective – and, a fortiori, that the state post-conviction review court did not
unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), in so holding –
because counsel’s decision to assert a mistaken-identity defense rather than dispute the
element of entry was a “strateg[ic]” choice which “could have been successful.”
Appellant’s Br. at 25.

There is, of course, no separate section in the state’s appellate brief dedicated to
“the merits” of Guilmette’s underlying habeas claim premised on ineffective assistance
of counsel. In other words, the state does not say, in so many words, that even if we do
not read the Michigan courts’ summary orders as indicating reliance on procedural
default, Guilmette still loses “on the merits.” But this should be irrelevant, as the very
same ineffective-assistance claim serves “both as an independent [substantive ground for
habeas relief] and as cause and prejudice to excuse a procedural default . . . .” Becht v.
United States, 403 F.3d 541, 545 (8th Cir. 2005).2

2
See also DeYoung v. Schofield, 609 F.3d 1260, 1278 n.19 (11th Cir. 2010) (“DeYoung’s claim
of ineffective assistance . . . must fail both as a separate claim of relief and as cause to excuse the
procedural default . . . .”); Pignataro v. Poole, No. 09-1396-pr, 2010 WL 2501009, at *3 (2d Cir. June 18,
2010) (unpublished) (“Appellant is not entitled to habeas relief on his ineffective assistance of appellate
counsel claim and, for the same reasons, has not shown prejudice sufficient to excuse the procedural
default . . . .”); Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003) (“The district court found that Caver’s
appellate counsel had been ineffective . . . , thus establishing both a separate constitutional defect and
cause and prejudice sufficient to excuse the procedural default . . . .”); Hickman v. Spears, 160 F.3d 1269,
1273 (10th Cir. 1998) (“Because the same legal standards govern petitioner’s underlying claim of
ineffective assistance of counsel and his closely related burden to show cause for his state law procedural
default, we must determine whether petitioner has shown cause concurrently with the merits of his
ineffective assistance of counsel claim.”); Hardeman v. Boone, 51 F.3d 286, 1995 WL 147514, at *4 n.4
(10th Cir. 1995) (unpublished table decision) (“We consider Mr. Hardeman’s ineffective assistance of
appellate counsel claim . . . both [as] a substantive claim in its own right and as ‘cause’ for his procedural
default . . . .”); Carbello v. United States, 1 F.3d 1244, 1993 WL 269502, at *2 n.3 (7th Cir. 1993)
(unpublished table decision) (“For the same reason that we found that Carbello’s attorney’s performance
was not ‘cause’ for Carbello’s procedural default, we must reject Carbello’s independent claim that his
No. 08-2256 Guilmette v. Howes Page 12

In addressing the issue of procedural default, furthermore, the state invoked the
standard of review that applies when a federal court reviews a habeas petition on the
merits. Specifically, it is the law of this circuit that the “higher AEDPA standard of
review” applies when we address a habeas petitioner’s underlying ineffective-assistance
claim on the merits, but not when we address whether ineffective assistance of counsel
exists to excuse a procedural default. Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir.
2009). In other words, we do not defer to a state court’s determination of whether
ineffective assistance occurred for purposes of our cause-and-prejudice analysis,
although we do defer once we reach the merits of a habeas petitioner’s Sixth
Amendment claim. Ibid. In this case, although the state discussed ineffective assistance
only in the portion of its brief dealing with cause and prejudice, it nonetheless correctly
addressed Guilmette’s ineffective-assistance claim under the higher AEDPA standard
of review. See Appellant’s Br. at 25 (“It cannot be said that the [state] court’s decision
was an unreasonable application of Strickland . . . .”). The state would have had no need
to invoke the AEDPA “unreasonable application” standard if it actually intended to
waive its merits argument and pin its hopes for reversal entirely on procedural default.
This supports the conclusion that the state did not intend to waive its merits argument
in this case.

This court’s precedents further compel that conclusion. In fact, in another recent
habeas case, Thompkins v. Berghuis, a panel of this court rejected a waiver argument
substantially identical to the one the majority accepts today. 547 F.3d 572 (6th Cir.
2008), rev’d on other grounds, 130 S. Ct. 2250 (2010). In Thompkins, the petitioner’s
appellate brief addressed the merits of his ineffective-assistance claim, but “failed to
argue for the existence of cause and prejudice to excuse his procedural default.” Id. at
588. The warden submitted that any argument that cause and prejudice existed was
therefore waived. Ibid. Although the panel found the petitioner’s failure to explicitly

attorney rendered ineffective assistance.”); Williams v. McCarthy, 879 F.2d 866, 1989 WL 76884, at *2
(9th Cir. 1989) (unpublished table decision) (“For the same reasons that we reject the claimed ineffective
assistance of counsel as cause for procedural default, we reject it as an independent claim for relief.”);
Cook v. Foltz, 814 F.2d 1109, 1114 (6th Cir. 1987) (Merritt, J., concurring) (“Mr. Cook’s claim of
ineffective assistance is offered both as cause for his procedural default in state court and as a substantive
ground for habeas relief.”).
No. 08-2256 Guilmette v. Howes Page 13

address procedural default “troubling,” it noted that “the cause and prejudice inquiry for
the procedural default issue merges with an analysis of the merits of [the] ineffective
assistance of counsel claim” and, “given the overlapping analysis,”considered the
petitioner’s ineffective-assistance arguments for both purposes. Id. at 589. This case is
the same, except that it is the merits argument, rather than the “overlapping” procedural-
default argument, which has not been made explicit.

We have invoked this “merge[r]” or “overlapping analysis” rule numerous times
to reject waiver arguments asserted against appellants, irrespective of whether those
appellants were plaintiffs or defendants below. For example, in Stambaugh v. Corrpro
Companies, the district court had dismissed the plaintiff’s securities-fraud complaint
both (1) because it failed to plead adequately the statutory element of scienter, and
(2) because it failed to satisfy the requirement of Federal Rule of Civil Procedure 9(b)
that fraud claims be pleaded with particularity. 116 F. App’x 592, 595-96 (6th Cir.
2004). Even though the plaintiff’s appellate brief took issue with only one of the district
court’s two equally sufficient grounds for dismissal, we declined the defendant’s
invitation to “summarily affirm[]” the district court’s judgment “because [plaintiff]
failed to appeal an ‘alternate’ ground of that decision.” Id. at 596. Our reasoning
resembled the panel’s reasoning in Thompkins:

[T]he district court ruled both that Leviticus had failed to allege
particularized facts giving rise to a strong inference of scienter, as
required by the PSLRA, and that Leviticus failed to plead fraud with
particularity as required by Fed. R. Civ. P. 9(b). Corrpro now argues that
Leviticus, in its appellants’ brief, failed to dispute the district court’s
decision with respect to Fed. R. Civ. P 9(b), that this constitutes a waiver
of any argument that the Rule 9(b) ruling was incorrect, and that
therefore the district court’s decision should be summarily affirmed
because one basis of that decision has not been appealed.
If a party does not raise an issue in its appellant’s brief, then that issue is
waived. . . . Leviticus did not separately argue that its complaint satisfied
Rule 9(b); rather, Leviticus only argued that the complaint had
adequately pled scienter, as required by the PSLRA.
In this case, although the issue is close, Leviticus’s arguments regarding
scienter are sufficient to preserve its appeal of the Rule 9(b) dismissal.
No. 08-2256 Guilmette v. Howes Page 14

We do not generally condone making arguments by inference. [However,
i]n this case, the district court’s ruling that the complaint failed to satisfy
Fed. R. Civ. P. 9(b) revolved entirely around the requirement that a
plaintiff allege fraudulent intent. The district court’s explanation of how
the complaint failed to allege fraudulent intent mirrors its explanation
of how the complaint failed to plead scienter as required by the PSLRA.
Therefore, if Leviticus is correct that the complaint satisfies the PSLRA’s
pleading standard, then the complaint would also satisfy Rule 9(b). The
inference that Appellants also challenge the district court’s alternative
ground is thus sufficiently clear, and this court can consider the merits of
Leviticus’s appeal.

Id. at 596 (internal citations omitted) (emphasis added).

We relied on Stambaugh’s reasoning in United States v. Goforth, a published
decision involving the Federal Debt Collection Procedures Act. 465 F.3d 730 (6th Cir.
2006). There, the district court held that the defendant spouses had made fraudulent
transfers both (1) because “the payment of household expenses by [the wife] in return
for the monthly payments from her husband would not constitute ‘reasonably equivalent
value’ under [28 U.S.C. § 3304(a)],” and (2) because the payments “were made with the
intent to hinder, delay, and defraud the government, within the parameters of 28 U.S.C.
§ 3304(b)(1)(A).” Id. at 735-36. On appeal, we rejected a waiver argument – this time,
asserted against the defendants – for reasons that should be familiar by now:

The government argues that the Gilleys have waived any challenge to
[the district court’s] alternative holding [under § 3304(b)(1)(A)] because
they did not argue it in their opening brief. The Gilleys counter that their
extensive arguments as to “reasonably equivalent value” [under
§ 3304(a)] preserve their challenge to this alternative ground because the
FDCPA provides a defense to claims under § 3304(b) for transfers “with
respect to a person who took in good faith and for a reasonably
equivalent value or against any transferee or obligee subsequent to such
person.” 28 U.S.C. § 3307(a).
We have held that where an argument advanced in an appellant’s
opening brief applies to and essentially subsumes an alternative basis for
affirmance [or reversal] not separately argued therein, the appellant
does not waive that alternative basis for affirmance [or reversal].
Stambaugh v. Corrpro Co., Inc., No. 03-3904, 2004 WL 2625036, at *5
(6th Cir. Nov. 17, 2004). Because the Gilleys’ [expressly asserted]
arguments regarding “reasonably equivalent value” would apply equally
No. 08-2256 Guilmette v. Howes Page 15

to the defense under § 3307(a) [not expressly argued], this authority
would negate the government’s waiver argument.

Id. at 736-37 (emphasis added).3

We have quoted and applied the rule in Goforth in at least two other cases – one
published and one not. See Sunarto v. Mukasey, 306 F. App’x 957, 961-62 (6th Cir.
2009) (“Because the analysis of [petitioner] Sunarto’s [immigration] claims is largely
the same under both reconsideration and reopening, we believe that Sunarto’s arguments
with respect to the reopening claims [not expressly addressed in his appellate brief] are
sufficiently subsumed by his arguments on the reconsideration claims and that [the
Goforth] exception applies.”); Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d
666, 673 (6th Cir. 2008) (“[Defendant-appellant] fails to make any arguments in its
briefs as to [plaintiff’s Tennessee Human Rights Act] claims, [which the district court
found meritorious] . . . . [However, b]ecause the analysis of [plaintiff’s] claims is the
same under both Title VII and the THRA, we believe that [defendant-appellant’s latent]
arguments with respect to the THRA claims are sufficiently subsumed within its
[express] arguments on the Title VII claims for [the Goforth] exception to apply.”).

Again, I believe that these precedents compel the conclusion that the state did not
waive its merits argument, as that argument “merges with,” shares an “overlapping
analysis” with, “mirrors,” and/or is “essentially subsume[d]” within its cause-and-
prejudice argument. Accordingly, I would reach the merits of Guilmette’s ineffective-
assistance claim.

In so doing, I would find that Guilmette failed to establish ineffective assistance
of trial counsel (and thus, that appellate counsel was not ineffective for failing to argue
trial counsel’s ineffectiveness). As the panel majority compellingly explained,
“Guilmette’s counsel had a promising mistake-of-identity defense based upon the

3
While the opinion in Goforth used only the word “affirmance,” rather than “affirmance or
reversal,” it is clear that the panel meant to include reversal, because the allegedly waived argument that
the Goforth panel was addressing was asserted by the appellant – who obviously was seeking reversal, not
affirmance. Similarly, in Stambaugh, on which the Goforth panel relied, the argument that was found
unwaived sought reversal, not affirmance.
No. 08-2256 Guilmette v. Howes Page 16

victim’s questionable identification, Guilmette’s plausible alibi, and the inconsistency
between the victim’s description of Guilmette’s actions and the testimony regarding
Guilmette’s inoperable driver-side door.” Guilmette v. Howes, 591 F.3d 505, 510 (6th
Cir. 2010). Further, if Guilmette’s counsel had contested the element of entry, as
Guilmette now argues they should have done, “it might have either removed the focus
from or undermined the credibility of the defense’s misidentification argument.” Id. at
511.

Indeed, as the panel majority noted, Guilmette’s trial counsel strongly argued to
the jury in closing that “the jury ought to find the defense more credible because defense
counsel, unlike the prosecutor, had refrained from making inconsistent alternative
arguments.” Ibid. The defense began its closing argument by stating bluntly, “This is
a case about identification. Not about whether a burglary occurred. And whether a
suspect that has been brought in front of you, Mr. Bruce Guilmette[,] is the right person.”
The defense concluded with the following plea: “Don’t let the only thing worse . . . than
what happened to [the victim] happen to Mr. Guilmette. Because, the evidence shows
they’ve got the wrong person.” Defense counsel underscored the consistency of their
single theory, emphasizing that “[a]t no time has anyone on the defense . . . tr[ied] to
persuade you that what [the victim] said . . . didn’t happen.” By contrast, defense
counsel characterized the prosecution as “want[ing] it both ways,” since the prosecution
argued both that Guilmette had enlisted another person to impersonate him at a
methadone clinic in order to create a false alibi, and that enough time had elapsed
between the break-in and Guilmette’s sign-in at the methadone clinic for Guilmette to
have been at both places. This sensible attack would, of course, have been foreclosed had
the defense itself advanced inconsistent theories.

Trial counsel’s decision to present one consistent, relatively strong mistaken-
identity defense to the jury, rather than arguing that “Guilmette didn’t do it – but if he
did do it, he didn’t actually place any part of his body inside the victim’s house,” appears
to have been a reasonable strategic choice. An attorney “could reasonably choose to
avoid confusing the jury with alternative defenses . . . .” United States v. Smith, 10 F.3d
No. 08-2256 Guilmette v. Howes Page 17

724, 729 (10th Cir. 1993); see also Strickland, 466 U.S. at 689 (“[A] court must indulge
a strong presumption . . . that, under the circumstances, the challenged action might be
considered sound trial strategy.” (internal quotation marks omitted)). Guilmette,
therefore, cannot satisfy the Strickland standard; a fortiori, the state trial court’s decision
on post-conviction review that counsel was not ineffective was not unreasonable. See
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (“The question [under AEDPA]
is not whether a federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination was unreasonable – a
substantially higher threshold.” (internal quotation marks omitted)).

In conditionally granting the writ on the basis of ineffective assistance of
counsel, the district court incorrectly applied Strickland and AEDPA. The state’s
appellate brief explicitly argued just that. I therefore respectfully dissent from this
court’s ultimate decision to affirm the district court’s judgment.
No. 08-2256 Guilmette v. Howes Page 18

________________

DISSENT
________________

GRIFFIN, Circuit Judge, dissenting. “[T]he pedestal of the entire procedural-
default doctrine . . . is respect for state procedural rules.” Franklin v. Hightower,
215 F.3d 1196, 1200 (11th Cir. 2000). As the Supreme Court has repeatedly
emphasized,

Federal habeas corpus principles must inform and shape the historic and
still vital relation of mutual respect and common purpose existing
between the States and the federal courts. In keeping this delicate
balance we have been careful to limit the scope of federal intrusion into
state criminal adjudications and to safeguard the States’ interest in the
integrity of their criminal and collateral proceedings. See, e.g., Coleman
v. Thompson, 501 U.S. 722, 726 (1991) (“This is a case about federalism.
It concerns the respect that federal courts owe the States and the States’
procedural rules when reviewing the claims of state prisoners in federal
habeas corpus”); McCleskey v. Zant, 499 U.S. 467, 493 (1991) (“[T]he
doctrines of procedural default and abuse of the writ are both designed
to lessen the injury to a State that results through reexamination of a state
conviction on a ground that the State did not have the opportunity to
address at a prior, appropriate time; and both doctrines seek to vindicate
the State’s interest in the finality of its criminal judgments.”).

Williams v. Taylor, 529 U.S. 420, 436 (2000).

Today’s en banc decision erodes the fundamental tenets of federalism by voiding,
for purposes of federal habeas corpus review, Michigan’s adequate and independent
rules of post-conviction procedure. In my view, our prior panel opinion, Guilmette v.
Howes, 591 F.3d 505 (6th Cir. 2010) (“Guilmette I”), rehearing en banc granted, opinion
vacated March 12, 2010, was correctly decided and, thus, rehearing en banc was
improvidently granted. Accordingly, I would reinstate our prior panel decision and
reverse the district court. I therefore respectfully dissent.

In Wainwright v. Sykes, 433 U.S. 72 (1977), the Supreme Court addressed the
following issue: “In what instances will an adequate and independent state ground bar
consideration of otherwise cognizable federal issues on federal habeas review?”
No. 08-2256 Guilmette v. Howes Page 19

433 U.S. at 78-79. Examining a Florida state contemporaneous-objection rule in this
context, the Supreme Court noted that “[t]he area of controversy which has developed
has concerned the reviewability of federal claims which the state court has declined to
pass on because not presented in the manner prescribed by its procedural rules.” Id. at
81-82 (emphasis added). In limiting federal habeas review to an analysis of “cause” and
“prejudice,” the Court held that Florida’s rule constituted “an independent and adequate
state procedural ground,” and thus involved “contentions of federal law which were not
resolved on the merits in the state proceeding due to respondent’s failure to raise them
there as required by state procedure.” Id. at 87.

Similarly, Michigan’s post-conviction rules, specifically M.C.R. 6.508(D), are
“independent and adequate state procedural grounds” that warrant enforcement by our
court. See Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005) (“It is well-
established in this circuit that the procedural bar set forth in Rule 6.508(D) constitutes
an adequate and independent ground on which the Michigan Supreme Court may rely
in foreclosing review of federal claims.”).

In Guilmette I, Judge Rogers, writing for the panel majority, held that
Guilmette’s claim of ineffective assistance of counsel “[was] procedurally defaulted
because, although the state trial court on collateral review addressed the merits of
Guilmette’s claim, both the state appellate and supreme courts denied the claim pursuant
to Mich. Ct. R. 6.508(D).” Guilmette I, 591 F.3d at 508. In so holding, Judge Rogers
cited our unanimous authority on this issue:

Guilmette did not raise his ineffective assistance of counsel claim on
direct appeal, as required by Mich. Ct. R. 6.508(D)(3). Our decision in
Munson v. Kapture, 384 F.3d 310 (6th Cir. 2004) requires the conclusion
that the Michigan courts enforced Rule 6.508(D)(3) in this case and thus
that Guilmette’s claim is procedurally defaulted. In Munson, as in the
present case, the petitioner did not raise certain claims on direct appeal.
384 F.3d at 312-13. In both cases, the petitioner then raised the claims
in a state trial court on collateral review, and the state trial court denied
the claims on the merits. Id. at 313. Then in both cases, the state
appellate and state supreme courts each denied leave to appeal in brief
orders, stating that the petitioner had “failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D).” Id. In Munson,
No. 08-2256 Guilmette v. Howes Page 20

we held that Rule 6.508(D) constituted an adequate and independent state
ground and thus held the claims to be procedurally barred. No relevant
fact distinguishes Munson from the present case, and thus Guilmette’s
claim is similarly procedurally defaulted.
***
This conclusion is supported by five of this court’s other cases, . . . all of
which hold that habeas claims were procedurally defaulted in situations
materially indistinguishable from the present case. See Alexander v.
Smith, 311 Fed. Appx. 875 (6th Cir. 2009) . . . ; Spencer v. Booker, 254
Fed. Appx. 520 (6th Cir. 2007) . . . ; McCray v. Metrish, 232 Fed. Appx.
469 (6th Cir. 2007) . . . ; Burroughs v, Makowski, 282 F.3d 410 (6th Cir.
2002) . . . ; Luberda v. Triplett, 211 F.3d 1004 (6th Cir. 2000) . . . . In
each, the state trial court on collateral review denied the petitioner’s
claims on the merits, and then both the state appellate and state supreme
courts denied the claims pursuant to Mich. Ct. R. 6.508(D). We held that
the petitioner’s claims were procedurally defaulted in each case. The
binding nature of these precedents . . . is inescapable.

Id. at 509-10 (citations and footnotes omitted, emphasis added).1

A cornerstone of these cases is our proper categorization of the state court orders
at issue as “explained” orders – not “unexplained” orders that require further explication
and, hence, scrutiny by this court to determine whether the state court’s decision rested
primarily upon federal law. In Coleman, the Supreme Court, when confronted with an
ambiguous state court habeas order, refined the independent and adequate state ground
doctrine and held:

In habeas, if the decision of the last state court to which the petitioner
presented his federal claims fairly appeared to rest primarily on

1
The panel majority noted that:
This result is consistent with Abela v. Martin, 380 F.3d 915 (6th Cir. 2004). In that
case, both the Michigan trial court and the Michigan Court of Appeals denied the
petitioner’s collateral claims on the merits before the Michigan Supreme Court denied
review pursuant to Mich. Ct. R. 6.508(D). Id. at 920. In part because the lower state
courts had “repeatedly ruled on the merits,” we concluded in Abela that the invocation
of Mich. Ct. R. 6.508(D) by only the Michigan Supreme Court did not sufficiently
indicate that the court was invoking a procedural bar, and thus that the claim was not
procedurally defaulted. Id. at 923-24. In the present case, however, both the state
appellate and state supreme court denied leave to appeal pursuant to Rule 6.508(D); this
case is thus squarely controlled by our decision in Munson.
Guilmette I, 591 F.3d at 509.
No. 08-2256 Guilmette v. Howes Page 21

resolution of those claims, or to be interwoven with those claims, and did
not clearly and expressly rely on an independent and adequate state law
ground, a federal court may address the petition.

Coleman, 501 U.S. at 735.

In Ylst v. Nunnemaker, 501 U.S. 797 (1991), a companion case to Coleman, the
Supreme Court further clarified the doctrine’s application in cases involving
“unexplained” state court orders and created the following presumption:

Where there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or rejecting the
same claim rest upon the same ground. If an earlier opinion “fairly
appear[s] to rest primarily upon federal law,” Coleman, 501 U.S. at 740
[], we will presume that no procedural default has been invoked by a
subsequent unexplained order that leaves the judgment or its
consequences in place. Similarly where, as here, the last reasoned
opinion on the claim explicitly imposes a procedural default, we will
presume that a later decision rejecting the claim did not silently disregard
that bar and consider the merits.
***
The maxim is that silence implies consent, not the opposite – and courts
generally behave accordingly, affirming without further discussion when
they agree, not when they disagree, with the reasons given below. . . .
We think that a presumption which gives them no effect – which simply
“looks through” them to the last reasoned decision – most nearly reflects
the role they are ordinarily intended to play.

Ylst, 501 U.S. at 803-04.

The Court in Ylst defined the term “unexplained” order as “an order whose text
or accompanying opinion does not disclose the reason for the judgment.” Id. at 802.
Otherwise stated, “[t]he essence of unexplained orders is that they say nothing.” Id. at
804.

In the present case, the state appellate court orders are neither ambiguous nor
“unexplained.” In Munson, we held that

[f]or purposes of procedural default, the “state judgment” with which we
are concerned is “the last explained state court judgment.” Ylst v.
No. 08-2256 Guilmette v. Howes Page 22

Nunnemaker, 501 U.S. 797, 805 (1991). Munson argues that the last
explained state court judgment is the trial court’s opinion denying his
post-conviction motion for relief. In that opinion, the court relied on
procedural default in rejecting only one of his claims; it denied the other
claims on their merits. Contrary to Munson’s assertion, however, the last
explained state court judgment in this case is the Michigan Supreme
Court’s order denying review of Munson’s claims based upon his failure
to comply with Rule 6.508(D). We have held that orders such as that
issued by the Michigan Supreme Court constitute “explained” state court
judgments for purposes of procedural default. See, e.g., Simpson v.
Jones, 238 F.3d 399, 407-08 (6th Cir. 2000) (holding that an order issued
by the Michigan Supreme Court stating that the petitioner had “failed to
‘meet the burden of establishing entitlement to relief under MCR
6.508(D)’” – though “brief” – constituted the last explained state court
judgment in the case).

Munson, 384 F.3d at 314 (footnote omitted, second emphasis added). Likewise, in
Hargrave-Thomas v. Yukins, 374 F.3d 383 (6th Cir. 2004), we observed that

[o]ur precedents establish that the state supreme court’s one-sentence
order – an order saying simply that Ms. Hargrave-Thomas “failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D)” –
“was based on an independent and adequate state procedural rule.”
Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000); cf. Burroughs v.
Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002). Despite its brevity, the
order constituted a “reasoned” judgment that adequately explained its
procedural basis. Because the Michigan Supreme Court “expressly
stated” that Hargrave-Thomas’ claim was “barred by MCR 6.508(D),”
see Simpson, 238 F.3d at 408, the federal courts may not review that
claim absent “cause and prejudice” or a “fundamental miscarriage of
justice.” See Harris [v. Reed], 489 U.S. [255 (1989)] at 262-63.

Hargrave-Thomas, 374 F.3d at 387-88; see also Burroughs, 282 F.3d at 414 (“[T]he
Michigan Court of Appeals and Michigan Supreme Court’s statements that Burroughs
was not entitled to relief under M.C.R. 6.508(D) presents a sufficient explanation that
their rulings were based on procedural default.”); Alexander, 311 F. App’x at 884 (“The
Michigan Supreme Court’s order denying Alexander relief from the judgment [“under
MCR 6.508(D)”] constitutes an explained order invoking an independent and adequate
procedural bar to relief.”); Friedman v. Smith, 83 F. App’x 718, 724 n.8 (6th Cir. 2003)
(unpublished) (“The Michigan Supreme Court’s order disclosed the reason for its
No. 08-2256 Guilmette v. Howes Page 23

judgment – Mich. Ct. R. 6.508(D). The judgment, therefore, was not unreasoned or
unexplained. Consequently, we need not look to prior state court judgments on [the
petitioner’s] Brady claim.”). Cf., Correll v. Stewart, 137 F.3d 1404, 1417 (9th Cir. 1998)
(citing Ylst and holding that “[b]y invoking state-law procedural grounds [analogous to
MCR 6.508(D)] for its dismissal of [the petitioner’s post-conviction] claims, the state
trial court barred later federal review of these claims on the merits.”).

In the present case, the orders of the Michigan Supreme Court and the Michigan
Court of Appeals – which denied Guilmette’s petitions because he failed to sustain his
“burden of establishing entitlement to relief under MCR 6.508(D)” – are, as Judge
Rogers notes in Guilmette I, “materially indistinguishable” from the “explained” orders
at the core of our substantial body of case law that requires, under these circumstances,
that we honor the state court judgments explicitly denying Guilmette’s claim on
independent and adequate state procedural grounds. We should not manufacture
ambiguity where there is none, and we need not ignore or “look through” these
unequivocal state court orders, which by their express language preclude collateral
review. In my view, Guilmette I and its abundant persuasive precedent were correctly
decided and therefore should not be overruled.

Like most jurisdictions, Michigan requires that all claims be brought on direct
appeal. See People v. Caston, 579 N.W.2d 368, 371 (Mich. Ct. App. 1998) (“[B]ecause
defendant failed to pursue an appeal as of right when he had the opportunity to do so,
and because the time limitations for filing an application for leave to appeal have
expired, defendant’s convictions are reviewable only in accordance with subchapter
6.500 of the Michigan Court Rules, dealing with postappeal relief. MCR 6.501.”); see
also subchapter 7.200 of the Michigan Court Rules (delineating Michigan’s appellate
practice and procedure).

Subchapter 6.500 of the Michigan Court Rules establishes procedural rules for
post-conviction appeals. These rules were promulgated by the Michigan Supreme Court
on March 30, 1989, effective October 1, 1989, as part of Michigan’s comprehensive
revision of its rules of criminal procedure:
No. 08-2256 Guilmette v. Howes Page 24

Before October 1, 1989, the procedure for collateral review of criminal
convictions in Michigan did not make any provisions for finality of
judgments. As a consequence, defendants could, and did, repeatedly
seek relief without limitation. To create a uniform system of procedure,
Michigan Court Rules 6.501 et seq. were enacted. The rules present a
carefully balanced scheme that liberally permits the assertion of claims
on direct appeal, whether timely or not, while at the same time
introducing a concept of finality to discourage repeated trips up and
down the appellate ladder.

People v. Reed, 535 N.W.2d 496, 503 (Mich. 1995); see also People v. Jackson,
633 N.W.2d 825, 829 (Mich. 2001). The rules “[were] designed to encourage raising
legal issues on initial appeal rather than in postconviction review,” recognizing that
“[n]either the guarantee of a fair trial nor a direct appeal entitles a defendant to as many
attacks on a final conviction as ingenuity may devise.” Reed, 535 N.W.2d at 503-04
(footnote omitted).

As rules of procedure, not substantive law, the provisions of subchapter 6.500
were given retroactive effect by the Michigan Supreme Court. Jackson, 633 N.W.2d at
831-33. In so holding, the Michigan Supreme Court stated that the rules of subchapter
6.500 are “modes of procedure” only, and that “[w]e can discern no theory upon which
the defendant can be said to have a vested right in the procedures – or lack thereof – for
bringing long-delayed challenges to criminal convictions extant before the adoption of
MCR subchapter 6.500.” Id. at 832-33.

In fact, although the Michigan Supreme Court is constitutionally empowered to
promulgate rules of practice and procedure pursuant to Article 6, § 5 of the Michigan
Constitution,2 it “‘is not authorized to enact court rules that establish, abrogate, or
modify the substantive law.’” People v. Glass, 627 N.W.2d 261, 269 (Mich. 2001)
(quoting McDougall v. Schanz, 597 N.W.2d 148, 154 (Mich. 1999)). “Rather, as is
evident from the plain language of art. 6, § 5, [the Michigan Supreme Court’s]

2
The Michigan Constitution provides in pertinent part: “The supreme court shall by general rules
establish, modify, amend and simplify the practice and procedure in all courts of this state.” Mich. Const.
1963, art. 6, § 5.
No. 08-2256 Guilmette v. Howes Page 25

constitutional rule-making authority extends only to matters of practice and procedure.”
McDougall, 597 N.W.2d at 154.

M.C.R. 6.508(D), at issue in the present case, provides, in full:

(D) Entitlement to Relief. The defendant has the burden of establishing
entitlement to the relief requested. The court may not grant relief to the
defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still is
subject to challenge on appeal pursuant to subchapter 7.200 or
subchapter 7.300;
(2) alleges grounds for relief which were decided against the defendant
in a prior appeal or proceeding under this subchapter, unless the
defendant establishes that a retroactive change in the law has undermined
the prior decision;
(3) 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 this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior
motion, and
(b) actual prejudice from the alleged irregularities that support the claim
for relief. As used in this subrule, “actual prejudice” means that,
(i) in a conviction following a trial, but for the alleged error, the
defendant would have had a reasonably likely chance of acquittal;
(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or
nolo contendere, the defect in the proceedings was such that it renders
the plea an involuntary one to a degree that it would be manifestly unjust
to allow the conviction to stand;
(iii) in any case, the irregularity was so offensive to the maintenance of
a sound judicial process that the conviction should not be allowed to
stand regardless of its effect on the outcome of the case;
(iv) in the case of a challenge to the sentence, the sentence is invalid.
The court may waive the “good cause” requirement of subrule (D)(3)(a)
if it concludes that there is a significant possibility that the defendant is
innocent of the crime.
No. 08-2256 Guilmette v. Howes Page 26

As the Michigan Court of Appeals explained in People v. McSwain, 676 N.W.2d
236 (Mich. Ct. App. 2003),

It is well settled that [s]ubchapter 6.500 of the Michigan Court Rules
establishes procedures for pursuing postappeal relief from a criminal
conviction. The subchapter is the exclusive means to challenge a
conviction in Michigan once a defendant has exhausted the normal
appellate process. Relief, however, may not be granted unless the
defendant demonstrates (a) good cause for failure to have raised the
grounds for relief on appeal or in a prior motion under the subchapter
and (b) actual prejudice from the alleged irregularities that support the
claim for relief. MCR 6.508(D)(3)(a) and (b).
***
MCR 6.508 is phrased in the negative and sets out three bars to relief
from judgment. The first bar, under MCR 6.508(D)(1), is that a court
may not grant relief from judgment if the criminal defendant’s motion
seeks relief from judgment of conviction and sentence that still is subject
[] to challenge on appeal under MCR 7.200 or MCR 7.300. This bar is
not applicable here; McSwain’s judgment of conviction and sentence is
not now subject to challenge on appeal pursuant to MCR 7.200 or 7.300.
The second bar, under MCR 6.508(D)(2), is that a court may not grant
relief from judgment if the criminal defendant’s motion alleges grounds
for relief that were decided against the defendant in a prior appeal or
proceeding under MCR 6.500, “unless the defendant establishes that a
retroactive change in the law has undermined the prior decision.” This
bar is also not applicable here; McSwain’s motion did not allege grounds
that were decided against her in a prior appeal or proceeding under MCR
6.500.
The third bar, under MCR 6.508(D)(3), is that a court may not grant
relief from judgment if the criminal defendant’s motion “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”
MCR 6.500. This bar clearly applies here as McSwain could have, but
did not, raise the issue of her alleged mental incapacity in her prior
appeal from her conviction and sentence. However, a criminal defendant
can avoid the application of this bar if that defendant demonstrates:
(a) good cause for failure to raise such grounds on appeal or in the prior
motion; and
(b) actual prejudice from the alleged irregularities that support the claim
for relief.
No. 08-2256 Guilmette v. Howes Page 27

***
The court rule also provides that the criminal defendant has the burden
of establishing entitlement to the relief requested and that the court may
waive the “good cause” requirement of MCR 6.508(D)(3)(a) if it
concludes that there is a significant possibility that the defendant is
innocent of the crime.

McSwain, 676 N.W.2d at 248-50 (emphasis added).

The Michigan Court of Appeals’ explanation that the petitioner bears the burden
to “demonstrate . . . ‘good cause’ . . . and ‘actual prejudice,’” id. at 249, is consistent
with the introductory sentence of M.C.R. 6.508(D), which provides: “The defendant has
the burden of establishing entitlement to the relief requested.” Thus, unless the
petitioner sustains his burdens of production and persuasion, he may not be granted relief
because he has not demonstrated actual prejudice and good cause.

In the present case, our en banc court has been influenced by Judge Martin’s
panel dissent, in which he opined, in part, as follows:

Although M.C.R. 6.508(D)(1), (2), and (3) list specific procedural
grounds for denying a defendant relief from judgment, these procedural
grounds are not the exclusive grounds for which a court may deny relief
pursuant to M.C.R. 6.508(D). A court may deny relief from judgment
under 6.508(D)(4) for the substantive, i.e. non-procedural, reason that the
defendant simply failed to meet his burden of “establishing entitlement
to the relief requested.” As such, the Michigan courts’ bare citation to
M.C.R. 6.508(D) in orders denying Guilmette leave to appeal does not
demonstrate that the courts denied him leave to appeal on the basis of a
procedural default, much less on the procedural ground described in
M.C.R. 6.508(D)(3), which the warden urges on this Court.

Guilmette I, 591 F.3d at 513 (Martin, J., dissenting).

Regarding the three subsections that are part and parcel of the rule, Judge Martin
correctly recognizes that “MCR 6.508(D)(1), (2), and (3) list specific procedural
grounds for denying a defendant relief from judgment . . . .” Id. (emphasis added).
However, contrary to the dissent’s assertion, there is no subsection (D)(4). Judge Martin
is presumably referring to M.C.R. 6.508(D)’s introductory sentence.
No. 08-2256 Guilmette v. Howes Page 28

In any event, we have already rejected the precise argument advanced by Judge
Martin. In Friedman, we stated:

We must next determine whether the Michigan Supreme Court utilized
Mich. Ct. R. 6.508(D)(3) to bar Friedman’s claim. The court only
referenced 6.508(D) generally as the basis for denying Friedman leave
to appeal the judgment of the Michigan Court of Appeals. Friedman
noted that 6.508(D) states that “[t]he defendant has the burden of
establishing entitlement to the relief requested.” Friedman admits that
6.508(D) goes on to list only procedural grounds for denying a defendant
relief from judgment, which include 6.508(D)(3). However, Friedman
claims that these procedural grounds are not the exclusive grounds for
which a court may deny relief under 6.508(D). According to Friedman,
a court may deny relief from judgment under 6.508(D) for the non-
procedural reason that defendant simply failed to meet his burden of
establishing entitlement to the relief requested. Friedman argues that the
Michigan Supreme Court’s citation to 6.508(D) in its order denying
Friedman leave to appeal does not demonstrate that the court denied him
leave to appeal on the basis of a procedural default, much less on the
procedural grounds included in 6.508(D).
We do not find Friedman’s argument persuasive. This court has held on
numerous occasions that 6.508(D) constitutes a procedural rule that,
when invoked by a Michigan court to deny a claim, signifies that the
claim is procedurally defaulted. See Burroughs, 282 F.3d at 413-14;
Simpson, 238 F.3d at 405-08; Moran v. Trippett, No. 96-2174, 1998 WL
382698, at *2 (6th Cir. June 8, 1998). . . . Therefore, adhering to this
precedent, we find that the Michigan Supreme Court’s order denying
Friedman leave to appeal enforced a state procedural rule to bar
Friedman’s Brady claim.
***
Friedman claims that, even if 6.508(D) constitutes a procedural rule,
citing only 6.508(D) does not sufficiently demonstrate that the state
procedural rule applicable to Friedman’s Brady claim – 6.508(D)(3) –
was actually invoked by the Michigan Supreme Court. Burroughs
directly refutes Friedman’s claim. In Burroughs, this court found that the
Michigan Supreme Court’s citation to 6.508(D) was sufficiently specific
to invoke the more precise procedural bar of 6.508(D)(3). 282 F.3d at
413; see also Moran, 1998 WL 382698, at *2 (finding that petitioner’s
habeas claim was procedurally barred by 6.508(D) where the Michigan
Supreme Court cited only 6.508(D) in denying petitioner’s leave to
appeal a state court decision regarding the federal claim at issue).
Friedman attempts to distinguish Burroughs on the basis that, in that
No. 08-2256 Guilmette v. Howes Page 29

case, the court noted it was undisputed that the petitioner failed to
properly present his arguments for state appellate review, whereas in the
case subjudice Friedman contends that he was not required to present his
Brady claim on direct appeal. Friedman’s attempt to distinguish
Burroughs is unavailing. Burroughs states without qualification that the
invocation of 6.508(D) by a Michigan court to deny a petitioner relief is
a determination that the petitioner’s claim is procedurally barred, and that
invoking 6.508(D) is sufficiently specific to bar a claim under
6.508(D)(3). 282 F.3d at 413-14. At no point does the court limit its
holding to instances where it is undisputed that the claims at issue were
not properly presented for state appellate review. Our conclusion that the
Michigan Supreme Court actually invoked 6.508(D)(3) to bar Friedman’s
claim is supported by the fact, which was conceded by Friedman at oral
argument, that none of the other procedural bases for denying Friedman’s
Brady claim under 6.508(D) are applicable to that claim. The clear
implication, then, is that – by citing 6.508(D) in its order denying
Friedman leave to appeal – the Michigan Supreme Court was invoking
6.508(D)(3) specifically.

Friedman, 83 F. App’x at 725-26.

While this unpublished decision is not precedentially binding, see Longaberger
Co. v. Kolt, 586 F.3d 459, 468 (6th Cir. 2009), I certainly find it to be persuasive and
consistent with this court’s longstanding interpretation of M.C.R. 6.508(D) in the context
of habeas review. More importantly, Friedman properly rebuffed the petitioner’s
attempt to artificially interject a substantive component into a court rule that is purely
a procedural bar. Unfortunately, the en banc majority in the present case now makes this
legal misstep.

In promulgating M.C.R. 6.508(D)(3), the Michigan Supreme Court emulated the
federal habeas corpus practice for addressing procedurally defaulted claims. As the
Michigan Supreme Court has explained:

The requirements of showing good cause for failure to raise the issue on
direct appeal and prejudice from the alleged error to entitle a defendant
to relief are derived from United States Supreme Court decisions
involving federal habeas corpus challenges to state convictions and
collateral review of federal ones. See Wainwright v. Sykes, 433 U.S. 72,
97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); United States v. Frady, 456 U.S.
No. 08-2256 Guilmette v. Howes Page 30

152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); Davis v. United States,
411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973).

Jackson, 633 N.W.2d at 830.

Just as our review of procedural defaulted claims for “cause,” “prejudice,” and
“fundamental miscarriage of justice,” see Coleman, 501 U.S. at 750, is not an
adjudication of the merits of the federal constitutional claims, neither is Michigan’s post-
conviction review. Rather, an adjudication pursuant to M.C.R. 6.508(D)(3) entails a
“cause,” “prejudice,” and “miscarriage of justice” analysis and disposition. In the
present case, our panel, in its vacated majority opinion, properly engaged in such an
analysis and held:

Guilmette has therefore failed to establish cause and prejudice for his
procedural default of his claim of ineffective assistance of trial counsel,
and thus he is barred from raising that issue on habeas review.

Guilmette I, 591 F.3d at 512.

The Michigan post-conviction procedure is the same. The Michigan appellate
courts do not adjudicate the merits of federal constitutional claims when dismissing such
claims for failure to sustain the “burden of establishing entitlement to relief under MCR
6.508(D).” See People v. Brown, 492 N.W.2d 770 (Mich. Ct. App. 1992) and People
v. Watroba, 483 N.W.2d 441 (Mich. Ct. App. 1992) (reversing trial court decisions
adjudicating the merits of the substantive claims raised on post-conviction appeals,
rather than addressing the narrower issues of “cause” and “prejudice” required by
M.C.R. 6.508(D)(3)).

In Paprocki v. Foltz, 869 F.2d 281 (6th Cir. 1989), a decision that pre-dated the
promulgation of M.C.R. 6.508(D), we encouraged the Michigan state courts to undertake
post-conviction review and held that the Michigan Court of Appeals’ review of the
petitioner’s constitutional claims for “manifest injustice” did not constitute an
adjudication of the substantive merits of the claims or waive the procedural bar of the
state’s contemporaneous objection rule:
No. 08-2256 Guilmette v. Howes Page 31

What the state court of appeals did, as we understand it, was to enforce
the procedural bar while reserving the right to excuse it if necessary to
prevent manifest injustice. We would be loath to adopt an exception to
the “cause and prejudice” rule that would discourage state appellate
courts from undertaking the sort of inquiry conducted by the Michigan
court, and we do not believe that the state court’s explanation of why the
jury instructions resulted in no manifest injustice can fairly be said to
have constituted a waiver of the procedural default. Even if there had
been such a waiver, however, Mr. Paprocki would not be entitled to the
relief he seeks in this case – for the instructions, as we view them, would
not warrant habeas relief in any event.

Paprocki, 869 F.2d at 284-85.

Moreover, I find the “cause and prejudice” analysis and disposition, under either
our habeas corpus practice or Michigan’s post-conviction procedure, to be analogous to
a plain-error adjudication. On this issue, in Scott v. Mitchell, 209 F.3d 854 (6th Cir.
2000), we rejected the petitioner’s argument that a plain-error ruling entails an
adjudication of the merits of the underlying federal claim:

[H]e claims that because the contemporaneous-objection rule does not
preclude the state appellate courts from performing a plain-error review,
the rule itself is dependent on federal law and is therefore not an
“independent and adequate state ground” . . . .

Scott, 209 F.3d at 866.

In doing so, we stated that were we to adopt petitioner’s position, we “would
eviscerate the very foundations of the adequate and independent state ground doctrine,
which are federalism, finality and comity.” Id. at 867. Later, in Lundgren v. Mitchell,
440 F.3d 754 (6th Cir. 2006), we made our holding explicit:

Petitioner argues that the Ohio Supreme Court waived any procedural
default that may have existed by conducting a plain error analysis on
some of Petitioner’s claims upon direct appeal, even though Petitioner
had failed to preserve those claims through contemporaneous objections
during trial. . . . [T]his Court has held that a state court’s plain error
analysis does not save a petitioner from procedural default. See Scott v.
Mitchell, 209 F.3d 854, 866 (6th Cir. 2000). Plain error analysis is more
properly viewed as a court’s right to overlook procedural defects to
prevent manifest injustice, but is not equivalent to a review of the merits.
No. 08-2256 Guilmette v. Howes Page 32

Lundgren, 440 F.3d at 765 (emphasis added); see also Williams v. Bagley, 380 F.3d 932,
968-69 (6th Cir. 2004) (“[T]his court has repeatedly held, in published decisions, that
plain error review by an appellate court constitutes enforcement of Ohio’s
contemporaneous objection rule.”); Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 423
(6th Cir. 2003) (holding that the state appellate court’s occasional reference to
“reversible error” and citation to federal law did not foreclose a finding that the state
court invoked a state procedural bar to preclude habeas review on an independent state
procedural ground, where the state court noted the petitioner’s failure to comply with a
contemporaneous objection rule and discussed only plain error); Hinkle v. Randle,
271 F.3d 239, 244 (6th Cir. 2001) (“[W]e view a state appellate court’s review for plain
error as the enforcement of a procedural default”); Seymour v. Walker, 224 F.3d 542,
557 (6th Cir. 2000) (“Controlling precedent in our circuit indicates that plain error
review does not constitute a waiver of state procedural default rules.”).

The majority overrules precedent and reaches its holding by misreading People
v. Jackson, 633 N.W.2d 825 (Mich. 2001).3 In doing so, my colleagues erroneously
conclude that the Michigan Supreme Court ruled on the substantive merits of Jackson’s
federal constitutional claims. It did not. Rather, the Michigan Supreme Court analyzed
Jackson’s claim under the “cause” and “prejudice” procedural bar of M.C.R.
6.508(D)(3). Like the present case, it was the state trial court in Jackson – not the
Michigan Supreme Court – that decided the federal issues on their merits. In affirming
the judgment, only, of the lower court, the Michigan Supreme Court clearly applied the
higher, and more-demanding procedural bar of “cause” and “prejudice”:

As noted earlier, the circuit judge carefully reviewed and discussed the
merits of these claims, finding them without merit. This, in effect,
amounts to a determination that defendant failed to establish the
prejudice aspect of the MCR 6.508(D)(3) standard. That made it
unnecessary for the court to address the good cause question. See Reed,
supra at 400-401, 535 N.W.2d 496.

3
Similarly, my colleagues read far too much into a single denial order of the state court for which
a claim of ineffective assistance of appellate counsel was purportedly raised.
No. 08-2256 Guilmette v. Howes Page 33

We find no error in the judge’s analysis of the prejudice question and
therefore affirm.

Jackson, 633 N.W.2d at 834. The result, not rationale, of the trial court’s decision, was
affirmed by the Michigan Supreme Court.

In the present case, the majority has overruled our well-established precedent on
the basis of their misinterpretation of a single paragraph of a state court per curiam
opinion. However, the ultimate arbitrator of Michigan law, the Michigan Supreme
Court, has not similarly misread its own decision. I would follow Michigan’s well-
established construction of its post-conviction procedural rules. I therefore respectfully
dissent from the novel construction of the Michigan court rules created by my
colleagues.

In my view, today’s decision usurps the role of the Michigan appellate courts and
defies the principles of comity and federalism that underlie the independent and adequate
state ground doctrine. It will open the floodgates for expansive habeas review because:

Without the rule, a federal district court would be able to do in habeas
what this [Supreme] Court could not do on direct review; habeas would
offer state prisoners whose custody was supported by independent and
adequate state grounds an end run around the limits of this Court’s
jurisdiction and a means to undermine the State’s interest in enforcing its
laws.

Coleman, 501 U.S. at 730-31.

For these reasons, I would hold the vacated panel opinion correctly determined
that under Michigan’s independent and adequate rules of criminal procedure, petitioner
Guilmette’s federal constitutional claims were procedurally defaulted and, thus, for
purposes of federal habeas review, were analyzed for cause and prejudice, which the
majority properly found lacking. Accordingly, I respectfully dissent. I would reinstate
the panel majority opinion and reverse the district court.