RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Robinson v. Stegall No. 02-1898
ELECTRONIC CITATION: 2004 FED App. 0029P (6th Cir.)
File Name: 04a0029p.06 Michigan, for Appellant. Elizabeth L. Jacobs, Detroit,
Michigan, for Appellee. ON BRIEF: Brad H. Beaver,
O F F IC E O F T H E A T T ORN E Y G E N E RA L,
UNITED STATES COURT OF APPEALS CORRECTIONS DIVISION, Lansing, Michigan, for
Appellant. Elizabeth L. Jacobs, Detroit, Michigan, for
FOR THE SIXTH CIRCUIT Appellee.
_________________
_________________
REGINALD ROBINSON, X
Petitioner-Appellee. - OPINION
- _________________
- No. 02-1898
v. - ALAN E. NORRIS, Circuit Judge. The State of Michigan
> appeals on behalf of Warden Jimmy Stegall from the grant of
, a writ of habeas corpus, 28 U.S.C. § 2254, to prisoner
JIMMY STEGA LL, Warden, -
Respondent-Appellant. - Reginald Robinson. On appeal, we must determine whether
the alleged violation of a consent judgment entered into by
N the parties is sufficient to warrant granting the writ despite the
Appeal from the United States District Court fact that the district court did not specify which, if any,
for the Eastern District of Michigan at Detroit. federal constitutional right had been violated. Because a
No. 97-70308—Arthur J. Tarnow, District Judge. district court may grant a writ of habeas corpus “only on the
ground that [a state prisoner] is in custody in violation of the
Argued: December 5, 2003 Constitution or laws or treaties of the United States,”
28 U.S.C. § 2254(a), we hold that the grant of the writ under
Decided and Filed: January 22, 2004 the circumstances presented by this case was premature and
therefore remand the matter for further proceedings consistent
Before: NORRIS and GILMAN, Circuit Judges; with this opinion.
BUNNING, District Judge.*
I.
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In 1992, petitioner was convicted of kidnaping, in violation
COUNSEL of Mich. Comp. Laws § 750.349. During the trial, defense
counsel received a 13-day continuance to locate two
ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY witnesses. Before court was adjourned, however, petitioner
GENERAL, CORRECTIONS DIVISION, Lansing, told the judge, “Your Honor, I don’t feel I’m being
represented right so I’m going to fire my lawyer.” The court
replied, “You’re not firing your lawyer now in the middle of
*
a trial. We’re adjourning this case until the 26th and it’s
The Honorable David L. Bunning, United States District Judge for going to conclude at that time.”
the Eastern District of Kentucky, sitting by designation.
1
No. 02-1898 Robinson v. Stegall 3 4 Robinson v. Stegall No. 02-1898
When the proceedings resumed on August 26, 1992, petition be denied, on December 6, 1999, the parties entered
defense counsel reiterated that “the attorney/client into a consent judgment that reads in full as follows:
relationship has broken down” and that petitioner wanted a
different attorney. A discussion ensued, during which IT IS HEREBY ORDERED that the petition for writ
petitioner told the judge “I’m going to leave and be in of habeas corpus is conditionally granted. Unless the
contempt of court. I’m not going to trial with him, man.” He state takes action to afford Petitioner a full hearing in the
went on to state that he wished to testify but not without a trial court to determine whether Petitioner was denied the
new lawyer. The judge responded, “[W]e’re either going to effective assistance of counsel or his counsel had a
proceed with this case with your testimony at this time, or if conflict of interest within ninety (90) days of the date of
you refuse to testify, even with this lawyer or in representing this Order, the Court shall issue the writ ordering the
yourself, then this case will be concluded.” Given this choice, Respondent to vacate the sentence and conviction.
the defense rested without calling any witnesses. Defendant
was convicted and received a sentence of 10 to 20 years of This hearing is to be considered as part of Petitioner’s
imprisonment. appeal of right. In response, the successor to the original trial
judge conducted a hearing over a two-day period in March
On appeal, petitioner raised several issues, including 2000. After the hearing, the trial court denied petitioner’s
whether the trial court erred by refusing to allow him to retain claim on the record. After judgment was pronounced, counsel
new counsel. Although not raised explicitly in the trial court, for petitioner requested appointment of appellate counsel,
petitioner argued that his attorney had a conflict of interest which ultimately occurred on May 9, 2000.
because an associate in the attorney’s law firm represented
petitioner’s co-defendant. The Michigan Court of Appeals However, the Michigan Court of Appeals issued an order
rejected this argument: prior to briefing that dismissed the case for lack of
jurisdiction under the Michigan Court Rules:
On appeal, defendant alleges only the potential for a
conflict of interest. Our review of the record indicates The claim of appeal is DISMISSED for lack of
that the only prosecution witness cross-examined by jurisdiction because a criminal defendant may only
codefendant’s counsel was the officer who conducted the challenge an order denying a motion for relief from
photo-showup, and that cocounsel elicited no testimony judgment under MCR 6.500 et seq. by filing an
damaging to defendant. Neither defendant nor his application for leave to appeal under MCR 7.205. See
codefendant presented a defense. Thus, our review of the MCR 6.509(A). Even though the order in question does
record reveals no conflict of interest actually affecting not specifically state that appellant brought the motion
the adequacy of defendant’s representation. under the rule in question, a criminal defendant may only
petition the lower court for post-appellate relief under
People v. Robinson, No. 158824, slip op. at 9 (Mich. App. this subchapter. See MCR 6.501.
Jan. 5, 1996) (citations omitted). The Michigan Supreme
Court denied leave to appeal. People v. Robinson, No. 227154, Order (Mich. App. July 7,
2000). Defense counsel had not sought leave to appeal, but
On January 24, 1997, petitioner initiated this habeas corpus rather had sought to appeal as of right. A motion for
proceeding. Although a magistrate recommended that the rehearing was denied, as was a subsequent delayed
No. 02-1898 Robinson v. Stegall 5 6 Robinson v. Stegall No. 02-1898
application for leave to appeal to the Michigan Supreme of right, and if the terms of the Consent Judgment are not
Court. fulfilled, this Court shall issue the writ ordering
Respondent to vacate Petitioner’s sentence and
Petitioner responded to these setbacks by filing a “Brief conviction. Nowhere does the Consent Judgment state
after Remand to State Trial Court” in the district court. The that Petitioner shall be entitled as of right to only a
district court issued a show cause order in response to the hearing in the trial court, or that, after a hearing in the
failure of the Michigan courts to afford appellate review to trial court, a discretionary appeal in the Michigan Court
the trial court’s disposition of the ineffective assistance of Appeals would satisfy the requirements of the Consent
question. The order explains the following: Judgment. On the contrary, the Consent Judgment states
that Petitioner’s Ginther hearing “is to be considered as
Review of the record indicates that Petitioner’s part of Petitioner's appeal of right.” The language of the
attempts to obtain appellate review of the trial court’s Consent Judgment itself, stating that Petitioner’s Ginther
denial of his motion for a new trial after receiving his hearing was to be considered part of Petitioner’s appeal
Ginther1 [hearing] were not treated as a part of his appeal of right unambiguously indicates that Petitioner is to
of right in the Michigan Court of Appeals. The Michigan receive a full evidentiary hearing, which is only a part of
Supreme Court was given the opportunity to order the his appeal of right, the remainder of which . . . must take
Michigan Court of Appeals to do so and comply with the place in the Michigan Court of Appeals.
terms of the Consent Judgment voluntarily entered into
by the parties, but declined to do so. Id. at 863. The district court then ordered that the writ be
granted unless the state retried the petitioner within 120 days.
Robinson v. Stegall, No. 97-CV-70308-DT, Order to Show
Cause, at 4 (E.D. Mich. Mar. 12, 2002) (footnote added). II.
After entertaining argument on the issue, the district court
entered an order enforcing its consent judgment and granting As stated at the outset of this opinion, a district court may
a conditional writ of habeas corpus. Robinson v. Stegall, 206 grant a writ of habeas corpus “only on the ground that [a state
F. Supp. 2d 859 (E.D. Mich. 2002). It reasoned as follows: prisoner] is in custody in violation of the Constitution or laws
or treaties of the United States,” 28 U.S.C. § 2254(a). In the
This Court finds as a matter of fact that the parties in instant case, the district court never found a violation of
this case agreed that Petitioner’s Ginther hearing would petitioner’s Sixth Amendment rights, which is the only viable
be considered as a part of Petitioner’s appeal of right in constitutional claim raised in the petition. Rather, the parties
the Michigan Court of Appeals. The Consent Judgment agreed that petitioner was entitled to a more fully developed
stated that the writ is conditionally granted, that record with respect to this claim and therefore entered into a
Petitioner must receive a full hearing in the trial court, consent judgment that provided for a Ginther hearing in state
that the hearing is to be considered as a part of his appeal court. The trial court found no constitutional violation,
however, and the Michigan appellate courts declined to
consider the issue on the merits.
1
In M ichigan, a post-trial hearing may be ordered if the record has
not been sufficiently developed with respect to an ineffective assistance In its order granting the writ, the district court identifies no
of counsel claim. See People v. Ginther, 390 M ich. 436, 212 N.W.2d 922 constitutional infirmity that justifies its action. Rather, it
(1973).
No. 02-1898 Robinson v. Stegall 7 8 Robinson v. Stegall No. 02-1898
relies on the perceived violation of the consent judgment III.
negotiated by the parties and approved by the court. The
consent judgment, however, did not stipulate to the The judgment of the district court is reversed and the writ
conditional finding of a Sixth Amendment violation; it simply of habeas corpus withdrawn. The cause of action is
provided for further proceedings in the Michigan courts. remanded for further proceedings consistent with this
Thus, even if the district court correctly held that the opinion.
respondent violated the provisions of the consent judgment,
that does not result in the finding of a constitutional violation.
Because 28 U.S.C. § 2254(a) explicitly requires such a
finding before the writ may issue, the district court’s action
was at best premature.
At this point in the proceedings, we find it inappropriate to
review the merits of petitioner’s Sixth Amendment claim.
Rather, we shall remand the matter to the district court to
allow it the first opportunity to evaluate the claim in light of
the decision reached by the Michigan courts. In making this
assessment, however, the district court will be guided by the
standard of review imposed by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214. It may grant a habeas corpus petition only if
it concludes that the state adjudication of the federal 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), or “resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2). A state court decision is “contrary
to” Supreme Court precedent “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court
on a question of law,” or “if the state court confronts facts that
are materially indistinguishable from a relevant Supreme
Court precedent and arrives at” an opposite result. Williams
v. Taylor, 529 U.S. 362, 405 (2000) (O’Connor, J.,
concurring).