Order Michigan Supreme Court
Lansing, Michigan
June 25, 2010 Marilyn Kelly,
Chief Justice
139956 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 139956
COA: 292320
Wayne CC: 05-000880-FC
JERRY L. BALES,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 23, 2009
order of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
HATHAWAY, J., not participating. Justice Hathaway recuses herself and will not
participate in this case as she was the presiding trial court judge. See MCR 2.003(B).
WEAVER, J. (concurring).
I concur in this Court’s denial order. I write additionally to recommend this Court
open an administrative file to consider whether sanctions should be imposed on an
appellate counsel who claims that his own trial work was “ineffective” and would include
consideration of a requirement that fees be refunded when there has been a judicial
finding of ineffectiveness.
CORRIGAN, J. (concurring).
I concur in the Court’s denial order but I would refer counsel to the Attorney
Grievance Commission. Attorney Frank Eaman was retained to represent defendant at
trial and on direct appeal. In the motion for relief from judgment now before us, Mr.
Eaman claims on defendant’s behalf that he rendered ineffective assistance of counsel
because he failed to object to several claimed instances of prosecutorial misconduct. Mr.
Eaman also now claims that he rendered ineffective assistance on direct appeal because
he failed to raise the issue of his own ineffective assistance as trial counsel. MRPC 1.1
2
provides that “[a] lawyer shall provide competent representation to a client.”1 In
addition, I would open an administrative file to consider whether sanctions should be
imposed on an appellate attorney who claims that his own trial work was “ineffective.”
YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, J.
1
See also MRPC 1.7(b) concerning conflicts of interest. In Matter of Sexson, 666 NE 2d
402, 403-404 (Ind, 1996), the Indiana Supreme Court held that the respondent attorney
violated the analogous Indiana rule of professional conduct by “represent[ing] a client
when he was limited by his own interests, to wit, arguing his own ineffectiveness at the
trial level . . . .”
In addition, in Hill v Mississippi, 749 So 2d 1143, 1149-1150 (Miss App, 1999),
the Mississippi Court of Appeals opined that counsel’s claim of his own ineffectiveness
was “problematic and inappropriate.” The court believed that the claim implicated four
rules of professional conduct: Miss. Rules of Professional Conduct 1.1 (1998) (“A lawyer
shall provide competent representation to a client.”); Rule 1.3 (“A lawyer shall act with
reasonable diligence and promptness in representing a client.”); Rule 1.7(b) (“A lawyer
shall not represent a client if the representation of that client may be materially limited
. . . by the lawyer’s own interests . . . .”); and Rule 3.1 (“A lawyer shall not bring or
defend a proceeding, or assert or controvert an issue therein, unless there is a basis for
doing so that is not frivolous . . . .”). The Hill court nonetheless proceeded to review and
reject the defendant’s ineffective assistance claims. Id. at 1150-1151.
In Archer v Mississippi, 986 So 2d 951 (2008), the Mississippi Supreme Court,
quoting Hill, supra, and Lyle v Mississippi, 908 So 2d 189 (Miss App, 2005), agreed that
self-ineffectiveness claims are problematic. It held that, except in extraordinary
circumstances where ineffectiveness is clear from the record, a claim of ineffectiveness
of trial counsel, where the defendant is represented on direct appeal by his trial counsel,
should only be reviewed in a post-conviction proceeding. Id. at 956. The court
dismissed the defendant’s ineffective assistance of counsel claim without prejudice,
stating that he would be permitted to raise the issue in a post-conviction proceeding. Id.
at 957. Thus, Archer abrogated Hill insofar as Hill reviewed the ineffective assistance
claim on direct appeal. It is not clear whether the Archer court contemplated the
possibility that the same allegedly ineffective attorney may represent the defendant in the
post-conviction proceeding.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 25, 2010 _________________________________________
p0622 Clerk