Order Michigan Supreme Court
Lansing, Michigan
April 18, 2008 Clifford W. Taylor,
Chief Justice
128340 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 128340
COA: 256534
Kent CC: 01-002731-FC
KENNETH JAY HOULIHAN,
Defendant-Appellant.
_________________________________________/
By order of December 16, 2005, the application for leave to appeal the
February 10, 2005 order of the Court of Appeals was held in abeyance pending the
decision in Simmons v Metrish, No. 03-2609, which was pending in the United States
Court of Appeals for the Sixth Circuit, on remand from the United States Supreme Court
for reconsideration in light of Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed
2d 552 (2005). On order of the Court, the case having been decided on February 15,
2008, Simmons v Kapture, ___ F3d ___ (Docket No. 03-2609), the application is again
considered, and it is DENIED, because we are not persuaded that the questions presented
should be reviewed by this Court.
CAVANAGH, J., would grant leave to appeal.
KELLY, J., dissents and states as follows:
In December 2003, Mr. Houlihan filed a motion in the trial court for relief from
his judgment of conviction. He argued that he was not required to show good cause for
obtaining the relief because he was indigent and had been refused a court-appointed
attorney to appeal his conviction. The trial court denied his motion, and the Court of
Appeals denied his application for leave to appeal.1 Defendant sought relief from the
judgment in this Court. We heard argument on the application for the purpose of
1
Unpublished order of the Court of Appeals, issued February 10, 2005 (Docket No.
256534).
2
determining whether the United States Supreme Court’s decision in Halbert v Michigan2
applied retroactively to defendant’s motion for relief from judgment.3 Halbert held that
indigent defendants who are convicted after pleading guilty or nolo contendere are
entitled to appointed appellate counsel for first-tier review. Halbert overruled this
Court’s decisions in People v Harris4 and People v Bulger.5
Following argument, we held this case in abeyance pending the Sixth Circuit
Court of Appeals decision in Simmons v Kapture.6 Initially, the panel in Simmons found
that the Halbert decision applied retroactively to cases in which review is sought on a
writ of habeas corpus.7 However, after granting rehearing en banc, the court found that
Halbert did not apply retroactively.8 In reliance on that decision, a majority of this Court
denies leave to appeal in this case. I disagree with the denial for two reasons.
First, the defendant in Simmons yet may file a petition for certiorari in the United
States Supreme Court. This Court should hold Mr. Houlihan’s case in abeyance until the
time for filing the petition in Simmons has expired. If the defendant in Simmons files a
petition for certiorari, this case should be held in abeyance until the United States
Supreme Court acts on the petition. Because Halbert is an important decision that could
afford relief to many defendants, whether it applies retroactively is a question of great
significance. For that reason, there is a strong possibility that the United States Supreme
Court will be asked to consider and will consider the Simmons case. Even if it does not,
no harm will come from holding this case in abeyance pending the final resolution of
Simmons.
My second reason for disagreeing with the denial order in this matter is that I
believe this Court should consider whether Halbert applies retroactively under Michigan
law. This year in Danforth v Minnesota,9 the United States Supreme Court held that the
federal retroactivity standard “limits the kinds of constitutional violations that will entitle
2
Halbert v Michigan, 545 US 605, 609-610 (2005).
3
474 Mich 866 (2005).
4
People v Harris, 470 Mich 882 (2004). I dissented from the Court’s decision denying
the appointment of appellate counsel.
5
People v Bulger, 462 Mich 495 (2000). I joined Justice Cavanagh’s opinion dissenting
from the majority decision.
6
474 Mich 958 (2005).
7
474 F3d 869 (CA 6, 2007).
8
Simmons v Kapture, 516 F3d 450 (CA 6, 2008).
9
Danforth v Minnesota, ___ US ___; 128 US 1029 (2008).
3
an individual to relief on federal habeas, but does not in any way limit the authority of a
state court, when reviewing its own state criminal convictions, to provide” broader
remedies for federal constitutional violations.10 Clearly, the remedy a state court
provides for violations of the federal constitution is a question of state law. Accordingly,
regardless of whether the federal courts apply Halbert retroactively, we can apply the rule
announced in Halbert retroactively if we so decide. We should grant leave to consider
whether Halbert applies retroactively under Michigan law.11
10
Id. at 1042. This holding makes great sense because, as recognized by the Danforth
Court, the federal retroactivity standard is based on an interpretation of the federal habeas
statute.
11
An April 1, 2008, report of the State Court Administrative Office indicates that many
Michigan trial courts have been applying Halbert retroactively.
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.
April 18, 2008 _________________________________________
s0415 Clerk