*

The Honorable Kenneth F. Ripple, Senior Circuit Judge of the United States Court of Appeals

for the Seventh Circuit, sitting by designation.

1

The conviction resulting from that trial was the subject of a separate habeas proceeding. Glover

v. Palmer, No. 07-CV-11305, 2010 WL 1323570 (E.D. Mich. Mar. 29, 2010), rev’d, No. 10-1577, 2012

WL 618209 (6th Cir. Feb. 28, 2012).

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0151p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SANDY GLOVER,

 Petitioner-Appellee,

v.

THOMAS BIRKETT, Warden,

 Respondent-Appellant.

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No. 11-1614

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:07-cv-11912—Nancy G. Edmunds, District Judge.

Decided and Filed: May 25, 2012 

Before: SUTTON, McKEAGUE, and RIPPLE, Circuit Judges.*

_________________

COUNSEL

ON BRIEF: Mark G. Sands, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Mark J. Kriger, N. C. Deday LaRene, LaRENE &

KRIGER, P.L.C., Detroit, Michigan for Appellee.

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. While Petitioner Sandy Glover was awaiting trial

in Livingston County Jail on various charges arising from the alleged assault of his exwife,1

 he was implicated in the assault of another inmate at the jail. He was convicted

of the jail assault in a jury trial. Glover retained trial counsel to pursue his appeal of

1
No. 11-1614 Glover v. Birkett Page 2

right, but the attorney failed to timely file a notice of appeal. Glover filed a delayed

application for leave to appeal in the Michigan Court of Appeals, raising various

challenges to his conviction and sentence, which the court denied “for lack of merit in

the grounds presented.” The Michigan Supreme Court also denied leave to appeal.

Glover then pursued state collateral proceedings and filed a motion for relief from

judgment in the trial court, alleging, among other claims, that appellate counsel was

ineffective for failing to timely pursue an appeal of right. The trial court denied the

motion, and the Michigan Court of Appeals and Michigan Supreme Court denied

Glover’s subsequent applications for leave to appeal the denial of his motion, for failure

to establish entitlement to relief under Mich. Ct. Rule 6.508(D). Glover then filed the

instant habeas action. The district court conditionally granted his petition, finding that

counsel was ineffective for failing to timely pursue Glover’s appeal of right. Respondent

Birkett appeals.

“We review the district court’s grant of a writ of habeas corpus de novo.” Jensen

v. Romanowski, 590 F.3d 373, 377 (6th Cir. 2009). Under the Antiterrorism and

Effective Death Penalty Act of 1996, a federal court may not grant a writ of habeas

corpus on claims adjudicated on the merits in state court unless the state court’s

adjudication of the claim “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). In order to prevail on an ineffective assistance of counsel

claim, a petitioner must show that counsel’s performance was deficient and that he was

prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668,

687 (1984).

The parties do not dispute whether counsel’s performance was deficient;

Respondent argues only that Glover has not shown prejudice. The Supreme Court has

held that “when counsel’s constitutionally deficient performance deprives a defendant

of an appeal that he otherwise would have taken, the defendant has made out a

successful ineffective assistance of counsel claim entitling him to an appeal.” Roe v.

Flores-Ortega, 528 U.S. 470, 484 (2000). “[W]e . . . presum[e] prejudice with no further
No. 11-1614 Glover v. Birkett Page 3

showing from the defendant of the merits of his underlying claims when the violation

of the right to counsel rendered the proceeding . . . entirely nonexistent.” Id. 

Respondent argues that Glover was not completely deprived of a direct appeal

in this case because the Michigan Court of Appeals considered and denied his claims on

the merits in considering his application for leave to appeal. We previously considered,

and rejected, this argument in Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011).

Like Glover in this case, Hardaway had filed in the state courts a delayed application for

leave to appeal, followed by a motion for relief from judgment, followed by an

application for leave to appeal the denial of his motion for relief. We found that

appellate review of the denial of collateral relief was not a sufficient substitute for a

direct appeal:

The disposition of an application for leave to appeal is within the

discretion of the Michigan Court of Appeals, and is a preliminary step to

having the case proceed as an appeal of right. See Mich. Ct. R.

7.205(D)(2), (3) . . . . Only if the leave application is granted will the

case proceed as an appeal of right. See Mich. Ct. R. 7.205(D)(3).

Furthermore, unlike the appellant in an appeal of right, the applicant

denied leave to appeal does not receive the benefit of oral argument. See

Mich. Ct. R. 7.205(D)(1). Nor does the defendant have a right to

appointed counsel on post-conviction review . . . . Taken together, these

differences render Michigan’s collateral post-conviction proceeding too

unlike an appeal of right to constitute a sufficient substitute.

Hardaway, 655 F.3d at 449-50 (emphasis added) (citation omitted). Thus, Hardaway

was “deprived . . . of the appellate proceeding altogether,” and prejudice was presumed.

Hardaway, 655 F.3d at 449 (citing Flores-Ortega, 528 U.S. at 483-84). This case is

materially indistinguishable from Hardaway.

Respondent nonetheless attempts to avoid the application of Hardaway by

arguing that Hardaway is inconsistent with the Supreme Court’s decision in Harrington

v. Richter, 131 S. Ct. 770 (2011). We have also previously considered this argument,

and rejected it, in our decision involving Glover’s prior habeas petition challenging his

conviction and sentence for the assault of his ex-wife, in which he raised an identical
No. 11-1614 Glover v. Birkett Page 4

claim. Glover v. Palmer, No. 10-1577, 2012 WL 618209, at *2 (6th Cir. Feb. 28, 2012).

As we pointed out in that case,

Harrington addressed the question whether we should treat an

unexplained order as one on the merits. That question is different from

the antecedent question whether the proceeding giving rise to the order

is the functional equivalent of a direct appeal. And the answer to that

question, under Hardaway, is “no.”

Id.; see also Hardaway, 655 F.3d at 450. And, in any event, Hardaway was decided

after Harrington, and we are bound by its determination that post-Harrington, the denial

of an application for leave to appeal is not a sufficient substitute for a counseled direct

appeal. See 6 Cir. R. 206(c); Brown v. United States, 462 F.3d 609, 620 (6th Cir. 2006)

(“This court has long adhered to the venerable principle that a prior published decision

remains controlling unless overturned by an inconsistent decision of the United States

Supreme Court or by this court itself sitting en banc.” (internal quotation marks

omitted)).

Because counsel’s deficient performance deprived Glover of his appeal of right,

prejudice is presumed. We thus affirm the district court order conditionally granting

Glover’s petition for habeas relief.