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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN ROBERT OLSEN,

Petitioner, CASE NO. 2:08-CV-14606

v. HONORABLE GEORGE CARAM STEEH

 UNITED STATES DISTRICT JUDGE

BLAINE LAFLER,

Respondent.

_______________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Steven Robert Olsen, (“Petitioner”), presently confined at the Carson City

Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner

challenges his conviction for two counts of second-degree criminal sexual

conduct, M.C.L.A. 750.520c(1)(A). For the reasons stated below, the petition for

writ of habeas corpus is summarily dismissed.

I. Background

On October 10, 2001, petitioner pleaded guilty to two counts of seconddegree criminal sexual conduct in the Lapeer County Circuit Court. In exchange

for his plea, the prosecutor agreed to dismiss one count of first-degree criminal

sexual conduct. On November 20, 2001, petitioner was sentenced to five to

fifteen years in prison.
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On December 27, 2001, petitioner requested the appointment of appellate

counsel. On April 5, 2002, the trial court denied petitioner’s request, stating that

the criteria required by Michigan law for the appointment of appellate counsel in a

plea-based conviction had not been met. Because appellate counsel was not

appointed for petitioner, he did not pursue a direct appeal.

Petitioner ultimately filed a post-conviction motion for relief from judgment

pursuant to M.C.R. 6.500, et. seq., in which he brought several challenges to his

conviction. The trial court denied his motion. People v. Olsen, No. 01-007318-FH

(Lapeer County Circuit Court, December 5, 2003). The Michigan Court of

Appeals denied petitioner leave to appeal. People v. Olsen, No. 259314

(Mich.Ct.App. June 24, 2005). On July 23, 2008, the Michigan Supreme Court, in

lieu of granting leave to appeal, vacated an April 13, 2004 order of the Lapeer

Circuit Court, which purported to amend petitioner's judgment of sentence to add

a provision barring contact with his minor children. The Michigan Supreme Court

remanded the case to the circuit court for reinstatement of the original judgment

of sentence, dated November 20, 2001. The Michigan Supreme Court denied

leave to appeal with regard to petitioner’s remaining claims, because petitioner

failed to meet the burden of establishing entitlement to relief under M.C.R.

6.508(D). People v. Olsen, 482 Mich. 881, 752 N.W.2d 465 (2008). 

Petitioner now seeks the issuance of a writ of habeas corpus on the

following ground:
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Petitioner was denied his 6th Amendment right to counsel for his firsttier appeal when the trial court denied the request for counsel

because petitioner was indigent.

II. Discussion

A petition for a writ of habeas corpus must set forth facts that give rise to a

cause of action under federal law or it may summarily be dismissed. See Perez v.

Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Federal courts are

also authorized to dismiss any habeas petition that appears legally insufficient on

its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is

authorized to summarily dismiss a habeas corpus petition if it plainly appears

from the face of the petition or the exhibits that are attached to it that the

petitioner is not entitled to federal habeas relief. See Carson v. Burke, 178 F. 3d

434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. §

2254. The Sixth Circuit, in fact, long ago indicated that they “disapprove the

practice of issuing a show cause order [to the respondent] until after the District

Court first has made a careful examination of the petition.” Allen v. Perini, 424 F.

3d 134, 140 (6th Cir. 1970). A district court therefore has the duty to screen out

any habeas corpus petition which lacks merit on its face. Id. at 141. No return to

a habeas petition is necessary when the petition is frivolous, or obviously lacks

merit, or where the necessary facts can be determined from the petition itself

without consideration of a return by the state. Id. 

After undertaking the review required by Rule 4, this Court concludes that
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petitioner is not entitled to habeas relief on his claim, such that the petition must

be summarily denied. See Robinson v. Jackson, 366 F. Supp. 2d 524, 525 (E.D.

Mich. 2005). 

In his sole claim for relief, petitioner claims that he was denied his right to

appellate counsel to appeal his plea-based conviction. 

A defendant has an absolute right to be represented by counsel on his first

appeal from his conviction. Douglas v. California, 372 U.S. 353, 356 (1963);

Penson v. Ohio, 488 U.S. 75, 83-83 (1988). The Sixth Amendment right to the

effective assistance of trial counsel has been extended to guarantee the effective

assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,

395-97 (1985). 

In the present case, petitioner pleaded guilty. The Michigan State

Constitution was amended in 1994 to provide that “an appeal by an accused who

pleads guilty or nolo contendere shall be by leave of the court,”rather than by

right. Mich. Const., Art. 1, § 20. In the aftermath of this amendment, some trial

court judges in Michigan began to deny appointed appellate counsel to indigent

defendants who had pleaded guilty or nolo contendere. See Kowalski v. Tesmer,

125 S. Ct. 564, 566 (2004). A majority of the Michigan Supreme Court upheld the

constitutionality of this practice against challenges based on the Equal Protection

and Due Process Clauses of the Fourteenth Amendment to the Federal

Constitution. People v. Harris, 470 Mich. 882; 681 N.W.2d 653 (2004)(Kelly, J.
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dissenting and Cavanagh, J. would hold case in abeyance pending the decision

in Kowalski v. Tesmer, supra); People v. Bulger, 462 Mich. 495; 614 N.W. 2d 103

(2000)(Cavanagh, and Kelly, JJ., dissenting). The Michigan State Legislature

codified the practice of limiting the appointment of appellate counsel in guilty plea

cases to certain limited situations. See M.C.L.A. 770.3a.

In Halbert v. Michigan, 545 U.S. 605 (2005), the United States Supreme

Court, based on its holding in Douglas, held that the Due Process and Equal

Protection Clauses of the Fourteenth Amendment to the United States

Constitution require the appointment of counsel for defendants who have pleaded

guilty or nolo contendere and who seek access to first-tier review of their

convictions in the Michigan Court of Appeals, even when such appeals are

discretionary, rather than as of right. Id. at 609-610. 

In Simmons v. Kapture, 516 F. 3d 450, 451 (6th Cir. 2008), the Sixth Circuit

held that the decision in Halbert did not apply retroactively to cases on collateral

habeas corpus review. The Sixth Circuit based its decision on Teague v. Lane,

489 U.S. 288 (1989), in which the Supreme Court held that a state prisoner

collaterally attacking his conviction may not rely on a new constitutional rule

announced after his conviction became final. Id. at 310-11. The Supreme Court

acknowledged that it is often difficult to determine when a case announces a new

rule, and therefore did not attempt to define the spectrum of what may or may not

constitute a new rule for retroactivity purposes. Id. at 301. However, a case is
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generally considered to announce a new rule has when the decision “breaks new

ground,” “imposes a new obligation on the States or the Federal Government,” or

“was not dictated by precedent existing at the time the defendant's conviction

became final.” Id. The Sixth Circuit in Simmons concluded that Teague barred

the retroactive application of Halbert on collateral review, because Halbert

announced a “new rule,” and that new rule neither decriminalized a class of

conduct nor was it a “watershed” rule. Simmons, 516 F. 3d at 451.

"A state conviction and sentence become final for purposes of retroactivity

analysis when the availability of direct appeal to the state courts has been

exhausted and the time for filing a petition for a writ of certiorari has elapsed or a

timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383,

390 (1994). 

In the present case, petitioner was sentenced on November 20, 2001. 

Under M.C.R. 7.205(F)(3), petitioner had twelve months from entry of judgment to

seek appellate review with the Michigan Court of Appeals. Petitioner never filed a

direct appeal with the Michigan Court of Appeals. When an appeal to the

Michigan Court of Appeals is delayed by more than twelve months after

judgment, a defendant’s appeal is foreclosed and he or she is limited to the postappeal relief provisions of M.C.R. 6.501, et. seq. People v. Ward, 459 Mich. 602,

614; 594 N.W. 2d 47 (1999). Because petitioner never filed a direct appeal with

the Michigan Court of Appeals, his conviction became final, for purposes of a
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Teague analysis, on November 20, 2002, when the one year period for seeking

leave to appeal with the Michigan Court of Appeals expired. See e.g. Wheeler v.

Jones, 226 F.3d 656, 660 (6th Cir. 2000). Halbert was not decided by the United

States Supreme Court until almost three years later, on June 23, 2005. 

In the present case, petitioner’s conviction became final prior to the 

issuance of the Halbert decision. Because Halbert does not apply retroactively to

cases on collateral habeas corpus review, the rule regarding a right to first-tier

discretionary appeals is inapplicable to petitioner's case. Petitioner would

therefore not be entitled to habeas relief on this claim.

III. Conclusion

The Court will deny the petition for writ of habeas corpus. The Court will

also deny a certificate of appealability to petitioner. In order to obtain a certificate

of appealability, a prisoner must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the

applicant is required to show that reasonable jurists could debate whether, or

agree that, the petition should have been resolved in a different manner, or that

the issues presented were adequate to deserve encouragement to proceed

further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court

rejects a habeas petitioner’s constitutional claims on the merits, the petitioner

must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims to be debatable or wrong. Id. A federal
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district court may grant or deny a certificate of appealability when the court issues

a ruling on the habeas petition. Castro v. United States, 310 F. 3d 900, 901 (6th

Cir. 2002).

For the reasons stated in this opinion, the Court will deny petitioner a

certificate of appealability because he has failed to make a substantial showing of

the denial of a federal constitutional right. Jurists of reason would not find this

Court’s resolution of petitioner’s claim to be debatable or that it should receive

encouragement to proceed further. Myers v. Straub, 159 F. Supp. 2d 621, 629

(E.D. Mich. 2001). The Court will also deny petitioner leave to appeal in forma

pauperis, because the appeal would be frivolous. Myers, 159 F. Supp. 2d at 629.

IV. ORDER

Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of

Habeas Corpus is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.

IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in

forma pauperis.

Dated: November 6, 2008

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

November 6, 2008, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk