1

 When petitioner originally filed his petition for writ of habeas corpus, he was incarcerated at the

Kinross Correctional Facility, but has since been transferred to the Cotton Correctional Facility. The only

proper respondent in a habeas case is the habeas petitioner’s custodian, which in the case of an

incarcerated habeas petitioner would be the warden of the facility where the petitioner is incarcerated. See

Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 foll. U.S.C. § 2254. 

Therefore, the Court substitutes Warden Debra Scutt in the caption.

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL D. VANCE,

Petitioner,

CASE NO. 2:09-CV-11368

v. HONORABLE GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

DEBRA SCUTT,

Respondent.

____________________________________/

OPINION AND ORDER CONDITIONALLY GRANTING 

THE PETITION FOR WRIT OF HABEAS CORPUS 

Michael D. Vance, (“Petitioner”), confined at the Cotton Correctional Facility

in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to

28 U.S.C. § 2254. 1

 In his pro se application, petitioner challenges his conviction

for seven counts of first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(a);

and three counts of second-degree criminal sexual conduct, M.C.L.A.

750.520c(1)(a). This Court finds that petitioner was denied his right to the

effective assistance of appellate counsel with respect to his appeal of right with

the Michigan Court of Appeals. The petition for writ of habeas corpus is therefore

CONDITIONALLY GRANTED.

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2

 See Docket Sheet for People v. Vance, Oakland County Circuit Court No. 03-193604-FC, p. 3

[This Court’s Dkt. # 9-1]. Respondent has not provided a copy of the docket sheet from Oakland County

Circuit Court No. 03-192752-FH. However, this Court viewed the Internet website for the Oakland County

Circuit Court and it appears that the judgment was also entered in Case No. 03-192752-FH on August 11,

2004. See http://www.oakgov.com/circuit. Public records and government documents, including those

available from reliable sources on the Internet, are subject to judicial notice. See United States ex. rel.

Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is thus

permitted to take judicial notice of another court’s website. See e.g. Graham v. Smith, 292 F. Supp. 2d

153, 155, n. 2 (D. Me. 2003). 

2

I. Background

The Court will only discuss the facts which are relevant to the resolution of

the claim that petitioner is being granted habeas relief on. Petitioner was charged

with numerous counts of criminal sexual conduct in Oakland County Circuit Court

Case # 03-193604-FC and was separately charged with one count of seconddegree criminal sexual conduct in Oakland County Circuit Court Case # 03-

192752-FH. The judge ordered these two cases consolidated for a single trial.

Petitioner was convicted of the above charges following a jury trial in the Oakland

County Circuit Court. Petitioner was sentenced on August 9, 2004. However, the

judgment of sentence was not entered by the trial court until August 11, 2004. 2

Although petitioner’s two separate criminal sexual conduct cases were

consolidated for trial, they were not consolidated on appeal. In Case # 03-

193604-FC, petitioner filed a timely request for the appointment of appellate

counsel, which was received by the Oakland County Circuit Court on September

23, 2004. Appellate counsel was appointed on October 18, 2004. Although

petitioner’s timely request for the appointment of appellate counsel acted as a

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3

claim of appeal, petitioner’s appellate counsel did not file an appeal of right in this

case, but filed an application for leave to appeal. 

Petitioner did not file a timely request for appellate counsel in Case # 03-

192752 and as a result, appellate counsel was not appointed to represent him

until February 28, 2005. Appellate counsel filed an application for leave to appeal

in that case as well. However, as discussed below, petitioner claims that his filing

was untimely because he was not given a separate notice of appeal rights at

sentencing with respect to this second conviction nor was he informed by the trial

judge that he needed to file a separate request for the appointment of appellate

counsel in that case as well. 

Petitioner’s convictions were affirmed on appeal. People v. Vance, Nos.

260292; 261914 (Mich.Ct.App. May 26, 2005); lv. den. 474 Mich. 1024, 708

N.W.2d 402 (2006). Petitioner then filed a post-conviction motion for relief from

judgment pursuant to M.C.R. 6.500, et. seq., which the trial court denied. People

v. Vance, Nos. 03-192752-FH/03-193604-FC (Oakland County Circuit Court,

March 8, 2007). The Michigan appellate courts denied petitioner leave to appeal.

People v. Vance, No. 282797 (Mich.Ct.App. April 25, 2008); lv. den. 482 Mich.

1185, 758 N.W.2d 562 (2008).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Whether the trial court improperly consolidated the unrelated

criminal sexual conduct charges.

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4

II. Whether the trial court deprived petitioner of his right to present a

defense by barring testimony by petitioner's mother about an alleged

conversation she had with the victim.

III. Whether the trial court misscored the Offense Variables under

Michigan law to fashion petitioner's sentence.

IV. Whether petitioner's sentence of 4-15 years for second-degree

criminal sexual conduct violates the United States Constitution.

V. Whether the trial court erred in denying petitioner's request for an

evidentiary hearing on his claims of ineffective assistance of counsel.

VI. Ineffective assistance of trial counsel for failing to oppose

consolidation.

VII. Ineffective assistance of trial counsel for failure to adequately

cross-examine.

VIII. Judicial misconduct and counsel’s failure to object to the judicial

misconduct.

IX. Prosecutorial misconduct for impugning petitioner's character and

improperly vouching for the credibility of the prosecution witnesses. 

Trial counsel was ineffective for failing to object to the misconduct.

X. Prosecutorial misconduct for eliciting inadmissible hearsay

evidence. The trial judge abused his discretion by overruling

defense counsel’s late objection and for failing to give a cautionary

instruction.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for

habeas cases: 

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

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5

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim–

(1) 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; or

(2) 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.

A decision of a state court is “contrary to” clearly established federal law 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 decides a case differently than the

Supreme Court has on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs

when “a state court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may

not “issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly." Id. at 410-11.

III. Discussion

Claim # 5. The ineffective assistance of appellate counsel claim.

The Court will discuss petitioner’s fifth claim first because this is the claim

that the Court is granting petitioner relief on.

Petitioner argues that he did not receive the timely appointment of

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6

appellate counsel in Case # 03-192752-FH and contends that because his two

separate cases were consolidated for trial, appellate counsel should have been

assigned simultaneously in both of his cases. Petitioner further contends that

since he filed a timely request for the appointment of appellate counsel in Case #

03-193604-FC, that should have acted as a request for the appointment of

appellate counsel in both cases. Finally, petitioner contends that because he

timely requested the appointment of appellate counsel, appellate counsel was

ineffective for failing to file an appeal of right in this case, filing instead a delayed

application for leave to appeal in both cases, which was denied by form order by

the Michigan Court of Appeals.

In rejecting the first part of petitioner’s claim, the trial court ruled that

although petitioner’s cases were consolidated for trial, they were never

consolidated for appeal. The judge further noted that there was no request for

appointment of appellate counsel ever made in Docket # 03-192752-FH, even

though the same appellate counsel that was appointed in Docket # 03-193604-

FC was appointed to represent petitioner in Case # 03-192752-FH and ultimately

filed an appellate brief in both cases. Although conceding that petitioner may

have only received one notice of appeal rights at sentencing, absent a request

for appointment of attorney, the court “could not foretell” that petitioner wanted to

appeal the convictions in both cases. People v. Vance, Nos. 03-192752-FH/03-

193604-FC, at * 3-4 and n. 1 (Oakland County Circuit Court, March 8, 2007). 

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Respondent contends that petitioner’s fifth claim is procedurally defaulted,

because he raised it for the first time in his post-conviction motion for relief from

judgment and failed to show cause for failing to raise this issue in his appeal of

right, as well as prejudice, as required by M.C.R. 6.508(D)(3). Michigan Court

Rule 6.508(D)(3) provides that a court may not grant relief to a defendant if the

motion for relief from judgment alleges grounds for relief which could have been

raised on direct appeal, absent a showing of good cause for the failure to raise

such grounds previously and actual prejudice resulting therefrom. 

Respondent’s argument is without merit. Petitioner could not have

procedurally defaulted his ineffective assistance of appellate counsel claim,

because state post-conviction review was the first opportunity that he had to

raise this claim. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010);

Hicks v. Straub, 377 F. 3d 538, 558, n. 17 (6th Cir. 2004); Johnson v. Warren,

344 F. Supp. 2d 1801, 1089, n. 1 (E.D. Mich. 2004). Petitioner’s claim is

therefore not procedurally defaulted.

In his answer, respondent’s counsel has not contested petitioner’s

allegation that he filed a timely request for the appointment of appellate counsel

in Case # 03-193604 and that he did not receive a separate notice of appeal

rights form at the time of sentencing regarding Case # 03-192752. The Court

will therefore accept the factual allegations contained within the habeas petition

regarding petitioner’s timely filed request for the appointment of appellate

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counsel in Case # 03-193604 and the trial court’s failure to provide petitioner

with a notice of appeal in Case # 03-192752, because the respondent has not

disputed them. See Dickens v. Jones, 203 F. Supp. 2d 354, 360 (E.D. Mich.

2002)(“When a state’s return to a habeas corpus petition fails to dispute the

factual allegations contained within the habeas petition, it essentially admits

these allegations”); See also Grooms v. Solem, 520 F. Supp. 1184, 1186 (D.S.D.

1981)(habeas relief granted on ineffective assistance of appellate counsel claim

where respondent did not contest the fact that the petitioner requested his

attorney to file an appeal and that the attorney failed to do so). 

The Court further notes that the respondent’s counsel did not specifically

address the merits of petitioner’s ineffective assistance of appellate counsel

claim in his answer to the petition. By failing to address the merits of petitioner’s

ineffective assistance of appellate counsel claim, respondent has waived any

substantive defenses to the merits of this claim. See Williams v. Birkett, 697

F.Supp.2d 716, 722 (E.D. Mich. 2010); Ward v. Wolfenbarger, 323 F. Supp. 2d

818, 828 (E.D. Mich. 2004); modified on other grds, 340 F. Supp. 2d 773 (E.D.

Mich. 2004); See also Miller v. Stovall, 641 F.Supp. 2d 657, 665 (E.D.Mich.2009)

(State, by failing to argue harmless error defense in its response to federal

habeas corpus petition, waived issue);Dickens v. Jones, 203 F. Supp. 2d at 361

(state waived affirmative defenses that habeas petitioner’s federal habeas claims

were noncognizable and waived because of petitioner’s alleged

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9

misrepresentation and failure to object, where state failed to assert affirmative

defenses in its initial answer to the habeas petition); United States ex. rel. Hindi

v. Warden of McHenry County Jail, 82 F. Supp. 2d 879, 883 (N.D. Ill.

2000)(argument for which respondent in habeas proceeding cited no supporting

case law was waived and would not be addressed by district court). 

Of course, petitioner is not entitled to a default judgment on the ground

that respondent failed to address this issue, because a default judgment is

unavailable in a habeas corpus proceeding under 28 U.S.C. § 2254 on the

ground that state officials failed to respond to the petition. Allen v. Perini, 424 F.

2d 134, 138 (6th Cir. 1970)(petitioner not entitled to default judgment because

petitioner has burden of establishing that his custody is in violation of the U.S.

Constitution); Whitfield v. Martin, 157 F. Supp. 2d 758, 761 (E.D. Mich.

2001)(same). This Court must therefore determine whether petitioner has stated

a valid claim upon which habeas relief can be granted.

In the present case, the judgment of sentence in both cases was issued

on August 11, 2004. Under Michigan law, petitioner was required to file his

request for counsel within 42 days of the entry of judgment or order appealed

from. See M.C.R. 7.204(A)(2)(c). In addition, M.C.R. 1.108 indicates that “[t]he

day of the act, event, or default after which the designated period of time begins

to run is not included.” M.C.R. 7.204 indicates that the provisions of M.C.R.

1.108 regarding the computation of time periods applies to the time limits for

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10

filing an appeal of right. The 42 day period within which petitioner was required

to file a request for the appointment of appellate counsel began on August 12,

2004, the day after the judgment of sentence was entered. This would make

petitioner’s September 23, 2004 request for the appointment of appellate

counsel timely, at least with respect to his conviction in Case # 03-193604-FC, in

that it was filed within 42 days of the judgment of sentence. Under Michigan law,

a timely request by petitioner for the appointment of appellate counsel would act

as a claim of appeal. See People v. Hernandez, 443 Mich. 1, 19-20; 503 N.W.

2d 629 (1993). Therefore, at least with respect to Case # 03-193604, petitioner

filed a claim of appeal by filing his request for the appointment of appellate

counsel within the 42 day period for doing so. Appellate counsel, however,

chose to file an application for leave to appeal rather than an appeal of right with

the Michighan Court of Appeals. The Michigan Court of Appeals denied

petitioner’s appeal by form order without issuing an opinion.

The Sixth Amendment guarantees a defendant the right to the effective

assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396

(1985); See also, Harris v. Stegall, 157 F. Supp. 2d 743, 747 (E.D. Mich. 2001). 

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme

Court set forth a two-pronged test for determining whether a habeas petitioner

has received the ineffective assistance of counsel. First, a petitioner must prove

that counsel's performance was deficient. This requires a showing that counsel

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11

made errors so serious that he or she was not functioning as counsel as

guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner

must establish that the deficient performance prejudiced the defense. Id. 

In the present case, respondent does not dispute that appellate counsel

failed to file an appeal of right in Case # 03-193604 or that such failure was

deficient. This Court concludes that appellate counsel’s failure to file an appeal

of right constituted deficient performance for the purposes of Strickland. The

next question for this Court is whether petitioner was prejudiced by appellate

counsel’s failure to do so.

If counsel fails to provide any assistance to a criminal defendant at a

critical stage of his criminal proceedings, prejudice for purposes of ineffective

assistance claim may be presumed if “the violation of right to counsel rendered

the proceeding presumptively unreliable or entirely nonexistent.” Roe v. FloresOrtega, 528 U.S. 470, 484 (2000). In the present case, petitioner was

prejudiced by appellate counsel’s failure to file an appeal of right in his case,

because this “deprived [petitioner] of the appellate proceeding altogether[.]”, i.e.

his appeal of right. See Hardaway v. Robinson, 655 F. 3d 445, 449 (6th Cir.

2011)(quoting Flores-Ortega, 528 U.S. at 483-84). An appeal of right in

Michigan is different than an application for leave to 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

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12

right.” Id., at 449 (citing M.C.R. 7.205(D)(2), (3)). The Michigan Court of Appeals

has several different options in responding to a leave application: it “may grant or

deny the application; enter a final decision; grant other relief; request additional

material from the record; or require a certified concise statement of proceedings

and facts from the court ... whose order is being appealed.” Id. Only where the

leave application is granted will the case proceed as an appeal of right in the

Michigan Court of Appeals. Hardaway, 655 F. 3d at 449 (citing M.C.R.

7.205(D)(3)). Moreover, unlike a criminal defendant in an appeal of right, an

applicant who is denied leave to appeal does not receive the benefit of oral

argument. Id., at 449-50 (citing M.C.R 7.205(D)(1)). 

In the present case, the Michigan Court of Appeals summarily denied

petitioner leave to appeal by form order without discussing the merits of

petitioner’s appeal, something that the Michigan Court of Appeals could not have

done had petitioner’s appellate counsel filed an appeal of right. See Benoit v.

Bock, 237 F.Supp.2d 804, 811 (E.D. Mich. 2003). Petitioner was therefore

prejudiced by appellate counsel’s failure to file an appeal of right in this case. Id.,

at 812. Of course, had the Michigan Court of Appeals granted leave to appeal,

permitted the case to proceed as an appeal of right, and disposed of the merits

to the same extent that it would have on an appeal of right, petitioner would not

have been prejudiced by appellate counsel’s filing of an application for leave to

appeal rather than filing an appeal of right. See Hardaway, 655 F. 3d at 450. 

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13

However, because the Michigan Court of Appeals simply denied petitioner leave

to appeal in a form order, petitioner was prejudiced by appellate counsel’s failure

to file an appeal of right in Case # 03-193604-FC, in that the erroneous filing of

an application for leave to appeal rendered nonexistent petitioner’s appeal of

right. Id., at 450-51. 

In Case # 03-192752, the situation is somewhat different. Appellate

counsel was not appointed to represent petitioner in this case until February 28,

2005, long after the 42 day period for filing an appeal of right under M.C.R. 7.204

had expired. Petitioner, however, argues that because his two separate cases

were consolidated for trial, appellate counsel should have been assigned

simultaneously in both of his cases. Petitioner further argues that since he filed

a timely request for the appointment of appellate counsel in Case # 03-193604-

FC, that should have acted as a request for the appointment of appellate

counsel in both cases. Petitioner points to the fact that he received only one

notice of appeal rights form at sentencing, which lead him to believe that the

filing of one request for the appointment of appellate counsel would act as a

request for the appointment of appellate counsel in both cases.

A review of the sentencing transcript supports petitioner’s allegation. At

sentencing, the trial judge indicated that he was providing an “Advice of Rights

form” to petitioner’s defense counsel, which advised petitioner that he had 42

days within which to appeal “this sentence” and the trial court would appoint

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counsel for him. (Tr. 8/9/2004, pp. 33-34)(emphasis added). Although the trial

judge rejected petitioner’s claim on post-conviction review on the ground that

petitioner never requested appellate counsel in Case # 03-192752-FH and thus

the judge “could not foretell” that petitioner wanted to appeal both convictions,

the trial judge conceded that petitioner may have only received one notice of

appeal rights at sentencing. People v. Vance, Nos. 03-192752-FH/03-193604-

FC, at * 3-4 and n. 1 (Oakland County Circuit Court, March 8, 2007).

A criminal defendant has an absolute right to be represented by counsel

on his first appeal of right from his conviction. Douglas v. California, 372 U.S.

353, 356 (1963); See also Penson v. Ohio, 488 U.S. 75, 83-83 (1988). 

Another judge in this district has noted that “the only practical, logical and

fair interpretation to be given to Douglas v. California is that it imposes upon the

state a duty to warn every person convicted of [a] crime of his right to appeal and

his right to prosecute his appeal without expense to him by counsel appointed by

the state, if he is indigent. The right to appeal at the expense of the state is

mere illusion if the convicted indigent defendant does not know such a right

exists. And the one way to make sure that he does know is to tell him so”. Ward,

323 F. Supp. 2d at 829 (quoting United States ex. rel. Smith v. McMann, 417 F.

2d 648, 654 (2nd Cir. 1969). The Sixth Circuit has cited to McMann approvingly

in a number of cases. See United States v. Aloi, 9 F. 3d 438, 444 (6th Cir.

1993)(“Presumably, these [appellate] rights are worthless to a defendant who

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15

does not know they are available to him. The advice is necessary to guarantee

that poverty does not make it more difficult for an indigent convicted defendant to

engage the appellate process than for a convicted defendant with money”); See

also Henderson v. Cardwell, 426 F. 2d 150, 154 (6th 1970). A trial judge’s failure

to adequately advise a criminal defendant of his or her right to appeal and right

to the appointment of appellate counsel if indigent amounts to the deprivation of

a criminal defendant’s right to appellate counsel on appeal and entitles a habeas

petitioner to habeas relief. See Ward, 323 F. Supp. 2d at 829. 

In the present case, petitioner’s two separate criminal cases were

consolidated for trial, but for not for appeal. In light of this fact, the trial judge

should have clearly advised petitioner of his right to appeal his conviction in both

cases and should have provided two notices of appeal rights forms and two

requests for the appointment of appellate counsel to petitioner. A trial court’s

ambiguous instructions to a habeas petitioner about what paperwork that he or

she needs to complete in order to perfect an appeal amounts to a practical

denial of petitioner’s right to appeal and a denial of due process. See Lloyd v.

Warden, Md. Penitentiary, 229 F. Supp. 364, 371 (D. Md. 1964). In light of the

fact that petitioner’s two separate criminal cases which had been consolidated

for trial had not been consolidated for appeal, the trial judge’s simple advice to

petitioner that he had a right to appeal his conviction coupled with petitioner

receiving only one notice of appeal rights form was insufficient to advise

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petitioner that he had the right to appeal both cases and that he was required to

timely request the appointment of appellate counsel in both cases in order to

perfect his appeal of right in both cases. See e.g. U.S. v. Butler, 938 F.2d 702,

704 (6th Cir. 1991)(defendant's sentence was vacated and remanded for

resentencing with notice to defendant of his right to appeal, even though

defendant was previously advised of his right to appeal order denying his

suppression motion, where defendant was not specifically advised of his right to

appeal the sentence.). 

As previously noted, M.C.R. 7.204(A)(2)(c) states that an appeal by right

in a criminal case must be taken within 42 days after entry of the judgment. The

Michigan Court Rules do not have any provisions for reviving an appeal of right

once it is lost. Instead, a defendant who loses his appeal by right is required to

file an application for leave to appeal. M.C.R. 7.205(F)(1). Because appellate

counsel was not appointed until over forty two days had elapsed from

sentencing, petitioner’s only appellate recourse was to file an application for

leave to appeal. As mentioned above, an application for leave to appeal is

dramatically different than an appeal of right in Michigan. Because the trial

court’s failure to adequately inform petitioner of his appellate rights in Case # 03-

1972752-FH, petitioner was deprived of his appeal of right and his right to be

represented by appellate counsel. The mere fact that appellate counsel

ultimately filed an application for leave to appeal to the Michigan Court of

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Appeals did not satisfy petitioner’s due process rights. 

The remaining question for the Court is what the appropriate habeas

remedy would be in this case. A federal habeas court has broad discretion in

conditioning a judgment granting habeas relief. Hilton v. Braunskill, 481 U.S.

770, 775 (1987). 28 U.S.C. § 2243 authorizes federal courts to dispose of

habeas corpus matters “as law and justice require.” Federal district courts have

broad discretion to fashion the appropriate form of habeas relief and that

discretion includes conditionally granting a writ to pursue another appeal with the

assistance of appellate counsel. See Ward v. Wolfenbarger, 323 F. Supp. 2d at

830. The U.S. Supreme Court has affirmed the issuance of a conditional writ of

habeas corpus that required a state court to grant the petitioner a new appeal of

right where the petitioner received ineffective assistance of appellate counsel on

direct review. Evitts v. Lucey, 469 U.S. at 403; See also Benoit v. Bock, 237 F.

Supp. 2d at 812 (appropriate remedy for a violation of the right to the effective

assistance of appellate counsel was the reinstatement of petitioner’s appeal of

right); see also, Hardaway, 655F. 3d at 451 (remanding matter “to the district

court with instructions to issue a conditional writ directing the state to afford

[petitioner] a direct appeal.”); Glover v. Palmer, No. 10-1577, slip. op. at 4 (6th

Cir. Feb. 28, 2012). The Court will therefore conditionally grant the petition for

writ of habeas corpus, directing the respondent to release the petitioner unless

the Michigan Court of Appeals reinstates the petitioner's appeal of right in

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18

Oakland County Circuit Court Case ## 03-193604-FC and 03-192752-FH and

appoints counsel in both cases within sixty days of the issuance of this order.

Benoit, 237 F. Supp. 2d at 812. 

This Court, by granting petitioner a new appeal of right in the Michigan

Court of Appeals due to appellate counsel’s failure to file an appeal of right in

Case # 03-193604-FC and the trial court’s failure to properly advise petitioner of

his right to appeal in Case # 03-192752-FH, has basically “unexhausted”

petitioner’s remaining trial error claims. Sanders v. Lafler, 618 F. Supp. 2d 724,

736 (E.D. Mich. 2009)(internal citation omitted). This Court declines “to

collaterally estop” petitioner from raising these issues, or any additional claims,

on his reinstated appeal of right with the Michigan Court of Appeals and would

prefer to allow the recommencement of petitioner's appeal of right in the

Michigan appellate courts “[t]o completely wipe clean the slate” and to allow

these state courts, rather than this Court, the initial opportunity to decide these

issues. Id. Accordingly, the Court declines to address petitioner’s remaining

claims at this time. 

IV. ORDER

Accordingly, it is ORDERED that the petition for writ of habeas corpus is

GRANTED.

It is further ORDERED that the Michigan Court of Appeals shall, within

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19

sixty days of this order, reinstate the petitioner's appeal of right in Oakland

County Circuit Court Cases # 03-193604-FC and # 03-192752-FH and

undertake the appointment of counsel to represent the petitioner in his pursuit of

these appeals of right.

It is further ORDERED that if the petitioner's appeal is not reinstated within

sixty days to the active docket of the Michigan Court of Appeals, the Michigan

Department of Corrections shall release him from its custody.

Dated: February 29, 2012

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

February 29, 2012, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

2:09-cv-11368-GCS-CEB Doc # 15 Filed 02/29/12 Pg 19 of 19 Pg ID 930