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ELECTRO NIC CIT

ATION: 2004 FED App . 0318P (6th C ir.) File Name: 04a03 18p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
M AURICE M UNSON , Petitione r-Appell ant,

v.

R OBER T J. K

APTURE , Warden, Respondent-Appellee. X

- - - -
> , - - N No. 03-1563

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-71956—Avern Cohn, District Judge. Argued: August 12, 2004 Decided and Filed: September 20, 2004

Befor e: KEI TH, MARTI

N, and ROG

ERS, Circuit

Judges.

_________________ COUNSEL

ARGUED: James Sterling Lawrence , Detroit, Michigan, for Appellan t. Debra M. Gagliardi, OFF ICE OF THE ATTORNEYGEN ER AL, Lansing, Michigan, for Appellee. ON B RIEF: James Sterling Lawrence , Detroit, Michigan, fo r Appellant. Laura Graves Moody, OFFICE OF TH E ATTORNEYGENERAL, L ansing, Michigan, for Appellee. 2 Munson v. Kapture No. 03-1563

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. Maurice Munson, a Michigan prisoner, appeal s the district court’s denial of his petition for a writ of habeas cor pus. For the reasons that follow, we AFFI RM.

I.

A jury convicted Munson of two counts of armed

robbery inviolation of M.C.L. § 750.529 and two count s of ass ault with intent to commit criminal sexual conduct (p e netration) inviolation of M.C.L . § 750.502(G)(1). The events giving rise to Munson’s prosecutiontranspired at Juanita’s House of Beauty in Detroi t, Michigan, on late Friday, June 18, or earl y June 19, 1993, as Sherrease Carter, age thirty, an employ

ee of the beauty

shop , and her sixteen-yea r-old niece, Shamika Kincaid, were leaving

the shop. The evidence adduced at trial indicates that as Carter and Kincaid were leavi ng the shop, Munsonappeared

and forced them back

inside at k

nifepoin t. He ordered them to undress, which they did, and h e proceeded

t o take various items from the shop (including

m on ey, hair clippers and jewelry ), as well as items from Carter and Kincaid (including clothing a nd sandals that they had just purchased and jewelry ).

Munson then took Carter into a back room and threatened Kincaid that she would be ne xt . In the back room, Munson sat down on a chair and forced Carter onto his lap. Munson putthe knife down momentarily a s he attempted to insert h

is penis into Carter’s vagina, at which point Carter grabbed the knife and s t abbed him multiple times. Carter and Kincaid, still naked, immediately ra nout of the shop. They obser ved Munsonleave the shop with packages co nt ai ni ng th ei r n ew lyp urch ased

sandals and clothing, among other things. Car ter and Kincaid were soon

picked up

by a moto rist wh o tookNo. 03-1563 Munson v. Kapture 3

themto the police station. Whenthe victims la ter retu rned to the shop, they discovere d a pager that Munson

had appa rently dropped during t he incide nt.
The police located Munson by tra cingthe pager, which

was regist ered to one “Moe Rone Monson.” After discovering that there was an individual named Maurice Munson in the Detroit area with a criminal record, police went to his residence, which was his aunt’s apartment. Munson’s former girlfriend, Keysha Monique Ta te, was at the apartment at the time and permitted the police to enter after they repeat e dly knocked on the door. Munson was arre sted in the apartme nt, at which time the police seized, without a warrant, variou s incrimina ti n g items, inc luding c ash, ga uze banda

ges, ha ir clippers, sandals, new clothing items and jewelry

. Tategave a stateme nt to police, which she confirmed and elaborated

upon at trial, indicating that Munson had bandages
onhis chest

when she

arrive d at the a

partment Sat urday
morn in g. Tate als o stated that on the morning o f his arr est, Munson gave her a pair of sandal s, variou s clothing items, cash and a ring. Ca rter and Kincaid

also positively identified Munso nas the pe

rpetra tor at sep arate li

neups and at trial

. Among the pieces of physical evide nce admitted at trial were the pager and the items seized i n th e apartment upon M unso n’s arrest, which apparently were the same items stolen from the victims and the beauty shop.

Munsondid no t testify

at trial. He asse

rted an i nsanity defense, with all ex pert w itnes ses agre eing that he was mentally ill bu t disagr

eeing as to whethe

r he was criminal ly responsi ble for his actions. The jury found Mun son menta

lly ill but guilt

y of robbery and assa ult. He wa s sentenc ed to prison for a term of twenty -five to sixty y

ears.
Munsonfiled a direct appeal to the Michigan C ourt o f Appea l s, raising only one issue: that his sentence was disproportionatel y

high . The Mich

igan Cou rt of Appe als 4 Munson v. Kapture No. 03-1563

affirmed the conviction and sentenc e, and the Michigan Supreme Court denied leave to appeal.

Munson then file d in

the state trial court

a post-conviction motion for

relief from judgment, in which he raised five ne w claims: (1) the warrant

less arrest, search and seizure deprived him of due process; (2) hewas denied a fair and impartial trial because of prose cutoria

l miscondu

ct; (3) hi s trial counse l rendere d ine ffective assistance; (4) the cumulative eff ect of the trial errors deprived him o f a fair trial; an d (5) his appellate counsel rendered ineffe ctive assistance.

The stat e trial court denied Munson’s motion in a written order that rejecte d each o f his new c laims. With respect to the prosecutorial misconduct claim, the court held that “ [t]he defendant fails toshow just cause why prose cutor misconduct
was not raised i n earlier appeals. Further, the c onduct
co mplained

of did not deny defe

ndant a fair trial.” Th e districtcourt found the remaining claims to be witho

ut merit for reasons other

than Munson’s failu

re to ra ise them earlier.

The Michiga

n Court of A

ppeals de nied lea ve to appe al in an order that state s as follow s:
T he Court orders that the application for leave t o appeal is DENIED because defendant has failed to meet the burde n of establishing entitlement to relief under MCR 6.508(D).

The Court further orders that the motion to remand is D ENIED because defendant has failed to show that development

of a factual record

is require d for app ellate consideration of the issues. MCR 7.211(C)(1)(a)(ii).

The Michigan Supreme Court also denied leave to appea l for the sa me reas on, i n an or der st ating:

Onorder of the Court, the del ayed a p plication for l eave to appeal from the May 24, 2000 decision of th eNo. 03-1563 Munson v. Kapture 5

Courtof Appeals is considered, a nd it is DENIED, beca use th e defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

Munsonnext so ught rel ief in federal court, by filing the instantpetition for a writ of habeas corpus. The petition asserted essentia lly t he same claims that wer

e prese nted in his motion for post- convic tio n relief : (1) the warrant

less arr est and search and s eiz ure denied him due process; (2) the prosecutor

engag ed in mis c onduct; (3) he was denied the effective assistance of trial cou n sel; (4) cumulative error rendered the trial unfair; and (5) he was denied the effective assista nce of appellate counsel. The district court held that each claim wa s proced

urally default ed, but pr

oceede d to anal yz e whether ineffective assistance o f tria l or appe llate counsel constitute d “cause ” to excuse the proc edural d

efault. Concluding that neither trial counsel n

or appel late co unsel rendered ineffe ctive assistance, the district court denied the petition; it granted a

certificate of appealability, however, on the issues of whether M unso n’s claims were each pr ocedur ally

defaulted and whether he was denied the effective assistance of trial or appellate counsel. This appeal followed.

II.
We reviewde novo the district court’s denial of a petition for a writ of habe as corpu s. Clinkscale v. Carter , No. 02- 4219, 2004 WL 1516670, at *3 (6th Cir. July 8, 2004). As noted, the district court held that each of M unson’s habeas claims was barr ed by

the doctr

ine of pr ocedura l defaul t. “Un der the procedural default doctrine, [a] federal c ourt i s gener ally barred from con sid eri ng an issue of federal law arising from the judg

ment of a

state co urt if the

state judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the [state] court’s

decis ion .” Id. at *7 (citation and internal quotationmarks omitted). We have articulated a f our- part 6 Munson v. Kapture No. 03-1563

1 Rul e 6.508(D), whi ch governs post- convict ion rel ief, provides as follows: test to be use d in determining whether a habeas c laim has been procedurally

defaulted: First, the cour

t must dete

rmine tha

t th ere is a state proceduralrule that is app licable t o the peti tioner’s claim and that the petiti oner fa

iled to comply with the rule . . . . Second, the cour

t m ust decid

e whethe r the stat e courts actually enforced the s tate pro cedural sanction . . . . Third, the court must decide whether the state procedural forfeiture is an “ad

equate and indep endent”

stateground
onwhich the state can rely to foreclose review of a federalconstitutional claim . . . . Once the court determines that a state procedural rule was not complied with and that the rule wa s an adequate and independent stateground, then

the pe titioner must demonstrate . . . that there wa s “cause ” for him to not follow the pr o cedural rule and that he was actually prejudiced by the alleged constitutional error.

Id. at *7-*8 (citi ng Maupin v. Smith , 785 F.2d 135, 138 ( 6th Cir. 1986)).

For purposes of proce dural de fault, the “st ate j udgmen

t” with which we are concerned

is “the la st explained

state court judgment.” Yl

st v. Nunnemaker , 501 U.S. 797, 805 (1991). Munsonargues that the last explained state court judgment is the tr ia l c ou rt ’s op in io n d en yi ng h is post-conviction motion for relief. In tha

t opinion, the court relied on procedural default in rejecting only

one of his claims; it denied the other claims on their me

rits

. Contrary to Munson’s asser tion, however, the last

explained

state co urt judg ment in this

case is the Michigan Supre

me Co urt’ s order deny

ing review of Munson’s claims ba sed upon h is failure to comply

with Rule 6.508(D). 1 We have he ld that orde rs such as that issued byNo. 03-1563 Munson v. Kapture 7

Entit lement

to R elief. The defe nda n t ha s t he bur den of establishing enti tlement to th e reli ef reques ted. The co urt m ay not g rant rel ief to t he def endant if the moti on (1) seeks r elie f

fr om a judgment of convi ction and sent ence that is sti ll s ubject t o chall enge on appeal pur suant to subch apte r 7.200 or subch apter

7.300;
(2) all eges groun ds for r elie f wh ich were decided against the defendant in a pri or ap peal or proceeding under this chapter, unless the def

endant establ ishes that

a retroactive change i n the law has undermined the prior decisi on; (3) alleges g roun ds for r elief, o ther than jurisdictional defects, which coul d have be en ra ise d on appeal fr om the conviction and senten ce or in a p rior m otio n under this subchapter, unless t he defendant

demonstrat es (a ) good cause for failure to raise such gro unds on appea l or in the prior motion, and (b) actual

prejudice from th e all eged irr egular iti es tha t supp ort the c laim for relief . . . .

2 Our agreement is subject t o one qualificati on, however. It is pos sible that

the Michi gan Supreme Co urt may not have been able to rely upon Rule 6.508(D ) to deny reli ef with r espe ct to Munson’s ineff ective the Michiga

n Supreme

Court con stitute “e

xplained” state court judgmen ts for purposes of

procedural default. See, e.g., Simpson v. Jones , 238 F.3d 399, 407-08 (6th Cir. 2000) (holding that an order issued by the Michigan Supre

me Court stating t hat the petitioner had “failed to ‘meet the burden of establishing entitlement to relief under MCR 6.508(D)’” – thou gh“brief” – constituted the last explained state court judgment in the case).

The distr

ict cour t held that Munson’s habeas claims were procedu rally default ed beca use Rule 6.508(D) constituted an adequa te and independent state ground on which the Michigan Supreme Court relied in foreclosing review of the claims. We agree. 2 It

is well -established in this circuit that 8 Munson v. Kapture No. 03-1563

assi stance of appell ate co unsel cl aim. Su bsec tions (1 ) and (2) o f Rule 6. 508 (D) are inapplicable to Munson’s appeal. Subsection (3) bars collat eral revie w on grounds t hat coul d have been raised on d irect ap pea l, but were not, absent a sho wing of cau se and preju dice. M unso n’s ineffect ive ass ist ance of appel lat e couns el c lai m argu ably coul d not have bee n rai sed on direct

appeal becaus e th e appel lat e at torn ey wou ld be argui ng tha t he or sh e was curr ently prov idi ng i nef fective assi stance of

cou nsel. If the Mi chigan Supreme Court could not have been relying upon procedu ral default to di spose of Munson ’s inef fect ive assi stance of app ellate coun sel claim , the district c ourt would not be able to find this claim to ha ve beenprocedu ral ly default ed. Howev er, the outc ome of Munson ’s ap peal is unaf fect ed. As dis cuss ed bel ow, t he appl ication of Stri ckland

v. Washingt

on , 466 U.S . 668 (19 84) , dem onstra tes that ev en if Munson did, in fac t, receive ineffective assis tanc e of app ellate co unsel, the resu lt of his ap pea l would have b een no differen t. the procedural ba

r set f orth in Rule 6.508(D) constitutes an adequat e an d independent ground on which the Michigan Supreme Court may rely

in foreclosing review

of federal claims. See, e.g., Simpson , 238 F.3d at 407-08 (holding that the Michigan Supreme Court’s statement that the petitioner had “failed to ‘meet the burden of estab lishing e

ntitlemen t to relief under MCR 6.508(D)’” was an adequate a nd independent

stat e pr ocedural rule that “prevents feder al review”); Burroughs v. Makowski , 282 F.3d 410 , 414 (6th Cir. 2002) (holding

that “the Michiga n Court of A

ppealsand Michigan Supreme Court’s statemen ts that Burroughs was not entitled to relief under M.C.R. 6.508(D) presents a sufficient explanati on tha t their rulings were based on procedur al default”).

Munson argue s that Simpson and Burroughs were wr ongly decided in light of the Mic

higan Su preme Court’s de cision in P eople v . Jackson , 633 N.W.2d 825 (Mich. 2001). He maintains that Jackson e st ablishes that Rule 6.508(D) is not firmly es tablished or regularly followed and, therefore, canno t constitute an adequate and independent state g round for purposes of proce dural de fault. Notwithstanding the fact that
ou ran al ys is of procedural default is governed by our own preced ent, not that of

the Michigan

Supreme Court, JacksonNo. 03-1563 Munson v. Kapture 9

does not stand for the proposition advanced by Munson. The portionof Jackson on which he relies merely explains and interpre ts this Court’s decision in Rogers v. Howes , 144 F.3d 990 (6th Cir. 1998), in which we held that Rule 6.508(D) was notregul arly

applied at the time of the defendant’s conviction, given that the rule had not, in fact , be en enacted yet. The Jackson court upheld the retroactive application of Rule 6.508(D) to the defendant in that case, holding that our decisionin Rog ers , which involved only fede ral court proceduraldefault

princip les , did not restrict the Michigan courts’ ability to apply

the rule. Havingdetermined that Munson’s habeas c laims have been procedu rally defaulted, we must next consider whether he has established

the requ isit e “cause ” and “prejudic e” to per mit
our consideration of the me rits of his claims. See Simpson , 238 F.3d at

407 (c itin g Coleman v. Thompson , 501 U.S. 722, 750 (1991)). Munson

argues that the cause for his procedural default was the constitutionally ineffe ctive assistanc e rendered by h is trial a nd appell ate coun sel; he a rgues t hat his trial counsel was ineffective for fa ilin g to challenge the admissibil ity

of the physical e

vidence seized in the apartment and that his appella

te counse l was inef

fective for fail ing to raiseon d ir ect appeal the issue of trial counsel’s ineffe ctivene ss. In gener al, cons titutionally ineffective assistance of counsel can c onstitute cause for procedural default

. Rust v. Zent , 17 F.3 d 15 5, 1 61 ( 6t h C ir. 199 4). In this case, howev er, Munson’s counsel rendered no such ineffective assistance.

Munson’s ineffe ctive as sistance claims are governed

by the familiar standard articulated in Strickland

v. Washington , 466 U.S. 668 (1984 ), which

require s him to prove both tha t his counsel’s representation “fell below an objective standard of
reasona ble nes s,” id. at 688, an

d “that th ere is a

reasona ble probabil ity

that, b ut fo r counsel’s unprofessional errors, the result of the proceeding would have bee n different,” id. at 694. The dis tric t court found that even if Munson satisfied the first prong of Strickland , he failed to satisfy the s econd

. 10 Munson v. Kapture No. 03-1563

We agree. Even if the phy sical evidence seized in the apartment had been su

ppressed, there was abundant addition a l evidence adduced at trial indicating Munson’s guilt. For example, both victim s positivel y id entified Munson as the perpetrator at

trial and inseparate lineups, Munson’s former girlfriend testifie d about Mun son’s inju ries and his gifts to her shortly after the crime

was committed, and the pager left at the scene of the crime was traced to Munson. In light

of this evide nc e, Munson ca

nnot prove

that ther e is a re asonable probabil ity

that but for his couns els’ alleged errors, the outcom e of his trial or appeal would have been differe n t

. Th eref ore, the district court correctly held that Munson’s claims of ineffe ctive as sistance

of trial a nd appell ate counsel lack merit and that Munson can not rely upon either

type of all eged ineffectiveness as cause to excuse the proce dural default of his hab eas cla

ims.

AFFIRMED.