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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0318P (6th Cir.)

File Name: 04a0318p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MAURICE MUNSON,

Petitioner-Appellant,

v.

ROBERT J. KAPTURE, Warden,

Respondent-Appellee.

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No. 03-1563

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-71956—Avern Cohn, District Judge.

Argued: August 12, 2004

Decided and Filed: September 20, 2004 

Before: KEITH, MARTIN, and ROGERS, Circuit Judges. 

_________________

COUNSEL

ARGUED: James Sterling Lawrence, Detroit, Michigan, for

Appellant. Debra M. Gagliardi, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON BRIEF: James Sterling Lawrence, Detroit, Michigan,

for Appellant. Laura Graves Moody, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

2 Munson v. Kapture No. 03-1563

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Maurice

Munson, a Michigan prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus. For the

reasons that follow, we AFFIRM. 

I.

A jury convicted Munson of two counts of armed robbery

in violation of M.C.L. § 750.529 and two counts of assault

with intent to commit criminal sexual conduct (penetration)

in violation of M.C.L. § 750.502(G)(1). The events giving

rise to Munson’s prosecution transpired at Juanita’s House of

Beauty in Detroit, Michigan, on late Friday, June 18, or early

June 19, 1993, as Sherrease Carter, age thirty, an employee of

the beauty shop, and her sixteen-year-old niece, Shamika

Kincaid, were leaving the shop. The evidence adduced at trial

indicates that as Carter and Kincaid were leaving the shop,

Munson appeared and forced them back inside at knifepoint.

He ordered them to undress, which they did, and he

proceeded to take various items from the shop (including

money, hair clippers and jewelry), as well as items from

Carter and Kincaid (including clothing and sandals that they

had just purchased and jewelry).

Munson then took Carter into a back room and threatened

Kincaid that she would be next. In the back room, Munson

sat down on a chair and forced Carter onto his lap. Munson

put the knife down momentarily as he attempted to insert his

penis into Carter’s vagina, at which point Carter grabbed the

knife and stabbed him multiple times. Carter and Kincaid,

still naked, immediately ran out of the shop. They observed

Munson leave the shop with packages containing their newlypurchased sandals and clothing, among other things. Carter

and Kincaid were soon picked up by a motorist who took
No. 03-1563 Munson v. Kapture 3

them to the police station. When the victims later returned to

the shop, they discovered a pager that Munson had apparently

dropped during the incident.

The police located Munson by tracing the pager, which was

registered 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 Tate, was at the apartment at the

time and permitted the police to enter after they repeatedly

knocked on the door. Munson was arrested in the apartment,

at which time the police seized, without a warrant, various

incriminating items, including cash, gauze bandages, hair

clippers, sandals, new clothing items and jewelry. 

Tate gave a statement to police, which she confirmed and

elaborated upon at trial, indicating that Munson had bandages

on his chest when she arrived at the apartment Saturday

morning. Tate also stated that on the morning of his arrest,

Munson gave her a pair of sandals, various clothing items,

cash and a ring. Carter and Kincaid also positively identified

Munson as the perpetrator at separate lineups and at trial.

Among the pieces of physical evidence admitted at trial were

the pager and the items seized in the apartment upon

Munson’s arrest, which apparently were the same items stolen

from the victims and the beauty shop. 

Munson did not testify at trial. He asserted an insanity

defense, with all expert witnesses agreeing that he was

mentally ill but disagreeing as to whether he was criminally

responsible for his actions. The jury found Munson mentally

ill but guilty of robbery and assault. He was sentenced to

prison for a term of twenty-five to sixty years. 

Munson filed a direct appeal to the Michigan Court of

Appeals, raising only one issue: that his sentence was

disproportionately high. The Michigan Court of Appeals

4 Munson v. Kapture No. 03-1563

affirmed the conviction and sentence, and the Michigan

Supreme Court denied leave to appeal. 

Munson then filed in the state trial court a post-conviction

motion for relief from judgment, in which he raised five new

claims: (1) the warrantless arrest, search and seizure deprived

him of due process; (2) he was denied a fair and impartial trial

because of prosecutorial misconduct; (3) his trial counsel

rendered ineffective assistance; (4) the cumulative effect of

the trial errors deprived him of a fair trial; and (5) his

appellate counsel rendered ineffective assistance. 

The state trial court denied Munson’s motion in a written

order that rejected each of his new claims. With respect to the

prosecutorial misconduct claim, the court held that “[t]he

defendant fails to show just cause why prosecutor misconduct

was not raised in earlier appeals. Further, the conduct

complained of did not deny defendant a fair trial.” The

district court found the remaining claims to be without merit

for reasons other than Munson’s failure to raise them earlier.

The Michigan Court of Appeals denied leave to appeal in

an order that states as follows:

The Court orders that the application for leave to

appeal is DENIED because defendant has failed to meet

the burden of establishing entitlement to relief under

MCR 6.508(D). 

The Court further orders that the motion to remand is

DENIED because defendant has failed to show that

development of a factual record is required for appellate

consideration of the issues. MCR 7.211(C)(1)(a)(ii). 

The Michigan Supreme Court also denied leave to appeal for

the same reason, in an order stating:

On order of the Court, the delayed application for

leave to appeal from the May 24, 2000 decision of the
No. 03-1563 Munson v. Kapture 5

Court of Appeals is considered, and it is DENIED,

because the defendant has failed to meet the burden of

establishing entitlement to relief under MCR 6.508(D).

Munson next sought relief in federal court, by filing the

instant petition for a writ of habeas corpus. The petition

asserted essentially the same claims that were presented in his

motion for post-conviction relief: (1) the warrantless arrest

and search and seizure denied him due process; (2) the

prosecutor engaged in misconduct; (3) he was denied the

effective assistance of trial counsel; (4) cumulative error

rendered the trial unfair; and (5) he was denied the effective

assistance of appellate counsel. The district court held that

each claim was procedurally defaulted, but proceeded to

analyze whether ineffective assistance of trial or appellate

counsel constituted “cause” to excuse the procedural default.

Concluding that neither trial counsel nor appellate counsel

rendered ineffective assistance, the district court denied the

petition; it granted a certificate of appealability, however, on

the issues of whether Munson’s claims were each

procedurally defaulted and whether he was denied the

effective assistance of trial or appellate counsel. This appeal

followed. 

II.

We review de novo the district court’s denial of a petition

for a writ of habeas corpus. 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 Munson’s habeas

claims was barred by the doctrine of procedural default.

“Under the procedural default doctrine, [a] federal court is

generally barred from considering an issue of federal law

arising from the judgment of a state court 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 decision.” Id. at *7 (citation and internal

quotation marks omitted). We have articulated a four-part

6 Munson v. Kapture No. 03-1563

1

Rule 6.508(D), which governs post-conviction relief, provides as

follows:

test to be used in determining whether a habeas claim has

been procedurally defaulted:

First, the court must determine that there is a state

procedural rule that is applicable to the petitioner’s claim

and that the petitioner failed to comply with the rule . . . .

Second, the court must decide whether the state courts

actually enforced the state procedural sanction . . . .

Third, the court must decide whether the state procedural

forfeiture is an “adequate and independent” state ground

on which the state can rely to foreclose review of a

federal constitutional claim . . . . Once the court

determines that a state procedural rule was not complied

with and that the rule was an adequate and independent

state ground, then the petitioner must demonstrate . . .

that there was “cause” for him to not follow the

procedural rule and that he was actually prejudiced by

the alleged constitutional error.

Id. at *7-*8 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th

Cir. 1986)).

For purposes of procedural default, the “state judgment”

with which we are concerned is “the last explained state court

judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).

Munson argues that the last explained state court judgment is

the trial court’s opinion denying his post-conviction motion

for relief. In that opinion, the court relied on procedural

default in rejecting only one of his claims; it denied the other

claims on their merits. Contrary to Munson’s assertion,

however, the last explained state court judgment in this case

is the Michigan Supreme Court’s order denying review of

Munson’s claims based upon his failure to comply with Rule

6.508(D).1 We have held that orders such as that issued by
No. 03-1563 Munson v. Kapture 7

Entitlement to Relief. The defendant has the burden of

establishing entitlement to the relief requested. The court may

not grant relief to the defendant if the motion

(1) seeks relief from a judgment of conviction and sentence that

is still subject to challenge on appeal pursuant to subchapter

7.200 or subchapter 7.300;

(2) alleges grounds for relief which were decided against the

defendant in a prior appeal or proceeding under this chapter,

unless the defendant establishes that a retroactive change in the

law has undermined the prior decision;

(3) alleges grounds for relief, other than jurisdictional defects,

which could have been raised on appeal from the conviction and

sentence or in a prior motion under this subchapter, unless the

defendant demonstrates

(a) good cause for failure to raise such grounds on appeal

or in the prior motion, and

(b) actual prejudice from the alleged irregularities that

support the claim for relief . . . .

2

Our agreement is subject to one qualification, however. It is

possible that the Michigan Supreme Court may not have been able to rely

upon Rule 6.508(D) to deny relief with respect to Munson’s ineffective

the Michigan Supreme Court constitute “explained” state

court judgments 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 Supreme Court

stating that the petitioner had “failed to ‘meet the burden of

establishing entitlement to relief under MCR 6.508(D)’” –

though “brief” – constituted the last explained state court

judgment in the case). 

 The district court held that Munson’s habeas claims were

procedurally defaulted because Rule 6.508(D) constituted an

adequate 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

assistance of appellate counsel claim. Subsections (1) and (2) of Rule

6.508(D) are inapplicable to Munson’s appeal. Subsection (3) bars

collateral review on grounds that could have been raised on direct appeal,

but were not, absent a showing of cause and prejudice. Munson’s

ineffective assistance of appellate counsel claim arguably could not have

been raised on direct appeal because the appellate attorney would be

arguing that he or she was currently providing ineffective assistance of

counsel. If the Michigan Supreme Court could not have been relying

upon procedural default to dispose of Munson’s ineffective assistance of

appellate counsel claim, the district court would not be able to find this

claim to have been procedurally defaulted. However, the outcome of

Munson’s appeal is unaffected. As discussed below, the application of

Strickland v. Washington, 466 U.S. 668 (1984), demonstrates that even if

Munson did, in fact, receive ineffective assistance of appellate counsel,

the result of his appeal would have been no different. 

the procedural bar set forth in Rule 6.508(D) constitutes an

adequate and 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 establishing entitlement to

relief under MCR 6.508(D)’” was an adequate and

independent state procedural rule that “prevents federal

review”); Burroughs v. Makowski, 282 F.3d 410, 414 (6th

Cir. 2002) (holding that “the Michigan Court of Appeals and

Michigan Supreme Court’sstatements that Burroughs was not

entitled to relief under M.C.R. 6.508(D) presents a sufficient

explanation that their rulings were based on procedural

default”).

Munson argues that Simpson and Burroughs were wrongly

decided in light of the Michigan Supreme Court’s decision in

People v. Jackson, 633 N.W.2d 825 (Mich. 2001). He

maintains that Jackson establishes that Rule 6.508(D) is not

firmlyestablished or regularly followed and, therefore, cannot

constitute an adequate and independent state ground for

purposes of procedural default. Notwithstanding the fact that

our analysis of procedural default is governed by our own

precedent, not that of the Michigan Supreme Court, Jackson
No. 03-1563 Munson v. Kapture 9

does not stand for the proposition advanced by Munson. The

portion of Jackson on which he relies merely explains and

interprets 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

not regularly applied at the time of the defendant’s

conviction, given that the rule had not, in fact, been enacted

yet. The Jackson court upheld the retroactive application of

Rule 6.508(D) to the defendant in that case, holding that our

decision in Rogers, which involved only federal court

procedural default principles, did not restrict the Michigan

courts’ ability to apply the rule. 

Having determined that Munson’s habeas claims have been

procedurally defaulted, we must next consider whether he has

established the requisite “cause” and “prejudice” to permit

our consideration of the merits of his claims. See Simpson,

238 F.3d at 407 (citing Coleman v. Thompson, 501 U.S. 722,

750 (1991)). Munson argues that the cause for his procedural

default was the constitutionally ineffective assistance

rendered by his trial and appellate counsel; he argues that his

trial counsel was ineffective for failing to challenge the

admissibility of the physical evidence seized in the apartment

and that his appellate counsel was ineffective for failing to

raise on direct appeal the issue of trial counsel’s

ineffectiveness. In general, constitutionally ineffective

assistance of counsel can constitute cause for procedural

default. Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). In

this case, however, Munson’s counsel rendered no such

ineffective assistance. 

Munson’s ineffective assistance claims are governed by the

familiar standard articulated in Strickland v. Washington, 466

U.S. 668 (1984), which requires him to prove both that his

counsel’s representation “fell below an objective standard of

reasonableness,” id. at 688, and “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at

694. The district court found that even if Munson satisfied

the first prong of Strickland, he failed to satisfy the second.

10 Munson v. Kapture No. 03-1563

We agree. Even if the physical evidence seized in the

apartment had been suppressed, there was abundant additional

evidence adduced at trial indicating Munson’s guilt. For

example, both victims positively identified Munson as the

perpetrator at trial and in separate lineups, Munson’s former

girlfriend testified about Munson’s injuries 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

evidence, Munson cannot prove that there is a reasonable

probability that but for his counsels’ alleged errors, the

outcome of his trial or appeal would have been different.

Therefore, the district court correctly held that Munson’s

claims of ineffective assistance of trial and appellate counsel

lack merit and that Munson cannot rely upon either type of

alleged ineffectiveness as cause to excuse the procedural

default of his habeas claims.

AFFIRMED.