NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0014n.06

Filed: January 10, 2005

Case No. 03-1019

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RICHARD PETER PLAZA,

Plaintiff-Appellant,

v.

BARBARA BOCK, WARDEN 

Defendant-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

BEFORE: NELSON, SILER, and BATCHELDER, Circuit Judges

ALICE M. BATCHELDER, Circuit Judge. Richard Peter Plaza (“Plaza”) appeals the

district court’s order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus because

Plaza’s claims are procedurally defaulted. Plaza argues that he did not procedurally default his due

process and equal protection claims and, in the alternative, he had cause for the default and will

suffer actual prejudice if the district court does not grant his habeas petition. Because we find that

Plaza procedurally defaulted his due process and equal protection claims by failing to raise them

before the Michigan Court of Appeals on direct appeal, and because Plaza cannot demonstrate cause

to excuse his default, we affirm the judgment of the district court.

I.
2

On January 22, 1999, the Lenawee County Circuit Court sentenced Plaza to a term of ten

years to life in prison following Plaza’s plea of guilty to one count of armed robbery. On January

29, 1999, the Michigan Department of Corrections informed the trial judge that he had imposed an

illegal sentence, stating, “Could you please review your records to determine if the court intended

on sentencing this prisoner to a determinate (Life) or an indeterminate sentence.” On March 3,

1999, the trial court corrected the sentence to a term of ten to twenty years.

On March 8, 1999, Plaza filed in the trial court a request for the appointment of appellate

counsel. The request claimed the trial transcript would show that the judge had sentenced Plaza for

second degree murder rather than armed robbery. The trial court denied the request. On March 28,

1999, Plaza requested his docket entries, his transcripts, and other legal documents from the

Lenawee County Circuit Court Clerk’s office. On April 19, 1999, the Lenawee County Circuit

Court Clerk informed Plaza via letter that he would have to file an affidavit of indigency in order

to obtain the transcripts.

On April 22, 1999, Plaza filed a delayed pro se application for leave to appeal to the

Michigan Court of Appeals the denial of his request for the appointment of counsel. Plaza did not

explicitly raise in this application any claim involving the trial court’s failure to provide him with

transcripts, but he did include as an exhibit to the application his “Notice of Appeal Rights”

provided to him by the Circuit Court. In that notice, Plaza stated the legal issue he wished to appeal

as, “Read the Court transcript from 01/22/99. He sentenced me as a second degree murderer. He

stated so in the transcript.” Plaza also included as an exhibit an April 22, 1999, letter to the Clerk

of the Michigan Court of Appeals in which Plaza wrote, “PLEASE NOTE: there is no record to be

transcribed in this matter.”
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On April 27, 1999, five days after Plaza filed his application to appeal the denial of appellate

counsel, Plaza sent an affidavit of indigency to the Lenawee County Circuit Court Clerk’s office and

also requested specific transcripts from his plea and sentencing hearings. On April 29, 1999, the

circuit court clerk informed Plaza that the clerk’s office did not have copies of the transcripts in the

court file and that Plaza would have to contact the trial judge directly to obtain the transcripts. On

May 2, Plaza requested his transcripts from the trial judge’s clerk, Mr. Andrew Roth, but did not

attach another affidavit of indigency. The deputy clerk of the circuit court responded on May 6,

stating that Plaza would have to complete an affidavit of indigency before the clerk would send

copies without payment. Plaza then sent another request for the transcripts to the circuit court clerk,

along with another affidavit of indigency. To date, Plaza has apparently not received copies of his

transcripts, nor are those transcripts in the joint appendix filed with this court.

On November 17, 1999, the Michigan Court of Appeals denied Plaza’s application for leave

to appeal, citing as its reason, “lack of merit in the grounds presented.” On October 12, 2000, the

Michigan Supreme Court denied leave, “because we are not persuaded that the questions presented

should be reviewed by this Court.” Plaza then filed a post-conviction motion for relief from

judgment, claiming that he was denied due process by the failure of the Lenawee County Circuit

Court to provide him transcripts of the proceedings in that court. That motion was denied by the

Lenawee County Circuit Court

pursuant to MCR 6.508(D)(3), for the reason that the Court finds that the Defendant

has alleged grounds for relief which could have been raised on appeal from the prior

conviction and sentence or in a prior motion and has failed to establish good cause

for the failure to raise such grounds on appeal or in a prior motion.
1

MCR 6.508(D) provides:

(D) 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 still is 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

subchapter, 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. As used in this subrule, "actual

prejudice" means that,

(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance

of acquittal;

(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo contendere, the defect in the proceedings

was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction

to stand;

(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction

should not be allowed to stand regardless of its effect on the outcome of the case;

(iv) in the case of a challenge to the sentence, the sentence is invalid.

The court may waive the "good cause" requirement of subrule (D)(3)(a) if it concludes that there is a significant

possibility that the defendant is innocent of the crime.

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The Court of Appeals denied leave to appeal, and the Michigan Supreme Court denied leave to

appeal from the judgment of the Court of Appeals because Plaza had “failed to meet the burden of

establishing entitlement to relief under MCR 6.508(D).”1

This court reviews de novo a district court’s denial of a writ of habeas corpus. McQueen v.

Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996).

II.

A state prisoner may not challenge the constitutionality of his conviction by seeking habeas

relief under 28 U.S.C. §2254 unless he has exhausted his available state court remedies. See

Coleman v. Thompson, 501 U.S. 772, 731 (1991). To exhaust a claim, a state prisoner must fairly

present that claim to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). A court may find

that a claim has been raised even if the papers are not clear and the proposition of law is not properly

cited. Ford v. Georgia, 498 U.S. 411, 418 (1991).
5

Plaza failed to “fairly present” to the Michigan Court of Appeals his claim that he was denied

transcripts. The fact that Plaza did not include a sentencing transcript as part of his direct appeal of

his sentence would not necessarily apprise the Court of Appeals of Plaza’s claim that the state trial

court unconstitutionally denied him access to the sentencing transcript. Even if the judges of the

Michigan Court of Appeals assumed a transcript was not available, and then assumed that the trial

court had somehow infringed on Plaza’s rights by not making the transcript available, they were not

required to consider arguments not raised by the parties. Because this record contains neither any

evidence that Plaza raised his denial of transcript claim in his direct appeal before the Michigan

Court of Appeals, nor evidence that the Michigan Court of Appeals considered that claim, we find

no error in the district court’s conclusion that the claim is procedurally defaulted.

III.

When state courts clearly and expressly rely on a valid state procedural bar, federal habeas

review is also barred unless the petitioner can demonstrate either: (1) “cause” for the default and

actual prejudice as a result of the alleged constitutional violation, or (2) that failure to consider the

claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722,

750 (1991). The state courts clearly relied on Plaza’s failure to raise the denial of transcript claim

on direct appeal in denying relief on his denial of transcript claim.

Plaza has not established cause for his failure to raise his denial of transcript claim on direct

appeal. Plaza’s best argument for “cause” is that the Lenawee County Clerk did not let Plaza know

until after Plaza had filed his direct appeal that the court would not provide him with transcripts.

That argument must fail, however, because Plaza was on notice of his denial of transcripts claim

more than five months before the Michigan Court of Appeals issued its order denying leave to
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appeal. Plaza had ample time to amend his application for leave to appeal to raise the denial of

transcript claim. Additionally, neither Plaza’s failure to realize that the trial court’s denial of his

request for transcripts was an appealable order, nor Plaza’s inability to obtain appointed counsel

excuses Plaza’s default. This court has clearly stated that “pro se status and ignorance of his rights

do not constitute cause excusing his failure to raise grounds before the state courts.” Hannah v.

Conley, 49 F.3d 1193, 1197 (6th Cir. 1995).

Finally, Plaza cannot establish that the district court’s failure to consider his denial of

transcript claim will result in a “fundamental miscarriage of justice.” Although the denial of

transcripts may have prevented Plaza from raising his claim that he was denied due process at

sentencing, there is no evidence that Plaza was damaged by being unable to raise that claim. Even

if the trial court judge stated at the sentencing hearing that he was sentencing Plaza for second

degree murder, the record definitively indicates that the error was corrected.

For all of the foregoing reasons, we AFFIRM the judgment of the district court.