Disentangling Michigan Court Rule 6.502(G)(2): The "New Evidence" Exception to the Ban on Successive Motions for Relief from Judgment Does Not Contain a Discoverability Requirement

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit "second or subsequent" motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on "new evidence that was not discovered" before her original postconviction motion. Misguided by the similarity between the language of section 6.502(G)(2) and the Michigan Supreme Court's opinion in People v. Cress, Michigan courts have started conflating the four-prong Cress legal standard with section 6.502(G)(2)'s "new evidence" exception to the ban on successive motions. This conflation imposes an additional discoverability element on the "new evidence" exception: a court will dismiss a petitioner's motion as successive if the petitioner could have discovered the evidence underlying the motion through the exercise of reasonable diligence. This Note demonstrates that the conflation of section 6.502(G)(2) and the Cress standard, and the resulting imposition of an additional discoverability requirement on the "new evidence" exception, is plainly wrong. It contradicts the text and structure of the Michigan Court Rules and imposes unintended adverse consequences on criminal defendants seeking to vindicate their constitutional rights.IntroductionAn alarming trend has emerged in postconviction litigation in the state of Michigan. Michigan courts have become confused by the relationship between two distinct legal doctrines that happen to share similar language. This confusion has led Michigan courts to conflate two separate legal tests. In doing so, courts have imposed significant unintended and adverse consequences on criminal defendants.The first of the two legal doctrines that courts conflate involves the procedures governing postconviction litigation. Like all states, Michigan recognizes that a criminal conviction has serious ramifications for a person's liberty and other interests.1 Consequently, Michigan created a set of court rules, known collectively as subchapter 6.500, which outlines the procedures a prisoner may use to challenge her conviction, even after her trial and direct appeal have ended.2 Legislators drafted these rules to accommodate competing interests. On one hand, Michigan recognizes that litigation must end at some point and consequently imposes a number of procedural barriers that may prevent review of a petitioner's claim.3 At the same time, Michigan recognizes that the costs of postconviction litigation and finality are outweighed by the needs to protect individual rights and ensure the litigation of colorable constitutional claims.4 Subchapter 6.500's rules governing when a convicted defendant can file a successive postconviction motion exemplify this balance. The rules provide that under most circumstances, a defendant can file only one postconviction 6.500 motion.5 This rule aims to reduce the amount of postconviction litigation.6 At the same time, the rules permit a defendant to bring a "second or subsequent" 6.500 motion if she has "new evidence" that was not previously discovered. Michigan adopted this new evidence exception to ensure that at least some successive motions raising colorable claims prevail. This new evidence exception to the ban on successive motions, codified in section 6.502(G)(2), is the first of the two legal doctrines that Michigan courts are confusing.The second of the two legal doctrines is called a Cress "newly discovered evidence" claim.7 The Michigan Supreme Court acknowledged that sometimes new evidence emerges after trial that undermines a defendant's conviction.8 For example, a victim may recant,9 DNA tests may be conducted,10 or a new scientific breakthrough might occur. …