CA6 ponders appellate waiver and grants relief on IAC claim.

Guilmette v. Howes, No. 08-2256 (6th Cir. Oct. 21, 2010) (en banc) — The principal question that divided the Sixth Circuit in this case is whether to hold the State of Michigan to a possible waiver of a claim that the district court erred in granting relief to the petitioner in this case.

The petitioner brought an IAC claim that he did not raise in conjunction with his direct appeal, as required by Michigan law. Instead, the petitioner had brought the claim in state postconviciton proceedings. The trial court denied the claim on the merits, and the state appellate courts both summarily affirmed, citing Mich. Ct. R. 6.508(D) but not specifically identifying which subparagraph of that rule their affirmance relied on. In federal habeas, the district court examined the Michigan appellate courts’ rulings on postconviction and found them to be ambiguous and thus not clearly invoking a procedural bar as required by Harris v. Reed, 489 U.S. 255 (1989). Because the last reasoned state court decision had denied the claim on the merits, see Ylst v. Nunnemaker, 501 U.S. 797 (1991), the district court reached the merits and granted relief.

On appeal, the state presented two arguments in its brief. First, the State argued that the district court should have concluded that the Michigan Supreme Court had invoked an express procedural bar that is adequate and independent to support procedural default. Second, the state argued that the petitioner could not show cause and prejudice to lift the default on the basis that the IAC claim he was trying to raise lacked merit. A majority of the en banc court (10 of the 15 judges, led by Judge Rogers) disagreed with the State’s first argument and found that a bare citation to Rule 6.508(D), without identifying a subparagraph, was an ambiguous invocation of a procedural bar and thus did not support procedural default. That same 10-judge majority then concluded that the State had failed to argue that the district court erred in granting relief on the petitioner’s IAC claim. By failing to raise that argument in the opening brief, the court held, the State had waived any challenge to the district court’s decision to grant relief. Thus the en banc court affirmed the district court.

Four judges (led by Judge Boggs) disagreed with the majority’s waiver analysis. After all, in this case the merits of the IAC claim are bound up in the State’s cause-and-prejudice argument. Judge Boggs identified plenty of other analogous situations in which the appellant (who may have been either the plaintiff or defendant below) isn’t held to a waiver when an argument presented in the opening brief “essentially subsumes an alternative basis for affirmance or reversal not separately argued therein.” United States v. Goforth, 465 F.3d 730, 736-37 (6th Cir. 2006). Because the argument for reversing the district court’s judgment on the merits of the petitioner’s IAC claim is essentially subsumed in the State’s cause-and-prejudice argument, Judge Boggs reasoned, the State didn’t waive its argument for reversing the district court’s judgment on the merits. Judge Boggs then rejected the IAC claim on the ground that trial counsel made a tactical decision.

Judge Griffin, for his part, thinks that the Michigan Supreme Court did invoke an adequate and independent procedural bar.