Glover’s attorney failed to timely file a notice of appeal. Glover filed a delayed application for leave to appeal and was denied. He followed suit with the Michigan Supreme Court and was likewise denied.
Glover then followed state venue, filing a motion for relief from judgment in the trial court, alleging ineffective assistance of appellate counsel for the time bar issue. Trial court denied the motion and the Michigan Court of Appeals and the Michigan Supreme Court likewise denied Glover’s applications for leave to appeal the denial of ineffective assistance motion. The court cited as grounds for denial failure to establish entitlement under Michigan Rules of Court.
Glover filed the instant habeas corpus, which the district court conditionally granted for ineffective counsel causing Glover’s time bar. Respondent Warden Birkett appealed.
Birkett argued that Glover failed to show prejudice, a condition necessary to show viable ineffective assistance of appellate counsel. Birkett set forth that Glover was not completely deprived of direct appeal, that the Michigan Court of Appeals decided his claims on the merits while considering his application for leave to appeal.
The court’s analysis referenced a case materially and procedurally identical considered a year earlier wherein the respondent advanced the same argument as Birkett. The court noted then that application for leave to appeal is by Michigan Rules of court only a preliminary to having a case proceed as an appeal of right. The application process does not provide appellant with the opportunity of oral argument and is an insufficient substitute for consideration as an appeal.
The Court affirmed the district court’s granting of Glover’s habeas corpus. See: Glover v. Birkett, 679 F.3d 936 (6th Cir. 2012).
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Related legal case
Glover v. Birkett
|Cite||679 F.3d 936 (6th Cir. 2012)|
|Level||Court of Appeals|