A Motion for Relief from Judgment, MCR 6.500, is often the last chance to correct a conviction. At CZARNECKI & TAYLOR, we receive many letters and calls from inmates regarding post-conviction relief, specifically, 6.500 Motions, Motion for Relief from Judgment. The 6.500 motion is filed after the defendant has already gone through the appeal process. This article will discuss the essential components of the 6.500 motion for those people seeking post-conviction remedies.
A 6.500 may be a defendant’s last chance to “appeal” the conviction.
The very last opportunity a defendant has to challenge a conviction after the appellate process has been exhausted is by way of a 6.500 Motion, Motion for Relief for Judgment.
If a defendant has already filed an appeal, a Motion for Relief for Judgment, allows the defendant a chance to raise issues that had not been raised and argued on appeal. The Motion for Relief from Judgment may also be filed if a defendant has missed the appeal filing deadlines.
The Michigan Court rules, Subchapter 6.500 Postappeal Relief govern the motion for relief from judgment.
- 2 copies filed with the court clerk in the court where the conviction has occurred – MCR 6.501(C)
- serve a copy on the prosecutor’s office – MCR 6.503
- An indigent defendant can request the appointment of appellate counsel – if the court grants this request, the attorney can file a supplemental brief – MCR 6.505
- a defendant can attach affidavits, evidence and other records to the motion
- a request for an evidentiary hearing can be requested if applicable
- Here is a useful Checklist for a MCR 6.500 Motion (Motion for Relief from Judgment – Motion Checklist
What actions can the court take once the motion is filed?
The judge can take the following actions after the motion for relief from judgment has been filed:
- order that the prosecutor respond; the prosecutor is not required to respond
- the court can dismiss the motion without hearing oral argument
- order a hearing
The motion for relief from judgment is not particularly favored by the trial courts. The courts tend to believe that defendants abuse the process after the defendant has lost the direct appeal. The trial courts want defendants to pursue their appeal in a timely fashion through the appellate court system. Because the motion for relief from judgment is generally disfavored, a defendant must exercise diligence when drafting the motion so as to overcome the procedural hurdles.
Procedural Hurdles of the 6.500 Motion
A. Defendants can usually file one, MCR 6.500, Motion for Relief from Judgment
The Michigan Court Rules are quite clear, a defendant can only file one motion for relief from judgment. Pursuant to MCR 6.502(G)(1), “one and only one motion for relief from judgment may be filed with regard to a conviction.”
While the court rule prohibits repetitive motions for relief from judgment there are two recognized exceptions to the rule. A defendant may file a subsequent motion for relief from judgment based on the following:
- Newly discovered evidence
- Retroactive change in the law -a law that can be applied to actions in the past, that is, changes the legal consequences of actions that were committed before the enactment of the law.
If the successive motion does not meet one of these requirements, the motion will be summarily dismissed.
B. Motion must satisfy “GOOD CAUSE” for failure to raise issue on direct appeal
Because the courts favor the direct appeal process over the 6.500 motion, a defendant must explain why he or she failed to argue the issue in the original appeal.
An explanation that may satisfy the “cause” requirement usually relates to appellate counsel’s failure to identify or investigate an issue that had actual merit. This means, that former appellate counsel should have argued an issue on appeal and failed to do so.
Many defendants argue that their former appellate counsel was ineffective because an issue had not been raised on appeal. However, simply arguing that appellate counsel was ineffective does not suffice. The courts generally give deference to decisions of appellate counsel. There are, however, ways to overcome that hurdle.
A defendant can make a stronger ineffective assistance of appellate counsel argument if the defendant can establish that the missing issue (1) had merit and (2) could have easily been raised on appeal. The trial court will look at several factors to determine why the issue had not been presented on appeal:
- is there proof that the defendant communicated the issue to appellate counsel and counsel ignored the request
- was the issue stronger than the issues raised on appeal
- was the issue obvious and significant
- was a Ginther hearing (motion for ineffective assistance of counsel) held to determine appellate counsel’s explanation as to why the issue had been raised; does the explanation hold up to scrutiny or is it reasonable
- how much experience does appellate counsel have
- did trial counsel clearly object to these issues
- was appellate counsel effective but could not raise the issues because counsel had been prevented doing so by the government (complicated argument that can include suppression of evidence, etc.)
NOTE: If an issue had been raised on appeal, it cannot be raised in a Motion for Relief from Judgment
C. A Claim of Actual Innocence or Jurisdictional Defect can excuse the need to establish the good cause requirement
There are ways that a defendant does not have to establish the “good cause” hurdle discussed in part B. The two prominent exceptions are: Actual innocence or jurisdictional defects. If a defendant can establish just one of these, the defendant does not need to “show cause” for failing to raise the an issue during the first appeal.
- Actual Innocence explained –The “actual innocence” standard requires a defendant to show that “it is more likely than not that no reasonable juror would have found [the defendant] guilty beyond a reasonable doubt.” While the language of the rule seems reasonable, the courts have essentially made the rule an extremely difficult hurdle to overcome. Consider that even if a defendant can establish the “actual innocence” requirement -he or she may still NOT win. The courts often rely on obscure procedural rules to deny a defendant relief from judgment – even when meritorious evidence of actual innocence exists. The Michigan Supreme Court decided to hear arguments in the case of People v Swain to determine if the courts wrongly apply the procedural rules to analyze a motion for relief from judgment under MCR 6.502 (G).
On September 30, 2015, the Michigan Supreme Court granted leave to appeal to consider issues pertaining to a Defendant’s successive (second) motion for relief from judgment under MCR 6.502(G). As stated earlier, the courts typically prohibit more than one motion for relief from judgment unless there is a claim of (1) actual innocence or a (2) jurisdictional defect.
The Court wanted to address whether the standards enunciated in People v Cress, 468 Mich 678, 692 (2003) should be used to determine if a defendant is entitled to a new trial based on “newly discovered” evidence in a subsequent motion for relief from judgment under MCR 6.502(G)(2).
The Supreme Court also wanted to determine by what standard(s) Michigan courts should consider a defendant’s assertion that the evidence demonstrates a significant possibility of actual innocence in the context of a motion brought pursuant to MCR 6.502(G).
While MCR 6.502(G) generally prohibits more than one motion for relief from judgment, a defendant may file a successive motion if the defendant meets one of the two exceptions set forth in MCR 6.502(G)(2). The second exception is satisfied when the defendant’s claim is based on new evidence that was not discovered prior to the first motion for relief from judgment. A later rule in the same subchapter, MCR 6.508, describes when a defendant is actually entitled to relief on the claim, once the gateway requirement of MCR 6.502(G)(2) is satisfied.
Michigan Supreme Court determined that the Cress standards do not apply when analyzing a newly discovered claim
The Michigan Supreme Court determined the Court of Appeals erred in applying the standards in People v Cress, 468 Mich 678 (2003), to an analysis of a successive motion for relief from judgment filed pursuant to MCR 6.502(G)(2).
The Supreme Court held that Cress does not apply to the procedural threshold of MCR 6.502(G)(2), as the plain language of the court rule does not require that a defendant satisfy all elements of the test. The Court of Appeals erred in failing to give proper deference to the factual findings of the trial court that the defendant was entitled to a new trial.
The trial court determined that the the defendant provided “a claim of new evidence that was not discovered before the first” motion for relief from judgment, MCR 6.502(G)(2).
Specifically, the Supreme Court did not believe that MCR 6.502(G)(2) requires the analysis enunciated in People v Cress, 468 Mich 678; 664 NW2d 174 (2003).
Effectively, once the “procedural gateway” is met, the Defendant should be entitled to file another motion for relief from judgment. The Supreme Court held that the Court of Appeals wrongly adopted the four part Cress test into MCR 6.502(G)(2) analysis. Note that the rule only requires that that the evidence underlying the new issue was not discovered before the first motion for relief from judgment had been filed.
The plain language of MCR 6.502(G)(2) is very clear: the rule is satisfied when a defendant’s issues are based on evidence that was not discovered when the defendant filed the first motion for relief from judgment.
Instead of following the plain language of MCR 6.502(G)(2) the Court of Appeals wrongly included the Cress standard to require that a defendant show that the defendant “could not, using reasonable diligence, have discovered and produced the evidence at trial.” The Michigan Supreme Court held that a defendant filing a second motion for relief from judgment is not required to satisfy additional requirements above and beyond the showing that the evidence was “newly discovered.”
MCR 6.502(G)(2)’s plain language stating that “new evidence that was not discovered before the first such motion” is not compatible with the Cress requirements. Essentially, the error is this. The Court of Appeals wrongly used Cress to take the plain language of MCR 6.502(G)(2)“was not discovered” to change the standard into “could not have been discovered.” On that basis, the Court of Appeals had wrongly made it more difficult for defendants to file another 6.500 motion based on “newly discovered evidence.”
A plain reading of the text clearly shows that the phrases in MCR 6.502(G)(2) and and Cress have entirely two different meanings. When using a plain language analysis of statutory construction to determine the meaning of MCR 6.502(G)(2), the clear wording of MCR 6.502(G)(2) is clear and unambiguous. MCR 6.502(G)(2)’s requirement that newly discovered evidence “was not discovered” before the filing of the second motion does not impose the additional requirement of “could not have been discovered” as found in Cress.
In short, the Michigan Supreme Court made it easier for defendants to satisfy the standard of MCR 6.502(G)(2) and eliminated the difficult standard previously used by the Court of Appeals.
It is also important to note the the “actual innocence” standard does not mean that the defendant show “absolute certainty” about his or her guilt or innocence. A finding of actual innocence is not the equivalent of a finding of not guilty by a jury or by a court in a bench trial. The “actual innocence” standard can be met if there exists a significant and distinct possibility that the defendant was innocent of the charged offense.
As the preceding discussion shows, the procedural guidelines can be quite difficult to navigate. It would not be prudent for a defendant to file his or her own motion for relief from judgment when there is the possibility that procedural rules could cause the appeal to be dismissed. A defendant should consult an experienced appellate attorney to help navigate the process.
Jurisdictional defect explained
To bypass the “good cause” requirement a defendant can also argue that the prosecution did not possess the right to bring the case at all. Succinctly, a “jurisdictional defect” challenges whether the state had the authority to prosecute the defendant in the first place.
In addition to “Good Cause”(or a reason to excuse cause) the 6.500 Motion Must Always Show that the Defendant suffered”Prejudice”
Even if a defendant does not have to satisfy the “good cause” requirement discussed above, the defendant must always establish that he or she suffered a harm or – prejudice.
If the defendant had been convicted during a jury trial, a showing of prejudice requires that the Defendant establish that “but for” the error, the Defendant would have had a reasonable chance at acquittal/found not guilty.
A defendant can also establish prejudice if it can be shown that the error 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.” Mich. Ct. R. 6.508(D)(3)(6)(iii).
In a defendant plead guilty to a charge, the defendant must establish that the error is so grievous that the plea was not voluntary and knowing “to a degree that it would be manifestly unjust to allow the conviction to stand.” Mich. Ct. R. 6.508(D)(3)(6)(ii).
Habeas Corpus Considerations
“AEDPA” stands for the Anti-Terrorism and Effective Death Penalty Act. This Act requires that any issue presented to the federal court in a writ of habeas corpus must have been “preserved” in the state court by way of objection and argument based on constitutional law. If the issue had not been preserved, the Act does not allow the federal court to review the issue.
A defendant does not have to raise issues in the motion for relief from judgment that had already been raised in the first appeal. Those issues, if properly federalized, are considered preserved for habeas purposes. If a defendant does raise issues previously decided by the state appellate courts, those issues will be dismissed as a violation of MCR 6.508(D)(2). However, those issues will still be reviewed by the federal court.
The habeas rules, under AEDPA, can be quite complex, especially concerning filing deadlines. A defendant pursuing a motion for relief from judgment must note the timing deadlines and tolling of any such deadlines. For the most part, if you miss the federal habeas deadline you will not be able to get back into federal court.
The habeas clock can be stopped, tolled, if a defendant properly files a motion for relief from judgment. The federal court also has the authority to stay a habeas corpus petition if the petition contains issues that have been exhausted (presented to the state’s highest court) or unexhausted (yet to be raised in the state’s highest court).
If the court “stays” the habeas petition, the defendant would have the opportunity to present the “unexhausted” claims to the state’s highest court, that is, the Michigan Supreme Court. This means that issues that had not been preserved for federal review can be presented to the court so that the issues will be “exhausted” in the state court. After the MSC decides the issues, then the defendant can resume the habeas petition in the federal court.
What issues can be raised in a Motion for Relief from Judgment?
Any issue not raised in the original appeal can be raised in the motion. The issue is argued the same as if it were presented in an appellate brief to the Michigan Court of Appeals or Supreme Court.
Meet all deadlines
It is the defendant’s responsibility to meet all filing deadlines. The courts are not forgiving if the defendant failed to timely file a proper motion. Likewise, the federal courts are not forgiving when it comes to the 1 year habeas deadline. It is quite possible to miss the federal deadline without being aware of it.
No recognized right to counsel in a Motion for Relief from Judgment
A defendant is not entitled to counsel to help investigate, research, write, draft and file a motion for relief from judgment. Defendants must fight for their freedom alone. If the trial court grants argument on the motion, including an evidentiary hearing, the court must appoint counsel for the defendant. A defendant can always retain an attorney to represent him or her in the 6.500 motion. A defendant should not pursue a 6.500 motion without the assistance of experienced counsel.
As you can see in this article, a motion for relief from judgment can be quite complex as there are many procedural issues that must be taken into consideration. It is quite possible for a defendant to make a mistake and lose the last opportunity to have the courts review the defendant’s case. Once gone, absent extenuating circumstances, that chance cannot be recovered.
As noted above, a defendant is not entitled to the appointment of appellate counsel to perfect a motion for relief from judgment. Our office would advise defendants considering a motion for relief from judgment to contact an appellate attorney to represent them in the process. There are just too many procedural issues to overcome and a defendant cannot afford to make a mistake and risk having the motion dismissed by the court. A defendant with a last chance at challenging a conviction cannot afford to lose that chance because of a mistake. The chance for freedom could be over -unnecessarily.
At CZARNECKI & TAYLOR we will gladly answer any of your questions. Any consultation either on the phone or in person is absolutely free. We will properly advise you as to what options are available for post-conviction relief.
We have had success in getting our clients’ convictions reversed and new trials. We have also had sentences reduced when mistakes were made during sentencing.
No attorney can ethically guarantee you success in any given case. However, we can ethically guarantee you that we will give 100% towards your appeal and post-conviction relief. You will always be informed, in writing, so that you will know that everything that could be done for you has been done for you.
We take and prepare every case with the expectation that we will win. We have the appellate experience you need to effectively communicate the grounds for your motion for relief from judgment or appeal.
You can contact us 24-7/365 to discuss your case. If you are calling on behalf of a defendant we will help answer any questions you may have as well. We have chosen to exclusively practice criminal defense because we want to make sure that all defendants receive a fair hearing in court.
JAMES E. CZARNECKI II (586) 718-2345
GENEVEIVE L. TAYLOR (586) 350-6044