Riemersma v. Jones

3 F. App'x 463
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 7, 2001
DocketNo. 99-1833
StatusPublished
Cited by1 cases

This text of 3 F. App'x 463 (Riemersma v. Jones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riemersma v. Jones, 3 F. App'x 463 (6th Cir. 2001).

Opinion

GIBSON, Circuit Judge.

Rodger Riemersma appeals from the district court’s judgment and order denying his petition for habeas corpus filed under 28 U.S.C. § 2254 (1994 & Supp. IV 1998). In his petition, Riemersma alleged he was denied the right to appeal an assault conviction and his appellate counsel was ineffective. The district court held that Riemersma was procedurally barred from raising the issues because a Michigan state court had appropriately rejected these claims pursuant to Mich. Ct. R. 6.502(G)(1), which requires trial courts to return, without filing, certain successive motions for relief from judgment. On appeal, Riemersma argues that the state procedural bar is inapplicable because Mich. Ct. R. 6.502(G)(1) was enacted in 1995, two years after he filed his earlier motion requesting relief from judgment for the assault conviction. We are persuaded that this rule was not “firmly established” when it was applied to Riemersma’s motion, and so we reverse and remand to the district court for further consideration of his petition.

On July 24, 1986, following a trial on consolidated charges, a jury convicted Riemersma of related drug and theft offenses and of being a habitual offender. These charges were filed under three separate docket numbers in the trial court: 86-12184, 86-12185, and 86-12195. In a separate trial held on August 26, 1986, a jury convicted Riemersma of assault of a jail employee for throwing a cup of liquid on a deputy, an incident which occurred while Riemersma was being held in a segregation cell pending trial on the consolidated charges. The assault case, which forms the basis of Riemersma’s habeas petition, was docketed as number 86-12270.

Riemersma was sentenced on September 2, 1986 on all of these charges, and all four docket numbers were recited in the record. Riemersma was sentenced to several concurrent terms for the earlier convictions, the lengthiest being fifteen to thirty years of imprisonment. For the assault conviction, he was sentenced to a one-to four-year term, to run consecutively to his other sentences.

On direct appeal, Riemersma raised several issues related to his July 24, 1986 convictions. People v. Riemersma, No. [465]*46597035 (Mich.Ct.App. Oct. 31, 1988) (per curiam). Although Riemersma did not allege error in the assault trial, his notice of appeal included all four docket numbers. The Michigan Court of Appeals stated in its opinion affirming his July 24, 1986 convictions, however, that the assault conviction was “a matter not at issue in [Riemersma’s] appeal.” Slip op. at 1.

In July 1993, Riemersma moved for relief from judgment pursuant to Mich. Ct. R. 6.502, alleging errors related to his theft and habitual offender convictions. Again, the docket number for his assault conviction was listed on the motion even though Riemersma did not make any arguments related to that case. The trial court denied the motion on August 31, 1993. The Michigan Court of Appeals and Michigan Supreme Court denied Riemersma leave to appeal.

In 1995, the Michigan Supreme Court amended Mich. Ct. R. 6.502. The amendment bars defendants from filing more than one motion for relief from judgment with regard to a conviction except for motions based on retroactive changes in the law or newly discovered evidence, and it requires courts to return, without filing, any successive motions made after the rule’s August 1, 1995 effective date. See Mich. Ct. R. 6.502(G)(1) & (2). Before this amendment was promulgated, Mich. Ct. R. 6.502 placed no limit on the number of successive motions for relief from judgment a defendant could file.

In 1997, Riemersma attempted to file another motion for relief from judgment, this time attacking his assault conviction.1 He argued that he was denied an appeal of his assault conviction and that his appellate counsel was ineffective. Pursuant to the amended court rule, the trial judge directed the court clerk to refuse to file this motion. In a letter dated March 12, 1997, the trial judge responded to Riemersma’s letter inquiring why the clerk’s office had rejected his latest motion:

You will note that your “motion for relief from judgment” includes file number 86-12270-FH [the assault case docket number] as does my August 31, 1993, Opinion as does the Court of Appeals and Supreme Court Orders denying leave for appeal.
These documents were and continue to be the basis for my direction to the Clerk to return your most recent “motion for relief from judgment” pursuant to MCR 5.502(G)(1) [sic].

Riemersma sought leave to appeal the trial court’s refusal to file his motion. The Michigan Court of Appeals dismissed for lack of jurisdiction, concluding that the trial court’s letter was not an appealable order or judgment. People v. Riemersma, No. 202331 (Mich.Ct.App. Sept. 18, 1997).

Riemersma then filed the instant petition for writ of habeas corpus, arguing his constitutional rights were denied when “a clerical error” denied him the right to appeal or, alternatively, that his counsel was ineffective for overlooking the consolidation of the various convictions and for failing to file a brief with respect to the assault conviction.

Without addressing the merits of Riemersma’s petition, the district court concluded that it was procedurally barred. Riemersma v. Jones, No. 97-CV-75260-DT (E.D. Mich. June 18, 1999). The court held that the state courts’ decisions were [466]*466based on a purely procedural state law ground, that Riemersma failed to raise the two issues contained in his petition in his first state-court motion for relief from judgment, and that he had not shown good cause for failing to do so.

On appeal, Riemersma contends that the district court erred in determining that his habeas petition was procedurally barred because Mich. Ct. R. 6.502(G)(1) was not firmly established at the time it was applied to him.2

We review de novo whether a state court’s decision not to consider Riemersma’s request for relief, based on a state procedural rule, is an adequate and independent state ground precluding federal habeas corpus jurisdiction. Luberda v. Trippett, 211 F.3d 1004, 1006 (6th Cir. 2000),

With a few exceptions, federal courts lack jurisdiction over habeas corpus petitions that raise claims previously denied by a state court on procedural grounds if the procedural bar was “firmly established and regularly followed by the time as of which it [was] applied.” Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). “The critical inquiry in assessing how ‘firmly’ a state procedural rule has been established is whether, viewed from the time of a defendant’s later-significant actions or inaction, the defendant could be deemed to have been apprised of the procedural rule’s exisfence.” Luberda, 211 F.3d at 1006-07 (internal citations and quotations omitted). Compare Rogers v. Howes, 144 F.3d 990

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Bluebook (online)
3 F. App'x 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riemersma-v-jones-ca6-2001.