Satawa Law, PLLC. recently has won another Title IX hearing, as the office for title 9 and institutional equity at University in Western Michigan “unanimously determined that the preponderance of evidence does not support a finding that the responded engaged in sexual assault or sexual harassment.”Read More

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 Satawa Law, PLLC

Key Takeaways:

  • If you have been convicted of a Michigan sex crime, you have three basic ways to appeal: Direct Appeal, Post-Conviction Motions, and Federal Habeas Corpus Petitions.
  • Appeal cases are cases of law, not facts: the issue being litigated is not whether or not you did the crime, but whether or not the law was followed in convicting you of the crime.
  • Appeal cases are often made based on the following reasons: improper inclusion or exclusion of evidence; prosecutorial misconduct; insufficient or incompetent representation; and other errors of law that were made at trial.
  • Federal habeas petitions require what is called state exhaustion. That means you cannot bring a federal habeas until: (A) you raised that issue in state court; and (B) you brought that issue before both the Michigan Court of Appeals and the Michigan Supreme Court.

Yes, if you have been convicted of a sex crime in the State of Michigan, there are ways to appeal that conviction.

In Michigan, there are three basic avenues of appeal when it comes to any conviction a person is trying to overturn: direct appeal to the Michigan Court of Appeals, Post-Conviction Motions (or 6500 Motions), and Federal Habeas Corpus Petitions.

These avenues become even more essential in child sex cases than in your average sex crime case, because of the relatively high number of false accusations (and the ensuing higher-than-average number of false convictions) that occur in child sex crime cases.

After you are convicted of a sex crime at trial in Michigan, you have what’s called an automatic right to appeal, or Direct Appeal. This is the first round of appeals. It does not mean you will win your appeal. It simply means that the Court of Appeals has to at least hear your appeal.

The important thing to know about any appeal is that Appellate Courts are courts of law rather than courts of facts. For the most part, that means that on appeal you are stuck with the facts as they were presented at trial. So, when it comes to appeals cases, you are arguing that the law governing the arrest/investigation/trial wasn’t followed or applied properly, rather than challenging that the facts of the case were wrong, or that you are factually innocent.

Many clients get frustrated because they want to litigate the facts of their case on an appeal. However, most appellate courts aren’t actually supposed to do that, and for the most part, they don’t. The primary issues on appeal cases are going to be issues of law regarding your initial trial. Those issues will include things like:

  • Mistakes that the judge made in admitting evidence that should not have been admitted from the prosecution, or in not admitting evidence from the defense that should have been admitted, to be presented before the jury
  • Prosecutorial misconduct
  • Insufficient or incompetent representation (called “Ineffective Assistance of Counsel”)
  • Errors of law that were made at the trial.

There is an exception to this rule, however, where you can expand the record that the Court of Appeals will look at in very, very limited circumstances. This happens most frequently when a factual record needs to be made to support an appellate issue or argument, such as Ineffective Assistance of Counsel. To establish IAC, you need to present to the Appellate Court why the lawyer at trial was ineffective. In order to do that, you file either a Motion for New Trial in the Trial Court as part of your appeal, or you file what’s called a Motion for Remand in the Court of Appeals. A Motion for Remand asks the Court of Appeals to send the case back to the Trial Court, so that you and your legal counsel can make the arguments you want to make about the facts of the case.

In support of those two motions, you can file factual proffers, which simply means that you’re showing the Court the evidence and information that you could present if granted a new hearing. The Court of Appeals or the Trial Court will evaluate that evidence — not because they’re going to rule on it, but rather, to see if it would be enough to cause the Court to grant relief. So, that additional information in the factual proffer is only used by the Court in that instance: to determine whether or not you qualify for a hearing.

If you do manage to get the hearing ordered, and specifically if you manage to get a hearing in Trial Court ordered, the Trial Court will take testimony and allow you to present evidence on an issue.

Most commonly, people ask for this sort of hearing in relation to ineffective assistance of counsel. There are other issues that could be litigated this way, but most commonly, it is ineffective assistance of counsel where this occurs. In general, the issue of ineffective assistance is really the one significant exception to the overriding idea of the Court of Appeals —specifically, it is the exception to the rule that if something is not a part of the Trial Court record, you cannot argue it in front of the Court of Appeals.

For example, let’s say that during your hearing in Trial Court, there was an alibi witness that your lawyer could have called but failed to call. Let’s say after the trial, this alibi witness gave your lawyer an affidavit or statement that says that you were with him, in another state, 2,000 miles away, for the duration of the weekend on which you allegedly committed the crime with which you are being charged.

If that testimony was not presented at trial, it cannot be part of an appeal. So, you can’t present it after the Court of Appeals and say, “Look, if this testimony was presented at my trial, the jury wouldn’t have found me not guilty. This is an ironclad alibi”. However, you could file the affidavit in support of a claim of Ineffective Assistance of Counsel. In that instance, you would file the affidavit saying, “My lawyer was constitutionally ineffective for not presenting this alibi witness. Here is an affidavit from the alibi witness to show how good the alibi testimony would have been.” Then, either the Court of Appeals or the Trial Court can use that affidavit to decide whether decide failing to call that witness was ineffective assistance of counsel, and then weather that failure could have changed the result of your case.

Importantly, whichever Court decides on your claim—be it the Trial Court or the Court of Appeals, will not be deciding on whether that alibi witness would have led the jury to find you guilty or not guilty. Rather, their inquiry would be limited to the question of whether the affidavit by the alibi witness rises to the level of showing that your attorney was constitutionally ineffective at representing you, to the extent that they will allow a hearing on the constitutional effectiveness or ineffectiveness of the attorney in question.

This is a very frustrating element of the Court of Appeals for most clients during the Direct Appeal, that first round of appeals immediately after your conviction and sentencing. These appeals are—often frustratingly—limited to things that are on the record in front of the Trial Court. That first round of appeals—the Direct Appeal—goes on in the Michigan Court of Appeals. If you win in front of the Michigan Court of Appeals, you are granted whatever redress or relief the court sees fit.

If you lose in front of the Michigan Court of Appeals, you have the ability to file an Application for Leave to Appeal to the Michigan Supreme Court. This is simply an appeal asking the Michigan Supreme Court for permission to appeal. Notably, the Michigan Supreme Court does not grant permission to appeal before them very often. And, even if they grant that permission, it doesn’t mean you are automatically going to win the appeal. Rather, it just means that you have the right to file an appeal in front of the Michigan Supreme Court. That is what granting an Application for Leave to Appeal to the Michigan Supreme Court will get you: the ability to continue your appeal your case to the Michigan Supreme Court. That is typically where the Direct Appeal level of appeals ends.

The second stage or avenue of appeal is what’s called a Post-Conviction Motion. It is also called a collateral challenge to a conviction. In Michigan, post-conviction motions and collateral challenges to convictions are governed by a Court Rule: Michigan Court Rule MCR 6.500. For that reason, it is commonly referred to in Michigan as a 6500 Motion.

A 6500 Motion basically gives the defendant a second opportunity to challenge a conviction. It is a collateral motion, meaning that it is designed to take a look at things other than the issues that could have been found in a direct appeal, which — again — are usually limited to the issues that were part of the Trial Court record.

A 6500 Motion gives you a little bit more of an opportunity to go into some of the issues that were not part of the trial. For this reason, 6500 Motions are commonly used to present claims of ineffective assistance of counsel. It can also be used to present a claim of newly discovered evidence, or any other reason that the conviction was unlawful or illegal. 6500 Motions are filed in the Trial Court where the conviction took place.

So frequently, you will be filing your 6500 Motion in front of the same Judge that adjudicated over the trial that convicted you, and the same Judge that sentenced you. That is a source of frustration for many clients. By the time they have been convicted and sentenced, and then have lost their direct appeals, they tend to have an attitude that the Judge that was in charge of their trial is connected to what went wrong or is otherwise biased against them. Many clients want their appeal to be filed before a different Judge. Unfortunately, it’s very difficult to be able to file that 6500 Motion in front of any Judge other than the one that was assigned to the trial and sentencing.

If you lose a 6500 in front of your trial Judge, you are allowed to appeal that decision. It is important to note that this is not an appeal by right anymore – the appeal from the denial of a 6500 is an Application for Leave to Appeal to the Michigan Court of Appeals, which means you are asking the Michigan Court of Appeals for permission to hear an appeal on a denial of a 6500 Motion.

Then, if the Court of Appeals grants leave (or permission) to appeal, and they deny the appeal, you can file an Application for Leave to Appeal to the Michigan Supreme Court, which, is asking the Michigan Supreme Court for permission to hear the appeal of your 6500. If you lose before the Michigan Supreme Court, that is the point at which your 6500 appeal ends.

The third avenue you can take to appeal a Michigan criminal conviction is called a Federal Habeas Corpus Petition. Importantly, Federal Habeas Corpus Petitions are not open to every client, because there are very important, very strict, and very short time limitations involved, as well as procedural barriers.

Federal Habeas Corpus Petitions are also known as 2254 Petitions, because that is the section number in the United States Criminal Code that governs a filing of a habeas petition challenging a state criminal court conviction and sentence. If you’re being held in jail or prison on a case where one of those rights has been violated, a Federal Judge can issue a writ and order you to be released because the state conviction violates federal constitutional principles.

In essence, a Federal Habeas Corpus is a quasi-civil action filed in Federal Court by a state prisoner, alleging that his continued detention or custody is in violation of some federal constitutional right. Again, there are some very, very strict procedural bars to filing a 2254 Petition.

Federal habeas petitions require what is called state exhaustion. That means you cannot bring a federal habeas until: (A) you raised that issue in state court; and (B) you brought that issue before both the Michigan Court of Appeals and the Michigan Supreme Court.

If a defendant is presenting the issue to a Federal Court for the first time, without ever having attempted to present it to a State Court, the Federal Court will not hear it. It will be procedurally defaulted, because the Federal Court will say that the prisoner-defendant has not given the Michigan Courts an opportunity to litigate the claim. They will not hear an issue unless it has been thoroughly litigated in State Court.

The other barrier is time. From the time you lose your direct appeal in front of the Michigan Supreme Court, you have one year plus a 90-day grace period (so, in effect, one year and 90 days, or a year and three months) to file a habeas petition to the United States Supreme Court. If you take more time than that to file a 6500 or a federal habeas petition, you will be forever barred from going to Federal Court on your issue, because the time limit will have lapsed. The laws surrounding this strict time limit are found in the 1996 Anti-Terrorism and effective Death Penalty Act, which is a federal statute sometimes referred to by the acronym “AEDPA”. It presents these very, very strict procedural rules, including the timing rules that affect federal habeas filings.

If you file your habeas petition on-time, within one year plus 90 days from the denial of your Michigan State Court appeal, and you have you given the State Court the full opportunity to decide the issue, the next barrier is the subject matter of the issue at hand. Your habeas petition must have to do with an issue that affects federal constitutional principles — most commonly the Fifth Amendment, the Sixth Amendment, and the 14th Amendment, which ensure things like the right to due process of law, the right to confront witnesses, the right to effective assistance of counsel, and the right to present a defense.

Federal habeas cases are becoming increasingly difficult to win – not just because of the procedural and timing issues that are put in your way, but also because federal judges, in general, are becoming more and more conservative and less and less likely to interfere in a state conviction. Granting a habeas petition is a federal judge essentially saying, “This violates federal constitutional law”, and releasing a state criminal defendant by declaring his state conviction to be unlawful or unconstitutional. Unfortunately, it’s becoming less and less likely for that to happen.

For more information on Child Sex Abuse Law in Michigan, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.

Mark Satawa

Call Today For Your Free Case Strategy Session
(248) 509-0056