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The following forms are available on the Michigan Supreme Court Web site. You may

click on the motions below to retrieve the form.

1. Motion for Relief From Judgement (c

c257).

2. Petition and Order for court Appointed Attorney (mc222).
http://courts.michigan.gov/scao/courtforms/felonycriminal/cc257a.pdfhttp://courts.michigan.gov/scao/courtforms/felonycriminal/cc257a.pdfhttp://courts.michigan.gov/scao/courtforms/felonycriminal/cc257a.pdfhttp://courts.michigan.gov/scao/courtforms/felonycriminal/cc257a.pdfhttp://courts.michigan.gov/scao/courtforms/felonycriminal/cc257a.pdfhttp://courts.michigan.gov/scao/courtforms/generalcriminal/mc222.pdfhttp://courts.michigan.gov/scao/courtforms/generalcriminal/mc222.pdfhttp://courts.michigan.gov/scao/courtforms/generalcriminal/mc222.pdfhttp://courts.michigan.gov/scao/courtforms/felonycriminal/cc257a.pdfhttp://courts.michigan.gov/scao/courtforms/generalcriminal/mc222.pdf

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How to Seek Judicial Review MAACS 1998

HOW TO SEEK JUDICIAL REVIEW OF YOURFELONY CONVICTION AND SENTENCE

This pamphlet is addressed to indigent Michigan prisoners, thatis, those of you who cannot afford to hire your own lawyers. Itexplains your rights to appeal your felony convic-tion andsentence, and to seek other forms of judicial review.

Beginning with the initial appeal, several different ways to get a

court to consider your case may be available, depending onyour situation. The rules that control various court actions arecomplicated. This pamphlet will not explain all these rules indetail or teach you how to file any particular type of document.But it will help you understand in a general way when eachmethod of review may be used and which ones may beavailable to you. It provides basic information about suchmatters as the right to have counsel appointed and timingdeadlines. And it tells you where additional help can be found.

Before turning to the specific types of procedures, there issome background information you should understand.

BACKGROUND

What is Law? The law appears in many forms. The mostbasic source of law is a constitution, which establishes thepowers of a government and defines the rights of individualcitizens. The legislature makes laws by enacting statutes.These laws cannot conflict with the constitution. Governmentagencies, like the Department of Corrections, make law byissuing administrative rules. Such rules cannot conflict with aconstitution or a statute.

Courts also make law in two ways. They issue rules thatgovern the steps to be followed in all kinds of courtproceedings. And they write opinions that say how

constitutional provisions, statutes and rules fit the facts ofindividual cases. These judicial opinions become law whenthey are used as controlling guidelines, or precedent, that mustbe followed by other courts.

Michigan Courts. In Michigan there are four levels of courtsthat process criminal cases. The lowest level is the districtcourt. It tries misdemeanor charges. It also takes the firststeps on a felony charge. This includes holding a hearing,called a preliminary examination, to determine if there is

enough evidence to hold the defendant for trial. If the districtcourt finds there is probable cause to believe the defendantcommitted the charged offense (or some lesser or similaroffense), the defendant is bound over to stand trial in the nexthighest court.

The trial court is usually the circuit court for a single county orgroup of counties. (For crimes committed in the City of Detroit,the trial court for felonies used to be Recorders Court. Nowthe Wayne County Circuit Court handles all cases arising inWayne County.) The trial court may accept the defendantsplea of guilty or no contest and impose a sentence. If thedefendant wants to fight the charge, there must be a trial atwhich the prosecution and defense each get to present theirversion of the facts. The defendant has an absolute right tohave a jury hear the evidence and decide the case. However,the defendant may prefer to have the judge act as thefactfinder. When a judge hears a case without a jury, it iscalled a bench trial (because the judge on the bench isdeciding the facts) or a waiver trial (because the defendantwaived the jury).

Whether the defendant is convicted by plea or trial, the nextstep is for the probation officer to prepare a presentence reportand calculate the sentencing guidelines. The trial court thenimposes sentence.

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The next highest court is the Michigan Court of Appeals. It isbased in Lansing and has district offices in Detroit, Southfieldand Grand Rapids. The Court of Appeals does not try the caseall over again and decide whether the defendant is guilty orinnocent. It does not take testimony from witnesses itself anddoes not decide which witnesses the factfinder at trial shouldhave believed. It generally assumes that the jury or judge whoactually saw and heard the witnesses in person was in thebest position to decide who was "credible" (honest).

The Court of Appeals reviews the written record of the trialcourt proceedings to make sure no serious mistakes weremade. Information that is not in the written record will not getconsidered by the Court of Appeals. That is why, as part of theappeal, it is sometimes necessary to hold an evidentiaryhearing (a proceeding at which testi-mony is taken fromwitnesses) in order to show that the facts to support an issuereally exist.

Although there are 28 judges on the Court of Appeals,decisions are made by three-judge panels. The decisions mayappear in long written opinions full of analysis and citations tolaw, in very short orders with little explanation, and in manyforms in-between. The decisions may be published in theCourt of Appeals Reports for use in future cases or they maybe unpublished and distributed just to the parties.

The Court of Appeals can order various outcomes. Most oftenit affirms the conviction and sentence. That is, it finds no errorand upholds the result in the trial court. At the other extreme,the Court can reverse the conviction and the sentence will beoverturned as well. In such cases, the law usually permits thedefendant to be retried. Whether the prosecutor actually doesretry a case generally depends on the seriousness of thecharge, the age of the case, how much of the sentence thedefendant has already served, and how difficult it would be tocollect the witnesses and evidence again. In a very few

situations, such as when the Court of Appeals finds theevidence was insufficient to support the conviction or theprohibition against double jeopardy was violated, the defendantcannot be retried and must be discharged.

In between these extremes there are other forms of relief theCourt of Appeals can grant. It can affirm the conviction butremand (send the case back to the trial court) for aresentencing. It can reduce the conviction to a lower offense,from armed robbery to unarmed robbery, for instance, if the

error only affected the higher charge. And it can remand thecase for the trial court to take some action that may or may notultimately lead to relief, such as holding an evidentiary hearingon some issue or correcting information in a pre-sentencereport. The kind of relief granted depends on the error to becorrected.

The Michigan Supreme Court is the highest court in the statesystem. It is composed of seven Justices who make alldecisions as a group. All Supreme Court decisions, whethermade in a lengthy opinion or a brief order, are published in theMichigan Reports. The defendant who loses in the Court of

Appeals can try to persuade the Supreme Court to considerthe case by filing an application for leave to appeal. Of course,if the defendant wins in the Court of Appeals, the prosecutioncan file its own application for leave.

The Supreme Court receives several thousand applications ayear. From these it selects a few hundred cases that it wantsto review. In all the others, it simply issues an order saying thatleave to appeal is denied. Generally the Supreme Court hearscases that raise important legal questions. It will not reviewevery case where the Court of Appeals might have made amistake. However, the Supreme Court has enormous powerand can take whatever action it feels is appropriate if it believesa serious injustice has occurred. In addition to ordering all thekinds of outcomes the Court of Appeals can order, the

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Supreme Court can send the case back to the Court ofAppeals for reconsideration.

The Federal System. There are actually 51 governments with51 court systems and 51 sets of laws in America. There isfederal law, which is the law of the United States government.

And there are the laws of the 50 individual state governments.Federal law is superior to state law. Therefore no state canmake a law that conflicts with the federal constitution or afederal statute.

A federal crime is conduct that violates a statute passed byCongress. Federal crimes are prosecuted by the U.S. Attor-neys office and tried in the federal courts. State crimes areprosecuted by the prosecutors office in the county where thecrime was committed and are tried in the state courts.

Some conduct violates both state and federal laws. For in-stance, kidnapping someone in Detroit and taking them toToledo would violate Michigans law against kidnapping and thefederal law against carrying a kidnap victim across state lines.Usually, when a crime violates both state and federal law, thedefendant will be prosecuted by whichever authorityinvestigated the case and made the arrest. In certainsituations, the defendant can be prosecuted for the sameconduct by both authorities and made to serve both state andfederal prison terms!

The state and federal court systems are set up in very similarways. They are like trains running on parallel tracks that makestops at similar places. Charges are brought in the trial court.

A defendant who is convicted may appeal to the next highestcourt, which is usually called the Court of Appeals. Thedefendant who is not satisfied with the results of this appealmay ask to have the case reviewed by the Supreme Court.

Defendants who are charged in federal court can never switchtracks and have their cases reviewed in a state court.However, because federal law is superior to state law, statecourt defendants can seek review of their convictions in federalcourt if there is reason to believe errors in the stateproceedings violated the U.S. Constitution or a federal statute.That is, some defendants on the state track can switch theircases to the federal track, but only after they have reached theend of the line in state court. The most common procedure forseeking federal court review of a state criminal conviction is

called a petition for habeas corpus.

Raising Errors on Appeal. Our legal system rests on theassumption that the best way to get just and reliable results isto use fair methods. When a court reviews a case afterconviction, its main concern is whether serious errors oc-curred that may have affected the outcome. Such error mightarise at any point in the proceedings, but certain categories oferror are most common. These include the use of evidencethat was improperly obtained or violates the rules of evidence,failure to provide the defendant with adequate discovery(advance information about the prosecutors case), impropercomments by the prosecutor to the jury, unfair judicialdecisions about such matters as the timing and location of thetrial, wrong statements of the law during jury instructions, andfailures by defense counsel to represent the defendantadequately.

Many judicial decisions note that a defendant is entitled to a fairtrial, not a perfect one. Minor mistakes that could not havemade any practical difference in the conviction or sentence donot make good grounds for appeal. To be persuasive, issueson appeal must point out not only why an action was wrong,but how it prejudiced (harmed) the defendant. For instance, atrial judge might mistakenly admit some testimony that shouldhave been excluded under the rules of evidence. If thetestimony was about an important point and might have

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influenced the jurys decision, the Court of Appeals might bepersuaded to reverse the conviction and grant the defendant anew trial. But if the testimony was about some unimportantpoint that the jury could not have used to convict the defendant(or if there was lots of other good evidence about the samepoint), the Court of Appeals will consider the error to have beenharmless.

While every convicted defendant has a right to seek appellatereview, there is no right to have reversible error. Imagine how

bad our trial courts would be if even half of all criminal caseshad such serious errors that the convictions had to bereversed! The fact is, the vast majority of defendants accepttheir convictions and sentences and do not even try to appeal.Even among defendants who fought their cases at jury trials,only about half choose to appeal. Among defendants who pledguilty, less than 10% appeal. Whether people appeal tends todepend on whether they feel they are guilty, the length of theirsentences, and how strongly they believe that seriousmistakes were made. Of those who do seek some form of

judicial review, roughly 15% are successful.

Trials. The longer and more complex the proceedings were inthe trial court, the more likely it is that error might haveoccurred. In a jury trial, there are a lot of points - from the juryselection through the courts instructions to the jury - where

things might be said that could unfairly prejudice the defendant.It is much harder to find reversible error in a bench trial for tworeasons. First, the proceedings are less complicated socertain kinds of errors can never occur. For instance, there isno jury selection process and there are no jury instructions.Second, the Court of Appeals assumes that a trial judge whoacts as the factfinder is not as easily influenced by mistakes asa jury and so it is more likely to find that errors which did occurwere harmless.Pleas. The least complicated and most common way for theprosecution to obtain a conviction is by a plea of guilty or nolo

contendere (no contest). When a defendant pleads guilty, heor she waives (gives up) the right even to raise certain issueson appeal. Issues that have to do with the nature of theevidence available to show guilt are no longer relevant becausethe prosecution no longer has to prove the defendants guilt the defendant has admitted it! Thus, for instance, whetherevidence was seized illegally or a confession should beadmitted cannot be argued on appeal from a guilty plea. Theonly exception to the plea waiver doctrine is a conditional plea.That is, if the parties and the trial judge all agree, the

defendants right to appeal an issue like whether evidenceshould have been suppressed may be made a condition of theplea agreement.

Two kinds of issues can be raised to try to overturn a plea-based conviction. First are those that affect the validity of theplea itself. It might be, for instance, that you were not given allthe advice required at the plea proceeding, or did notunderstand the consequences of the plea, or that the pleaagreement was not kept. If proven, such claims might lead areviewing court to let you withdraw your plea.

You must understand that withdrawing your plea puts thecase right back where it started. Any plea agreement thatwas negotiated no longer binds the prosecution. Charges thatwere dismissed can be brought back. (By comparison, anycharge of which a jury has found you not guilty cannot bebrought back at a retrial.) Deals about the sentence to beimposed are gone. That is why most defendants who actuallygot real benefit from a plea bargain do not try to overturn theirconvictions, although they may seek review of their sentences.On the other hand, if you pled guilty as charged, had a bargainthat was not really meaningful, or your bargain was broken, youwould not have anything to lose by appealing.

The other kind of error that can be raised in a plea appeal isone that concerns the states authority to proceed against you

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regardless of how much evidence there is. Examples includedouble jeopardy violations, prosecution under an unconsti-tutional statute, proceeding against a defendant who isincompetent to stand trial, and entrapment, if the claim wasraised before the plea was entered. While such errors are notcommon, if the appeal is successful the charges must bedismissed.

Sentences. Whether you pled guilty or went to trial, andwhether or not you seek to overturn the conviction, it may be

possible to appeal the sentence. Broadly speaking, there aretwo kinds of claims that can be raised about a sentence. Oneis that some error occurred in the sentencing process. Thismay be anything from misinformation in the presentence reportto miscalculation of the sentencing guidelines to a failure tosentence in accord with the terms of a plea bargain.

The other kind of claim is that, under the circumstances, thesentence is just too harsh. This kind of claim is often called aMilbourn issue because the principle that sentences must beproportionate to the offense and the offender was establishedin a Michigan Supreme Court case called People v Milbourn.The Court of Appeals will consider the sentencing guidelinesrange and any plea bargain regarding the sentence. It isvirtually impossible to get a sentence changed if it was theexact sentence you bargained for, unless you can prove that

you were badly deceived about what the bargain actuallymeant. It is also very difficult to get a sentence reduced underMilbourn if it falls within a correctly scored sentencingguidelines range.

There are several situations in which a sentence can beincreased. One is if you withdraw a guilty plea based on asentence bargain and go to trial. Another is if you win a retrialbut are sentenced by a different judge. Since the new judgewas not the one who got reversed on appeal, there is noreason to presume he or she is increasing the sentence for

spite. As long as the new judge's sentence can be justified onits own, it may be higher or lower than the original sentence.

Finally, even the original sentencing judge can impose a highersentence if he or she possesses new information. That could,for instance, be details about the offense that did not come outthe first time around. Or it could be about conduct thatoccurred after the first sentencing. Such conduct wouldinclude new convictions and tickets for prison misconduct. Ifyou are hoping to get a resentencing, you must try to

avoid tickets and you must promptly advise your lawyerabout any you do receive.

NOTE: The guidelines state the range within which theminimum sentence must fall unless the trial judge states agood reason for going outside the guidelines. They do not setthe maximum sentence. Thus, for instance, if the guidelinesscore for an unarmed robbery sentence is 3-6 years, theminimum could be as little as 3 years or as much as 6 yearsand the maximum would still be 15 years as set by statute.

THE INITIAL APPEAL

Of Right or By Leave? Everyone convicted of a felonyhas a right to appeal the conviction, but not everyone has an

appeal of right. This is a confusing distinction, but animportant one. When the appeal is of right, the Court ofAppeals has to make a decision on the merits. That is, it mustconsider all the issues raised and decide whether each onewarrants relief. It does not necessarily have to address all theissues in its opinion, but it does have to consider all of them.

An appeal by leave is one that can only be taken with theCourts permission. The defendant must try to persuade theCourt in an application for leave that the case is even worthconsidering. If the Court grants leave, it will treat the case as ifit were an appeal of right and will decide the issues on the

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merits. If the Court decides not to hear the case, it can issue aone line order denying leave that does not discuss any of theissues.

In one sense the distinction between an appeal of right and anappeal by leave appears to be a fine one. After all, the Courtmust review the issues raised in the application in order todecide whether to grant leave. If serious mistakes have beenmade, the defendant still has the opportunity to bring them tothe Courts attention. And, on the other hand, even when

serious issues are raised in appeals of right the Court does notalways discuss them in detail in its opinions.

Nonetheless, the critical difference between an appeal of rightand an appeal by leave is that the Court does not actually haveto decide the issues when presented in an application forleave. It can choose, for whatever reason it wishes, not to dealwith an issue and it does not have to provide any ex-planation.

All the defendant can do at that point is appeal (by leave) to theSupreme Court and try to persuade it to either decide the caseon the merits or to order the Court of Appeals to do so.

Appeals of Right. Anyone convicted of a felony at either a jurytrial or a bench trial is entitled to appeal of right so long ascertain deadlines are met. Defendants who pled guilty tooffenses committed before December 28, 1994 also hadappeals of right. If you have retained counsel, or are pro-ceeding without counsel, a claim of appeal must be filed within42 days of the date on the judgment of sentence. If you areindigent and want to have counsel appointed, you must submita request for counsel to the trial court within 42 days ofsentencing. Returning the request form (or a letter with thesame information) on time is critical. If it is received after the42nd day, the appeal will have to be by leave.

A trial court order appointing counsel for an appeal of right alsoserves two other functions. A copy is sent to the court reporter

with directions to begin preparing the trial and sentencingtranscripts. And a copy which serves as the claim of appeal issent to the Court of Appeals. Based on this claim, the Court of

Appeals opens a file and gives the case a docket number.

The Court of Appeals tracks on its computer whether deadlinesare being met. When the conviction resulted from a trial, thecourt reporter has 91 days to file the transcript (compared to28 days if the conviction was by plea). If the trial was very long,the reporter may be able to get this time extended. Once the

transcript has been filed, your attorney has 56 days to file abrief on appeal raising your claims of error. This time may beextended by 28 days if the prosecutor stipulates (agrees) to theextension. Any more extensions can only be granted by theCourt. If an appointed attorney is very late meeting deadlines,the Court of Appeals may direct that substitute (new) counselbe appointed.

Once a claim of appeal is filed, jurisdiction (control) of the caseis in the Court of Appeals. The trial court can no longer makeany decisions about it unless a court rule or Court of Appealsorder specifically gives the trial court the authority to act. Forexample, there are rules that say decisions about appointingcounsel or granting bond pending appeal must always bemade first in the trial court, even if the case is in the Court of

Appeals.

There is also a rule saying that for the first 56 days after thetranscripts are filed, you may go back into the trial court tomake a record needed to raise an issue on appeal. Forexample, you might need to take testimony about theeffectiveness of trial counsels representation or thevoluntariness of a guilty plea. After those 56 days, you can onlygo back and make a trial court record if the Court of Appealsgrants a motion to remand (a request to send the case back).

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After your brief is filed, the prosecution is entitled to file a replybrief arguing why relief should not be granted. Once the Courtgets to it, the case is submitted to a panel of three judges fordecision. If your brief was filed on time, your lawyer may get toargue the case in person, although the panel can decide thatoral arguments are not needed. If your brief was filed late, theright to oral argument is lost but can frequently be gotten backby filing a motion. (Oral arguments may be helpful, but filing anadequate brief - even if it takes a little extra time - is moreimportant.)

Depending on how backlogged the Court of Appeals is, thetime from filing the brief to receiving a decision can be manymonths. This is not something your lawyer can control. Oncethe brief is filed, there may be no news to report for quite awhile.

Appeals by Leave. Indigent defendants convicted at a trialwho did not ask for appointed counsel within 42 days of theirsentencing lose their appeal of right. They may still appeal byleave. Defendants who pled guilty or no contest to crimescommitted after December 27, 1994, whether they are indigentor not, can only appeal by leave. Appeals of right in plea caseswere eliminated when voters amended the MichiganConstitution in November, 1994. In either situation, if the Courtof Appeals decides to grant leave, it will review the case on themerits as if the appeal was of right. However, if the Courtdenies leave, it will usually just issue a one sentence order.

With some very limited exceptions, an application for leave toappeal must be filed within 12 months of the sentencing date.

After that, the defendant cannot go directly to the Court ofAppeals. If the deadline for filing an application for leave toappeal is missed, the defendant can only seek judicial reviewby filing a motion for relief from judgment (described below) inthe trial court.

The Right to Counsel. At sentencing, the court explainedyour right to appeal and gave you a form. The top of the formis a notice that repeats the information about how to requestappointed counsel for an appeal. You signed this part of theform and returned a copy to the court. That copy stays in thecourt file to prove you were given the right advice.

You were also given a copy of the form. The bottom half of thefront page is the actual request to have counsel appointed.The back page is a financial schedule. You must sign and date

the request portion and complete the financial information andreturn the form to the trial court in order to have counselappointed. Just signing the notice of rights in thecourtroom will not start an appeal or result in havingcounsel assigned. If you return the form within the deadlinesdescribed below and the trial court determines that you arereally indigent, it should appoint an appellate attorney.

The Michigan Court Rules (MCR 6.425 (F)(1)) say that if anindigent defendant who was convicted at a trial requestsappellate counsel within 42 days after sentencing, counselmust be appointed. If the request is received after 42 days butwithin the 12 month period for filing an application for leave, therequest should be liberally granted. (Once the 12 monthshave passed and there is no longer a right even to file anapplication for leave to appeal, there is also no longer any rightto appointed counsel.) A Michigan Court of Appeals opinioncalled People v Cottrell held that liberally grant means thatsuch late requests should be granted in all but the mostexceptional cases. Therefore, even if a defendant con-victedat a trial waits 11 months after sentencing to request a lawyerfor an appeal, one will probably be appointed.

Nonetheless, it is always best to request counsel as soon aspossible for several reasons. First, if the request is timely, theappeal will be by right instead of by leave. Second, really lastminute requests might not be received by the trial court in time

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to meet the 12 month deadline. Third, the later in the 12 monthperiod a lawyer is appointed, the less time he or she will haveto prepare the case. And, finally, any delay in requestingcounsel just slows up the appeal and delays your getting anyrelief to which you might be entitled.

The same court rule sets a different standard for the appoint-ment of counsel when the conviction was by plea of guilty or nocontest. In plea cases, if the defendants request for appellatecounsel is received by the trial court within 42 days of

sentencing, the request should be liberally granted. If therequest is received after 42 days, there is no provision forappointing counsel at all. Thus, a late request for counsel in aplea case will virtually always be denied. The defendant willstill be entitled to file an application for leave to appeal in theCourt of Appeals, but he or she will have to proceed without alawyer unless one is somehow retained.

NOTE: There is some controversy about whether defendantswho plead should have any right to counsel for appeal. Some

judges are refusing to appoint lawyers in plea cases evenwhen petitions were filed within 42 days. As noted below,people who have had timely requests for appellate counseldenied in plea cases may write to MAACS for help. Enclose acopy of the trial court's order or letter of denial.

If a request for counsel is granted in a leave case, the orderappointing counsel will be a little different than when the appealis of right. It will order the court reporter to prepare the basictranscripts, but it will not be sent to the Court of Appeals Nocase file will be opened there unless and until an application forleave is filed. This means that your lawyer must keep veryclose track of time so that the 12 month deadline for filing anapplication does not pass without action. On the other hand,the fact that the Court of Appeals has not opened a case filemeans that your lawyer can go directly into the trial court to filea motion or hold a hearing, if necessary.

About 75% of assigned appeals are handled by privateattorneys; about 25% go to the State Appellate Defender Office(SADO). When a trial court appoints appellate counsel, it mustchoose the attorney from a list provided to it by the Michigan

Appellate Assigned Counsel System (MAACS). MAACS is astate agency that maintains a roster of all the lawyers who arewilling and eligible to handle assigned criminal appeals.MAACS trains these lawyers and classifies them at one ofthree eligibility levels, depending on their qualifications. Cases

are also classified as Level 1, 2 or 3 depending on theirseriousness and complexity.

MAACS supplies a list of available roster attorneys to each trialcourt. In selecting a lawyer from this list for a particular case,the court must follow regulations approved by the SupremeCourt. Every fifth case is assigned to SADO. Copies of theorder appointing counsel are sent to the defendant, the attorneybeing appointed, and MAACS. If more than 6 weeks havepassed since you submitted your counsel request and youhave had no response from the court, you should write toMAACS for assistance. (See address list at page 37.)

Sometimes trial judges deny timely requests for counselbecause they believe the defendant is not really indigent.Sometimes they deny untimely requests that should have been

liberally granted. And sometimes they deny timely requestsbecause the defendant pled guilty. These decisions to denythe appointment of counsel can themselves be appealed to theCourt of Appeals by leave. However, indigent prisoners whoneed to have counsel appointed because they cant representthemselves are obviously going to have difficulty representingthemselves on appeal of the decision not to appoint themcounsel! MAACS has available fill-in-the-blanks typeapplications for leave to appeal that prisoners can use toappeal these three types of denials. MAACS cannot help

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someone obtain counsel who has let the deadline pass withoutmaking any request.

MAACS also enforces the Minimum Standards for IndigentCriminal Appellate Defense Services, a set of 20 guidelinesapproved by the Michigan Supreme Court. Lawyers assignedto represent indigent defendants on appeal must try to meetthese standards. Lawyers who repeatedly commit substantialviolations of the Standards may be stopped from getting moreassigned appeals. Defendants who believe their assigned

counsel are violating the Standards may write to MAACS.Complaints must explain the problem clearly and provide asmuch relevant factual information as possible. It is alsoimportant to have realistic expectations. Appointed attorneysare very poorly paid. They cannot afford to provide servicesnot covered by their orders of appointment, to accept a lot ofcollect calls, or to answer a steady stream of lengthy letters.

NOTE: MAACS has no authority to process complaints abouttrial attorneys, lawyers assigned in civil cases, retainedcounsel, SADO, or the DOC.

SUMMARY OF STEPS FOR REQUESTING COUNSEL ONINITIAL APPEAL

Complete request for counsel form, including the financialschedule on the back. Be sure to sign and date it.

If you no longer have the form, just write a letter to the trialcourt.

Be sure to sign and date the letter.

State clearly that you are asking the court to appoint alawyer because you cannot afford to hire one. Include thetrial court docket number for each case you want to appeal

(it appears on your Basic Information Sheet as well as ontrial court documents), the date you were sentenced, andthe name of the judge.

Explain your financial condition, including any debts orobligations (such as child support, mortgages, car loans)and the value of any property you may own alone or jointlywith someone else (such as a house, car, bank account,pension).

Ask that any required forms be sent to you as soon aspossible if the letter is not sufficient.

Make a copy of your request for your own records.

Send the request to the trial court so that it arrives within 42days of your sentencing date.

If you were convicted at a trial and the request arrives after42 days but within 12 months, counsel should still beappointed.

If you pled guilty or no contest and the request arrives after42 days, counsel will not be appointed.

If you do not hear back from the trial court within 6 weeks, writeto MAACS for assistance. Include a copy of your request, ifpossible.

If the trial court denies your request and you believe, based onthe information in this pamphlet, that you are entitled to havecounsel appointed, write to MAACS. Include a copy of yourrequest and the order denying counsel. MAACS will send youa fill-in-the-blanks form to appeal the denial of your request tothe Court of Appeals.

If your request for counsel is granted but you do not hear fromthe lawyer within 6 weeks from the date he or she wasappointed, write to the lawyer and ask when work on your case

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will begin. If you get no response from the lawyer withinanother 3 weeks, write to MAACS.

Transcripts and Court Records. MCR 6.433 states that anindigent defendant is entitled to one free copy of trial courttranscripts and other court records to pursue an appeal by rightor by leave. Once these have been provided, additional copieswill be given only if the defendant shows good cause, such asthe originals having been lost or destroyed. If the time forappealing has passed and you request transcripts and records

to seek some other kind of judicial review, the trial court mustsend copies of materials that are already in the court file.However, if the transcript was never prepared, the court onlyhas to order preparation if it finds good cause for doing so.

If counsel is appointed, the defendants free copies are sent tothe defense attorney. Trial courts will not, because they cannotafford to, give copies of these materials to both the attorneyand the client. Assigned counsel must keep the transcriptsand records in order to work on the appeal. They also cannotafford to copy more than a few pages of transcripts for theirclients free of charge.

Although the free copy of the transcript belongs to you in theend, if you want to review it before your brief is filed you mustarrange to pay the lawyer a reasonable copying cost per pageor have a family member borrow the transcript and take it outfor copying. The lawyer does not make money on thisarrangement. It is only designed to keep appointed lawyersfrom losing money by paying large copying costs from theirown pockets.

Some trial courts require assigned counsel to return thetranscripts to them in order to get paid. Most of these courtsthen keep the transcripts in their files so they are readilyavailable if the defendant requests them. Wayne Circuit nowsends the transcripts directly on to the defendant, without a

request, to avoid having to store them. Other courts do notrequire that the files be returned. In those cases, assignedcounsel keeps the transcripts until the client asks for them ordirects that they be passed on to another lawyer.

Disputes About Issues. Sometimes lawyers and clientsdisagree about whether to raise a particular claim of error onappeal. Minimum Standard 9 requires assigned counsel toraise all issues that have arguable merit (some legal basis),are supported by facts on the record, and would benefit the

client if successful. On the other hand, professional ethicsrequire lawyers not to burden the courts with issues that are

just frivolous (without any merit). Lawyers are not justmouthpieces for whatever their clients want said. They mustuse professional judgment about how to handle a case.

Assigned counsel must carefully consider any issue you wantraised. If the issue has arguable merit on the facts of thecase, the lawyer should raise it in his or her own brief. Ifcounsel believes the issue has no merit, he or she shouldexplain to you the basis for this conclusion. If you still want theissue raised, you can prepare a supplemental brief in propriapersona (on your own). Minimum Standard 11 re-quirescounsel to help you actually file the brief with the court. In thisway, the lawyer is not in the position of asserting a claim thelawyer thinks is frivolous, but you still get to raise the claim andget relief if the lawyer is wrong.

NOTE: The Supreme Court is currently considering aproposed court rule amendment that would prohibit peoplerepresented by counsel from filing their own supplementalbriefs. If adopted, this amendment would, as a practicalmatter, wipe out Minimum Standard 11. That is, you couldprepare a pro per brief, but the Court of Appeals would notaccept it.

SUPREME COURT APPLICATIONS

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When you lose an appeal to the Michigan Court of Appeals, thenext step is to seek leave to appeal to the Michigan SupremeCourt. Although the odds of getting the Supreme Court to hearthe case are low, if you feel you have serious claims of errorregarding your conviction or sentence, es-pecially if you areserving a long prison term, you should take this step for tworeasons. First, you just might get the relief you need younever know until you try! Second, if the claims involveviolations of the federal constitution and there is any chance

you may want to file a federal habeas corpus petition(described below), every available step in the state systemmust be taken first. This is called exhausting state remedies.

When to File. An application for leave to appeal to theSupreme Court must be filed within 56 days of the Court of

Appeals decision. This is the date stamped on the Court ofAppeals opinion or written on the bottom of an order denyingleave, denying rehearing, or deciding the case on the merits.This time limit is absolutely firm. The Supreme Court willnot accept applications received after the 56th day, nomatter why they are late. That is why it is critical thatassigned counsel notify the client immediately when the Courtof Appeals makes its decision. The Court of Appeals evensends two copies of its opinions to assigned counsel so thatone can be readily passed on to the defendant.

Right to Counsel. There is no right to have assigned counselprepare a Supreme Court application. The order appointingcounsel to prepare the initial appeal only covers repre-sentationthrough the Court of Appeals. Indigent defendants mustprepare applications on their own. However, Prison LegalServices of Michigan (PLSM) has designed a fill-in-the-blanksapplication form that anyone with the reading ability tounderstand this pamphlet should be able to use. Assignedcounsel are encouraged to send copies of this form to their

clients along with opinions denying relief. Copies are alsoavailable from PLSM and MAACS.

Follow the instructions on the application form carefully. Acopy of the Court of Appeals opinion or order being appealedmust be attached. The application must contain at least ashort legal argument about each issue raised. The easiestway to meet this requirement is to attach a copy of the Court of

Appeals brief prepared by counsel and any supplemental brieffiled in propria persona. The most important thing is getting the

application filed before the deadline. If a copy of the brief is notavailable, file the application without it. Just be sure that youexplain for each issue what law you think is most important andhow it was violated in your case. You can send additionalmaterials in later, if you wish. Note that the form has space forexplaining any issues that were not raised in the Court of

Appeals that you think should have been. You must serve(mail) one copy of the application on the prosecutor, who maychoose to reply but does not have to.

When defendants win in the Court of Appeals, prosecutorsoften apply for leave to the Supreme Court. In that situation,the attorney representing you in the Court of Appeals remainson the case and is responsible for replying to the prosecutorsapplication. The Supreme Court has the same options de-scribed below when the prosecutor appeals. Therefore it is

important that your lawyer respond to the application promptlyto avoid having the Court decide the case on the merits withouteven hearing from you.

Possible Results. If the Supreme Court is interested in acase, there are a number of things it might do. It may order theappointment of a lawyer to prepare a more thorough applicationfor leave. It may order the prosecution to show cause why therelief requested should not be granted, that is, to explain why itthinks your claims are wrong. In this situation, the prosecutionmust send you a copy of its answer. You can then respond to

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the prosecutor if you wish. The Supreme Court can also goahead and decide the case based on the application. It cansend the case back to the Court of Appeals for reconsiderationor to the trial court to hold a hearing. Or the Court can grantleave to appeal and require all new briefs and oral argument.Whenever the Supreme Court grants leave on a pro perapplication, it also directs the appointment of counsel.

MOTIONS FOR RELIEF FROM JUDGMENT(6.500 MOTIONS).

Chapter 6.500 of the Michigan Court Rules provides for amethod of judicial review called a motion for relief from

judgment. This procedure is designed to give defendants asecond chance to raise issues that for some reason were notraised on the initial appeal. It is important to understand whena 6.500 motion can and cannot be used.

When to Use. A motion for relief from judgment is not meantto replace the initial appeal. It cannot be used if the right toappeal to the Court of Appeals or Supreme Court still exists.Either the appeal process must be over, or the time for filing anappeal must have passed without one having been filed.

A motion for relief from judgment is also not meant to duplicatethe initial appeal. Issues that have been decided alreadygenerally cannot be raised again. The judicial system is veryconcerned with finality (deciding things once and for all) andwill not let the same claims be made over and over. There are

just two narrow exceptions. If the law that applied to the claimof error changed after your appeal was over and the new law isbeing applied retroactively (that is, to cases that came upbefore the law changed), you can seek relief under the new lawby filing a 6.500 motion.

The other exception arises if your claim is that error occurredunder both state and federal law, but the federal law was not

discussed in the initial appeal in the state courts. For example,failure to comply with a state statute might also violate the dueprocess clause of the U. S. Constitution but was not raised asa federal issue. If you want to file a federal habeas corpuspetition, the federal claim must have been exhausted (raised allthe way) through the state court system. The purpose is togive state judges the chance to apply federal law correctlybefore the federal courts decide to look into a state case.Therefore you may have to file a motion for relief from

judgment just to federalize an issue that was already

considered and found not to be error under state law.

A motion for relief from judgment is not a routine step that istaken in every case. If all issues of arguable merit werealready raised in the Court of Appeals and the Supreme Courtand, where applicable, were federalized, there is no need to filea 6.500 motion and no basis for doing so. At that point, youmay go directly to federal court, if a federal issue exists. Ifthere are no federal issues, there are no other forms of judicialreview available. The process of seeking postconvictionreview is over.

With the two exceptions explained above, a motion for reliefmust raise claims that were not already presented on appeal.There are several possible reasons why such claims mightexist. You may not have requested counsel for an appeal

within the applicable deadlines. You may have had counselappointed to do an appeal by leave and counsel may havemissed the application deadline, leaving a motion for relief asthe only option. Counsel may have filed an appeal but misseda particular issue. Or counsel may have rejected the issue aslacking merit. Finally, it may be that the information necessaryto raise the claim was not available at the time of the appeal sothe issue could not have been raised.

If the issue could not have been raised before, or if the trialcourt believes there is a real possibility you are innocent, or if

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the nature of the claim being raised is a jurisdictional defect,there are no extra hurdles to jump in preparing a 6.500 motion.Jurisdictional defects are errors affecting the states authorityeven to bring a defendant to trial. They do not arise often butmay include double jeopardy violations, conviction under anunconstitutional statute or for a non-existent crime, improper

jury waivers, and entrapment.

In all other cases, however, the defendant filing a 6.500 motionwill face two major hurdles: showing good cause for not

having raised the issue in the initial appeal and showing actualprejudice from the error being claimed.

Good Cause. Because of judicial concerns with finality, adefendant who had the opportunity to raise a claim on appealmust demonstrate an awfully good reason for not having doneso. If you never even tried to appeal, the reason for thatdecision must be explained. Except in unusual circum-stances, it will not be good enough to say you thought youd getparoled on your first outdate and now want your conviction orsentence reviewed because the parole board flopped you.Unless you can connect the boards reason for acting withsome error in the trial court proceedings that you had noreason to challenge before, the court is likely to find that yourdisappointed expectation of parole is no excuse for waiting toolong to seek postconviction review. Your remedy at that point

is to appeal the parole boards decision. (See ParoleAppeals, below.)

If there was no appeal for reasons beyond your control, that isa different matter. For instance, if you tried to appeal butcounsel destroyed the opportunity by failing to meet a criticaldeadline, it is easy to show that the cause was ineffectiveassistance of appellate counsel. Cause would also be shownif the trial court failed to advise you of the right to requestcounsel and the time for filing an application for leave to appealexpired before the matter was straightened out.

If there was an appeal, the situation is more difficult. In order todemonstrate cause, you must show that appellate counselwas ineffective for not having raised the issue. Courts are veryquick to say that a decision not to raise an issue is a matter ofstrategy. (Even though Minimum Standard 9 requires assignedcounsel to raise all issues of arguable merit, that is not aconstitutional requirement. Failing to comply with the MinimumStandards does not automatically mean the attorney has beenineffective.)

You must demonstrate that counsels failure to assert a claimwas not a legitimate strategic decision but an incompetentmistake. This might be done, for instance, by showing that theissue was preserved by trial counsel, or that you brought it toappellate counsels attention in a letter, and there was notactical reason for not raising it on appeal. It might be shownthat appellate counsel failed to order a critical transcript orotherwise failed to investigate the facts needed to see that theissue existed. Or it might be shown that counsel filed a sloppy,canned brief that overlooked various issues and reflected atotal failure to provide competent representation. In any event,the lawyers misconduct must be pretty blatant.

Actual Prejudice. Even if there is good cause for not havingraised an issue previously, a motion for relief from judgment

will not be granted unless the error caused actual prejudice.This term is defined in MCR 6.508(D)(3)(b). You must usuallyshow very clearly how you were harmed. If you are appealinga trial-based conviction, the error must have destroyed areasonably likely chance of your being found not guilty. If youare trying to overturn a plea-based conviction, the error musthave made the plea involuntary to the extent that letting theconviction stand would be manifestly unjust (obviously unfair).

n either kind of case, the only exception to showing harm is ifthe irregularity was so offensive to the maintenance of a

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sound judicial process that the conviction should not beallowed to stand regardless of its effect on the outcome of thecase. This typically means that the prosecutor or trial judgemust have deliberately engaged in conduct that was soimproper it cannot be overlooked no matter how strong theevidence of guilt is. On the other hand, if the sentence is beingchallenged, any error that makes the sentence invalid(subject to legal challenge) will satisfy the prejudicerequirement.

Filing Procedure. A motion for relief from judgment must befiled initially in the trial court where the conviction occurred.You must provide the original and two copies to the court clerk.The clerk gives one copy to the prosecutor, who does not haveto respond unless directed to do so by the court. Prison LegalServices of Michigan has designed a fill-in-the-blanks form anda helpful information packet for 6.500 motions that it provides toprisoners upon request. Trial court decisions to deny motionsfor relief can be appealed, by leave, to the Court of Appeals andthen, if necessary, to the Supreme Court.

Counsel. There is no right to have counsel appointed toprepare a 6.500 motion. However, a request to have counselappointed may be made in the body of the motion. If the courtthinks there is some merit to the issues raised, it can chooseto appoint counsel. If the court decides to conduct an eviden-tiary hearing or hear oral argument, it must appoint counsel. Ifcounsel is appointed, the court must give the lawyer sufficienttime to amend or supplement your pro per motion.

Timing. The rules do not state any deadline by which a motionfor relief must be filed. Therefore you can take as much timeas you need to prepare one. BUT, there is a problem here. Ifyou have federal issues and think you might want to file afederal petition for habeas corpus, you must understand thetiming requirements for that procedure. (See descriptionbelow.) The problem is that while you are working hard on

preparing your 6.500 motion, the time for filing a habeaspetition is starting to run out. As is so often true, you muststrike a balance between doing the best job possible andmeeting deadlines that can prevent you from getting yourclaims heard at all. (Of course, if you dont need to file both a6.500 motion and a habeas petition, this particular problemdoes not arise.)

NOTE: Starting August 1, 1995, defendants can only file onemotion for relief from judgment regarding a particular criminal

conviction and/or sentence. (Motions filed before that datedont count.) The only exceptions are for motions based onretroactive changes in the law and newly discovered evidencethat became known after the first motion was decided. Thismeans that it is important to do as good a job as possible inpreparing the motion because you wont get a chance to fileanother one.

FEDERAL HABEAS CORPUS PETITIONS

Raising Federal Issues. As explained above, claims thaterrors committed in a state court proceeding violated the U.S.Constitution or other federal law can be raised in federal courtby a filing a petition for habeas corpus. The claim must firsthave been raised, along with the applicable federal law, all the

way through the state court system. This gives the statecourts the chance to correct their own errors. It is calledexhausting state remedies.

If claims have not been exhausted, the petition can be denied.Since, as noted below, prisoners are limited to filing onehabeas petition except in the most unusual circumstances, youdo not want to waste your only opportunity by filing a petitionthat will be denied for lack of exhaustion. That is why, if federalclaims were not properly researched and raised in the initialappeal, you must raise them in the state courts through themotion for relief from judgment procedure.

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For example, assume that the trial judge refused to let you usecertain evidence to cross-examine a prosecution witness. Yourbrief on appeal claimed the error was a violation of theMichigan Rules of Evidence. However, an argument can alsobe made that the error violated your right to confront witnessesunder the 6th amendment of the U.S. Constitution. If the rightto confrontation argument was not made in state court, withcitation to appropriate federal decisions, it must be raised in amotion for relief before you go into federal court.

Right to Counsel.. There is no right to have counsel ap-pointed to prepare a habeas petition. The federal court maychoose to appoint counsel after reviewing a petition filed by aprisoner in propria persona if it thinks the issues raised mayhave merit. Simple forms designed for prisoners to use to filepetitions on their own are available from the federal districtcourts at no charge. A helpful information packet is availablefrom Prison Legal Services of Michigan.

Where to File. There are two federal district courts inMichigan - one for the Eastern District, based in Detroit, andone for the Western District, based in Grand Rapids. Ahabeas petition may be filed in the District where you areincarcerated, or in the District where the conviction wasobtained. The Court may transfer a case from one to theother, to equalize workloads.

The Eastern District covers the eastern portion of the LowerPeninsula and includes facilities in Wayne, Oakland, Macomb,Washtenaw and Jackson Counties, as well as those inSaginaw, Lapeer, Adrian and Roscommon. The WesternDistrict covers the western side of the Lower Peninsula andthe entire Upper Peninsula. Among the facilities it includes arethose at Ionia, Muskegon, Coldwater, Kinross and Marquette. Ifin doubt, check the federal courts section in the State BarDirectory.

When to File. Under rules that took effect on April 24, 1996, ahabeas petition must typically be filed within one year of thedate the Michigan Supreme Court issued its last opinion ororder in the case. The exceptions to this deadline are verylimited. They generally involve situations when it would havebeen impossible to file a petition earlier because facts had notbeen discovered or the applicable law had not yet changed.However, the time when a properly filed application forpostconviction review of some sort is pending in the state

courts does not count against the one year period. In Michigan,this would be a motion for relief from judgment. Presumablythe time spent conducting a proceeding, such as aresentencing, that was ordered by an appellate court wouldalso not count.

For example, assume that the Michigan Supreme Court hasdenied your application for leave to appeal. You think certainfederal issues should have been raised. You spend fivemonths preparing a motion for relief from judgment before youfile it in the trial court. That means five months of your oneyear for filing a federal habeas petition were used up. Butwhen you filed the motion, you stopped the federal clock fromrunning.

If you get a negative decision on the motion from the trial court,you will need to appeal that decision to the Michigan Court of

Appeals and the Michigan Supreme Court. The whole time thecase is sitting in each court will clearly not count against you.But the time you take preparing to go from one court to the nextmay count, depending on how the new rules are applied. Inthis example, you would have seven months or less to file ahabeas petition once the Supreme Court refused to hear yourcase. So you can see that, if you have federal claims, you donot want to use all your time preparing the motion for relief from

judgment and not have enough time left to prepare a habeaspetition.

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The new federal rules also place very strict limits on filing morethan one habeas petition concerning the same conviction.Once a petition has been filed, no more petitions can be filedthereafter unless the prisoner meets certain narrowrequirements and gets permission from the federal court ofappeals. The exceptions to the one petition limit, like theexceptions to the one year filing deadline, involve situationswhere it would have been logically impossible for the prisonerto have raised the claims before. It is not known yet whether

this new limitation will be applied retroactively, that is, in caseswhere the prior petition was filed before the new rules tookeffect.

SUMMARY OF IMPORTANT DEADLINES

Action Deadline Result if Missed

Request Counsel for

Initial Appeal

If convicted at

trial

42 days after sentencing

Over 42 days but less

than 12 months after

sentencing

Appeal will be by

leave

No counsel, no

appeal

If convicted by

plea

42 days after sentencing Counsel will not be

appointed

File Application for

Leave to Appeal in

Court of Appeals

12 months from date of

order being appealed

(e.g. judgment of sen-

tence or order denying

counsel)

Application will not

be accepted

File Application for

Leave to Appeal in

Supreme Court

56 days from date of

Court of Appeals opinion

or order

Application will not

be accepted

File Federal Habeas One year from last Petition will be

Petition opinion or order from

Michigan Supreme

Court (except time when

other postconviction

proceedings are pending

does not count).

dismissed.

PAROLE APPEALS

A state statute, MCL 791.234(5); MSA 28.2304(5), givesprisoners the right to appeal decisions by the parole board todeny parole. The same statute gives prosecutors and victimsthe right to appeal board decisions if they give you a parole.Unlike the other procedures discussed in this pamphlet, aparole appeal is not a way to obtain review of your convictionand sentence. It is a way to get a court to review the actions ofthe board. Parole appeals are included here because so manyprisoners have to consider using this procedure to seek theultimate postconviction relief - release from confinement.

Who Should Appeal. Like appellate courts reviewing trialcourt proceedings, judges reviewing parole board decisionslook for serious errors in the decisionmaking process. In de-ciding whether to appeal a flop, you must be realistic.

Appeals take time and, under a recent change in the law, evenindigent prisoners have to pay a filing fee. If you lose, you mayalso have to pay costs to the Attorney General. If you believethe board violated its own procedures in a way that harmed youor that its decision is not justified by factors the board isallowed to rely on, an appeal may well be worthwhile. But if theboard can justify its decision based, for instance, on yourmisconduct history, the effort to appeal will probably bewasted. As long as the board follows its own rules, it has verybroad discretion to decide whether to parole someone. Courtsare not quick to reverse board decisions.

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Sometimes prisoners who chose not to appeal their con-victions or sentences because they felt they could handle theirminimums are shocked when the board denies them parole.Then, looking for a way to get their time reduced, they decidethey want to appeal their cases after all. However, at that point,it is almost always too late to have counsel appointed or to filean application for leave to appeal in the Court of Appeals.While a motion for relief from judgment could still be filed,many prisoners will face a very practical problem. Even ifgrounds for challenging their sentences exist, winning relief

may do them no good. The minimum sentence just definesthe point when the board can consider someone. A personwho has already finished his or her minimum and beenconsidered by the board gains nothing by just having theminimum reduced.

Errors That Can Be Appealed. To obtain relief from a paroleboard decision, you must show that the board violated theMichigan Constitution, a statute, an administrative rule or someother written DOC regulation, or that it clearly abused itsdiscretion. One common category of claims is that the boardfailed to follow requirements set by statute about such mattersas advance notice of interviews, consideration of improperfactors, exclusion of the prisoners chosen representative fromthe interview, or the failure to give a detailed, individualizedwritten explanation of the denial. Another common type ofclaim is that the parole guidelines were scored incorrectly, withthe result that the prisoner was wrongly classified as having alow or average probability of parole. (If correcting the scorewould not change the probability classification, the error wasprobably harmless.) A different type of guidelines claim wouldbe that the board denied parole to someone who scored a highprobability of parole without having substantial and compellingreasons for doing so.

Claims that involve broad parole board policies instead ofnarrow rule violations are generally more complicated to argue.

These might include, for instance, denying parole because atreatment program was not completed even though theprisoner was never given the opportunity to participate ordenying parole solely on the basis of factors (such as thenature of the offense) that were considered when the minimumsentence was imposed. Challenges to the way in which theguidelines were constructed or the way procedural rules areapplied to lifers would also fall in this category.

Whatever the claim, if you win, the relief will generally be that

the board must consider you again after correcting its error. Ifthe board really does not want to grant you parole, it will meetthe courts requirements, then find a way to flop you again. Acourt will virtually never outright order the board to grantsomeone parole. Nonetheless, parole appeals are an impor-tant way of making sure that a board which makes thousandsof decisions a year follows its own rules and that the newparole guidelines are being applied correctly. As more andmore parole board decisions are being appealed, the courtsare becoming more familiar with board operations and a bodyof case law concerning parole is gradually beginning to grow.

Filing Procedure. A parole appeal is by leave to the circuitcourt of the county in which you were convicted. (If you wereconvicted in Recorders Court, the appeal is to Wayne CircuitCourt.) To be timely, an application for leave must be filedwithin 28 days of the parole boards decision. Most prisonerswill not be able to meet that deadline and delayed applicationsare accepted. In fact, there is no absolute deadline by which adelayed application must be filed. However, the reason for thedelay must be explained and the length of the delay can beconsidered by the court in deciding whether to grant leave.

There is no right to have counsel appointed to prepare anappeal from a board decision denying parole. It is not evenclear that there is a right to have counsel appointed when theboard has granted parole and it is the prosecutor that is

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appealing. However, most courts do appoint counsel in thatsituation.

The filing procedure for parole appeals is spelled out in MCR7.104 (D). Prison Legal Services of Michigan has prepared aform application for leave to appeal parole board decisions thathas detailed filing instructions. These include an explanation ofwhat documents must be attached and how to go about gettingthem. The form is available from PLSM for a small charge thatcovers copying costs.

If the circuit court grants you leave to appeal, you will have tosubmit a brief explaining your arguments in more detail. Ifleave is denied, you can try to appeal the circuit courtsdecision by filing an application for leave (within 12 months ofthe denial) in the Court of Appeals.

QUICK TIPS FOR SELF-REPRESENTATION

Whether you are preparing a formal document for filing in courtor communicating with someone about your case by mail, anumber of basic points are worth remembering.

Meet deadlines. The best arguments in the world wont doany good if they are made too late for anyone to act on them.

Review books about how to do basic legal research. Theyare available in the prison law library.

Read the statutes and court rules that apply to yoursituation. Be aware that they change all the time. Follow theinstructions on fill-in-the-blanks forms carefully.

Write clearly or print; type if possible .

Keep copies of what you send to other people wheneverpossible.

Describe the problem you are addressing as simply andclearly as possible. Write in plain English, not some comp-licated version of what you think lawyers should sound like.Lawyers should write in plain English too! Say as much as youhave to in order to explain the situation, but dont get off on a lotof minor stuff. Consider the viewpoint of judges and court staffwho have stacks of work to read. If you try to drown the reader

in more paper than is necessary, he or she will either keepsetting your case aside or will be irritated while trying to plowthrough it.

Point to the exact place in the record where importantfacts are shown. Refer to transcript page numbers, ifpossible.

Never distort or omit critical facts. Someone will alwaysfind out and you wont be believed about other matters. It isbetter to acknowledge facts that harm your position andaccount for them up front.

Most important! Clearly explain what happened that wasunfair and how it caused you harm. While you do have to

explain what rule or law you think was violated in your case,you dont have to do a lot of sophisticated legal research. If acourt is persuaded that a real injustice occurred, it can alwaysappoint counsel to represent you.

When you cite cases to support your legal argument, useonly the best ones. These are the ones with the mostthorough discussion of the law directly relevant to your issueand/or with facts most like the ones you think caused error inyour case. Dont load up your brief with dozens of cases thatdont really help your argument or that just repeat each other.

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Dont pretend that cases that go against you are notthere. If possible, try to show why your case is different! Oryou can try to argue the law should be changed. If neither ofthese approaches work, maybe you dont have a good issue.

IMPORTANT ADDRESSES

Michigan Supreme Court2nd Flr., Law BuildingP.O. Box 30052Lansing, MI 48909

Michigan Court of Appeals109 W. Michigan Ave.P.O. Box 30022Lansing, MI 48909

U.S. District CourtEastern District of MichiganTheodore Levin United States Courthouse231 Lafayette Blvd.Detroit, MI 48226

U.S. District CourtWestern District of MichiganFederal Building

110 Michigan NWGrand Rapids, MI 49503

Prison Legal Services of Michigan (PLSM)3855 Cooper StreetJackson, MI 49201

Michigan Appellate Assigned Counsel System (MAACS)Plaza One - Suite 1401 S. Washington Ave.Lansing, MI 48913

State Appellate Defender Office(SADO)

Suite 3300 Penobscot645 GriswoldDetroit, Michigan 48226

and

340 Business and Trade Center200 Washington Square, NorthLansing, Michigan 48913

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continued on the other side

Court telephone

CC 257 (8/89) MOTION FOR RELIEF FROM JUDGMENT

Court addressORI

MCR 6.5

Proposed form #2

STATE OF MICHIGAN CASE NO.

JUDICIAL CIRCUITCOUNTY

MI-

v

Defendant's name, /address, and inmate no.

MOTION FOR RELIEF FROM JUDGMENT

THE PEOPLE OF THE STATE OF MICHIGAN

2nd copy - Defendant3rd copy - Defendant attorney

Original - Court1st copy - Prosecutor

CTN SID DOB

To be completed by the court.

INSTRUCTIONS: Answer each question as completely as you can. If you need more space to answer any question, ymay attach extra pages. You may also attach documents, affidavits, or a brief, if you wish.

1. I was found guilty on .

2. The offenses and proceedings were:

3. I was sentenced as stated below by Honorable

(NOTE: If you do not have this information, it is on your Judgment of Sentence and Basic Information Sheet which aavailable at the prison record office.)

4. Fill in the charts below with the information requested about the court proceedings in your case and the names of the attorne

who represented you.

A. TRIAL LEVEL - ALL PROCEEDINGS from arrest to sentencing, including line-ups and other proceedings.

Date

CHARGE CODE(S)

MCL citation/PACC CodeCRIME

CONVICTED BYCount Plea* Court Jury

*Plea: insert "G" for guilty plea; use "NC" for nolo contendere; use "MI" for guilty but mentally ill.

OTHER INFORMATIONCount

SENTENCE

DATE Mos.Years Days

DATE SENTENCE

BEGINS

JAIL CREDIT

Mos. Days

MAXIMUMMINIMUM

Mos.Years

Name of judge

NAME OF

PROCEEDINGNAME OF

PROCEEDING

NAME OF

ATTORNEY

NAME OFATTORNEY

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B. POST CONVICTION - ALL PROCEEDINGS, State and Federal, including appeals, post-trial motions, and habeas petitio

5. Appointment of Counsel

Do you want an attorney appointed? Yes No If yes, complete the attached Financial Schedule.

6. Grounds and Relief

a. What action do you want the court to take?

b. What are the legal grounds for the relief you want? You must raise all the issues you know about. You may not be

allowed to raise additional issues in the future. Use extra sheets of paper, if necessary.

ISSUE ONE:

Supporting facts:

Was this issue raised before? Yes No

If yes, at what stage of the proceedings was it raised, and why should it be reconsidered now?

continued on the next page

NAME OF NAME OFCOURT DOCKET NO. PROCEEDING ATTORNEY RESULT DATE OF RESULT

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If no, why not?

ISSUE TWO:

Supporting facts:



If no, why not?

ISSUE THREE:

Supporting facts:

continued on the other side

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If no, why not?

ISSUE FOUR:

Supporting facts:



If no, why not?

PROOF OF SERVICE

To be completed by the court.

I certify on this date a copy of this motion was served upon the prosecutor by personal service. mail.

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Court telephone Court addressORI

Approved, SCAO

CASE NO.STATE OF MICHIGANJUDICIAL DISTRICT

JUDICIAL CIRCUIT

v

Defendant's name, address, and telephone no.

CTN SID DOB

MI-

PETITION AND ORDER FORCOURT APPOINTED ATTORNEY

Original - Court1st copy - Defendant2nd copy - Appointed attorney

THE PEOPLE OF

The State of Michigan

1. CHARGE Misdemeanor 2. RESIDENCE Live with parentsFelony Rent Own Room/Board

Next hearing: Paternity 3. MARITAL STATUS

Single Divorced Dependents:Bail amount: $ Bond posted Married Separated

4. INCOME

Average take-home pay $weekly monthly every two weeks

5. ASSETS*

6. OBLIGATIONS*

7. REPAYMENT I understand that I may be ordered to repay the court for all or part of my attorney and defense costs

Date: Signature:

ORDER

9. is appointed to represent the petitioner.

10. The petition is denied because:

District Court Endorsement

PETITION

The defendant requests a court appointed attorney and submits the following information:

State value of car, home, bank deposits, inmate accounts, bonds, stocks, etc.

Itemize monthly rent, installment payments, mortgage payments, child support, etc.

Other Income State monthly amount and source (DSS, VA, rent, pensions, spouse, unemployment, etc.)

Employer name and address Length of employment

Date

(felony cases only)

*Use reverse side for additional information/comments.

Numb

Name Bar no.

8. VERIFICATION I declare under penalty of contempt of court that the above information is true to the best of myinformation, knowledge, and belief.

6500 motion data

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