ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE.
Petitioner Larry Lee filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for one count of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct. At the time he filed the petition, Petitioner was in the custody of the Michigan Department of Corrections.
Petitioner repeatedly, timely, and unequivocally asserted his right to self-representation. Despite this, the trial court failed to acknowledge, honor or inquire into Petitioner's request, and appellate counsel failed to raise the issue on appeal. The court finds that Petitioner's ineffective assistance of appellate counsel claim is timely and that Petitioner is entitled to habeas relief on this claim. Petitioner's self-representation claim is procedurally defaulted and the court denies relief on that claim, but grants a certificate of appealability.
Petitioner was convicted as set forth above following a jury trial in Washtenaw County Circuit Court. The Michigan Court of Appeals set forth the relevant facts as follows:
People v. Lee, Nos. 277551, 2008 WL 4276473, *1-2 (Mich.Ct.App. Sept. 16, 2008).
On March 13, 2007, Petitioner was sentenced to 3 to 15 year's imprisonment for the third-degree criminal sexual conduct conviction and 9 months in jail for the fourth-degree criminal sexual conduct conviction. Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised these claims through counsel: (i) ineffective assistance of counsel; (ii) trial court failed to conduct adequate inquiry into breakdown of attorney-client relationship; (iii) denied right to present a defense; and (iv) trial court erred in denying motion to sever. Petitioner filed a pro se supplemental brief raising ten additional claims. A self-representation claim was not raised until Petitioner filed a motion for leave to add additional constitutional claims to his Standard 4 brief in the Michigan Court of Appeals. (See Dkt. #25-6, Pg. ID 872) The Court of Appeals denied Petitioner's motion to add claims, stating that, "Administrative Order 2004-6, Standard 4, provides that the defendant's filing shall consist of one brief filed with or without an appropriate accompanying motion. It does not provide for the filing of multiple briefs by the defendant. The brief filed with the motion is returned with this order." (Id. at Pg. ID 871.) The Michigan Court of Appeals affirmed Petitioner's convictions. Id. Petitioner filed an application for leave to appeal to the Michigan Supreme Court, raising the same claims raised through counsel in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Lee, 483 Mich. 1132, 767 N.W.2d 450 (Mich.2009).
Petitioner then filed a habeas corpus petition, which the court held in abeyance pending exhaustion of state court remedies.
Petitioner then returned to this court and filed an amended petition. He presents these claims for habeas relief:
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, a state prisoner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims —
28 U.S.C. § 2254(d).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 408, 120 S.Ct. 1495. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411, 120 S.Ct. 1495.
The Supreme Court has explained that "[a] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" Supreme Court precedent. Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (Stevens, J., concurring). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
Additionally, a state court's factual determinations are entitled to a presumption of correctness on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas review is "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
Petitioner's habeas claims concern the Sixth Amendment right to self-representation. Petitioner argues that he expressly, clearly, and timely asserted his right to self-representation and that his appellate attorney rendered constitutionally deficient assistance in failing to raise this claim on direct review. The court finds that Petitioner's appellate attorney was ineffective in failing to raise the self-representation claim on direct review and the state court's contrary holding is an unreasonable application of Strickland v. Washington. His self-representation claim is procedurally defaulted and may only be excused by a showing of cause and actual prejudice. The ineffectiveness of appellate counsel establishes cause to excuse the default. But Petitioner does not satisfy the "actual prejudice" prong of the procedural default analysis.
Respondent argues that Petitioner's ineffective assistance of appellate counsel claim was not timely filed because it was not included in the original petition. Respondent concedes that the original petition was filed within the one-year limitations period, but argues that the
Under Federal Rule of Civil Procedure 15, an amended pleading "relates back" to the original pleading only if the amended claims are tied to the "same core of operative facts" as alleged in the original petition. Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). "An amended habeas petition ... does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 650, 125 S.Ct. 2562. The Supreme Court rejected the petitioner's argument that his amended petition related back to the original petition simply because the original and amended petitions arose from the same trial and conviction. Id. The Court reasoned that if "claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance." Id. at 662, 125 S.Ct. 2562.
In the instant case, Petitioner filed his amended petition on May 23, 2014, over two years after the filing of the original petition and well after the expiration of the one-year AEDPA statute of limitations period. Therefore, if the ineffective assistance of counsel claim is to be timely, it must relate back to the original petition. Petitioner raised his self-representation claim in the original habeas petition. Petitioner's ineffective assistance of counsel claim is based upon appellate counsel's failure to raise the self-representation claim on direct appeal with the Michigan Court of Appeals. The ineffective assistance of appellate counsel claim arises from the "same core of operative facts" as the self-representation claim. The facts that support Petitioner's self-representation claim are those that concern whether he unequivocally, clearly, and timely asserted his right. The facts relevant to a determination of Petitioner's ineffective assistance of appellate counsel claim are those that assist the court in assessing whether "the omitted issues [were] significant and obvious" and whether they were "clearly stronger than those presented in the actual appeal." Jones v. Bell, 801 F.3d 556, 563 (6th Cir.2015), cert. denied ___ U.S. ___, 136 S.Ct. 878, 193 L.Ed.2d 735 (2016); (citing McFarland v. Yukins, 356 F.3d 688, 710-11 (6th Cir.2004)). Thus, both claims require an assessment of the self-representation claim and are tied to a common core of operative facts. Rule 15(c)'s relation back principles apply and the ineffective assistance of counsel claim is timely.
The Sixth Amendment guarantees a criminal defendant the right to the assistance of counsel in his defense. U.S. Const. amend. VI. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court interpreted this right to counsel as encompassing "an independent constitutional right" of a defendant to represent himself at trial when the defendant "voluntarily and intelligently elects to do so." Id. at 807, 95 S.Ct. 2525.
Id. at 819, 95 S.Ct. 2525.
The Sixth Amendment's right to counsel guarantee refers to the "assistance" of counsel. "The language and spirit of the Sixth Amendment contemplate that counsel ... shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally." Id. at 820, 95 S.Ct. 2525. Where a defendant chooses to accept a lawyer's representation, counsel is allocated a certain amount of power to make binding decisions of trial strategy. Id. But "[t]his allocation can only be justified ... by the defendant's consent, at the outset, to accept counsel as his representative." Id. at 820-21, 95 S.Ct. 2525. Unless a defendant acquiesces to representation by counsel, "the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense." Id. at 821, 95 S.Ct. 2525.
To invoke the right to self-representation, a defendant first must assert his self-representation right "in a timely manner." Martinez v. Ct. of App. of Cal., Fourth App. Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). Second, the defendant must "knowingly and intelligently" waive the right to counsel after being advised of "the dangers and disadvantages of self-representation." Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Finally, a defendant's request for self-representation must be made "clearly and unequivocally." Id., 422 U.S. at 835, 95 S.Ct. 2525; see also United States v. Martin, 25 F.3d 293, 295 (6th Cir.1994) ("To assert the right of self-representation, a defendant must do so unequivocally.").
Before his criminal trial commenced, Petitioner sent at least two letters to the state trial court judge expressing his dissatisfaction with his court-appointed counsel and stating that he either wanted to represent himself, or, alternatively, wanted the court to appoint substitute counsel or, if the court would not appoint substitute counsel, allow another attorney Petitioner had been in contact with to represent Petitioner. In one letter which is undated, but, because it refers to a hearing to be held in October 2006, was written sometime before that date, Petitioner stated, "I asked [my trial counsel] many times to file a motion to withdraw as counsel, so that I can exercise my right to self-representation in the cases against me. She refuses to file the withdrawal motion." (Dkt. #3-1, Pg. ID 74.) Petitioner also stated, "I am competent, educated and will take that risk [to represent myself]. Please do intervene and force [trial counsel] to withdraw so that I can represent myself, it's my right isn't that correct." Id. Finally, he stated, "I will bring the matter up at the [October 2006] motion hearing and hopefully you will help my issue and get me on the road to self-representation." Id. In a second letter, dated October 6, 2006, Petitioner again asserted his right to self-representation, "I am serious about representing myself.... not only do I want to represent myself, it is my right." (Dkt. #3-2, Pg. ID 77.)
At the conclusion of an evidentiary hearing in the trial court on October 13, 2006, Petitioner attempted to raise the issue of self-representation. The trial court acknowledged receipt of Petitioner's letters, but addressed only the competency of counsel, not Petitioner's request to represent himself:
(Dkt. #17-7, Pg. ID 253.)
Petitioner's request to represent himself does not appear to have been further addressed following this exchange. Petitioner's trial commenced on December 11, 2006.
Respondent argues that Petitioner's self-representation claim is procedurally defaulted. Petitioner raised this claim for the first time on state-court collateral review.
As cause to excuse the procedural default of this claim, Petitioner claims that appellate counsel was ineffective for failing to raise this claim on direct appeal. For ineffective assistance of appellate counsel to excuse a default, "it must meet[] Strickland [v. Washington's] ineffectiveness standard." Kennedy v. Mackie, 639 Fed.Appx. 285, 294 (6th Cir.2016). The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires Petitioner to demonstrate: (1) that his "appellate counsel's `performance was deficient'" and (2) that "`the deficient performance prejudiced the defense.'" Jones v. Bell, 801 F.3d 556, 562 (6th Cir.2015), cert. denied Jones v. Smith, ___ U.S. ___, 136 S.Ct. 878, 193 L.Ed.2d 735 (2016). If Petitioner meets Strickland's high burden, the Court then considers whether Petitioner has
First, the court considers whether counsel's performance was deficient. To demonstrate deficient performance, Petitioner must show that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed... by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Supreme Court has made clear that a criminal defendant has no constitutional right to demand that appellate counsel raise every possible colorable issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir.1990). "`[W]innowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy," Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), and may be "the best type of performance." Jones, 801 F.3d at 562 (emphasis in original). Thus, appellate counsel need not raise every nonfrivolous issue, but he or she must "exercise reasonable professional judgment." Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir.2003) (citing Jones, 463 U.S. at 751-753, 103 S.Ct. 3308). "In the appellate context, `To establish deficient performance, [petitioner] must demonstrate that his appellate counsel made an objectively unreasonable decision by choosing not to raise other issues instead of [the challenged issue], meaning that issue `was clearly stronger than issues that counsel did present.'" Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir.2013) (quoting Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir.2009)).
Petitioner sent at least two letters to the state trial judge prior to trial asking to represent himself and reminding the trial court that "not only do I want to represent myself, it is my right." (Dkt. #3-2, Pg. ID 77 (emphasis added).) This assertion of the right to self-representation was unequivocal. Petitioner also attempted to raise the issue of self-representation at the conclusion of an evidentiary hearing on October 13, 2006, but the trial court dismissed his attempt without inquiry or discussion. Petitioner's first attempts to exercise his right to self-representation were made at least one month before trial commenced. There is no indication that Petitioner's request to represent himself was an attempt to disrupt the proceedings or that allowing him to represent himself would have resulted in undue delay of the proceedings. He also clearly understood the risks associated with self-representation and preferred to assume those risks rather than continue with counsel. (See Dkt. #3-1, Pg. ID 74 (stating, in letter to trial court judge: "I am competent, educated and will take that risk [to represent myself].").)
The last (and only) Michigan state court decision to address Petitioner's ineffective assistance of appellate counsel claim was the trial court's decision denying Petitioner's motion for relief from judgment. The trial court denied Petitioner's ineffective assistance of appellate counsel claim which Petitioner had asserted as cause for failing to raise his self-representation claim on direct review:
(Dkt. #37-5, Pg. ID 1291.)
The trial court's reasoning is difficult to parse. The trial court fails to cite Strickland, Jones, Faretta, or any case setting forth the standard for evaluating ineffective appellate counsel claims or self-representation. In fact, the trial court cites no case law. The trial court opinion fails to acknowledge that Petitioner's claims implicate two fundamental constitutional rights — the right to the effective assistance of counsel and the right to self-representation. The trial court appears to find that Petitioner was foreclosed from asserting an ineffective assistance of appellate counsel claim because he wanted to be allowed to represent himself at trial and because he raised several issues pro se on appeal. This explanation is an unreasonable application of Strickland and Faretta. It ignores Faretta's dictate that "the right to defend is personal." 422 U.S. at 834, 95 S.Ct. 2525. Petitioner had a right to choose to represent himself regardless of whether he would have done so competently. Id. At trial, the trial court failed to honor Petitioner's decision in violation of Faretta. In denying Petitioner's motion for relief from judgment, the trial court failed to recognize Petitioner's rights under Faretta and counsel's obligations under Strickland and its progeny. Petitioner has satisfied the first prong of the procedural default analysis, by showing appellate counsel's ineffectiveness under Strickland.
The failure of appellate counsel "to raise an issue on appeal is ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal." Howard v. Bouchard, 405 F.3d 459, 485 (6th Cir.2005) (citing Greer v. Mitchell, 264 F.3d 663 (6th Cir.2001)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
The record before the Court shows that Petitioner clearly, unambiguously, and repeatedly invoked his right to self-representation. Petitioner also satisfies Faretta's timeliness component by asserting his right over one month before trial. "[A]s a matter of clearly established law[,] Faretta can only be read to require a court to grant a self-representation request when the request occurs weeks before trial." Hill v. Curtin, 792 F.3d 670, 678 (6th Cir.2015). No explanation appears to justify counsel's determination to forego a very strong Faretta claim. And, because the denial of the right to represent oneself is not amenable to harmless error analysis, it is a structural error. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). "The right is either respected or denied; its deprivation cannot be harmless." Id. If Petitioner's self-representation claim had been raised on direct
As the Sixth Circuit Court of Appeals recently made clear, the finding of Strickland cause and prejudice does not end the procedural default analysis. Jones, 801 F.3d at 563. "Habeas petitioners must additionally show `actual prejudice' to excuse their default — even if the error that served as the `cause' is a structural one that would require a new trial." Id. (citing Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir.2012); Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976)). Actual prejudice is not presumed even when a habeas petitioner has shown that counsel's error resulted in Strickland prejudice. Id. Actual prejudice to excuse procedural default "requires more than the prejudice prong under Strickland." Id. (citing Ambrose, 684 F.3d at 652). Whereas the Strickland prejudice prong required Petitioner to show a reasonable probability the result of the appeal would have been different, actual prejudice requires a showing the "outcome of the trial would have been different." Id. (citing Ambrose, 684 F.3d at 652).
Petitioner has not shown actual prejudice. Indeed, his argument in support of a finding of actual prejudice rests on the fact that the denial of a defendant's right to self-representation is a structural error. (See Dkt. #32, Pg. ID 26.) But a finding of structural error, by itself, does not establish actual prejudice. Petitioner makes no other showing of actual prejudice and the court, guided by the Supreme Court's finding that "[t]he right of self-representation is a right that when exercised usually decreases the likelihood of a trial outcome unfavorable to the defendant," finds none. McKaskle, 465 U.S. at 177, 104 S.Ct. 944. While appellate counsel's ineffectiveness satisfies the "cause" prong of the procedural default analysis, no actual prejudice resulted.
If unable to demonstrate cause and prejudice, a procedural default may nevertheless be excused if a petitioner demonstrates that review of his claims "is needed to prevent a fundamental miscarriage of justice." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.2013). The fundamental miscarriage of justice exception applies in the extraordinary case where the habeas petitioner demonstrates that the alleged constitutional error probably resulted in the conviction of one who is actually innocent of the underlying offense. Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "Actual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). "To be credible, [a claim of actual innocence] requires [the] petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Petitioner makes no such showing here. Therefore, the default is not excused.
Although Petitioner's self-representation claim is procedurally defaulted, the court has determined that habeas relief shall be granted for Petitioner's ineffective assistance of appellate counsel claim. The question thus is what relief should be granted. The court has broad discretion in fashioning habeas corpus relief. Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Federal courts are authorized to dispose of habeas corpus matters "as law and justice require." 28 U.S.C. § 2243.
The Supreme Court has affirmed the issuance of a conditional writ of habeas corpus that required a state court to grant the petitioner a new appeal of right where the petitioner received ineffective assistance of appellate counsel on direct review. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). See also Benoit v. Bock, 237 F.Supp.2d 804, 812 (E.D.Mich.2003) (Lawson, J.) (conditionally granting writ based on ineffective assistance of appellate counsel and ordering that writ will be granted unless the "Michigan Court of Appeals reinstates the petitioner's appeal of right and appoints counsel").
The court concludes that the appropriate remedy in this case is to conditionally grant a writ of habeas corpus. The State of Michigan must appoint counsel for Petitioner within 56 days (8 weeks) from the date of this Order. Petitioner's counsel must then be permitted to file Petitioner's appeal as of right in the Michigan Court of Appeals. Such filing shall be accomplished within 56 days of counsel's appointment, and Respondent must file a copy of the claim of appeal on the docket of this case. Further relief may be sought from this court if so required.
Before Petitioner may appeal the court's denial of his stand-alone self-representation claim, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "When the district court denies a habeas petition on procedural grounds without reaching the p[etitioner]'s underlying constitutional claim[s], a [certificate of appealability] should issue when the p[etitioner] shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Having undertaken the requisite review, the court concludes that jurists of reason could find debatable whether the self-representation claim was procedurally defaulted.
IT IS ORDERED that the Petition for Writ of Habeas Corpus is CONDITIONALLY GRANTED. The State of Michigan must appoint counsel for Petitioner within 56 days from the date of this Order. Petitioner's counsel must then be permitted to file Petitioner's appeal as of right in the Michigan Court of Appeals. Such filing shall be accomplished within 56 days of counsel's appointment, and Respondent must file a copy of the claim of appeal on the docket of this case. Further relief may be sought from this court if so required.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED for Petitioner's self-representation claim.
