                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 05a0245p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                    X
                             Petitioner-Appellee, -
 GEOFFREY BURROUGHS,
                                                     -
                                                     -
                                                     -
                                                         No. 03-1984
         v.
                                                     ,
                                                      >
 JOHN MAKOWSKI,                                      -
                           Respondent-Appellant. -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                No. 99-73191—John Corbett O’Meara, District Judge.
                                             Argued: April 26, 2005
                                      Decided and Filed: June 7, 2005
                         Before: KEITH, CLAY, and FARRIS, Circuit Judges*.
                                              _________________
                                                    COUNSEL
ARGUED: Jerrold E. Schrotenboer, OFFICE OF ATTORNEY GENERAL, Jackson, Michigan,
for Appellant. Richard Ginsberg, Ann Arbor, Michigan, for Appellee. ON BRIEF: Jerrold E.
Schrotenboer, OFFICE OF ATTORNEY GENERAL, Jackson, Michigan, for Appellant. Richard
Ginsberg, Ann Arbor, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        PER CURIAM. Prison warden John Makowski appeals the grant of a writ of habeas corpus
for Petitioner Geoffrey Burroughs. The district court adopted a magistrate judge’s recommendation
that the writ issue because Burroughs had shown cause and prejudice for his procedural default in
the state courts by arguing ineffective assistance of appellate counsel. On the merits, the court
granted the writ on all claims, including prosecutorial misconduct, ineffective assistance of trial
counsel, and denial of the right to a defense in the trial court’s failure to admit questioning regarding
Burroughs’s co-defendant’s plea statement. We reverse.




         *
         The Honorable Jerome Farris, Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting
by designation.


                                                           1
No. 03-1984               Burroughs v. Makowski                                                             Page 2


                                                BACKGROUND
        Burroughs was found guilty of second degree murder, felony murder, armed robbery (on a
plea of guilty), and felony firearm possession. After a jury verdict, the trial judge vacated the
murder convictions. On appeal, the murder convictions were reinstated, and on remand, the second
degree murder conviction was vacated by request of the prosecution. In 1992, after appeal but
before sentencing, Burroughs filed a “motion for relief from judgment” pursuant to the post-appeal
provisions of Michigan Court Rules 6.500 et seq. In that petition, he claimed ineffective assistance
of appellate counsel and other errors in his trial and appeal. The motion was denied, and he was
sentenced. He appealed the sentence on Eighth Amendment grounds, and his appeals were denied.
In 1997, he filed a second motion for relief from judgment, raising four claims: (1) ineffective
assistance of trial counsel in counsel’s failure to bring a motion for directed verdict and to present
Burroughs’s co-defendant’s statements from his guilty plea; (2) denial of due process in the
prosecution’s failure to disclose his co-defendant’s statements; (3) denial of the right to present a
defense in the trial court’s failure to allow him to introduce his co-defendant’s statements; and (4)
ineffective assistance of appellate counsel in failing to raise these claims. The motion was denied
for failure to satisfy Michigan Court Rule 6.508(D)(3), which prohibits raising claims in such
motions when those claims could have been brought in prior motions for relief from judgment.
        Burroughs then filed a habeas petition in federal court, re-raising the same four claims. The
magistrate judge concluded that Burroughs had not, in fact, defaulted, and found the claims
persuasive on the merits. In the magistrate judge’s view, the Michigan courts’ rejection of
Burroughs’s claims was on the merits, rather than on grounds of procedural default. The district
court adopted the recommendation. On appeal, we reversed, finding the claims defaulted, and
remanded for a consideration of whether Burroughs could establish cause and prejudice for his
default. Burroughs v. Makowski, 282 F.3d 410 (6th Cir. 2002) [Burroughs I]. On remand,
Burroughs argued only ineffective assistance of appellate counsel as his “cause.” The magistrate
judge accepted the argument and re-granted the writ. Makowski appeals.
                                                 DISCUSSION
        We must decide whether Burroughs has shown cause for, and prejudice arising from, his
procedural default on his habeas claims. When a habeas claim is procedurally defaulted, it may
nevertheless be considered if the petitioner shows “cause for the procedural default and prejudice
attributable thereto . . . .” Murray v. Carrier, 477 U.S. 478, 484 (1986). To show cause, a petitioner
must show that “some objective factor external to the defense impeded . . . his efforts to comply with
the State’s procedural rule.” Id. at 488. Cause and prejudice and procedural default are questions
of law, which we review de novo. Lundy v. Campbell, 888 F.2d 467-70 (6th Cir. 1989).
        Burroughs asserts as his “cause” his counsel’s failure to raise the claims in his petition on
prior direct appeal. “[I]n certain circumstances counsel’s ineffectiveness in failing properly to
preserve the claim for review in state court” will establish cause. Edwards v. Carpenter, 529 U.S.
446, 451 (2000) (citing Murray, 477 U.S. at 488-89). To constitute cause, that ineffectiveness must
itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not
procedurally defaulted.
         The magistrate judge concluded that the ineffective assistance of appellate counsel claim was
not defaulted because, in his view,1the 1992 motion was not a “motion for relief from judgment,”
but rather a motion for a new trial. Michigan court rules procedurally bar claims in motions for
relief from judgment “which could have been raised on appeal from the conviction and sentence or


       1
           “Motions for relief from judgment” are post-appeal motions provided for by MICH. CT. R. 6.500 et seq.
No. 03-1984          Burroughs v. Makowski                                                   Page 3


in a prior [motion for relief from judgment.]” MICH. CT. R. 6.508(D)(3). Because he considered the
1992 motion as something other than a motion for relief from judgment, the magistrate judge
therefore viewed the 1997 motion as being the first motion for relief from judgment. As such, that
motion was the first in which Burroughs could have brought his claim of ineffective assistance of
appellate counsel. As we determined in the first appeal of this case, however, the Michigan courts
denied Burroughs’s 1997 motion for relief from judgment on procedural default grounds. Burroughs
I, 282 F.3d at 413-14. That denial necessarily included the determination that the claim of
ineffective assistance of appellate counsel brought therein was defaulted.
       Burroughs’s claim of ineffective assistance of appellate counsel is not cognizable on habeas
review. As that claim was procedurally defaulted, it cannot now be used to show cause and
prejudice for his undisputed procedural default on his other claims. His petition must be dismissed.
       REVERSED and REMANDED with instructions to dismiss the writ.
