                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 06a0276n.06
                                  Filed: April 24, 2006

                                            No. 03-2422

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


GARY R. WESLEY,                                     )
                                                    )
       Petitioner-Appellant                         )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
BRUCE CURTIS,                                       )   EASTERN DISTRICT OF MICHIGAN
                                                    )
       Respondents-Appellee                         )
                                                    )
                                                    )



BEFORE:        MERRITT, MARTIN, and McKEAGUE, Circuit Judges


       MERRITT, Circuit Judge. This is a Michigan pro se state habeas corpus case submitted

to us on the briefs. The State asserts multiple defenses, including procedural default in the state

courts, the statute of limitations and waiver, as well as the failure of the petitioner, Wesley, to

present a viable claim on the merits. The District Court recited the long, convoluted history of this

case from Wesley’s conviction for multiple crimes in the state trial court of Michigan in May 1984.

The District Court has granted a certificate of appealability on a single issue arising from the fact

that the state trial court has never ruled on Wesley’s motion for a new trial after his conviction and

Wesley claims that he has been denied his right to appeal.

       The District Court ruled on the merits on one issue presented by Wesley — an issue claiming

the denial of appellate counsel — as follows:
No. 03-2422
Wesley v. Curtis

               The record reflects that the trial court informed Petitioner of his right to
       appeal at the time of sentencing. At that time, the Court also appointed counsel to
       represent Petitioner on appeal. On November 26, 1984, Petitioner filed a letter with
       the trial court expressing his desire to represent himself on appeal. Petitioner’s
       attorney filed a Motion to Withdraw as Counsel citing Petitioner’s desire to proceed
       pro se, which the trial court granted on January 30, 1995. [The date here should
       apparently be February 4, 1985. See Joint App. p. 139.] People v. Wesley, No. 83-
       61346 & 83-61447 (Jan. 30, 1995). Further, in July 1996, Petitioner filed a request
       for information with the trial court in which he stated that he “refused all state
       appointed attorneys.” [This date should apparently be July 21, 1986. See Joint App.
       p. 140.] See Exhibit 4 to Petitioner’s “Exhibits Not Included Within ‘Index of
       Record,’” filed on December 9, 2002.

                Petitioner has failed to show that his waiver of an appellate attorney was not
       voluntarily and knowingly made. Consequently, he also has failed to show that he
       was denied his appeal of right. Based upon the foregoing, the Court concludes that
       the trial court’s decision denying Petitioner’s claims did not “unreasonably appl[y]
       clearly established [federal] law,” nor was the decision “based on an unreasonable
       determination of the facts in light of the evidence presented.” Harris, 212 F.3d at
       943.

The District Court then issued a certificate of appealability on a different issue, as follows:

       A. Right to Appeal

                Petitioner claims that the Court erroneously based his claim of being denied
       the right to appeal on a failure to appoint counsel. Petitioner argues that the basis of
       this claim was that he had been deprived of due process by the state trial court’s
       failure to rule upon a motion for new trial, not that he had been deprived of his right
       to appellate counsel. Therefore, Petitioner argues, a reasonable jurist would find the
       Court’s assessment of the Petitioner’s constitutional claim debatable. Since it does
       not appear as though the trial court has ever addressed Petitioner’s motion for new
       trial, the Court finds that Petitioner has met the threshold for issuing a certificate of
       appealability on this issue.

               Furthermore, since the Court has granted the Petitioner’s request, at least with
       respect to this issue, to issue a certificate of appealability, the Court finds that
       Petitioner’s appeal has been taken in good faith and, therefore, that Petitioner’s
       Application to Proceed Without Prepayment of Fees and Affidavit should be
       GRANTED. See Fed. R. App. P. 24.



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No. 03-2422
Wesley v. Curtis

The District Court implicitly ruled on this issue when it dismissed the habeas petition. Unlike the

ruling on appellate counsel, however, the record does not reflect that the District Court has explained

its ruling on this issue on which it has granted the COA.

       In the claim on which the COA has been granted, Wesley essentially contends he has been

denied his right to appeal his convictions as of right because the trial court’s undisputed failure to

rule on his motion for new trial, filed on July 31, 1984, has forestalled the running of the period

within which he could file his notice of appeal. Because the motion for new trial is still pending,

he contends, any filing of a notice of appeal would have been premature.

       Our view on this issue is that the motion for a new trial filed in 1984 is not now — 21 years

later — “still pending.” Where no ruling has been made on a motion for a prolonged period of time,

the motion is presumed to have been waived or abandoned absent circumstances indicating

otherwise. See 60 C.J.S. Motions and Orders § 42; People v. Kowalski, 584 N.W.2d 613, 622-23

(Mich. App. 1998) (C.J. Corrigan concurring); People v. Van Hee, 712 N.E.2d 363, 365 (Ill. App.

1999). This case presents no such circumstances.

       In fact, Wesley concedes that even he was unaware of the existence of the motion for new

trial until sometime after 1991. Appellant’s Br. p. 11. The pro forma motion had been prepared and

filed by his appointed trial counsel ten days after Wesley’s sentencing — the very attorney whom

Wesley claimed had afforded him ineffective assistance of counsel, and who had, at Wesley’s

instance, been allowed to withdraw as appellate counsel on January 30, 1985. This concession

severely undercuts Wesley’s implied argument that the pendency of the motion for new trial

prevented him from timely filing a notice of appeal.

                                                 -3-
No. 03-2422
Wesley v. Curtis

       Moreover, Wesley did not even try to bring the motion for new trial to the state courts’

attention in post-conviction proceedings until 1993. By then, the motion must be deemed to have

been abandoned. It follows that Wesley, having failed to prosecute the motion for new trial, and

having failed to demonstrate that such failure was due to circumstances other than culpable neglect,

effectively waived his right to appeal his convictions and sentences. The proceedings in the state

courts can only be interpreted to mean that when Wesley discharged his lawyer and decided to act

pro se he failed to go forward with his case and he, therefore, abandoned or waived his new trial

motion as well as his state court appeal. A defendant does not have to go forward with his case after

conviction by motion for a new trial or appeal. When a convicted defendant abandons further

review, the state court does not act unconstitutionally when it permits him to cease further litigation.

Although there may be other reasons to deny this claim, e.g., procedural default, or the statute of

limitations, or the failure to meet the AEDPA standard of review, 28 U.S.C. § 2254(d), we choose

to deny the claim on the merits because the state courts did not deny to Wesley any due process right

when it did not hear an appeal from his conviction.

       Accordingly, the judgment of the District Court is AFFIRMED.




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