                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 16a0341n.06

                                         No. 15-1825


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
DENARD PETERSON,                                         )                 Jul 06, 2016
                                                         )            DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                             )
                                                         )
v.                                                       )    ON APPEAL FROM THE
                                                         )    UNITED STATES DISTRICT
PAUL KLEE,                                               )    COURT FOR THE EASTERN
                                                         )    DISTRICT OF MICHIGAN
       Respondent-Appellee.                              )
                                                         )




BEFORE: MERRITT, BATCHELDER, and GILMAN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. The story behind this appeal begins in

October 2000, when Petitioner Denard Peterson broke into the Detroit home of an elderly

woman, raped her, ransacked her house, and stole some of her possessions. The victim identified

Peterson out of a live line up, and he gave a full confession. He was then charged in Michigan

state court with first-degree criminal sexual conduct and first-degree home invasion. He also

faced a sentencing enhancement as a habitual offender.

       Peterson suffers from very severe schizophrenia, but he was nevertheless found

competent to stand trial. Following this determination, he pled nolo contendere to the sexual

conduct charge. In exchange, the state dismissed the home-invasion count and agreed to not
No. 15-1825, Peterson v. Klee


proceed with the habitual-offender sentencing enhancement. By all accounts, Peterson appeared

to be competent at the plea hearing.

        At the sentencing hearing two weeks later, however, he gave a rambling and utterly

incomprehensible allocution. After sitting through several minutes of what Peterson’s counsel in

this appeal aptly described as “word salad,” the trial court thanked Peterson and sentenced him to

“a minimum of 285 months and a maximum of 40 years in the Michigan Department of

Corrections.”

        Peterson then filed an untimely “notice of application for leave to appeal and request for

appointment of attorney.”1 The trial court excused the notice’s untimeliness and granted the

request for counsel. The appointed attorney then sent an associate to meet with Peterson to talk

about his options on appeal. At the meeting it became apparent that Peterson wanted his plea

withdrawn because he erroneously believed that he had pled guilty to both counts and had

received the sentencing enhancement.

        His appellate attorney filed a motion with the trial court to have Peterson’s competency

evaluated. Appellate counsel was particularly concerned that Peterson did not understand that, if

he succeeded in withdrawing his plea, he would likely be convicted of both charges and would in

all likelihood face a much longer sentence. The trial court granted the motion and ordered that

Peterson be evaluated.           The examining doctor opined that Peterson was a paranoid

schizophrenic, was psychotic and delusional, and was unable to understand what was at stake in

his appeal. Peterson’s appellate attorney then filed a motion with the trial court asking that

Peterson be committed to a psychiatric treatment facility to restore his competency so that he




1
 Michigan allows for appeals as of right only from trial convictions—appeals from a plea are discretionary with the
Michigan Court of Appeals. See Mich. Comp. Laws §770.3 (2000).

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No. 15-1825, Peterson v. Klee


could go forward with the appeal or, alternatively, that the court provide guidance on how to

proceed.

        The trial court did neither. Instead, it ordered “that this appeal be dismissed subject to the

appellant’s right to seek review pursuant to MCR 6.500 [Michigan’s state collateral attack

regime] should he regain his competence.” R. 11-5 at 132 (emphasis omitted and capitalization

changed). It is not clear from the record why the trial court believed it possessed the authority to

dismiss a petition seeking relief, not from it, but from the Michigan Court of Appeals. Nor does

it appear that the proceeding could be correctly called an appeal at that point inasmuch as the

Michigan Court of Appeals, as best we can tell, had done nothing with Peterson’s request for

leave to appeal.

        At any rate, the matter lay dormant for about two years until Peterson—or, more likely, a

jailhouse lawyer acting on his behalf—filed a pro se motion in the Michigan trial court for relief

from judgment pursuant to MCR 6.500.2 The court—apparently assuming, incorrectly, that

Peterson had regained competency—denied the motion, explaining:

        This court does not agree [with Peterson] that his appellate attorney acted
        inappropriately when he asked the court for guidance regarding the defendant’s
        inability to communicate and grasp the legal issues facing him on appeal.
        However, the defendant is entitled to appellate review of his conviction regardless
        of his competency. As the court noted in People v. Newton, 152 Mich. App. 630,
        635–36 (1986), vacated on other grounds, 428 Mich. 855 (1987), if the defendant
        regains competency and discovers additional issues of significant constitutional
        dimension that should have been raised he may file a motion under MCR 6.500 et
        seq. and present those issues to the court.


R. 11-6 at 133–34 (internal citation forms altered). The court then went on to consider de novo

the merits of Peterson’s claims—that is, the merits of what Peterson had “wanted” (whatever that


2
  Appointment of counsel to indigent defendants in MCR 6.500 proceedings is discretionary with the court unless
“the court directs that oral argument or an evidentiary hearing be held,” in which case appointment is mandatory.
MCR 6.505.

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No. 15-1825, Peterson v. Klee


word may have meant in this circumstance) to argue on direct appeal—concluding that he was

not entitled to any relief.

        Peterson attempted to appeal this denial, but his application for leave to appeal was

dismissed for failure to comply with the relevant procedural rules. After several other abortive

attempts to get relief from the Michigan courts, he filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 in federal district court.

        Warden Paul Klee filed a motion for summary judgment, contending that the petition was

untimely. The district court denied the motion, appointed counsel to represent Peterson, and

ordered an evidentiary hearing. At that hearing, Peterson presented expert testimony that his

mental health problems had prevented him from filing a timely habeas petition. The district

court agreed, concluding that Peterson was entitled to equitable tolling of the statutory

limitations period.

        When it considered the petition itself, however, the district court concluded that habeas

relief was barred by the doctrine of procedural default because Peterson had failed to raise his

arguments before the Michigan appellate courts prior to filing his § 2254 petition. The district

court explained that Peterson’s mental illness, though very severe, did not excuse his procedural

default because he had nevertheless been able to file court documents while incarcerated. The

court also considered the merits of the petition, concluding that none of Peterson’s arguments

warranted relief. Relevant to this appeal, it ruled that there was “no Supreme Court authority . . .

that clearly establishes the right to a renewed direct appeal with all of its attendant rights in these

circumstances.”

        Peterson seeks reversal of this decision on appeal. He first contends that his mental

illness excuses his procedural default, and second, that the district court erred in concluding that



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No. 15-1825, Peterson v. Klee


there was no clearly established right to a renewed appeal.          The Warden opposes these

contentions and argues that the district court erred in tolling the limitations period. Though there

are interesting and important legal issues in each of these arguments, we save most of them for

another day because the bottom line in this case is that Peterson cannot prevail on the merits.

        This is not to say that there is nothing troubling about what happened here. As we

mentioned, the source of the Michigan trial court’s authority to dismiss Peterson’s request for

leave to appeal is unclear to us, and we agree with the district court that “[i]t seems unfair that

[Peterson]—a person whose mental ability is profoundly compromised—was left to fend for

himself at a later date precisely because he had been incompetent when he initially filed his

appeal.”

        But unfairness alone does not warrant habeas relief. When, as here, the facts are not in

dispute and the state court adjudicated the claim on the merits, the Antiterrorism and Effective

Death Penalty Act allows us to grant relief only when the relevant state court decision “was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).                Peterson

contends that he has satisfied this demanding standard, noting that the Supreme Court has long

held that defendants cannot be denied a direct appeal as of right because they are indigent, see

Halbert v. Michigan, 545 U.S. 605, 610 (2005) (quoting Griffin v. Illinois, 351 U.S. 12, 23

(1956) (Frankfurter, J., concurring in the judgment), and that, when an attorney’s deficient

performance deprives a defendant of a direct appeal as of right, prejudice must be presumed

because the adversary process has become so compromised as to be “presumptively unreliable,”

Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (quoting United States v. Cronic, 466 U.S. 648,

659 (1984)) (internal quotation marks omitted).



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        Peterson asks why, in light of these precedents, Michigan should be allowed to deprive a

mentally incompetent defendant of the right to seek direct appellate review, especially because,

in applying Flores-Orega, we have held that “Michigan’s collateral post-conviction proceeding

[is] too unlike an appeal of right to constitute a sufficient substitute.” Hardaway v. Robinson,

655 F.3d 445, 450 (6th Cir. 2011). This is a good question, but the fact that it must be asked

proves too much. Answering it would require us to extrapolate principles from cases such as

Griffin and Flores-Ortega and apply them to a circumstance involving mental incompetency.

This we cannot do. As the Supreme Court recently reminded us, “‘if a habeas court must extend

a rationale before it can apply to the facts at hand,’ then by definition the rationale was not

‘clearly established at the time of the state-court decision.’” White v. Woodall, 134 S. Ct. 1697,

1706 (2014) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004))).

        Moreover, the way Peterson frames the question papers over a serious weakness in his

argument. Although he is correct that Michigan’s collateral-attack proceedings are no substitute

for direct appeals as of right, Hardaway, 655 F.3d at 450, it is not at all evident that Michigan’s

collateral-attack proceedings were an inadequate substitute for the leave-to-appeal proceeding of

which Peterson was deprived. Hardaway’s reasoning is telling on this point. It based its

conclusion on the fact that, unlike someone pursuing a direct appeal as of right, a defendant

seeking appellate review of the denial of a motion for relief from judgment under MCR 6.500

“must apply for leave to appeal,” “does not receive the benefit of oral argument” at the leave

stage, and does not have the right to appointed counsel. Id. at 449–50 (citations omitted).

        None of these distinctions helps Peterson. First, Peterson had no right to a direct appeal.

Rather, just as in MCR 6.500 proceedings, those seeking appellate review of a plea must first

obtain leave from the Michigan Court of Appeals. Compare MCR 6.302(B)(5) with MCR



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No. 15-1825, Peterson v. Klee


6.509(A). Second, Michigan’s rules do not allow for oral argument at the leave stage in either

type of proceeding. See MCR 7.205(E)(1). Third, although Peterson did have appointed counsel

at the leave stage, this was purely a grant of state law, not a clearly established constitutional

requirement. Indeed, Michigan generally prohibited the appointment of counsel at the leave

stage. See Mich. Comp. Laws. § 770.3a (2000); see also MCR 6.505.3

         We use the past tense with respect to the third point because the Supreme Court held in

Halbert that Michigan’s prohibition of appointed counsel at the leave stage was unconstitutional

under the Due Process and Equal Protection clauses.                     545 U.S. at 610.         But, contrary to

Peterson’s protestations, that holding is irrelevant here since Halbert was decided years after the

trial court dismissed his request for leave to appeal.                     Indeed, Peterson does not even

acknowledge this retroactivity problem, much less explain how it could be overcome. Nor does

he argue that the Michigan trial court should have considered Halbert on collateral review—

though Halbert had been decided several months before Peterson filed his MCR 6.500 motion,

that case was not mentioned in his brief.

         There is, in sum, little difference between what Peterson was deprived of and what he

ended up with. Even if one were to assume that the reasoning of Flores-Ortega and Griffin

could be legitimately extended to the circumstances of this case, it is far from obvious that MCR

6.500 proceedings were a constitutionally inadequate substitute. Nor are we persuaded that the

Michigan courts had a duty to attempt to restore Peterson’s competency.                             Anti-psychotic

medicine may be forcibly administered to criminal defendants under certain circumstances, but

this is not, as Peterson would have it, a constitutional requirement, much less a clearly

established one. See Sell v. United States, 539 U.S. 166, 169 (2003).

3
  Though the record does not address this issue, it appears that Peterson was appointed counsel at the leave-to-appeal
stage because he had received an above-the-guidelines sentence, which triggered an exception to the general
prohibition. See Mich. Comp. Laws § 770.3a(2) (2000).

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No. 15-1825, Peterson v. Klee


        Thus, having found nothing that “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States,” 28U.S.C. § 2254(d), we affirm the district court’s denial of Peterson’s petition

for a writ of habeas corpus.




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No. 15-1825, Peterson v. Klee


        MERRITT, Circuit Judge, concurring. I agree with Judge Batchelder that Peterson

does not comply with § 2254(d). That is because he never tells us what error the state court

made.

        The bottom-line problem for me in this case is: what specific relief in habeas does

Peterson ask for—release, a reduction in sentence, a trial? Does he claim that his original plea

was coerced or that he wants now to enter a plea of not guilty by reason of insanity, or what?

His habeas petition does not state what relief he seeks. His basic claim is that due process of law

entitles him to a direct appeal in state court and that we should issue an order requiring the state

court to allow him to make a direct appeal of his state court sentence, but he does not explain

why the state trial court was wrong to allow him to plead guilty or why the sentence for rape was

wrong or invalid under either federal or state law. The federal habeas petition does not state a

constitutional claim that anything that happened in the state proceeding was in error. In order to

obtain federal habeas relief an understandable federal constitutional claim must be stated.




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