                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0273p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                               X
                                                -
 TERRENCE HENDERSON,
                                                -
                               Petitioner-Appellant,
                                                -
                                                -
                                                    No. 11-1943
         v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 CARMEN PALMER, Warden,
                                               N
                 Appeal from the United States District Court
               for the Eastern District of Michigan at Bay City.
          No. 1:07-cv-14712—Thomas L. Ludington, District Judge.
                          Decided and Filed: September 12, 2013
     Before: COLE and DONALD, Circuit Judges; MARBLEY, District Judge.*

                                      _________________

                                           COUNSEL
ON BRIEF: John K. Crisham, Andrew C. Phillips, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellant. Mark G. Sands, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        ALGENON L. MARBLEY, District Judge. Petitioner-Appellant Terrence
Henderson appeals the district court’s denial of his petition for a writ of habeas corpus,
pursuant to 28 U.S.C. §2254. He contends that the district court erred in finding his first,
second, third, and fifth claims of error to be procedurally defaulted. The basis for
finding procedural default was the lateness of Henderson’s application for leave to
appeal the trial court’s denial of his first motion for reconsideration. The late arrival


        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                  1
No. 11-1943        Henderson v. Palmer                                            Page 2


caused the Michigan Court of Appeals to dismiss his application as untimely.
Henderson argues that the district court’s decision neglected controlling Sixth Circuit
law, specifically, Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003). The Appellee
concedes that the district court neglected Maples, but proposes alternative grounds for
finding Henderson’s claims to be procedurally defaulted. We reverse the district court.

                                  I. BACKGROUND

                                  A. Arrest and Trial

       On February 7, 2003, in Lansing, Michigan, the Petitioner-Appellant, Terrence
Henderson, was stopped by a police officer for driving 35 miles per hour in a 25 miles
per hour zone. When the officer entered the vehicle’s information into the police
database, he discovered that the vehicle had been reported stolen in Detroit. The officer
arrested Henderson and transferred him to the custody of the Detroit Police Department.
In Detroit, Officer Mark Burke attempted to organize a live lineup, but could not locate
five males of defendant’s description. Officer Burke “called around to the different
precincts [in Detroit, Michigan] but could not find any black males in custody that fit
defendant’s description.” Officer Burke then decided to conduct a photographic lineup,
at which Henderson was identified as the suspect in a carjacking. Police records state
that an attorney representing Henderson’s interests, Timothy Corr, was present for the
photographic lineup. After Henderson’s conviction, however, Corr wrote a letter to
Henderson stating that he had not been present at the lineup and that any record to the
contrary was erroneous.

       At trial, Henderson’s counsel neither challenged the admission of the
photographic lineup, nor testimony regarding it. In fact, Henderson’s counsel chose not
to present any evidence at trial. The jury found Henderson guilty of armed robbery and
carjacking.
No. 11-1943        Henderson v. Palmer                                               Page 3


                                    B. Direct Appeal

       Henderson appealed his conviction to the Michigan Court of Appeals. Once
Henderson received the letter from Corr, he requested that his appellate counsel include
it in a supplemental brief. Appellate counsel refused, stating that Henderson must first
pay him for the work he had already performed. He also informed Henderson that
Henderson himself could file a brief.        Appellate counsel did not object to the
prosecutor’s alleged solicitation of false evidence. The court of appeals denied
Henderson’s appeal.

       Appellate counsel then erroneously informed Henderson that he had until April
15, 2005 to apply for leave to appeal to the Michigan Supreme Court when the actual
deadline was April 7, 2005. Henderson’s application, which arrived on April 8, 2005
was rejected as untimely.

                       C. First Motion for Relief from Judgment

       On November 11, 2005, Henderson filed his first motion for relief from judgment
in the original trial court. He raised four claims:

       (1) Trial counsel was ineffective for failing to challenge admission of the
       photographic lineup;
       (2) The prosecutor violated Henderson’s right to a fair trial by soliciting
       false evidence and testimony about the presence of an attorney at the
       photographic lineup;
       (3) Trial counsel was ineffective for failing to investigate whether there
       was an attorney present at the photographic lineup; and
       (4) Appellate counsel was ineffective for failing to raise the first three
       issues on direct appeal.

In a two-page decision, the trial court denied Henderson’s motion pursuant to
Michigan’s Rule of Criminal Procedure 6.504(B)(2), finding that “it appears from the
face of the materials presented that defendant is not entitled to relief.”

       Under Michigan law as it stood then, Henderson had one year during which to
file an appeal, giving him until December 5, 2006. Henderson proceeded pro se in
No. 11-1943        Henderson v. Palmer                                              Page 4


preparing his appeal and submitted his filing packet to the prison mailroom on
November 30, 2006. As a result of failings by the prison’s mail system, Henderson’s
packet did not arrive until one day after the filing deadline. The court of appeals
dismissed Henderson’s application for lack of jurisdiction on account of its lateness.
Henderson appealed the dismissal, but the Michigan Supreme Court also denied his
application for leave to appeal, without considering the merits.

      D. Federal Habeas Corpus and Second Motion for Relief from Judgment

       On November 2, 2007, Henderson filed a petition for habeas corpus in the United
States District Court for the Eastern District of Michigan. The district court held the
petition in abeyance to allow Henderson to exhaust certain claims, none of which is
presented by the appeal sub judice, not previously presented to Michigan courts.

       Again, the original trial court denied Henderson’s motion for relief, finding no
new evidence or retroactive change in the law necessary to support such a motion.
Henderson applied for leave to appeal, but Michigan Rule of Criminal Procedure
6.502(G) prohibits an appeal from “the denial or rejection of a successive motion [for
relief from judgment].” Accordingly, the court of appeals denied his application.

       The district court then lifted the stay on Henderson’s habeas petition. The
petition presented twelve claims of error. The district court found that four of the claims
were procedurally defaulted because Henderson “did not fairly present them to the
Michigan Supreme Court because his application for leave to appeal was untimely and
not accepted for filing.” The district court also found that five claims were procedurally
defaulted. Henderson had presented those five claims for the first time in his second
motion for relief from judgment. Thus, the state courts had disposed of the claims on
procedural grounds and they had not been exhausted. No remedy remained to exhaust
those claims and Henderson had not established the necessary elements, cause and
prejudice, to excuse his default. Contrary to the district court’s understanding, however,
Henderson’s claim that appellate counsel was ineffective for failing to raise certain
errors of trial counsel had actually been presented in Henderson’s first motion for relief
from judgment. Finally, the district court denied Henderson’s second, third, and fifth
No. 11-1943        Henderson v. Palmer                                              Page 5


claims because his application for leave to appeal the trial court’s denial of his first
motion for relief from judgment was rejected when it failed to arrive at the court of
appeals within the 12-month deadline, for reasons discussed supra. Henderson filed a
motion for reconsideration which the district court also denied.

       Proceeding pro se, Henderson then applied to this Court for a certificate of
appealability, arguing, in relevant part, that the district court had erred in finding the
claims presented by his first motion for relief from judgment to be procedurally
defaulted. The first certificate of appealability granted Henderson leave to proceed on
the second, third, and fifth claims of his habeas petition:

       II.    The prosecutor violated Mr. Henderson’s rights to a fair trial
       under the Fourteenth Amendment of the United States Constitution and
       Michigan Constitution 1963, Art. 1, §17, by the soliciting of false
       evidence and testimony to obtain a conviction.
       III.    Mr. Henderson was denied the effective assistance of trial counsel
       in violation of the Sixth Amendment where trial counsel (1) failed to
       investigate [sic] (2) failed to uphold and protect Mr. Henderson’s state
       and federal due process rights.
       V.      Defendant was denied his Sixth Amendment right to the effective
       assistance of counsel, when his counsel failed to seek suppression of the
       photographic show up [sic] that was conducted with the complainant
       while Defendant was in custody.

On Henderson’s motion for reconsideration, this Court subsequently expanded the
certificate of appealability to include Henderson’s first claim:

       I.     Petitioner was denied the effective assistance of appellate counsel
       where counsel failed to raise the [preceding] issues [II and III], and
       where counsel gave Mr. Henderson inaccurate advice.

Since that claim had actually been raised in Henderson’s first motion for relief from
judgment, it was not procedurally defaulted.

       Hence, we now consider the first, second, third, and fifth claims in Henderson’s
habeas petition. For the reasons stated herein, the district court’s denial of those claims
No. 11-1943         Henderson v. Palmer                                                 Page 6


as procedurally defaulted is VACATED. We remand all four claims to the district court
for further proceedings consistent with this opinion.

                                   II. JURISDICTION

        Petitioner appeals the denial of his petition for habeas corpus by the district court,
pursuant to 28 U.S.C. § 2254. We have jurisdiction to consider the appeal pursuant to
28 U.S.C. §§ 1291 and 2253.

                                     III. ANALYSIS

                                 A. Standard of Review

        In a habeas proceeding, we review the district court’s legal conclusions de novo
and its factual findings for clear error. Adams v. Holland, 330 F.3d 398, 400 (6th Cir.
2003). Pursuant to the Antiterrorism and Effective Death Penalty Act, habeas relief is
available to a state prisoner only where “the applicant has exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(a). Generally, this Court
reviews only those habeas claims decided on the merits in state courts, not those deemed
procedurally defaulted. Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000).
Nonetheless, “[a] petitioner may avoid this procedural default [] by showing that there
was cause for the defaults and prejudice resulting from the default, or that a miscarriage
of justice will result from enforcing the procedural default in the petitioner’s case.” Id.
at 550. To determine whether a claim has been procedurally defaulted, we apply a four-
factor test:

        First, the court must determine whether there is such a procedural rule
        that is applicable to the claim at issue and whether the petitioner did, in
        fact, fail to follow it. Second, the court must decide whether the state
        courts actually enforced its procedural sanction. Third, the court must
        decide whether the state's procedural forfeiture is an “adequate and
        independent” ground on which the state can rely to foreclose review of
        a federal constitutional claim. “This question will usually involve an
        examination of the legitimate state interests behind the procedural rule
        in light of the federal interest in considering federal claims.” And, fourth,
        the petitioner must demonstrate, consistent with Wainwright v. Sykes,
        433 U.S. 72 [] (1977), that there was “cause” for him to neglect the
No. 11-1943             Henderson v. Palmer                                                          Page 7


         procedural rule and that he was actually prejudiced by the alleged
         constitutional error.

Greer v. Mitchell, 264 F.3d 663, 672-73 (6th Cir. 2001).

                           B. Maples and Alleged Procedural Default

         The district court found Henderson’s claims to be procedurally defaulted on the
grounds that his application “for leave to appeal to the Michigan Court of Appeals from
the trial court’s denial of the [first motion for relief from judgment] was dismissed
because it was not filed within the applicable 12-month limitations period.”1 Thus, those
claims “were not fairly presented to the Michigan Court of Appeals and are
unexhausted.” What the district court overlooked, however, is the reason that the
application for leave to appeal was not filed within the applicable 12-month limitations
period: prison mail officials failed to deliver timely Henderson’s application to the
Michigan Supreme Court. The Appellee concedes that, as evidenced by Henderson’s
receipt, Henderson commended his application to the care of prison mail officials on the
morning of November 30, 2006, five days prior to the deadline. This Court has
previously held that “[w]here a pro se prisoner attempts to deliver his petition for
mailing in sufficient time for it to arrive timely in the normal course of events” that
circumstance “is sufficient to excuse a procedural default based upon a late filing.”
Maples v. Stegall, 340 F.3d 433, 439 (6th Cir. 2003).

         In the case sub judice, as in Maples, the petitioner submitted his petition to the
prison mail room five days prior to the deadline. At that point, the papers were in the
control of prison officials and Henderson could not influence their delivery. We abide
by the Maples panel that when a prisoner submits a petition to the prison mailroom five
days prior to a filing deadline and it is not delivered there is “cause to excuse [the]
procedural default.” Id. Thus, none of the four claims sub judice is procedurally


         1
            As mentioned supra, the district court erroneously found that Henderson’s first claim was raised
for the first time only in his second motion for relief from judgment. That is incorrect; it was raised in his
first motion for relief from judgment. The district court dismissed all claims raised in the first motion for
relief also. Although we do not know whether the district court would also have dismissed the first claim
for the same reasons it dismissed the other claims, to do so would have been incorrect for reasons we
explain here.
No. 11-1943          Henderson v. Palmer                                            Page 8


defaulted as a result of the late arrival of Henderson’s application to the Michigan
Supreme Court. The district court’s finding to the contrary was in error.

          The Appellee concedes that Maples is controlling law, but nevertheless urges us
to deny Henderson’s appeal on other grounds not stated by the district court.
Specifically, the Appellee argues that in denying Henderson’s first motion for relief from
judgment, the trial court found the same claims presented here “were defaulted for
[Henderson’s] failure to raise them on direct appeal and, alternatively, that they lacked
merit.”

          On habeas review, we do not consider claims that were deemed procedurally
defaulted on “an independent and adequate state procedural rule . . . unless the prisoner
can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in
a fundamental miscarriage of justice.” Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th
Cir. 2011), cert. denied, 133 S. Ct. 107, (2012), (quoting Coleman v. Thompson,
501 U.S. 722, 750 (1991)). As stated above, in the Sixth Circuit, “[a] habeas petitioner’s
claim will be deemed procedurally defaulted if each of the following four factors is met:
(1) the petitioner failed to comply with a state procedural rule; (2) the state courts
enforced the rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4) the petitioner has
not shown cause and prejudice excusing the default.” Id. To determine whether a state
procedural rule was applied to bar a habeas claim, we look “to the last reasoned state
court-decision disposing of the claim.” Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir.
2010) (en banc).

               C. First Claim: Ineffective Assistance of Appellate Counsel

          We note that of the four claims sub judice, the first, ineffective assistance of
appellate counsel for failing to raise the second and third claims on direct appeal, could
not possibly have been raised on direct appeal. Only after appellate counsel failed to
raise the second and third claims on direct appeal could Henderson claim he had received
ineffective assistance. Henderson’s first opportunity to raise ineffective assistance of
No. 11-1943         Henderson v. Palmer                                               Page 9


appellate counsel was on collateral review in the Michigan courts, an opportunity he
took in his first motion for relief from judgment. Guilmette, 624 F.3d at 291. Thus, we
hold Henderson’s claim of ineffective assistance of appellate counsel in the direct appeal
is not procedurally defaulted for failure to present it on direct appeal because to do so
was manifestly impossible. Indeed, Appellee cannot satisfy even the first prong of the
test for procedural default because in the last reasoned state court decision, the original
trial court denied the ineffective assistance of appellate counsel claim on the merits,
rather than procedural grounds. It found, in relevant part, that “[a]ppellate counsel
cannot be ineffective for failing to raise these issues, which were without merit”
(emphasis added).

        Alternatively, the Appellee requests that we deny Henderson’s first claim on the
merits. According to the Appellee, Henderson’s appellate counsel was aware of the
letter from Corr that gave rise to the second and third claims, and made a “strategic
decision” not to raise those claims. Since the district court erred in finding the first claim
to be procedurally defaulted, however, “no federal court has yet issued a substantive
ruling on this habeas corpus claim.” Smith v. Morgan, 371 F.App’x 575, 582 (6th Cir.
2010). Moreover, Henderson seeks an evidentiary hearing in order to prove his claim
of ineffective assistance, the proper venue for which is the district court. Thus, we
REMAND Henderson’s first claim of error to the district court.

   D. Second, Third, and Fifth Claims: Ineffective Assistance of Trial Counsel and
                           Solicitation of False Evidence

        Unlike Henderson’s first claim, the other three claims could all have been raised
on direct appeal: (2) solicitation of false evidence by the prosecutor; (3) failure of trial
counsel to investigate the photographic lineup and whether there was an attorney
present; and (5) failure of trial counsel to seek suppression of the photographic lineup.
The Appellee argues that Henderson’s failure to raise these claims on direct appeal
renders them procedurally defaulted pursuant to Michigan Rule of Criminal Procedure
6.508(D)(3).
No. 11-1943            Henderson v. Palmer                                                       Page 10


         As this Court previously held in another case considering Michigan’s Rule
6.508(D), “neither the mere availability nor the potential, or even obvious, applicability
of such a [procedural] rule is determinative. To operate as a bar to habeas review, such
a rule must be clearly and expressly invoked.” Skinner v. McLemore, 425 F.App’x 491,
495 (6th Cir. 2011) (emphasis added) (citing Harris v. Reed, 489 U.S. 255, 263 (1989)).
Put another way, “there must be unambiguous state-court reliance on a procedural
default to block our [federal habeas corpus] review.” Id., quoting Bowling v. Parker,
344 F.3d 487, 499 (6th Cir. 2003). If a state court order denying relief cites to Rule
6.508(D), with little or no explanation, “[w]e must therefore look to the last reasoned
state court opinion to determine the basis for the state court’s rejection of [petitioner’s]
claim.” Guilmette, 624 F.3d at 291.

         First, we observe that the district court found the grounds for procedural default
to be the late arrival of Henderson’s application for leave to appeal, not a failure to
comply with Rule 6.508(D)(3). Second, the last reasoned decision of the state courts,
the trial court’s denial of Henderson’s first motion for relief from judgment, did not find
procedural default pursuant to Rule 6.508(D)(3). In fact, that decision did not cite any
part of Rule 6.508(D). The only rule the trial court did cite, Rule 6.504(B)(2), merely
directs the court to deny a motion for relief “[i]f it plainly appears from the face of the
materials . . . that the defendant is not entitled to relief.” Third, although the trial court
stated that “Defendant cannot establish cause for failing to present these issues in earlier
proceedings,” it proceeded to address the merits of the claims. The trial court quoted the
court of appeals decision on Henderson’s direct appeal, which held that “the facts
adduced at trial demonstrate that an independent basis exist [sic] for the identification
and a motion to challenge the admission of the photographic show up would have been
unsuccessful.” The trial court went on to state that “[a]ppellate counsel cannot be
ineffective for failing to raise these issues, which were without merit.”2 In light of the


         2
           The Appellee suggests that since Henderson could have filed a pro se supplemental brief in
addition to the one filed by his counsel and failed to do so, his second, third, and fifth claims should be
procedurally barred for failure to raise them on direct appeal. Appellee’s brief does not cite any case law
in support of that proposition. Appellee also fails to explain how the possibility Henderson could have
filed such a brief would mean that appellate counsel’s assistance was not ineffective.
No. 11-1943         Henderson v. Palmer                                               Page 11


trial court’s failure to “clearly and expressly” invoke Rule 6.508(D), and its statements
on the merits of Henderson’s claims, we hold that the decision is ambiguous as to
whether Henderson’s claims were found to be procedurally defaulted or denied on the
merits. Since the trial court’s decision does not show “unambiguous state-court reliance
on a procedural default,” we cannot say that the state court actually enforced a
procedural rule in denying Henderson’s claim. The Appellee, thus, cannot satisfy the
second prong of the test for procedural default.

        Even if the second prong had been satisfied, however, Henderson has
demonstrated cause and prejudice to excuse a procedural default. We have previously
held that where habeas petitioner’s appellate counsel was ineffective for failing to raise
errors of trial counsel on direct appeal a “[p]etitioner has cause for his error [of failing
to raise claims on direct appeal] because it was a direct result of ineffective assistance
of appellate counsel.” Williams v. Anderson, 460 F.3d 789, 799-800 (6th Cir. 2006).
This Court has established a fact-intensive, eleven-part inquiry to determine whether
appellate counsel rendered ineffective assistance. See Greer, 264 F.3d at 679. If
Henderson were to persuade the district court that his appellate counsel was ineffective
for failing to raise the second, third, and fifth claims of error, Henderson’s failure to raise
them on direct appeal would be excused and the district court would consider the merits
of those claims. Thus, in addition to the fact that Michigan courts did not clearly enforce
the procedural rule in denying Henderson’s claim, the fact that his appellate counsel was
potentially ineffective for failing to raise the claims on direct appeal would require us
to remand the claims to the district court to determine whether appellate counsel had
indeed rendered ineffective assistance.

        Since the district court did not apply Maples in denying Henderson’s claims for
procedural default, we REMAND the second, third, and fifth claims of error to the
district court. We do not accept Appellee’s proposed alternative basis for finding
procedural default, Henderson’s failure to raise the claims on direct appeal as required
by Michigan’s Rule 6.508(D)(3), because the state court’s last reasoned decision did not
clearly and expressly invoke that procedural rule in denying Henderson’s claims.
No. 11-1943         Henderson v. Palmer                                           Page 12


Finally, even if we deemed Henderson’s claims to be procedurally defaulted pursuant
to Rule 6.508(D)(3), his ineffective assistance of appellate counsel claim would, if
proved, excuse the procedural default. Since the district court did not consider the merits
of Henderson’s ineffective assistance of appellate counsel claim, remand would still be
the appropriate remedy.

                                  IV. CONCLUSION

       For the foregoing reasons we REVERSE the district court’s decision denying
Petitioner’s habeas corpus petition and we REMAND the first, second, third, and fifth
claims of error to the district court for consideration.
