Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 20, 2013                                                                    Robert P. Young, Jr.,
                                                                                                  Chief Justice

  145594                                                                                Michael F. Cavanagh
                                                                                        Stephen J. Markman
                                                                                            Mary Beth Kelly
                                                                                             Brian K. Zahra
                                                                                     Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                         David F. Viviano,
            Plaintiff-Appellee,                                                                        Justices

  v                                                         SC: 145594
                                                            COA: 307728
                                                            Wayne CC: 1995-003838-FH
  WILLIAM CRAIG GARRETT,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, leave to appeal having been granted, and the briefs and oral
  arguments of the parties having been considered by the Court, we AFFIRM the Wayne
  Circuit Court’s November 30, 2011 Opinion and Order denying defendant’s motion for
  relief from judgment. Defendant has failed to meet the burden of establishing entitlement
  to relief under MCR 6.508. Because defendant alleges grounds for relief which were
  previously decided against him by the Court of Appeals and has not established that a
  retroactive change in law has undermined those prior decisions, defendant is not entitled
  to relief under MCR 6.508(D)(2). To the extent defendant alleges grounds for relief
  which could have been raised on appeal, defendant is also not entitled to relief under
  MCR 6.508(D)(3), as he has failed to demonstrate “good cause” for the failure to raise
  such grounds on appeal and “actual prejudice” resulting from the alleged irregularities
  that support his claim for relief. MCR 6.508(D)(3)(a); MCR 6.508(D)(3)(b)(i)-(iv).

         MCCORMACK, J. (dissenting).

        I respectfully dissent. I would remand this case to the trial court for consideration
  of whether defendant’s claim of ineffective assistance of counsel relating to his trial
  counsel’s failure to call or investigate a critical alibi witness entitles defendant to relief.
  Because defendant is not alleging grounds for relief that were previously litigated, I do
  not believe that MCR 6.508(D)(2) bars his instant motion for relief from judgment.
  Although the cumulative nature of the proposed alibi testimony might prevent defendant
  from demonstrating “actual prejudice” under MCR 6.508(D)(3)(b), see People v Carbin,
                                                                                                             2

463 Mich 590, 603 (2001), I believe that the trial court abused its discretion by
dismissing defendant’s motion without a hearing at which defendant could attempt to
meet his burden for relief.

      CAVANAGH, J., joins the statement of MCCORMACK, J.




                       I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                 foregoing is a true and complete copy of the order entered at the direction of the Court.
                       December 20, 2013
       t1217
                                                                           Clerk
