           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Maples v. Stegall                           No. 01-2727
        ELECTRONIC CITATION: 2003 FED App. 0296P (6th Cir.)
                    File Name: 03a0296p.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ON BRIEF:       Brad H. Beaver, OFFICE OF THE
                  FOR THE SIXTH CIRCUIT                                   ATTORNEY GENERAL, CORRECTIONS DIVISION,
                    _________________                                     Lansing, Michigan, for Appellee. David A. Maples, New
                                                                          Haven, Michigan, pro se.
 DAVID MAPLES,                 X
                                                                            GILMAN, J., delivered the opinion of the court, in which
         Petitioner-Appellant, -                                          MARBLEY, D. J., joined. BOGGS, J. (p. 15), delivered a
                                -
                                -             No. 01-2727                 separate opinion concurring in part and dissenting in part.
          v.                    -
                                 >                                                            _________________
                                ,
 JIMMY STEGA LL,                -                                                                 OPINION
        Respondent-Appellee. N                                                                _________________
                                                                            RONALD LEE GILMAN, Circuit Judge. David Maples
       Appeal from the United States District Court                       pled guilty in Michigan state court to one count of
      for the Eastern District of Michigan at Detroit.                    distributing cocaine. He did so only after receiving
    No. 00-71718—Victoria A. Roberts, District Judge.                     assurances from his attorney that he would subsequently be
                                                                          able to appeal an alleged violation of his speedy-trial rights.
                    Submitted: June 18, 2003                              That advice turned out to be erroneous. The Michigan Court
                                                                          of Appeals held on direct appeal that Maples’s plea agreement
             Decided and Filed: August 19, 2003                           clearly precluded him from subsequently raising this issue.
                                                                             After the Michigan court system denied him any relief,
        Before: BOGGS and GILMAN, Circuit Judges;                         either on direct appeal or in post-conviction proceedings,
                 MARBLEY, District Judge.*                                Maples filed a petition for habeas corpus in the district court
                                                                          below. He raised, among other alleged errors, an ineffective-
                                                                          assistance-of-counsel claim. The district court denied the
                                                                          petition, but granted Maples a certificate of appealability
                                                                          solely with respect to the issue of ineffective assistance of
                                                                          counsel. For the reasons set forth below, we VACATE the
                                                                          judgment of the district court and REMAND the case with
                                                                          directions that the court assess the merits of Maples’s speedy-
                                                                          trial argument as part of his ineffective-assistance-of-counsel
    *
     The Honorable Algenon L. Marbley, United States District Judge for   claim.
the Southern District of Ohio, sitting by designation.

                                  1
No. 01-2727                            Maples v. Stegall         3   4    Maples v. Stegall                          No. 01-2727

                    I. BACKGROUND                                    curiam opinion, the state appellate court affirmed the trial
                                                                     court’s ruling. It held that “Defendant’s unconditional guilty
  Maples was charged in Michigan state court with delivery           plea waives review of the claimed violation of the 180-day
of more than 50 grams of cocaine and with being part of a            rule . . . and his claimed violation of his constitutional and
conspiracy to so deliver, in violation of Michigan state law.        statutory right to a speedy trial . . . .”
He filed motions to dismiss the charges on the grounds that he
was entrapped and that the state’s 180-day speedy-trial rule           Proceeding pro se, Maples then filed an application for
was violated. The court denied both motions.                         leave to appeal to the Michigan Supreme Court. He raised the
                                                                     same claims that he had raised before the Court of Appeals,
  On the day scheduled for trial, Maples entered into a plea         as well as a claim that his trial counsel was constitutionally
agreement, pursuant to which he pled guilty to the delivery          ineffective for failing to apprise Maples that he could not
charge and the state moved to dismiss the conspiracy charge.         appeal the speedy-trial issue after accepting the guilty plea.
At the plea colloquy, the following exchange transpired              The Michigan Supreme Court denied leave to appeal in a
between Daniel Feinberg, Maples’s trial counsel, James               summary order.
Sullivan, the Assistant District Attorney, and the court:
                                                                        Maples subsequently filed a motion for relief from
  Feinberg: Also, your honor, I believe since it is a                judgment with the state trial court. He again raised the
  jurisdictional matter, this wouldn’t affect [Maples’s]             ineffective-assistance-of-counsel claim, and again the trial
  rights preserved on appeal, 180 days and all that . . . .          court denied relief. Maples then sought leave to appeal the
                                                                     trial court’s ruling to the Michigan Court of Appeals, which
  The Court: I am not going to make any comments on the              denied the application on October 21, 1999.
  180-day rule. I can’t remember whether it does or not.
  Do you recall?                                                        Fifty-one days later, on December 11, 1999, Maples
                                                                     completed his application for leave to appeal to the Michigan
  Sullivan: I am sure . . . I think he waived it.                    Supreme Court. The application included a claim that his
                                                                     trial counsel was constitutionally ineffective. That day,
  The Court: I can’t comment on that. . . . I cannot tell you.       Maples called the prison mailroom, per prison policy, to
  You are going to have to advise your client in that regard         ascertain the cost of mailing his application. He was told to
  on that; whether it is waived or not. I cannot make any            call back two days later.
  comments on that. Frankly, I don’t recall.
                                                                        On December 13, 1999, Maples was quoted the price to
Maples subsequently accepted the plea agreement. He did so           send his application. Although the record is unclear on this
because his counsel advised him that the plea agreement              issue, it appears that Maples delivered his application to the
would not preclude him from arguing on appeal that his               prison mailroom either that day or the very next day, 53 or 54
speedy-trial rights were violated.                                   days after the Michigan Court of Appeals denied leave to
                                                                     appeal.
  Maples appealed his conviction to the Michigan Court of
Appeals, claiming that the trial court erred in denying his            The Michigan Supreme Court received Maples’s
motion to dismiss, which was based in part upon the alleged          application on December 17, 1999, 57 days after the Court of
violation of his right to a speedy trial. In an unpublished per
No. 01-2727                             Maples v. Stegall         5   6      Maples v. Stegall                             No. 01-2727

Appeals issued its ruling. This was untimely under Michigan           Stovall, 212 F.3d 940, 942 (6th Cir. 2000). Maples filed his
law, which requires that such an application “be filed [no]           federal habeas corpus petition after the passage of the
more than 56 days after the Court of Appeals decision.”               Antiterrorism and Effective Death Penalty Act (AEDPA),
MCR 7.302(C)(3). The Michigan Supreme Court therefore                 codified principally at 28 U.S.C. § 2254(d). It provides in
returned the application without filing it due to the procedural      part that a federal court may grant a writ of habeas corpus
default.                                                              with respect to a state-court judgment only where
  Maples then filed a petition for habeas corpus in the district          the adjudication of the claim (1) resulted in a decision
court below. Among other claims raised in support of                      that was contrary to, or involved an unreasonable
collateral relief, Maples contended that his counsel was                  application of, clearly established Federal law, as
constitutionally ineffective for misadvising him about his                determined by the Supreme Court of the United States;
ability to raise the speedy-trial issue after pleading guilty.            or (2) resulted in a decision that was based on an
The district court denied the petition, holding in pertinent part         unreasonable determination of the facts in light of the
as follows:                                                               evidence presented in the State court proceeding.
  Petitioner was represented by counsel at his plea, and he           28 U.S.C. § 2254(d).
  indicated that his plea was voluntary and intelligent.
  Although his attorney asserted that the plea did not waive             This statute by its own terms is applicable only to habeas
  Petitioner’s right to raise his speedy trial claim on appeal,       claims that were “adjudicated on the merits in State court
  the trial court stated that it could not comment on that            . . . .” Id. Where, as here, the state court did not assess the
  issue. The plea was not conditioned on Petitioner’s right           merits of a claim properly raised in a habeas petition, the
  to appeal the speedy trial issue. Therefore, Petitioner’s           deference due under AEDPA does not apply. Williams v.
  guilty plea forecloses habeas review of his speedy trial            Coyle, 260 F.3d 684, 706 (6th Cir. 2001) (applying pre-
  claim.                                                              AEDPA standards to a habeas petition filed pursuant to
                                                                      § 2254 because “no state court reviewed the merits of [the]
  The district court did not explicitly rule on the ineffective-      claim”). Instead, this court reviews questions of law and
assistance-of-counsel claim. Maples filed a motion for a              mixed questions of law and fact de novo. Id.
certificate of appealability on this issue. The district court
granted a certificate as to “whether Maples received                    The case law in this circuit, however, has been less than
ineffective assistance of counsel when his attorney advised           consistent on this point, as indicated by the following
Maples that he could plead guilty and still raise a speedy trial      statement:
claim on appeal.”
                                                                          Several other circuits . . . found when a state court fails
                       II. ANALYSIS                                       to address a petitioner’s federal claim at all, the appellate
                                                                          court should apply the pre-AEDPA de novo standard of
A. Standard of review                                                     review. . . . Whether these courts’ holdings are correct,
                                                                          however, is not for this panel to decide. In Doan [v.
  “This court applies de novo review to the decision of the               Brigano, 237 F.3d 722 (6th Cir. 2001)], the state court
district court in a habeas corpus proceeding.” Harris v.                  failed to mention, let alone adjudicate, the petitioner’s
No. 01-2727                            Maples v. Stegall      7    8        Maples v. Stegall                        No. 01-2727

  federal claim. However, the Doan court still applied the         of the United States Supreme Court requires modification of
  AEDPA standard in reviewing the petitioner’s claim.              the decision or this Court sitting en banc overrules the prior
  Even if the Doan court did not explain its reasoning for         decision.”).
  adopting its position, this panel is still bound by its
  decision.                                                        B. Maples’s ineffective-assistance-of-counsel claim

Clifford v. Chandler, 333 F.3d 724, 730 (6th Cir. 2003)              The right to the effective assistance of counsel is
(internal citations omitted). Normally, this would end our         guaranteed by the Sixth Amendment to the United States
inquiry, and we would proceed to apply AEDPA, because “[a]         Constitution. Roe v. Flores-Ortega, 528 U.S. 470, 476
panel of this court cannot overrule the decision of another        (2000). A petitioner must satisfy a two-prong test to prevail
panel.” Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir.             on an ineffective-assistance-of-counsel claim. First, the
2002). Both Clifford and Doan, however, were abrogated by          petitioner must show that the performance of counsel fell
Wiggins v. Smith, –U.S. –, 123 S. Ct. 2527 (2003), a Supreme       “below an objective standard of reasonableness.” Strickland,
Court opinion that was issued the day after Clifford.              466 U.S. at 688. In so doing, the petitioner must rebut the
                                                                   presumption that counsel’s “challenged action might be
   The Wiggins Court held that the petitioner was entitled to      considered sound trial strategy.” Id. at 689 (internal quotation
a writ of habeas corpus on the basis of his ineffective-           marks omitted). The second prong requires that the defendant
assistance-of-counsel claim. Id. at 2544. It applied AEDPA’s       “show that there is a reasonable probability that, but for
“unreasonable-application” test to the state court’s ruling on     counsel’s unprofessional errors, the result of the proceeding
the first prong of Strickland v. Washington, 466 U.S. 668          would have been different. A reasonable probability is a
(1984). Wiggins, 123 S. Ct. at 2538 (“The Court of Appeals’        probability sufficient to undermine confidence in the
assumption that the investigation was adequate thus reflected      outcome.” Id. at 694.
an unreasonable application of Strickland.”) (internal citation
omitted). The Wiggins Court, however, noted that because no            1.    Procedural default
state court analyzed the petitioner’s claim for prejudice—the
second prong of Strickland—its “review [wa]s not                     “Federal habeas relief is available to state prisoners only
circumscribed by a state court conclusion.” Id. at 2542 (“In       after they have exhausted their claims in state court.”
this case, our review is not circumscribed by a state court        O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999) (citing 28
conclusion with respect to prejudice, as neither of the state      U.S.C. § 2254(b)(1)). A habeas petitioner has not exhausted
courts below reached this prong of the Strickland analysis.”).     his claims in state court unless he has “properly presented”
The Court therefore did not assess whether the state court’s       his claims to a state court of last resort. Id. at 848 (emphasis
ruling “resulted in a decision that was contrary to, or involved   omitted). The state’s sole argument in the present appeal is
an unreasonable application of, clearly established Federal        that because Maples failed to timely raise his ineffective-
law, as determined by the Supreme Court of the United              assistance-of-counsel claim before the Michigan Supreme
States,” but rather conducted its review de novo. Id. at 2542-     Court, the federal courts are precluded from ruling on the
44. In light of this new Supreme Court precedent, we too           merits of the claim.
must review Maples’s ineffective-assistance-of-counsel claim
de novo. See Hinchman, 312 F.3d at 203 (“[A] prior decision          This court will consider the merits of a procedurally
remains controlling authority unless an inconsistent decision      defaulted claim in a habeas petition, however, where the
No. 01-2727                            Maples v. Stegall         9   10    Maples v. Stegall                             No. 01-2727

petitioner “show[s] that there was cause for the default and            In rejecting Shorter’s argument, this court held that cause
prejudice resulting from the default, or that a miscarriage of       had not been demonstrated by entrusting the brief to the
justice will result from enforcing the procedural default in the     Postal Service, since counsel could have hand-delivered the
petitioner’s case.” Lancaster v. Adams, 324 F.3d 423, 436            brief to the clerk of the Ohio Supreme Court himself. Id. at
(6th Cir. 2003). A fuller explanation of this principle was set      726. The key difference between the present case and Shorter
forth in Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.           is that the petitioner in Shorter was represented by counsel,
2000) (internal citations omitted), where the court stated:          whereas Maples was not. Shorter summarized its reasoning
                                                                     as follows: “[P]etitioner’s . . . counsel elected not to drive the
  When a habeas petitioner fails to obtain consideration of          brief to the Ohio Supreme Court . . . , but rather relied upon
  a claim by a state court, either due to the petitioner’s           the U.S. Postal Service. If such reliance constitutes ‘cause,’
  failure to raise that claim before the state courts while          then arguably, there is no hope for the concept of finality.”
  state-court remedies are still available or due to a state         Id. Maples, on the other hand, was proceeding pro se and,
  procedural rule that prevents the state courts from                because he was incarcerated, he did not have the opportunity
  reaching the merits of the petitioner’s claim, that claim is       to hand-deliver his brief to the Michigan Supreme Court.
  procedurally defaulted and may not be considered by the
  federal court on habeas review. A petitioner may avoid               A case that we find much more on point is Mohn v. Bock,
  this procedural default only by showing that there was             208 F. Supp. 2d 796 (E.D. Mich. 2002). In Mohn, as here, the
  cause for the default and prejudice resulting from the             habeas petitioner raised a claim that was not reviewed by the
  default, or that a miscarriage of justice will result from         Michigan Supreme Court because it arrived one day after the
  enforcing the procedural default in the petitioner’s case.         56-day filing deadline. Id. at 801. Pursuant to prison policy,
                                                                     Mohn had presented his brief to his prison unit manager five
  The state contends that Maples has not shown cause for his         days prior to the deadline. Id. at 802. But the brief was
procedural default. “‘[C]ause’ under the cause and prejudice         apparently not sent out promptly, which resulted in it being
test must be something external to the petitioner, something         received one day late by the Michigan Supreme Court. The
that cannot fairly be attributed to him[;] . . . some objective      application for leave to appeal to the Michigan Supreme
factor external to the defense [that] impeded . . . efforts to       Court was therefore rejected as untimely. Id. at 801-02.
comply with the State’s procedural rule.” Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (emphasis in original).              In the subsequent habeas action, the district court held that
One of this court’s opinions that on the surface appears             Mohn had demonstrated cause to excuse the procedural
similar to the case at bar is Shorter v. Ohio Department of          default because “the papers were no longer in his control”
Rehabilitation & Corrections, 180 F.3d 723 (6th Cir. 1999).          once he gave them to the prison officials five days prior to the
There, Shorter raised a claim in his habeas petition that was        deadline. Id. at 802. Mohn is obviously not binding
not reviewed by the Ohio Supreme Court because his opening           precedent, but we fully agree with its result. Maples had
brief was filed two days late. Id. at 724. Shorter argued that       completed his application for leave to appeal to the Michigan
there was “cause” for the procedural default because he had          Supreme Court five days prior to the filing deadline, and he
been assured by the United States Postal Service that his brief      attempted to submit it to the prison officials at that time.
would be delivered to the Ohio Supreme Court no later than           Unlike in Shorter, he did not have the ability, through
the last day that it would have been accepted for filing. Id. at     counsel, to deliver the papers personally to the state court, and
725-26.                                                              was instead forced to rely on prison officials to do this for
No. 01-2727                            Maples v. Stegall     11    12     Maples v. Stegall                           No. 01-2727

him. The prison officials’ inaction, which resulted in the           2.    The merits of Maples’s ineffective-assistance-of-
application for leave to appeal being denied because it was                counsel claim
filed in an untimely fashion, presents an “objective factor
external to the defense [that] impeded . . . efforts to comply        Maples’s trial counsel provided legal advice that, as the
with the State’s procedural rule.” Coleman, 501 U.S. at 753        Michigan Court of Appeals held, was patently erroneous.
(internal quotation marks omitted).                                Contrary to his counsel’s representation, Maples’s guilty plea
                                                                   precluded him from appealing his speedy-trial claim. Such
   This is not to say that the “prison mailbox rule” established   advice certainly falls below an “objective standard of
by Houston v. Lack, 487 U.S. 266 (1988), is binding on the         reasonableness” and cannot possibly be considered “sound
state of Michigan, which it is not. See, e.g., Adams v.            trial strategy.”
LeMaster, 223 F.3d 1177, 1183 (10th Cir. 2000) (noting that
“the Houston decision is not binding on state courts”). Where         Furthermore, Maples has stated that he would have insisted
a pro se prisoner attempts to deliver his petition for mailing     on proceeding to trial, rather than plead guilty, but for his
in sufficient time for it to arrive timely in the normal course    counsel’s erroneous advice. The state has not challenged
of events, however, the rule is sufficient to excuse a             Maples’s assertion, thus removing this factor as a contested
procedural default based upon a late filing. If the prison had     issue in this case. On the surface, at least, this satisfies the
accepted and mailed Maples’s petition when he first                prejudice standard as articulated in Hill v. Lockhart, 474 U.S.
attempted to deliver it—five days before the state’s               52, 59 (1985), which applied Strickland to instances where
deadline—we have no doubt that it would have been timely           the defendant pleads guilty. The Court in Hill stated that in
delivered in the normal course of events. Maples has               order to establish prejudice “the defendant must show that
therefore shown cause to excuse his procedural default.            there is a reasonable probability that, but for counsel’s errors,
                                                                   he would not have pleaded guilty and would have insisted on
   The prejudice resulting from the procedural default is that     going to trial.”
the Michigan Supreme Court refused to consider Maples’s
claim of ineffective assistance of counsel. Moreover, as the         Hill goes on to state, however, that “[i]n many guilty plea
state admits, Maples “no longer has any procedure available        cases . . . the resolution of the ‘prejudice’ inquiry will depend
to present his claim to the Michigan Supreme Court.” The           largely on whether the affirmative defense likely would have
state does not contest that the procedural default prejudiced      succeeded at trial.”          Id.    There are two plausible
Maples. We thus will turn to the merits of Maples’s claim.         interpretations of the preceding quotation. One reading of
See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000)          Hill is that a court should sometimes, but not always, analyze
(recognizing that a federal court should assess the merits of a    the merits of the underlying claim (e.g., whether there was in
state habeas petitioner’s procedurally defaulted claim when        fact a speedy-trial violation) in order to assess whether the
the petitioner has demonstrated cause and prejudice that           petitioner suffered prejudice. See id. (stating that a
excuses the default).                                              substantive inquiry should occur “[i]n many guilty plea
                                                                   cases,” implying that such an inquiry is not necessary in all
                                                                   such cases). A second interpretation of Hill is that the court
                                                                   must always analyze the substance of the petitioner’s
                                                                   underlying claim, and that this inquiry will be dispositive to
No. 01-2727                            Maples v. Stegall     13    14   Maples v. Stegall                           No. 01-2727

the resolution of the habeas action “in many guilty plea           substance of the speedy-trial issue has neither been addressed
cases.”                                                            by any court nor briefed for this appeal.
  We believe that the second interpretation of Hill is                                 III. CONCLUSION
preferable for two reasons. First, it is more in line with this
court’s analysis of an ineffective-assistance-of-counsel claim        For all of the reasons set forth above, we VACATE the
under Strickland, which inevitably engages in a substantive        judgment of the district court and REMAND the case with
inquiry into the petitioner’s claims. E.g., Carter v. Bell, 218    directions that the court assess the merits of Maples’s speedy-
F.3d 581, 597-600 (6th Cir. 2000) (holding that the habeas         trial argument as part of his ineffective-assistance-of-counsel
petitioner had demonstrated prejudice stemming from his            claim.
counsel’s ineffective assistance after analyzing the merits of
petitioner’s underlying claim). Second, Hill, like the case
before us, involved a situation where the petitioner’s
ineffective-assistance-of-counsel claim stemmed from trial
counsel’s affirmative misrepresentation to the defendant who
subsequently pled guilty. Id. at 54 (describing how
petitioner’s counsel misrepresented the amount of time that
the petitioner would be required to serve in prison before he
was eligible for parole).
   We acknowledge that the Supreme Court in Hill did not
itself inquire into the substance of the petitioner’s claim, but
this was only because Hill did not clear the first hurdle of
stating that he would have proceeded to trial but for his
counsel’s errors. Id. at 60 (“Petitioner did not allege in his
habeas petition that, had counsel correctly informed him
about his parole eligibility date, he would have pleaded not
guilty and insisted on going to trial.”). Presumably, the Court
in Hill discussed the importance of inquiring into the merits
of a petitioner’s underlying claim because it intended for
lower courts to conduct such an analysis where, as here, the
petitioner’s counsel made an affirmative misrepresentation
upon which the petitioner reasonably relied in deciding to
plead guilty.
  Because we adopt this interpretation of Hill, we must
remand this action to the district court to assess whether
Maples’s speedy-trial rights were in fact violated. The
No. 01-2727                            Maples v. Stegall     15

 ______________________________________________

  CONCURRING IN PART, DISSENTING IN PART
 ______________________________________________

  BOGGS, Circuit Judge, concurring in part and dissenting
in part. Michigan has adopted a 56-day rule for application
to its Supreme Court for leave to appeal from a decision of
the court of appeals. As far as any precedent in any federal
court holds, Michigan would be free to set this limit as 46
days or 66 days or 36 days.
  Given this leeway, and given the court’s holding that
Michigan is not obliged to adopt the federal “prison mail box
rule”, I do not see how the failure by Maples to file on time is
from a cause “external to the petitioner.” Coleman v.
Thompson, 501 U.S. 722, 753 (1991).
  There is no indication that Maples was prevented from
submitting his petition to prison authorities in sufficient time
that the normal course of the mails (with some leeway for
safety) would have delivered it to the Michigan Supreme
Court on time. The fact that Maples says he delayed because
he did not know the postage amount is unpersuasive. He
could have ascertained that amount at a much earlier time.
Indeed, there is no indication that knowledge of the exact
amount was a prerequisite for submitting his document to the
prison authorities for mailing; for all that appears, the proper
amount, whatever it was, would have been deducted from his
prison account.
   Under these circumstances, to hold that petitioner’s failure
is from a reason “external” to him is no more persuasive then
saying that the 56-day limit was too stringent.
  I therefore respectfully dissent from the court’s holding that
petitioner’s claim was not procedurally defaulted. To the
extent that the court surmounts this hurdle, I agree with the
remainder of its decision.
