        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    Munson v. Kapture                          No. 03-1563
    ELECTRONIC CITATION: 2004 FED App. 0318P (6th Cir.)
                File Name: 04a0318p.06                                       _________________
                                                                                 OPINION
UNITED STATES COURT OF APPEALS                                               _________________
               FOR THE SIXTH CIRCUIT                        BOYCE F. MARTIN, JR., Circuit Judge. Maurice
                 _________________                        Munson, a Michigan prisoner, appeals the district court’s
                                                          denial of his petition for a writ of habeas corpus. For the
 MAURICE MUNSON,                  X                       reasons that follow, we AFFIRM.
         Petitioner-Appellant, -                                                        I.
                                   -
                                   -  No. 03-1563
           v.                                                A jury convicted Munson of two counts of armed robbery
                                   -
                                    >                     in violation of M.C.L. § 750.529 and two counts of assault
                                   ,                      with intent to commit criminal sexual conduct (penetration)
 ROBERT J. KAPTURE , Warden, -
                                                          in violation of M.C.L. § 750.502(G)(1). The events giving
        Respondent-Appellee. -                            rise to Munson’s prosecution transpired at Juanita’s House of
                                  N                       Beauty in Detroit, Michigan, on late Friday, June 18, or early
      Appeal from the United States District Court        June 19, 1993, as Sherrease Carter, age thirty, an employee of
     for the Eastern District of Michigan at Detroit.     the beauty shop, and her sixteen-year-old niece, Shamika
      No. 01-71956—Avern Cohn, District Judge.            Kincaid, were leaving the shop. The evidence adduced at trial
                                                          indicates that as Carter and Kincaid were leaving the shop,
                Argued: August 12, 2004                   Munson appeared and forced them back inside at knifepoint.
                                                          He ordered them to undress, which they did, and he
        Decided and Filed: September 20, 2004             proceeded to take various items from the shop (including
                                                          money, hair clippers and jewelry), as well as items from
Before: KEITH, MARTIN, and ROGERS, Circuit Judges.        Carter and Kincaid (including clothing and sandals that they
                                                          had just purchased and jewelry).
                   _________________
                                                             Munson then took Carter into a back room and threatened
                       COUNSEL                            Kincaid that she would be next. In the back room, Munson
                                                          sat down on a chair and forced Carter onto his lap. Munson
ARGUED: James Sterling Lawrence, Detroit, Michigan, for   put the knife down momentarily as he attempted to insert his
Appellant.    Debra M. Gagliardi, OFFICE OF THE           penis into Carter’s vagina, at which point Carter grabbed the
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.        knife and stabbed him multiple times. Carter and Kincaid,
ON BRIEF: James Sterling Lawrence, Detroit, Michigan,     still naked, immediately ran out of the shop. They observed
for Appellant. Laura Graves Moody, OFFICE OF THE          Munson leave the shop with packages containing their newly-
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.        purchased sandals and clothing, among other things. Carter
                                                          and Kincaid were soon picked up by a motorist who took

                             1
No. 03-1563                         Munson v. Kapture       3    4      Munson v. Kapture                          No. 03-1563

them to the police station. When the victims later returned to   affirmed the conviction and sentence, and the Michigan
the shop, they discovered a pager that Munson had apparently     Supreme Court denied leave to appeal.
dropped during the incident.
                                                                   Munson then filed in the state trial court a post-conviction
   The police located Munson by tracing the pager, which was     motion for relief from judgment, in which he raised five new
registered to one “Moe Rone Monson.” After discovering           claims: (1) the warrantless arrest, search and seizure deprived
that there was an individual named Maurice Munson in the         him of due process; (2) he was denied a fair and impartial trial
Detroit area with a criminal record, police went to his          because of prosecutorial misconduct; (3) his trial counsel
residence, which was his aunt’s apartment. Munson’s former       rendered ineffective assistance; (4) the cumulative effect of
girlfriend, Keysha Monique Tate, was at the apartment at the     the trial errors deprived him of a fair trial; and (5) his
time and permitted the police to enter after they repeatedly     appellate counsel rendered ineffective assistance.
knocked on the door. Munson was arrested in the apartment,
at which time the police seized, without a warrant, various        The state trial court denied Munson’s motion in a written
incriminating items, including cash, gauze bandages, hair        order that rejected each of his new claims. With respect to the
clippers, sandals, new clothing items and jewelry.               prosecutorial misconduct claim, the court held that “[t]he
                                                                 defendant fails to show just cause why prosecutor misconduct
  Tate gave a statement to police, which she confirmed and       was not raised in earlier appeals. Further, the conduct
elaborated upon at trial, indicating that Munson had bandages    complained of did not deny defendant a fair trial.” The
on his chest when she arrived at the apartment Saturday          district court found the remaining claims to be without merit
morning. Tate also stated that on the morning of his arrest,     for reasons other than Munson’s failure to raise them earlier.
Munson gave her a pair of sandals, various clothing items,
cash and a ring. Carter and Kincaid also positively identified     The Michigan Court of Appeals denied leave to appeal in
Munson as the perpetrator at separate lineups and at trial.      an order that states as follows:
Among the pieces of physical evidence admitted at trial were
the pager and the items seized in the apartment upon                   The Court orders that the application for leave to
Munson’s arrest, which apparently were the same items stolen         appeal is DENIED because defendant has failed to meet
from the victims and the beauty shop.                                the burden of establishing entitlement to relief under
                                                                     MCR 6.508(D).
   Munson did not testify at trial. He asserted an insanity
defense, with all expert witnesses agreeing that he was                The Court further orders that the motion to remand is
mentally ill but disagreeing as to whether he was criminally         DENIED because defendant has failed to show that
responsible for his actions. The jury found Munson mentally          development of a factual record is required for appellate
ill but guilty of robbery and assault. He was sentenced to           consideration of the issues. MCR 7.211(C)(1)(a)(ii).
prison for a term of twenty-five to sixty years.
                                                                 The Michigan Supreme Court also denied leave to appeal for
  Munson filed a direct appeal to the Michigan Court of          the same reason, in an order stating:
Appeals, raising only one issue: that his sentence was
disproportionately high. The Michigan Court of Appeals                 On order of the Court, the delayed application for
                                                                     leave to appeal from the May 24, 2000 decision of the
No. 03-1563                          Munson v. Kapture        5    6        Munson v. Kapture                             No. 03-1563

  Court of Appeals is considered, and it is DENIED,                test to be used in determining whether a habeas claim has
  because the defendant has failed to meet the burden of           been procedurally defaulted:
  establishing entitlement to relief under MCR 6.508(D).
                                                                       First, the court must determine that there is a state
  Munson next sought relief in federal court, by filing the            procedural rule that is applicable to the petitioner’s claim
instant petition for a writ of habeas corpus. The petition             and that the petitioner failed to comply with the rule . . . .
asserted essentially the same claims that were presented in his        Second, the court must decide whether the state courts
motion for post-conviction relief: (1) the warrantless arrest          actually enforced the state procedural sanction . . . .
and search and seizure denied him due process; (2) the                 Third, the court must decide whether the state procedural
prosecutor engaged in misconduct; (3) he was denied the                forfeiture is an “adequate and independent” state ground
effective assistance of trial counsel; (4) cumulative error            on which the state can rely to foreclose review of a
rendered the trial unfair; and (5) he was denied the effective         federal constitutional claim . . . . Once the court
assistance of appellate counsel. The district court held that          determines that a state procedural rule was not complied
each claim was procedurally defaulted, but proceeded to                with and that the rule was an adequate and independent
analyze whether ineffective assistance of trial or appellate           state ground, then the petitioner must demonstrate . . .
counsel constituted “cause” to excuse the procedural default.          that there was “cause” for him to not follow the
Concluding that neither trial counsel nor appellate counsel            procedural rule and that he was actually prejudiced by
rendered ineffective assistance, the district court denied the         the alleged constitutional error.
petition; it granted a certificate of appealability, however, on
the issues of whether Munson’s claims were each                    Id. at *7-*8 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th
procedurally defaulted and whether he was denied the               Cir. 1986)).
effective assistance of trial or appellate counsel. This appeal
followed.                                                             For purposes of procedural default, the “state judgment”
                                                                   with which we are concerned is “the last explained state court
                              II.                                  judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).
                                                                   Munson argues that the last explained state court judgment is
   We review de novo the district court’s denial of a petition     the trial court’s opinion denying his post-conviction motion
for a writ of habeas corpus. Clinkscale v. Carter, No. 02-         for relief. In that opinion, the court relied on procedural
4219, 2004 WL 1516670, at *3 (6th Cir. July 8, 2004). As           default in rejecting only one of his claims; it denied the other
noted, the district court held that each of Munson’s habeas        claims on their merits. Contrary to Munson’s assertion,
claims was barred by the doctrine of procedural default.           however, the last explained state court judgment in this case
“Under the procedural default doctrine, [a] federal court is       is the Michigan Supreme Court’s order denying review of
generally barred from considering an issue of federal law          Munson’s claims based upon his failure to comply with Rule
arising from the judgment of a state court if the state            6.508(D).1 We have held that orders such as that issued by
judgment rests on a state-law ground that is both independent
of the merits of the federal claim and an adequate basis for the
                                                                        1
[state] court’s decision.” Id. at *7 (citation and internal              Rule 6.508(D), which governs post-conviction relief, provides as
quotation marks omitted). We have articulated a four-part          follows:
No. 03-1563                                 Munson v. Kapture            7   8      Munson v. Kapture                                   No. 03-1563

the Michigan Supreme Court constitute “explained” state                      the procedural bar set forth in Rule 6.508(D) constitutes an
court judgments for purposes of procedural default. See, e.g.,               adequate and independent ground on which the Michigan
Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000)                       Supreme Court may rely in foreclosing review of federal
(holding that an order issued by the Michigan Supreme Court                  claims. See, e.g., Simpson, 238 F.3d at 407-08 (holding that
stating that the petitioner had “failed to ‘meet the burden of               the Michigan Supreme Court’s statement that the petitioner
establishing entitlement to relief under MCR 6.508(D)’” –                    had “failed to ‘meet the burden of establishing entitlement to
though “brief” – constituted the last explained state court                  relief under MCR 6.508(D)’” was an adequate and
judgment in the case).                                                       independent state procedural rule that “prevents federal
                                                                             review”); Burroughs v. Makowski, 282 F.3d 410, 414 (6th
    The district court held that Munson’s habeas claims were                 Cir. 2002) (holding that “the Michigan Court of Appeals and
procedurally defaulted because Rule 6.508(D) constituted an                  Michigan Supreme Court’s statements that Burroughs was not
adequate and independent state ground on which the                           entitled to relief under M.C.R. 6.508(D) presents a sufficient
Michigan Supreme Court relied in foreclosing review of the                   explanation that their rulings were based on procedural
claims. We agree.2 It is well-established in this circuit that               default”).
                                                                                Munson argues that Simpson and Burroughs were wrongly
                                                                             decided in light of the Michigan Supreme Court’s decision in
    Entitlement to R elief. The defendant has the burden of                  People v. Jackson, 633 N.W.2d 825 (Mich. 2001). He
    establishing entitlement to the relief requested. The court may
    not grant relief to the defendant if the motion
                                                                             maintains that Jackson establishes that Rule 6.508(D) is not
                                                                             firmly established or regularly followed and, therefore, cannot
    (1) seeks relief from a judgment of conviction and sentence that         constitute an adequate and independent state ground for
    is still subject to challenge on appeal pursuant to subchapte r          purposes of procedural default. Notwithstanding the fact that
    7.200 or subchapter 7.300;                                               our analysis of procedural default is governed by our own
    (2) alleges grounds for relief which were decided against the
                                                                             precedent, not that of the Michigan Supreme Court, Jackson
    defendant in a prior appeal or proceeding under this chapter,
    unless the defendant establishes that a retroactive change in the
    law has undermined the prior decision;
                                                                             assistance of appellate counsel claim. Su bsections (1) and (2) of Rule
    (3) alleges grounds for relief, other than jurisdictional defects,       6.508(D) are inapplicable to Munson’s appeal. Subsection (3) bars
    which could have been raised on appeal from the conviction and           collateral review on grounds that could have been raised on direct ap peal,
    sentence or in a p rior motion under this subchapter, unless the         but were not, absent a showing of cause and preju dice. M unson’s
    defendant demonstrates                                                   ineffective assistance of appellate counsel claim arguably could not have
                                                                             been raised on direct appeal because the appellate attorney would be
         (a) good cause for failure to raise such gro unds on appeal         arguing that he or she was currently providing ineffective assistance of
         or in the prior motion, and                                         counsel. If the M ichigan Supreme Court could not have been relying
                                                                             upon procedural default to dispose of Munson’s ineffective assistance of
         (b) actual prejudice from the alleged irregularities that           app ellate counsel claim, the district court would not be able to find this
         supp ort the claim for relief . . . .                               claim to have been procedurally defaulted. However, the outcome of
    2
                                                                             Munson’s appeal is unaffected. As discussed below, the application of
     Our agreement is subject to one qualification, however. It is           Strickland v. Washington, 466 U.S. 668 (1984), demonstrates that even if
possible that the Michigan Supreme Co urt may not have been able to rely     Munson did, in fac t, receive ineffective assistance of appellate co unsel,
upon Rule 6.508(D ) to deny relief with respect to Munson’s ineffective      the result of his appeal would have b een no different.
No. 03-1563                         Munson v. Kapture        9    10    Munson v. Kapture                            No. 03-1563

does not stand for the proposition advanced by Munson. The        We agree. Even if the physical evidence seized in the
portion of Jackson on which he relies merely explains and         apartment had been suppressed, there was abundant additional
interprets this Court’s decision in Rogers v. Howes, 144 F.3d     evidence adduced at trial indicating Munson’s guilt. For
990 (6th Cir. 1998), in which we held that Rule 6.508(D) was      example, both victims positively identified Munson as the
not regularly applied at the time of the defendant’s              perpetrator at trial and in separate lineups, Munson’s former
conviction, given that the rule had not, in fact, been enacted    girlfriend testified about Munson’s injuries and his gifts to her
yet. The Jackson court upheld the retroactive application of      shortly after the crime was committed, and the pager left at
Rule 6.508(D) to the defendant in that case, holding that our     the scene of the crime was traced to Munson. In light of this
decision in Rogers, which involved only federal court             evidence, Munson cannot prove that there is a reasonable
procedural default principles, did not restrict the Michigan      probability that but for his counsels’ alleged errors, the
courts’ ability to apply the rule.                                outcome of his trial or appeal would have been different.
                                                                  Therefore, the district court correctly held that Munson’s
   Having determined that Munson’s habeas claims have been        claims of ineffective assistance of trial and appellate counsel
procedurally defaulted, we must next consider whether he has      lack merit and that Munson cannot rely upon either type of
established the requisite “cause” and “prejudice” to permit       alleged ineffectiveness as cause to excuse the procedural
our consideration of the merits of his claims. See Simpson,       default of his habeas claims.
238 F.3d at 407 (citing Coleman v. Thompson, 501 U.S. 722,
750 (1991)). Munson argues that the cause for his procedural      AFFIRMED.
default was the constitutionally ineffective assistance
rendered by his trial and appellate counsel; he argues that his
trial counsel was ineffective for failing to challenge the
admissibility of the physical evidence seized in the apartment
and that his appellate counsel was ineffective for failing to
raise on direct appeal the issue of trial counsel’s
ineffectiveness. In general, constitutionally ineffective
assistance of counsel can constitute cause for procedural
default. Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). In
this case, however, Munson’s counsel rendered no such
ineffective assistance.
  Munson’s ineffective assistance claims are governed by the
familiar standard articulated in Strickland v. Washington, 466
U.S. 668 (1984), which requires him to prove both that his
counsel’s representation “fell below an objective standard of
reasonableness,” id. at 688, and “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at
694. The district court found that even if Munson satisfied
the first prong of Strickland, he failed to satisfy the second.
