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Dorn v. Lafler

April 5, 2010

JOHN ANDREW DORN, PETITIONER-APPELLANT,
v.
BLAINE LAFLER, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-11993-Nancy G. Edmunds, District Judge.

The opinion of the court was delivered by: Siler, Circuit Judge.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206

Argued: January 19, 2010

Before: SILER, MOORE, and CLAY, Circuit Judges.

OPINION

John Andrew Dorn appeals the district court's denial of his 28 U.S.C. § 2254 petition for habeas corpus. The district court certified two issues for appeal-whether Dorn was denied effective assistance of counsel and whether he was denied an appeal as of right in violation of his constitutional right to access the courts. For the following reasons, we REVERSE and REMAND.

I. BACKGROUND

Dorn was charged in Kalamazoo County, Michigan with three counts: (1) assault with intent to commit murder, (2) being a felon in possession of a firearm, and (3) possession of a firearm during the commission of a felony. The charges arose out of a physical altercation he had with Walter Anderson, whom he shot.*fn1 On the first day of trial, the prosecutor dismissed the felon-in-possession charge. The jury convicted Dorn of the lesser included offense, assault with intent to commit great bodily harm less than murder, Mich. Comp. Laws § 750.84, and felony firearm, Mich. Comp. Laws § 750.227b. He was sentenced as a fourth habitual offender to two years' imprisonment for the felony firearm conviction and to fifteen to thirty years' imprisonment for the assault conviction, to be served consecutively.

At the conclusion of his trial, Dorn waived appointment of appellate counsel and indicated that he intended to retain his own counsel for appeal. Having not yet secured appellate counsel, Dorn was responsible for filing his claim of appeal, which was due in the Michigan Court of Appeals on June 22, 1998. He requested disbursement of the filing fee from a prison official on June 11, 1998. On June 15, 1998, he provided the same official with his claim of appeal, for notarizing and mailing, along with his disbursement. However, the Michigan Department of Corrections did not process the disbursement or mail the claim of appeal until June 23, 1998, one day after it was due. The Court of Appeals dismissed his claim for lack of jurisdiction, because it was filed late. It also denied Dorn's motion to reinstate or reconsider its order dismissing his claim of appeal. Dorn then filed a pro per delayed application for leave to appeal raising seven issues, including both issues raised here. In this application, he requested the court remand his case to the trial court for an evidentiary hearing on his ineffective assistance of counsel claims. The Court of Appeals summarily denied his application "for lack of merit in the grounds presented." He appealed this decision to the Michigan Supreme Court. Although the court initially held his application in abeyance pending decisions in two other cases, it ultimately denied his application for leave to appeal, because it was "not persuaded that the questions presented should be reviewed."

Dorn filed for state post-conviction relief pro per. The trial court analyzed some of Dorn's claims, including his argument that the Michigan Supreme Court should adopt the "prison mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988). It denied his motion for relief, noting that Dorn was attempting to "reargu[e] issues that were brought in his various motions and applications for leave to appeal." The Michigan Court of Appeals denied Dorn's delayed application for leave to appeal, stating that he "fail[ed] to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." The Michigan Supreme Court also denied leave to appeal.

Dorn then filed a pro se petition for habeas corpus before the Eastern District of Michigan. The district court denied his petition and granted a certificate of appealability on the two issues presented here. We sua sponte appointed counsel for Dorn.

II. STANDARD OF REVIEW

Dorn filed his federal habeas petition after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, when a state court has adjudicated the merits of the claims presented, we may not grant a petition for writ of habeas corpus unless the state-court adjudication of the claim "resulted in a decision 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)(1). "Where... the state court did not assess the merits of a claim properly raised in a habeas petition," however, "the deference due under AEDPA does not apply." Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001)). Where there was no state-court adjudication on the merits of a habeas claim, we review that claim de novo. Id. at 436-37.

Dorn argues that the Michigan Court of Appeals's and the Michigan Supreme Court's orders denying his applications for leave to appeal, and subsequently the trial court's order denying his motion for post-conviction relief and both the Michigan Court of Appeals's and Supreme Court's orders denying leave to appeal therefrom, were not adjudications on the merits such that AEDPA deference applies. The Michigan Court of Appeals denied his application for delayed appeal-which included the two claims presented here-"for lack of merit in the grounds presented." The Michigan Supreme Court denied review because it was not "persuaded that the questions presented should be reviewed." In addition, the state trial court declined to reach his right-to-appeal argument presented in his ...


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