The following forms are available on the Michigan Supreme Court Web site.

You may click on the motions below to retrieve the form.

1. Motion for Relief From Judgement (cc257). 2. Petition and Order for court Appointed Attorney (mc222).

How to Seek Judicial Review

MAACS 1998

HOW TO SEEK JUDICIAL REVIEW OF YOUR FELONY CONVICTION AND SENTENCE

constitutional provisions, statutes and rules fit the facts of individual cases. These judicial opinions become law when they are used as controlling guidelines, or precedent, that must be followed by other courts. Michigan Courts. In Michigan there are four levels of courts that process criminal cases. The lowest level is the district court. It tries misdemeanor charges. It also takes the first steps on a felony charge. This includes holding a hearing, called a preliminary examination, to determine if there is enough evidence to hold the defendant for trial. If the district court finds there is probable cause to believe the defendant committed the charged offense (or some lesser or similar offense), the defendant is bound over to stand trial in the next highest court. The trial court is usually the circuit court for a single county or group of counties. (For crimes committed in the City of Detroit, the trial court for felonies used to be Recorders Court. Now the Wayne County Circuit Court handles all cases arising in Wayne County.) The trial court may accept the defendants plea of guilty or no contest and impose a sentence. If the defendant wants to fight the charge, there must be a trial at which the prosecution and defense each get to present their version of the facts. The defendant has an absolute right to have a jury hear the evidence and decide the case. However, the defendant may prefer to have the judge act as the factfinder. When a judge hears a case without a jury, it is called a bench trial (because the judge on the bench is deciding the facts) or a waiver trial (because the defendant waived the jury). Whether the defendant is convicted by plea or trial, the next step is for the probation officer to prepare a presentence report and calculate the sentencing guidelines. The trial court then imposes sentence.

This pamphlet is addressed to indigent Michigan prisoners, that is, those of you who cannot afford to hire your own lawyers. It explains your rights to appeal your felony convic-tion and sentence, and to seek other forms of judicial review. Beginning with the initial appeal, several different ways to get a court to consider your case may be available, depending on your situation. The rules that control various court actions are complicated. This pamphlet will not explain all these rules in detail or teach you how to file any particular type of document. But it will help you understand in a general way when each method of review may be used and which ones may be available to you. It provides basic information about such matters as the right to have counsel appointed and timing deadlines. And it tells you where additional help can be found. Before turning to the specific types of procedures, there is some background information you should understand. BACKGROUND What is Law? The law appears in many forms. The most basic source of law is a constitution, which establishes the powers of a government and defines the rights of individual citizens. The legislature makes laws by enacting statutes. These laws cannot conflict with the constitution. Government agencies, like the Department of Corrections, make law by issuing administrative rules. Such rules cannot conflict with a constitution or a statute. Courts also make law in two ways. They issue rules that govern the steps to be followed in all kinds of court proceedings. And they write opinions that say how

How to Seek Judicial Review

MAACS 1998

The next highest court is the Michigan Court of Appeals. It is based in Lansing and has district offices in Detroit, Southfield and Grand Rapids. The Court of Appeals does not try the case all over again and decide whether the defendant is guilty or innocent. It does not take testimony from witnesses itself and does not decide which witnesses the factfinder at trial should have believed. It generally assumes that the jury or judge who actually saw and heard the witnesses in person was in the best position to decide who was "credible" (honest). The Court of Appeals reviews the written record of the trial court proceedings to make sure no serious mistakes were made. Information that is not in the written record will not get considered by the Court of Appeals. That is why, as part of the appeal, it is sometimes necessary to hold an evidentiary hearing (a proceeding at which testi-mony is taken from witnesses) in order to show that the facts to support an issue really exist. Although there are 28 judges on the Court of Appeals, decisions are made by three-judge panels. The decisions may appear in long written opinions full of analysis and citations to law, in very short orders with little explanation, and in many forms in-between. The decisions may be published in the Court of Appeals Reports for use in future cases or they may be unpublished and distributed just to the parties. The Court of Appeals can order various outcomes. Most often it affirms the conviction and sentence. That is, it finds no error and upholds the result in the trial court. At the other extreme, the Court can reverse the conviction and the sentence will be overturned as well. In such cases, the law usually permits the defendant to be retried. Whether the prosecutor actually does retry a case generally depends on the seriousness of the charge, the age of the case, how much of the sentence the defendant has already served, and how difficult it would be to collect the witnesses and evidence again. In a very few

situations, such as when the Court of Appeals finds the evidence was insufficient to support the conviction or the prohibition against double jeopardy was violated, the defendant cannot be retried and must be discharged. In between these extremes there are other forms of relief the Court of Appeals can grant. It can affirm the conviction but remand (send the case back to the trial court) for a resentencing. It can reduce the conviction to a lower offense, from armed robbery to unarmed robbery, for instance, if the error only affected the higher charge. And it can remand the case for the trial court to take some action that may or may not ultimately lead to relief, such as holding an evidentiary hearing on some issue or correcting information in a pre-sentence report. The kind of relief granted depends on the error to be corrected. The Michigan Supreme Court is the highest court in the state system. It is composed of seven Justices who make all decisions as a group. All Supreme Court decisions, whether made in a lengthy opinion or a brief order, are published in the Michigan Reports. The defendant who loses in the Court of Appeals can try to persuade the Supreme Court to consider the case by filing an application for leave to appeal. Of course, if the defendant wins in the Court of Appeals, the prosecution can file its own application for leave. The Supreme Court receives several thousand applications a year. From these it selects a few hundred cases that it wants to review. In all the others, it simply issues an order saying that leave to appeal is denied. Generally the Supreme Court hears cases that raise important legal questions. It will not review every case where the Court of Appeals might have made a mistake. However, the Supreme Court has enormous power and can take whatever action it feels is appropriate if it believes a serious injustice has occurred. In addition to ordering all the kinds of outcomes the Court of Appeals can order, the

How to Seek Judicial Review

MAACS 1998

Supreme Court can send the case back to the Court of Appeals for reconsideration. The Federal System. There are actually 51 governments with 51 court systems and 51 sets of laws in America. There is federal law, which is the law of the United States government. And there are the laws of the 50 individual state governments. Federal law is superior to state law. Therefore no state can make a law that conflicts with the federal constitution or a federal statute. A federal crime is conduct that violates a statute passed by Congress. Federal crimes are prosecuted by the U.S. Attorneys office and tried in the federal courts. State crimes are prosecuted by the prosecutors office in the county where the crime was committed and are tried in the state courts. Some conduct violates both state and federal laws. For instance, kidnapping someone in Detroit and taking them to Toledo would violate Michigans law against kidnapping and the federal law against carrying a kidnap victim across state lines. Usually, when a crime violates both state and federal law, the defendant will be prosecuted by whichever authority investigated the case and made the arrest. In certain situations, the defendant can be prosecuted for the same conduct by both authorities and made to serve both state and federal prison terms! The state and federal court systems are set up in very similar ways. They are like trains running on parallel tracks that make stops at similar places. Charges are brought in the trial court. A defendant who is convicted may appeal to the next highest court, which is usually called the Court of Appeals. The defendant who is not satisfied with the results of this appeal may ask to have the case reviewed by the Supreme Court.

Defendants who are charged in federal court can never switch tracks and have their cases reviewed in a state court. However, because federal law is superior to state law, state court defendants can seek review of their convictions in federal court if there is reason to believe errors in the state proceedings violated the U.S. Constitution or a federal statute. That is, some defendants on the state track can switch their cases to the federal track, but only after they have reached the end of the line in state court. The most common procedure for seeking federal court review of a state criminal conviction is called a petition for habeas corpus. Raising Errors on Appeal. Our legal system rests on the assumption that the best way to get just and reliable results is to use fair methods. When a court reviews a case after conviction, its main concern is whether serious errors occurred that may have affected the outcome. Such error might arise at any point in the proceedings, but certain categories of error are most common. These include the use of evidence that was improperly obtained or violates the rules of evidence, failure to provide the defendant with adequate discovery (advance information about the prosecutors case), improper comments by the prosecutor to the jury, unfair judicial decisions about such matters as the timing and location of the trial, wrong statements of the law during jury instructions, and failures by defense counsel to represent the defendant adequately. Many judicial decisions note that a defendant is entitled to a fair trial, not a perfect one. Minor mistakes that could not have made any practical difference in the conviction or sentence do not make good grounds for appeal. To be persuasive, issues on appeal must point out not only why an action was wrong, but how it prejudiced (harmed) the defendant. For instance, a trial judge might mistakenly admit some testimony that should have been excluded under the rules of evidence. If the testimony was about an important point and might have

How to Seek Judicial Review

MAACS 1998

influenced the jurys decision, the Court of Appeals might be persuaded to reverse the conviction and grant the defendant a new trial. But if the testimony was about some unimportant point that the jury could not have used to convict the defendant (or if there was lots of other good evidence about the same point), the Court of Appeals will consider the error to have been harmless. While every convicted defendant has a right to seek appellate review, there is no right to have reversible error. Imagine how bad our trial courts would be if even half of all criminal cases had such serious errors that the convictions had to be reversed! The fact is, the vast majority of defendants accept their convictions and sentences and do not even try to appeal. Even among defendants who fought their cases at jury trials, only about half choose to appeal. Among defendants who pled guilty, less than 10% appeal. Whether people appeal tends to depend on whether they feel they are guilty, the length of their sentences, and how strongly they believe that serious mistakes were made. Of those who do seek some form of judicial review, roughly 15% are successful. Trials. The longer and more complex the proceedings were in the trial court, the more likely it is that error might have occurred. In a jury trial, there are a lot of points - from the jury selection through the courts instructions to the jury - where things might be said that could unfairly prejudice the defendant. It is much harder to find reversible error in a bench trial for two reasons. First, the proceedings are less complicated so certain kinds of errors can never occur. For instance, there is no jury selection process and there are no jury instructions. Second, the Court of Appeals assumes that a trial judge who acts as the factfinder is not as easily influenced by mistakes as a jury and so it is more likely to find that errors which did occur were harmless. Pleas. The least complicated and most common way for the prosecution to obtain a conviction is by a plea of guilty or nolo

contendere (no contest). When a defendant pleads guilty, he or she waives (gives up) the right even to raise certain issues on appeal. Issues that have to do with the nature of the evidence available to show guilt are no longer relevant because the prosecution no longer has to prove the defendants guilt the defendant has admitted it! Thus, for instance, whether evidence was seized illegally or a confession should be admitted cannot be argued on appeal from a guilty plea. The only exception to the plea waiver doctrine is a conditional plea. That is, if the parties and the trial judge all agree, the defendants right to appeal an issue like whether evidence should have been suppressed may be made a condition of the plea agreement. Two kinds of issues can be raised to try to overturn a pleabased conviction. First are those that affect the validity of the plea itself. It might be, for instance, that you were not given all the advice required at the plea proceeding, or did not understand the consequences of the plea, or that the plea agreement was not kept. If proven, such claims might lead a reviewing court to let you withdraw your plea. You must understand that withdrawing your plea puts the case right back where it started. Any plea agreement that was negotiated no longer binds the prosecution. Charges that were dismissed can be brought back. (By comparison, any charge of which a jury has found you not guilty cannot be brought back at a retrial.) Deals about the sentence to be imposed are gone. That is why most defendants who actually got real benefit from a plea bargain do not try to overturn their convictions, although they may seek review of their sentences. On the other hand, if you pled guilty as charged, had a bargain that was not really meaningful, or your bargain was broken, you would not have anything to lose by appealing. The other kind of error that can be raised in a plea appeal is one that concerns the states authority to proceed against you 8

How to Seek Judicial Review

MAACS 1998

regardless of how much evidence there is. Examples include double jeopardy violations, prosecution under an unconstitutional statute, proceeding against a defendant who is incompetent to stand trial, and entrapment, if the claim was raised before the plea was entered. While such errors are not common, if the appeal is successful the charges must be dismissed. Sentences. Whether you pled guilty or went to trial, and whether or not you seek to overturn the conviction, it may be possible to appeal the sentence. Broadly speaking, there are two kinds of claims that can be raised about a sentence. One is that some error occurred in the sentencing process. This may be anything from misinformation in the presentence report to miscalculation of the sentencing guidelines to a failure to sentence in accord with the terms of a plea bargain. The other kind of claim is that, under the circumstances, the sentence is just too harsh. This kind of claim is often called a Milbourn issue because the principle that sentences must be proportionate to the offense and the offender was established in a Michigan Supreme Court case called People v Milbourn. The Court of Appeals will consider the sentencing guidelines range and any plea bargain regarding the sentence. It is virtually impossible to get a sentence changed if it was the exact sentence you bargained for, unless you can prove that you were badly deceived about what the bargain actually meant. It is also very difficult to get a sentence reduced under Milbourn if it falls within a correctly scored sentencing guidelines range. There are several situations in which a sentence can be increased. One is if you withdraw a guilty plea based on a sentence bargain and go to trial. Another is if you win a retrial but are sentenced by a different judge. Since the new judge was not the one who got reversed on appeal, there is no reason to presume he or she is increasing the sentence for 9

spite. As long as the new judge's sentence can be justified on its own, it may be higher or lower than the original sentence. Finally, even the original sentencing judge can impose a higher sentence if he or she possesses new information. That could, for instance, be details about the offense that did not come out the first time around. Or it could be about conduct that occurred after the first sentencing. Such conduct would include new convictions and tickets for prison misconduct. If you are hoping to get a resentencing, you must try to avoid tickets and you must promptly advise your lawyer about any you do receive. NOTE: The guidelines state the range within which the minimum sentence must fall unless the trial judge states a good reason for going outside the guidelines. They do not set the maximum sentence. Thus, for instance, if the guidelines score for an unarmed robbery sentence is 3-6 years, the minimum could be as little as 3 years or as much as 6 years and the maximum would still be 15 years as set by statute. THE INITIAL APPEAL Of Right or By Leave? Everyone convicted of a felony has a right to appeal the conviction, but not everyone has an appeal of right. This is a confusing distinction, but an important one. When the appeal is of right, the Court of Appeals has to make a decision on the merits. That is, it must consider all the issues raised and decide whether each one warrants relief. It does not necessarily have to address all the issues in its opinion, but it does have to consider all of them. An appeal by leave is one that can only be taken with the Courts permission. The defendant must try to persuade the Court in an application for leave that the case is even worth considering. If the Court grants leave, it will treat the case as if it were an appeal of right and will decide the issues on the 10

How to Seek Judicial Review

MAACS 1998

merits. If the Court decides not to hear the case, it can issue a one line order denying leave that does not discuss any of the issues. In one sense the distinction between an appeal of right and an appeal by leave appears to be a fine one. After all, the Court must review the issues raised in the application in order to decide whether to grant leave. If serious mistakes have been made, the defendant still has the opportunity to bring them to the Courts attention. And, on the other hand, even when serious issues are raised in appeals of right the Court does not always discuss them in detail in its opinions. Nonetheless, the critical difference between an appeal of right and an appeal by leave is that the Court does not actually have to decide the issues when presented in an application for leave. It can choose, for whatever reason it wishes, not to deal with an issue and it does not have to provide any ex-planation. All the defendant can do at that point is appeal (by leave) to the Supreme Court and try to persuade it to either decide the case on the merits or to order the Court of Appeals to do so. Appeals of Right. Anyone convicted of a felony at either a jury trial or a bench trial is entitled to appeal of right so long as certain deadlines are met. Defendants who pled guilty to offenses committed before December 28, 1994 also had appeals of right. If you have retained counsel, or are proceeding without counsel, a claim of appeal must be filed within 42 days of the date on the judgment of sentence. If you are indigent and want to have counsel appointed, you must submit a request for counsel to the trial court within 42 days of sentencing. Returning the request form (or a letter with the same information) on time is critical. If it is received after the 42nd day, the appeal will have to be by leave. A trial court order appointing counsel for an appeal of right also serves two other functions. A copy is sent to the court reporter 11

with directions to begin preparing the trial and sentencing transcripts. And a copy which serves as the claim of appeal is sent to the Court of Appeals. Based on this claim, the Court of Appeals opens a file and gives the case a docket number. The Court of Appeals tracks on its computer whether deadlines are being met. When the conviction resulted from a trial, the court reporter has 91 days to file the transcript (compared to 28 days if the conviction was by plea). If the trial was very long, the reporter may be able to get this time extended. Once the transcript has been filed, your attorney has 56 days to file a brief on appeal raising your claims of error. This time may be extended by 28 days if the prosecutor stipulates (agrees) to the extension. Any more extensions can only be granted by the Court. If an appointed attorney is very late meeting deadlines, the Court of Appeals may direct that substitute (new) counsel be appointed. Once a claim of appeal is filed, jurisdiction (control) of the case is in the Court of Appeals. The trial court can no longer make any decisions about it unless a court rule or Court of Appeals order specifically gives the trial court the authority to act. For example, there are rules that say decisions about appointing counsel or granting bond pending appeal must always be made first in the trial court, even if the case is in the Court of Appeals. There is also a rule saying that for the first 56 days after the transcripts are filed, you may go back into the trial court to make a record needed to raise an issue on appeal. For example, you might need to take testimony about the effectiveness of trial counsels representation or the voluntariness of a guilty plea. After those 56 days, you can only go back and make a trial court record if the Court of Appeals grants a motion to remand (a request to send the case back). 12

How to Seek Judicial Review

MAACS 1998

After your brief is filed, the prosecution is entitled to file a reply brief arguing why relief should not be granted. Once the Court gets to it, the case is submitted to a panel of three judges for decision. If your brief was filed on time, your lawyer may get to argue the case in person, although the panel can decide that oral arguments are not needed. If your brief was filed late, the right to oral argument is lost but can frequently be gotten back by filing a motion. (Oral arguments may be helpful, but filing an adequate brief - even if it takes a little extra time - is more important.) Depending on how backlogged the Court of Appeals is, the time from filing the brief to receiving a decision can be many months. This is not something your lawyer can control. Once the brief is filed, there may be no news to report for quite a while. Appeals by Leave. Indigent defendants convicted at a trial who did not ask for appointed counsel within 42 days of their sentencing lose their appeal of right. They may still appeal by leave. Defendants who pled guilty or no contest to crimes committed after December 27, 1994, whether they are indigent or not, can only appeal by leave. Appeals of right in plea cases were eliminated when voters amended the Michigan Constitution in November, 1994. In either situation, if the Court of Appeals decides to grant leave, it will review the case on the merits as if the appeal was of right. However, if the Court denies leave, it will usually just issue a one sentence order. With some very limited exceptions, an application for leave to appeal must be filed within 12 months of the sentencing date. After that, the defendant cannot go directly to the Court of Appeals. If the deadline for filing an application for leave to appeal is missed, the defendant can only seek judicial review by filing a motion for relief from judgment (described below) in 13 the trial court.

The Right to Counsel. At sentencing, the court explained your right to appeal and gave you a form. The top of the form is a notice that repeats the information about how to request appointed counsel for an appeal. You signed this part of the form and returned a copy to the court. That copy stays in the court file to prove you were given the right advice. You were also given a copy of the form. The bottom half of the front page is the actual request to have counsel appointed. The back page is a financial schedule. You must sign and date the request portion and complete the financial information and return the form to the trial court in order to have counsel appointed. Just signing the notice of rights in the courtroom will not start an appeal or result in having counsel assigned. If you return the form within the deadlines described below and the trial court determines that you are really indigent, it should appoint an appellate attorney. The Michigan Court Rules (MCR 6.425 (F)(1)) say that if an indigent defendant who was convicted at a trial requests appellate counsel within 42 days after sentencing, counsel must be appointed. If the request is received after 42 days but within the 12 month period for filing an application for leave, the request should be liberally granted. (Once the 12 months have passed and there is no longer a right even to file an application for leave to appeal, there is also no longer any right to appointed counsel.) A Michigan Court of Appeals opinion called People v Cottrell held that liberally grant means that such late requests should be granted in all but the most exceptional cases. Therefore, even if a defendant con-victed at a trial waits 11 months after sentencing to request a lawyer for an appeal, one will probably be appointed. Nonetheless, it is always best to request counsel as soon as possible for several reasons. First, if the request is timely, the 14 appeal will be by right instead of by leave. Second, really last minute requests might not be received by the trial court in time

How to Seek Judicial Review

MAACS 1998

to meet the 12 month deadline. Third, the later in the 12 month period a lawyer is appointed, the less time he or she will have to prepare the case. And, finally, any delay in requesting counsel just slows up the appeal and delays your getting any relief to which you might be entitled. The same court rule sets a different standard for the appointment of counsel when the conviction was by plea of guilty or no contest. In plea cases, if the defendants request for appellate counsel is received by the trial court within 42 days of sentencing, the request should be liberally granted. If the request is received after 42 days, there is no provision for appointing counsel at all. Thus, a late request for counsel in a plea case will virtually always be denied. The defendant will still be entitled to file an application for leave to appeal in the Court of Appeals, but he or she will have to proceed without a lawyer unless one is somehow retained. NOTE: There is some controversy about whether defendants who plead should have any right to counsel for appeal. Some judges are refusing to appoint lawyers in plea cases even when petitions were filed within 42 days. As noted below, people who have had timely requests for appellate counsel denied in plea cases may write to MAACS for help. Enclose a copy of the trial court's order or letter of denial. If a request for counsel is granted in a leave case, the order appointing counsel will be a little different than when the appeal is of right. It will order the court reporter to prepare the basic transcripts, but it will not be sent to the Court of Appeals No case file will be opened there unless and until an application for leave is filed. This means that your lawyer must keep very close track of time so that the 12 month deadline for filing an application does not pass without action. On the other hand, the fact that the Court of Appeals has not opened a case file 15 means that your lawyer can go directly into the trial court to file a motion or hold a hearing, if necessary.

About 75% of assigned appeals are handled by private attorneys; about 25% go to the State Appellate Defender Office (SADO). When a trial court appoints appellate counsel, it must choose the attorney from a list provided to it by the Michigan Appellate Assigned Counsel System (MAACS). MAACS is a state agency that maintains a roster of all the lawyers who are willing and eligible to handle assigned criminal appeals. MAACS trains these lawyers and classifies them at one of three eligibility levels, depending on their qualifications. Cases are also classified as Level 1, 2 or 3 depending on their seriousness and complexity. MAACS supplies a list of available roster attorneys to each trial court. In selecting a lawyer from this list for a particular case, the court must follow regulations approved by the Supreme Court. Every fifth case is assigned to SADO. Copies of the order appointing counsel are sent to the defendant, the attorney being appointed, and MAACS. If more than 6 weeks have passed since you submitted your counsel request and you have had no response from the court, you should write to MAACS for assistance. (See address list at page 37.) Sometimes trial judges deny timely requests for counsel because they believe the defendant is not really indigent. Sometimes they deny untimely requests that should have been liberally granted. And sometimes they deny timely requests because the defendant pled guilty. These decisions to deny the appointment of counsel can themselves be appealed to the Court of Appeals by leave. However, indigent prisoners who need to have counsel appointed because they cant represent themselves are obviously going to have difficulty representing themselves on appeal of the decision not to appoint them counsel! MAACS has available fill-in-the-blanks type applications for leave to appeal that prisoners can use to 16 appeal these three types of denials. MAACS cannot help

How to Seek Judicial Review

MAACS 1998

someone obtain counsel who has let the deadline pass without making any request. MAACS also enforces the Minimum Standards for Indigent Criminal Appellate Defense Services, a set of 20 guidelines approved by the Michigan Supreme Court. Lawyers assigned to represent indigent defendants on appeal must try to meet these standards. Lawyers who repeatedly commit substantial violations of the Standards may be stopped from getting more assigned appeals. Defendants who believe their assigned counsel are violating the Standards may write to MAACS. Complaints must explain the problem clearly and provide as much relevant factual information as possible. It is also important to have realistic expectations. Appointed attorneys are very poorly paid. They cannot afford to provide services not covered by their orders of appointment, to accept a lot of collect calls, or to answer a steady stream of lengthy letters. NOTE: MAACS has no authority to process complaints about trial attorneys, lawyers assigned in civil cases, retained counsel, SADO, or the DOC. SUMMARY OF STEPS FOR REQUESTING COUNSEL ON INITIAL APPEAL Complete request for counsel form, including the financial schedule on the back. Be sure to sign and date it. If you no longer have the form, just write a letter to the trial court. Be sure to sign and date the letter. State clearly that you are asking the court to appoint a lawyer because you cannot afford to hire one. Include the trial court docket number17 each case you want to appeal for

(it appears on your Basic Information Sheet as well as on trial court documents), the date you were sentenced, and the name of the judge. Explain your financial condition, including any debts or obligations (such as child support, mortgages, car loans) and the value of any property you may own alone or jointly with someone else (such as a house, car, bank account, pension). Ask that any required forms be sent to you as soon as possible if the letter is not sufficient. Make a copy of your request for your own records. Send the request to the trial court so that it arrives within 42 days of your sentencing date. If you were convicted at a trial and the request arrives after 42 days but within 12 months, counsel should still be appointed. If you pled guilty or no contest and the request arrives after 42 days, counsel will not be appointed. If you do not hear back from the trial court within 6 weeks, write to MAACS for assistance. Include a copy of your request, if possible. If the trial court denies your request and you believe, based on the information in this pamphlet, that you are entitled to have counsel appointed, write to MAACS. Include a copy of your request and the order denying counsel. MAACS will send you a fill-in-the-blanks form to appeal the denial of your request to the Court of Appeals. If your request for counsel is granted but you do not hear from the lawyer within 6 weeks from the date he or she was 18 appointed, write to the lawyer and ask when work on your case

How to Seek Judicial Review

MAACS 1998

will begin. If you get no response from the lawyer within another 3 weeks, write to MAACS. Transcripts and Court Records. MCR 6.433 states that an indigent defendant is entitled to one free copy of trial court transcripts and other court records to pursue an appeal by right or by leave. Once these have been provided, additional copies will be given only if the defendant shows good cause, such as the originals having been lost or destroyed. If the time for appealing has passed and you request transcripts and records to seek some other kind of judicial review, the trial court must send copies of materials that are already in the court file. However, if the transcript was never prepared, the court only has to order preparation if it finds good cause for doing so. If counsel is appointed, the defendants free copies are sent to the defense attorney. Trial courts will not, because they cannot afford to, give copies of these materials to both the attorney and the client. Assigned counsel must keep the transcripts and records in order to work on the appeal. They also cannot afford to copy more than a few pages of transcripts for their clients free of charge. Although the free copy of the transcript belongs to you in the end, if you want to review it before your brief is filed you must arrange to pay the lawyer a reasonable copying cost per page or have a family member borrow the transcript and take it out for copying. The lawyer does not make money on this arrangement. It is only designed to keep appointed lawyers from losing money by paying large copying costs from their own pockets. Some trial courts require assigned counsel to return the transcripts to them in order to get paid. Most of these courts then keep the transcripts in19 their files so they are readily available if the defendant requests them. Wayne Circuit now sends the transcripts directly on to the defendant, without a

request, to avoid having to store them. Other courts do not require that the files be returned. In those cases, assigned counsel keeps the transcripts until the client asks for them or directs that they be passed on to another lawyer. Disputes About Issues. Sometimes lawyers and clients disagree about whether to raise a particular claim of error on appeal. Minimum Standard 9 requires assigned counsel to raise all issues that have arguable merit (some legal basis), are supported by facts on the record, and would benefit the client if successful. On the other hand, professional ethics require lawyers not to burden the courts with issues that are just frivolous (without any merit). Lawyers are not just mouthpieces for whatever their clients want said. They must use professional judgment about how to handle a case. Assigned counsel must carefully consider any issue you want raised. If the issue has arguable merit on the facts of the case, the lawyer should raise it in his or her own brief. If counsel believes the issue has no merit, he or she should explain to you the basis for this conclusion. If you still want the issue raised, you can prepare a supplemental brief in propria persona (on your own). Minimum Standard 11 re-quires counsel to help you actually file the brief with the court. In this way, the lawyer is not in the position of asserting a claim the lawyer thinks is frivolous, but you still get to raise the claim and get relief if the lawyer is wrong. NOTE: The Supreme Court is currently considering a proposed court rule amendment that would prohibit people represented by counsel from filing their own supplemental briefs. If adopted, this amendment would, as a practical matter, wipe out Minimum Standard 11. That is, you could prepare a pro per brief, but the Court of Appeals would not 20 accept it. SUPREME COURT APPLICATIONS

How to Seek Judicial Review

MAACS 1998

When you lose an appeal to the Michigan Court of Appeals, the next step is to seek leave to appeal to the Michigan Supreme Court. Although the odds of getting the Supreme Court to hear the case are low, if you feel you have serious claims of error regarding your conviction or sentence, es-pecially if you are serving a long prison term, you should take this step for two reasons. First, you just might get the relief you need you never know until you try! Second, if the claims involve violations of the federal constitution and there is any chance you may want to file a federal habeas corpus petition (described below), every available step in the state system must be taken first. This is called exhausting state remedies. When to File. An application for leave to appeal to the Supreme Court must be filed within 56 days of the Court of Appeals decision. This is the date stamped on the Court of Appeals opinion or written on the bottom of an order denying leave, denying rehearing, or deciding the case on the merits. This time limit is absolutely firm. The Supreme Court will not accept applications received after the 56th day, no matter why they are late. That is why it is critical that assigned counsel notify the client immediately when the Court of Appeals makes its decision. The Court of Appeals even sends two copies of its opinions to assigned counsel so that one can be readily passed on to the defendant. Right to Counsel. There is no right to have assigned counsel prepare a Supreme Court application. The order appointing counsel to prepare the initial appeal only covers repre-sentation through the Court of Appeals. Indigent defendants must prepare applications on their own. However, Prison Legal Services of Michigan (PLSM) has designed a fill-in-the-blanks application form that anyone 21 with the reading ability to understand this pamphlet should be able to use. Assigned counsel are encouraged to send copies of this form to their

clients along with opinions denying relief. available from PLSM and MAACS.

Copies are also

Follow the instructions on the application form carefully. A copy of the Court of Appeals opinion or order being appealed must be attached. The application must contain at least a short legal argument about each issue raised. The easiest way to meet this requirement is to attach a copy of the Court of Appeals brief prepared by counsel and any supplemental brief filed in propria persona. The most important thing is getting the application filed before the deadline. If a copy of the brief is not available, file the application without it. Just be sure that you explain for each issue what law you think is most important and how it was violated in your case. You can send additional materials in later, if you wish. Note that the form has space for explaining any issues that were not raised in the Court of Appeals that you think should have been. You must serve (mail) one copy of the application on the prosecutor, who may choose to reply but does not have to. When defendants win in the Court of Appeals, prosecutors often apply for leave to the Supreme Court. In that situation, the attorney representing you in the Court of Appeals remains on the case and is responsible for replying to the prosecutors application. The Supreme Court has the same options described below when the prosecutor appeals. Therefore it is important that your lawyer respond to the application promptly to avoid having the Court decide the case on the merits without even hearing from you. Possible Results. If the Supreme Court is interested in a case, there are a number of things it might do. It may order the appointment of a lawyer to prepare a more thorough application for leave. It may order the prosecution to show cause why the relief requested should not be granted, that is, to explain why it 22 thinks your claims are wrong. In this situation, the prosecution must send you a copy of its answer. You can then respond to

How to Seek Judicial Review

MAACS 1998

the prosecutor if you wish. The Supreme Court can also go ahead and decide the case based on the application. It can send the case back to the Court of Appeals for reconsideration or to the trial court to hold a hearing. Or the Court can grant leave to appeal and require all new briefs and oral argument. Whenever the Supreme Court grants leave on a pro per application, it also directs the appointment of counsel. MOTIONS FOR RELIEF FROM JUDGMENT (6.500 MOTIONS). Chapter 6.500 of the Michigan Court Rules provides for a method of judicial review called a motion for relief from judgment. This procedure is designed to give defendants a second chance to raise issues that for some reason were not raised on the initial appeal. It is important to understand when a 6.500 motion can and cannot be used. When to Use. A motion for relief from judgment is not meant to replace the initial appeal. It cannot be used if the right to appeal to the Court of Appeals or Supreme Court still exists. Either the appeal process must be over, or the time for filing an appeal must have passed without one having been filed. A motion for relief from judgment is also not meant to duplicate the initial appeal. Issues that have been decided already generally cannot be raised again. The judicial system is very concerned with finality (deciding things once and for all) and will not let the same claims be made over and over. There are just two narrow exceptions. If the law that applied to the claim of error changed after your appeal was over and the new law is being applied retroactively (that is, to cases that came up before the law changed), you can seek relief under the new law 23 by filing a 6.500 motion. The other exception arises if your claim is that error occurred under both state and federal law, but the federal law was not

discussed in the initial appeal in the state courts. For example, failure to comply with a state statute might also violate the due process clause of the U. S. Constitution but was not raised as a federal issue. If you want to file a federal habeas corpus petition, the federal claim must have been exhausted (raised all the way) through the state court system. The purpose is to give state judges the chance to apply federal law correctly before the federal courts decide to look into a state case. Therefore you may have to file a motion for relief from judgment just to federalize an issue that was already considered and found not to be error under state law. A motion for relief from judgment is not a routine step that is taken in every case. If all issues of arguable merit were already raised in the Court of Appeals and the Supreme Court and, where applicable, were federalized, there is no need to file a 6.500 motion and no basis for doing so. At that point, you may go directly to federal court, if a federal issue exists. If there are no federal issues, there are no other forms of judicial review available. The process of seeking postconviction review is over. With the two exceptions explained above, a motion for relief must raise claims that were not already presented on appeal. There are several possible reasons why such claims might exist. You may not have requested counsel for an appeal within the applicable deadlines. You may have had counsel appointed to do an appeal by leave and counsel may have missed the application deadline, leaving a motion for relief as the only option. Counsel may have filed an appeal but missed a particular issue. Or counsel may have rejected the issue as lacking merit. Finally, it may be that the information necessary to raise the claim was not available at the time of the appeal so the issue could not have been raised. 24 If the issue could not have been raised before, or if the trial court believes there is a real possibility you are innocent, or if

How to Seek Judicial Review

MAACS 1998

the nature of the claim being raised is a jurisdictional defect, there are no extra hurdles to jump in preparing a 6.500 motion. Jurisdictional defects are errors affecting the states authority even to bring a defendant to trial. They do not arise often but may include double jeopardy violations, conviction under an unconstitutional statute or for a non-existent crime, improper jury waivers, and entrapment. In all other cases, however, the defendant filing a 6.500 motion will face two major hurdles: showing good cause for not having raised the issue in the initial appeal and showing actual prejudice from the error being claimed. Good Cause. Because of judicial concerns with finality, a defendant who had the opportunity to raise a claim on appeal must demonstrate an awfully good reason for not having done so. If you never even tried to appeal, the reason for that decision must be explained. Except in unusual circumstances, it will not be good enough to say you thought youd get paroled on your first outdate and now want your conviction or sentence reviewed because the parole board flopped you. Unless you can connect the boards reason for acting with some error in the trial court proceedings that you had no reason to challenge before, the court is likely to find that your disappointed expectation of parole is no excuse for waiting too long to seek postconviction review. Your remedy at that point is to appeal the parole boards decision. (See Parole Appeals, below.) If there was no appeal for reasons beyond your control, that is a different matter. For instance, if you tried to appeal but counsel destroyed the opportunity by failing to meet a critical deadline, it is easy to show that the cause was ineffective assistance of appellate counsel. Cause would also be shown 25 if the trial court failed to advise you of the right to request counsel and the time for filing an application for leave to appeal expired before the matter was straightened out.

If there was an appeal, the situation is more difficult. In order to demonstrate cause, you must show that appellate counsel was ineffective for not having raised the issue. Courts are very quick to say that a decision not to raise an issue is a matter of strategy. (Even though Minimum Standard 9 requires assigned counsel to raise all issues of arguable merit, that is not a constitutional requirement. Failing to comply with the Minimum Standards does not automatically mean the attorney has been ineffective.) You must demonstrate that counsels failure to assert a claim was not a legitimate strategic decision but an incompetent mistake. This might be done, for instance, by showing that the issue was preserved by trial counsel, or that you brought it to appellate counsels attention in a letter, and there was no tactical reason for not raising it on appeal. It might be shown that appellate counsel failed to order a critical transcript or otherwise failed to investigate the facts needed to see that the issue existed. Or it might be shown that counsel filed a sloppy, canned brief that overlooked various issues and reflected a total failure to provide competent representation. In any event, the lawyers misconduct must be pretty blatant. Actual Prejudice. Even if there is good cause for not having raised an issue previously, a motion for relief from judgment will not be granted unless the error caused actual prejudice. This term is defined in MCR 6.508(D)(3)(b). You must usually show very clearly how you were harmed. If you are appealing a trial-based conviction, the error must have destroyed a reasonably likely chance of your being found not guilty. If you are trying to overturn a plea-based conviction, the error must have made the plea involuntary to the extent that letting the conviction stand would be manifestly unjust (obviously unfair). 26 n either kind of case, the only exception to showing harm is if the irregularity was so offensive to the maintenance of a

How to Seek Judicial Review

MAACS 1998

sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case. This typically means that the prosecutor or trial judge must have deliberately engaged in conduct that was so improper it cannot be overlooked no matter how strong the evidence of guilt is. On the other hand, if the sentence is being challenged, any error that makes the sentence invalid (subject to legal challenge) will satisfy the prejudice requirement. Filing Procedure. A motion for relief from judgment must be filed initially in the trial court where the conviction occurred. You must provide the original and two copies to the court clerk. The clerk gives one copy to the prosecutor, who does not have to respond unless directed to do so by the court. Prison Legal Services of Michigan has designed a fill-in-the-blanks form and a helpful information packet for 6.500 motions that it provides to prisoners upon request. Trial court decisions to deny motions for relief can be appealed, by leave, to the Court of Appeals and then, if necessary, to the Supreme Court. Counsel. There is no right to have counsel appointed to prepare a 6.500 motion. However, a request to have counsel appointed may be made in the body of the motion. If the court thinks there is some merit to the issues raised, it can choose to appoint counsel. If the court decides to conduct an evidentiary hearing or hear oral argument, it must appoint counsel. If counsel is appointed, the court must give the lawyer sufficient time to amend or supplement your pro per motion. Timing. The rules do not state any deadline by which a motion 27 for relief must be filed. Therefore you can take as much time as you need to prepare one. BUT, there is a problem here. If you have federal issues and think you might want to file a federal petition for habeas corpus, you must understand the timing requirements for that procedure. (See description below.) The problem is that while you are working hard on

preparing your 6.500 motion, the time for filing a habeas petition is starting to run out. As is so often true, you must strike a balance between doing the best job possible and meeting deadlines that can prevent you from getting your claims heard at all. (Of course, if you dont need to file both a 6.500 motion and a habeas petition, this particular problem does not arise.) NOTE: Starting August 1, 1995, defendants can only file one motion for relief from judgment regarding a particular criminal conviction and/or sentence. (Motions filed before that date dont count.) The only exceptions are for motions based on retroactive changes in the law and newly discovered evidence that became known after the first motion was decided. This means that it is important to do as good a job as possible in preparing the motion because you wont get a chance to file another one. FEDERAL HABEAS CORPUS PETITIONS Raising Federal Issues. As explained above, claims that errors committed in a state court proceeding violated the U.S. Constitution or other federal law can be raised in federal court by a filing a petition for habeas corpus. The claim must first have been raised, along with the applicable federal law, all the way through the state court system. This gives the state courts the chance to correct their own errors. It is called exhausting state remedies. If claims have not been exhausted, the petition can be denied. Since, as noted below, prisoners are limited to filing one 28 habeas petition except in the most unusual circumstances, you do not want to waste your only opportunity by filing a petition that will be denied for lack of exhaustion. That is why, if federal claims were not properly researched and raised in the initial appeal, you must raise them in the state courts through the motion for relief from judgment procedure.

How to Seek Judicial Review

MAACS 1998

For example, assume that the trial judge refused to let you use certain evidence to cross-examine a prosecution witness. Your brief on appeal claimed the error was a violation of the Michigan Rules of Evidence. However, an argument can also be made that the error violated your right to confront witnesses under the 6th amendment of the U.S. Constitution. If the right to confrontation argument was not made in state court, with citation to appropriate federal decisions, it must be raised in a motion for relief before you go into federal court. Right to Counsel.. There is no right to have counsel appointed to prepare a habeas petition. The federal court may choose to appoint counsel after reviewing a petition filed by a prisoner in propria persona if it thinks the issues raised may have merit. Simple forms designed for prisoners to use to file petitions on their own are available from the federal district courts at no charge. A helpful information packet is available from Prison Legal Services of Michigan. Where to File. There are two federal district courts in Michigan - one for the Eastern District, based in Detroit, and one for the Western District, based in Grand Rapids. A habeas petition may be filed in the District where you are incarcerated, or in the District where the conviction was obtained. The Court may transfer a case from one to the other, to equalize workloads. The Eastern District covers the eastern portion of the Lower Peninsula and includes facilities in Wayne, Oakland, Macomb, Washtenaw and Jackson 29 Counties, as well as those in Saginaw, Lapeer, Adrian and Roscommon. The Western District covers the western side of the Lower Peninsula and the entire Upper Peninsula. Among the facilities it includes are those at Ionia, Muskegon, Coldwater, Kinross and Marquette. If in doubt, check the federal courts section in the State Bar Directory.

When to File. Under rules that took effect on April 24, 1996, a habeas petition must typically be filed within one year of the date the Michigan Supreme Court issued its last opinion or order in the case. The exceptions to this deadline are very limited. They generally involve situations when it would have been impossible to file a petition earlier because facts had not been discovered or the applicable law had not yet changed. However, the time when a properly filed application for postconviction review of some sort is pending in the state courts does not count against the one year period. In Michigan, this would be a motion for relief from judgment. Presumably the time spent conducting a proceeding, such as a resentencing, that was ordered by an appellate court would also not count. For example, assume that the Michigan Supreme Court has denied your application for leave to appeal. You think certain federal issues should have been raised. You spend five months preparing a motion for relief from judgment before you file it in the trial court. That means five months of your one year for filing a federal habeas petition were used up. But when you filed the motion, you stopped the federal clock from running. If you get a negative decision on the motion from the trial court, you will need to appeal that decision to the Michigan Court of Appeals and the Michigan Supreme Court. The whole time the case is sitting in each court will clearly not count against you. But the time you take preparing to go from one court to the next 30 may count, depending on how the new rules are applied. In this example, you would have seven months or less to file a habeas petition once the Supreme Court refused to hear your case. So you can see that, if you have federal claims, you do not want to use all your time preparing the motion for relief from judgment and not have enough time left to prepare a habeas petition.

How to Seek Judicial Review

MAACS 1998

Petition

The new federal rules also place very strict limits on filing more than one habeas petition concerning the same conviction. Once a petition has been filed, no more petitions can be filed thereafter unless the prisoner meets certain narrow requirements and gets permission from the federal court of appeals. The exceptions to the one petition limit, like the exceptions to the one year filing deadline, involve situations where it would have been logically impossible for the prisoner to have raised the claims before. It is not known yet whether this new limitation will be applied retroactively, that is, in cases where the prior petition was filed before the new rules took effect. SUMMARY OF IMPORTANT DEADLINES
Action Request Counsel for Initial Appeal If convicted at trial Deadline Result if Missed

opinion or order from Michigan Supreme Court (except time when other postconviction proceedings are pending does not count).

dismissed.

PAROLE APPEALS A state statute, MCL 791.234(5); MSA 28.2304(5), gives prisoners the right to appeal decisions by the parole board to deny parole. The same statute gives prosecutors and victims the right to appeal board decisions if they give you a parole. Unlike the other procedures discussed in this pamphlet, a parole appeal is not a way to obtain review of your conviction and sentence. It is a way to get a court to review the actions of the board. Parole appeals are included here because so many prisoners have to consider using this procedure to seek the ultimate postconviction relief - release from confinement. Who Should Appeal. Like appellate courts reviewing trial court proceedings, judges reviewing parole board decisions look for serious errors in the decisionmaking process. In deciding whether to appeal a flop, you must be realistic. Appeals take time and, under a recent change in the law, even indigent prisoners have to pay a filing fee. If you lose, you may also have to pay costs to the Attorney General. If you believe the board violated its own procedures in a way that harmed you 32 or that its decision is not justified by factors the board is allowed to rely on, an appeal may well be worthwhile. But if the board can justify its decision based, for instance, on your misconduct history, the effort to appeal will probably be wasted. As long as the board follows its own rules, it has very broad discretion to decide whether to parole someone. Courts are not quick to reverse board decisions.

42 days after sentencing Over 42 days but less than 12 months after sentencing 42 days after sentencing

Appeal will be by leave No counsel, no appeal Counsel will not be appointed Application will not be accepted

If convicted by plea

File Application for Leave to Appeal in Court of Appeals

12 months from date of order being appealed (e.g. judgment of sentence or order denying 31 counsel) 56 days from date of Court of Appeals opinion or order One year from last

File Application for Leave to Appeal in Supreme Court File Federal Habeas

Application will not be accepted

Petition will be

How to Seek Judicial Review

MAACS 1998

Sometimes prisoners who chose not to appeal their convictions or sentences because they felt they could handle their minimums are shocked when the board denies them parole. Then, looking for a way to get their time reduced, they decide they want to appeal their cases after all. However, at that point, it is almost always too late to have counsel appointed or to file an application for leave to appeal in the Court of Appeals. While a motion for relief from judgment could still be filed, many prisoners will face a very practical problem. Even if grounds for challenging their sentences exist, winning relief may do them no good. The minimum sentence just defines the point when the board can consider someone. A person who has already finished his or her minimum and been considered by the board gains nothing by just having the minimum reduced. Errors That Can Be Appealed. To obtain relief from a parole board decision, you must show that the board violated the Michigan Constitution, a statute, an administrative rule or some other written DOC regulation, or that it clearly abused its discretion. One common category of claims is that the board failed to follow requirements set by statute about such matters as advance notice of interviews, consideration of improper factors, exclusion of the prisoners chosen representative from the interview, or the failure to give a detailed, individualized written explanation of the denial. Another common type of claim is that the parole guidelines were scored incorrectly, with the result that the prisoner was wrongly classified as having a 33 low or average probability of parole. (If correcting the score would not change the probability classification, the error was probably harmless.) A different type of guidelines claim would be that the board denied parole to someone who scored a high probability of parole without having substantial and compelling reasons for doing so. Claims that involve broad parole board policies instead of narrow rule violations are generally more complicated to argue.

These might include, for instance, denying parole because a treatment program was not completed even though the prisoner was never given the opportunity to participate or denying parole solely on the basis of factors (such as the nature of the offense) that were considered when the minimum sentence was imposed. Challenges to the way in which the guidelines were constructed or the way procedural rules are applied to lifers would also fall in this category. Whatever the claim, if you win, the relief will generally be that the board must consider you again after correcting its error. If the board really does not want to grant you parole, it will meet the courts requirements, then find a way to flop you again. A court will virtually never outright order the board to grant someone parole. Nonetheless, parole appeals are an important way of making sure that a board which makes thousands of decisions a year follows its own rules and that the new parole guidelines are being applied correctly. As more and more parole board decisions are being appealed, the courts are becoming more familiar with board operations and a body of case law concerning parole is gradually beginning to grow. Filing Procedure. A parole appeal is by leave to the circuit court of the county in which you were convicted. (If you were convicted in Recorders Court, the appeal is to Wayne Circuit Court.) To be timely, an application for leave must be filed within 28 days of the parole boards decision. Most prisoners will not be able to meet that deadline and delayed applications 34 are accepted. In fact, there is no absolute deadline by which a delayed application must be filed. However, the reason for the delay must be explained and the length of the delay can be considered by the court in deciding whether to grant leave. There is no right to have counsel appointed to prepare an appeal from a board decision denying parole. It is not even clear that there is a right to have counsel appointed when the board has granted parole and it is the prosecutor that is

How to Seek Judicial Review

MAACS 1998

appealing. However, most courts do appoint counsel in that situation. The filing procedure for parole appeals is spelled out in MCR 7.104 (D). Prison Legal Services of Michigan has prepared a form application for leave to appeal parole board decisions that has detailed filing instructions. These include an explanation of what documents must be attached and how to go about getting them. The form is available from PLSM for a small charge that covers copying costs. If the circuit court grants you leave to appeal, you will have to submit a brief explaining your arguments in more detail. If leave is denied, you can try to appeal the circuit courts decision by filing an application for leave (within 12 months of the denial) in the Court of Appeals.

Keep copies of what you send to other people whenever possible. Describe the problem you are addressing as simply and clearly as possible. Write in plain English, not some complicated version of what you think lawyers should sound like. Lawyers should write in plain English too! Say as much as you have to in order to explain the situation, but dont get off on a lot of minor stuff. Consider the viewpoint of judges and court staff who have stacks of work to read. If you try to drown the reader in more paper than is necessary, he or she will either keep setting your case aside or will be irritated while trying to plow through it. Point to the exact place in the record where important facts are shown. Refer to transcript page numbers, if possible. Never distort or omit critical facts. Someone will always find out and you wont be believed about other matters. It is better to acknowledge facts that harm your position and account for them up front. Most important! Clearly explain what happened that was unfair and how it caused you harm. While you do have to explain what rule or law you think was violated in your case, you dont have to do a lot of sophisticated legal research. If a court is persuaded that a real injustice occurred, it can always appoint counsel to represent you. 36 When you cite cases to support your legal argument, use only the best ones. These are the ones with the most thorough discussion of the law directly relevant to your issue and/or with facts most like the ones you think caused error in your case. Dont load up your brief with dozens of cases that dont really help your argument or that just repeat each other.

QUICK TIPS FOR SELF-REPRESENTATION Whether you are preparing a formal document for filing in court or communicating with someone about your case by mail, a number of basic points are worth remembering. Meet deadlines. The best arguments in the world wont do any good if they are made too late for anyone to act on them. Review books about how to do basic legal research. They 35 are available in the prison law library. Read the statutes and court rules that apply to your situation. Be aware that they change all the time. Follow the instructions on fill-in-the-blanks forms carefully. Write clearly or print; type if possible.

How to Seek Judicial Review

MAACS 1998

Dont pretend that cases that go against you are not there. If possible, try to show why your case is different! Or you can try to argue the law should be changed. If neither of these approaches work, maybe you dont have a good issue. IMPORTANT ADDRESSES State Appellate Defender Office (SADO) Michigan Supreme Court 2nd Flr., Law Building P.O. Box 30052 Lansing, MI 48909 Michigan Court of Appeals 109 W. Michigan Ave. P.O. Box 30022 Lansing, MI 48909 U.S. District Court Eastern District of Michigan Theodore Levin United States Courthouse 231 Lafayette Blvd. Detroit, MI 48226 U.S. District Court Western District of Michigan Federal Building 110 Michigan NW Grand Rapids, MI 49503 Prison Legal Services of Michigan (PLSM) 3855 Cooper Street 37 Jackson, MI 49201 Michigan Appellate Assigned Counsel System (MAACS) Plaza One - Suite 1 401 S. Washington Ave. Lansing, MI 48913 Suite 3300 Penobscot 645 Griswold Detroit, Michigan 48226 and 340 Business and Trade Center 200 Washington Square, North Lansing, Michigan 48913

Proposed form #2

Original - Court 1st copy - Prosecutor

2nd copy - Defendant 3rd copy - Defendant attorney

STATE OF MICHIGAN JUDICIAL CIRCUIT COUNTY

ORI Court

CASE NO. MOTION FOR RELIEF FROM JUDGMENT

address Court telephone no.

MIDefendant's name, /address, and inmate no.

THE PEOPLE OF THE STATE OF MICHIGAN

v To be completed by the court.

CTN SID DOB

INSTRUCTIONS: Answer each question as completely as you can. If you need more space to answer any question, you may attach extra pages. You may also attach documents, affidavits, or a brief, if you wish. 1. I was found guilty on
Date

2. The offenses and proceedings were:

CONVICTED BY
Count Plea* Court Jury

CRIME

CHARGE CODE(S) MCL citation/PACC Code

*Plea: insert "G" for guilty plea; use "NC" for nolo contendere; use "MI" for guilty but mentally ill.

3. I was sentenced as stated below by Honorable

Name of judge Count

SENTENCE MINIMUM MAXIMUM DATE SENTENCE JAIL CREDIT Years Mos. Days Years Mos. Mos. Days DATE BEGINS

OTHER INFORMATION

(NOTE: If you do not have this information, it is on your Judgment of Sentence and Basic Information Sheet which are available at the prison record office.) 4. Fill in the charts below with the information requested about the court proceedings in your case and the names of the attorneys who represented you. A. TRIAL LEVEL - ALL PROCEEDINGS from arrest to sentencing, including line-ups and other proceedings.
NAME OF PROCEEDING NAME OF ATTORNEY NAME OF PROCEEDING NAME OF ATTORNEY

continued on the other side

CC 257 (8/89)

MOTION FOR RELIEF FROM JUDGMENT

MCR 6.502

B. POST CONVICTION - ALL PROCEEDINGS, State and Federal, including appeals, post-trial motions, and habeas petitions.
COURT DOCKET NO. NAME OF PROCEEDING NAME OF ATTORNEY RESULT DATE OF RESULT

5. Appointment of Counsel Do you want an attorney appointed? 6. Grounds and Relief a. What action do you want the court to take? Yes No If yes, complete the attached Financial Schedule.

b. What are the legal grounds for the relief you want? You must raise all the issues you know about. You may not be allowed to raise additional issues in the future. Use extra sheets of paper, if necessary. ISSUE ONE:

Supporting facts:

Was this issue raised before?

Yes

No

If yes, at what stage of the proceedings was it raised, and why should it be reconsidered now?

continued on the next page

If no, why not?

ISSUE TWO:

Supporting facts:

Was this issue raised before?

Yes

No

If yes, at what stage of the proceedings was it raised, and why should it be reconsidered now?

If no, why not?

ISSUE THREE:

Supporting facts:

continued on the other side

Was this issue raised before?

Yes

No

If yes, at what stage of the proceedings was it raised, and why should it be reconsidered now?

If no, why not?

ISSUE FOUR:

Supporting facts:

Was this issue raised before?

Yes

No

If yes, at what stage of the proceedings was it raised, and why should it be reconsidered now?

If no, why not?

PROOF OF SERVICE To be completed by the court. I certify on this date a copy of this motion was served upon the prosecutor by personal service. mail.

Approved, SCAO

Original - Court 1st copy - Defendant 2nd copy - Appointed attorney

STATE OF MICHIGAN JUDICIAL DISTRICT JUDICIAL CIRCUIT

ORI

CASE NO. PETITION AND ORDER FOR COURT APPOINTED ATTORNEY

Court telephone no.

Court address

MI-

The State of Michigan THE PEOPLE OF v

Defendant's name, address, and telephone no.

CTN

SID

DOB

PETITION The defendant requests a court appointed attorney and submits the following information: 1. CHARGE Next hearing:
Date

Misdemeanor Felony Paternity Bond posted

Bail amount: $ 4. INCOME Employer name and address

2. RESIDENCE Rent Own 3. MARITAL STATUS Single Divorced Married Separated

Length of employment

Live with parents Room/Board Dependents:

Number

Average take-home pay $ weekly monthly

Other Income State monthly amount and source (DSS, VA, rent, pensions, spouse, unemployment, etc.)

every two weeks

5. ASSETS*

State value of car, home, bank deposits, inmate accounts, bonds, stocks, etc.

6. OBLIGATIONS*

Itemize monthly rent, installment payments, mortgage payments, child support, etc.

7. REPAYMENT 8. VERIFICATION

I understand that I may be ordered to repay the court for all or part of my attorney and defense costs. I declare under penalty of contempt of court that the above information is true to the best of my information, knowledge, and belief. Date: Signature:

*Use reverse side for additional information/comments.

ORDER 9.
Name Bar no.

is appointed to represent the petitioner.

10. The petition is denied because:

District Court Endorsement

Date Judge MC 222 (3/00)

(felony cases only)

Date Bar no. Judge Bar no. MCR 6.005(B) , MCR 6.610(D),(G)

PETITION AND ORDER FOR COURT APPOINTED ATTORNEY