Wesley v. Curtis

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0276n.06
Filed: April 24, 2006
No. 03-2422
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GARY R. WESLEY, )
)
Petitioner-Appellant )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
BRUCE CURTIS, ) EASTERN DISTRICT OF MICHIGAN
)
Respondents-Appellee )
)
)
BEFORE: MERRITT, MARTIN, and McKEAGUE, Circuit Judges
MERRITT, Circuit Judge. This is a Michigan pro se state habeas corpus case submitted
to us on the briefs. The State asserts multiple defenses, including procedural default in the state
courts, the statute of limitations and waiver, as well as the failure of the petitioner, Wesley, to
present a viable claim on the merits. The District Court recited the long, convoluted history of this
case from Wesley’s conviction for multiple crimes in the state trial court of Michigan in May 1984.
The District Court has granted a certificate of appealability on a single issue arising from the fact
that the state trial court has never ruled on Wesley’s motion for a new trial after his conviction and
Wesley claims that he has been denied his right to appeal.
The District Court ruled on the merits on one issue presented by Wesley — an issue claiming
the denial of appellate counsel — as follows:
No. 03-2422
Wesley v. Curtis
The record reflects that the trial court informed Petitioner of his right to
appeal at the time of sentencing. At that time, the Court also appointed counsel to
represent Petitioner on appeal. On November 26, 1984, Petitioner filed a letter with
the trial court expressing his desire to represent himself on appeal. Petitioner’s
attorney filed a Motion to Withdraw as Counsel citing Petitioner’s desire to proceed
pro se, which the trial court granted on January 30, 1995. [The date here should
apparently be February 4, 1985. See Joint App. p. 139.] People v. Wesley, No. 83-
61346 & 83-61447 (Jan. 30, 1995). Further, in July 1996, Petitioner filed a request
for information with the trial court in which he stated that he “refused all state
appointed attorneys.” [This date should apparently be July 21, 1986. See Joint App.
p. 140.] See Exhibit 4 to Petitioner’s “Exhibits Not Included Within ‘Index of
Record,’” filed on December 9, 2002.
Petitioner has failed to show that his waiver of an appellate attorney was not
voluntarily and knowingly made. Consequently, he also has failed to show that he
was denied his appeal of right. Based upon the foregoing, the Court concludes that
the trial court’s decision denying Petitioner’s claims did not “unreasonably appl[y]
clearly established [federal] law,” nor was the decision “based on an unreasonable
determination of the facts in light of the evidence presented.” Harris, 212 F.3d at
943.
The District Court then issued a certificate of appealability on a different issue, as follows:
A. Right to Appeal
Petitioner claims that the Court erroneously based his claim of being denied
the right to appeal on a failure to appoint counsel. Petitioner argues that the basis of
this claim was that he had been deprived of due process by the state trial court’s
failure to rule upon a motion for new trial, not that he had been deprived of his right
to appellate counsel. Therefore, Petitioner argues, a reasonable jurist would find the
Court’s assessment of the Petitioner’s constitutional claim debatable. Since it does
not appear as though the trial court has ever addressed Petitioner’s motion for new
trial, the Court finds that Petitioner has met the threshold for issuing a certificate of
appealability on this issue.
Furthermore, since the Court has granted the Petitioner’s request, at least with
respect to this issue, to issue a certificate of appealability, the Court finds that
Petitioner’s appeal has been taken in good faith and, therefore, that Petitioner’s
Application to Proceed Without Prepayment of Fees and Affidavit should be
GRANTED. See Fed. R. App. P. 24.
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No. 03-2422
Wesley v. Curtis
The District Court implicitly ruled on this issue when it dismissed the habeas petition. Unlike the
ruling on appellate counsel, however, the record does not reflect that the District Court has explained
its ruling on this issue on which it has granted the COA.
In the claim on which the COA has been granted, Wesley essentially contends he has been
denied his right to appeal his convictions as of right because the trial court’s undisputed failure to
rule on his motion for new trial, filed on July 31, 1984, has forestalled the running of the period
within which he could file his notice of appeal. Because the motion for new trial is still pending,
he contends, any filing of a notice of appeal would have been premature.
Our view on this issue is that the motion for a new trial filed in 1984 is not now — 21 years
later — “still pending.” Where no ruling has been made on a motion for a prolonged period of time,
the motion is presumed to have been waived or abandoned absent circumstances indicating
otherwise. See 60 C.J.S. Motions and Orders § 42; People v. Kowalski, 584 N.W.2d 613, 622-23
(Mich. App. 1998) (C.J. Corrigan concurring); People v. Van Hee, 712 N.E.2d 363, 365 (Ill. App.
1999). This case presents no such circumstances.
In fact, Wesley concedes that even he was unaware of the existence of the motion for new
trial until sometime after 1991. Appellant’s Br. p. 11. The pro forma motion had been prepared and
filed by his appointed trial counsel ten days after Wesley’s sentencing — the very attorney whom
Wesley claimed had afforded him ineffective assistance of counsel, and who had, at Wesley’s
instance, been allowed to withdraw as appellate counsel on January 30, 1985. This concession
severely undercuts Wesley’s implied argument that the pendency of the motion for new trial
prevented him from timely filing a notice of appeal.
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No. 03-2422
Wesley v. Curtis
Moreover, Wesley did not even try to bring the motion for new trial to the state courts’
attention in post-conviction proceedings until 1993. By then, the motion must be deemed to have
been abandoned. It follows that Wesley, having failed to prosecute the motion for new trial, and
having failed to demonstrate that such failure was due to circumstances other than culpable neglect,
effectively waived his right to appeal his convictions and sentences. The proceedings in the state
courts can only be interpreted to mean that when Wesley discharged his lawyer and decided to act
pro se he failed to go forward with his case and he, therefore, abandoned or waived his new trial
motion as well as his state court appeal. A defendant does not have to go forward with his case after
conviction by motion for a new trial or appeal. When a convicted defendant abandons further
review, the state court does not act unconstitutionally when it permits him to cease further litigation.
Although there may be other reasons to deny this claim, e.g., procedural default, or the statute of
limitations, or the failure to meet the AEDPA standard of review, 28 U.S.C. § 2254(d), we choose
to deny the claim on the merits because the state courts did not deny to Wesley any due process right
when it did not hear an appeal from his conviction.
Accordingly, the judgment of the District Court is AFFIRMED.
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