Author: LegalEase Solutions

QUESTION PRESENTED

Whether the “new law” argument is viable in a Michigan court in a 6.500 motion claiming actual innocence?

 SHORT ANSWER

In Michigan, the courts have adopted a position that gives broader retroactive effect to new rules of law when compared to federal law. In Michigan, the retroactive application of new rules may be appropriate when concerned with the ascertainment of guilt or innocence, or when the integrity of the fact-finding process is affected. Further, the new rules of criminal procedure do not apply to final convictions. However, a defendant is entitled to relief under MCR 6.500 only if a retroactive change in the law has altered the validity of his conviction. Based on the facts, the retroactivity of a new rule of law seems to be viable in Michigan courts.

RESEARCH FINDINGS

Introduction

In Michigan, “[t]o satisfy the ‘actual innocence’ standard, a defendant ‘must show that it is more likely than not that no reasonable juror would have found [the defendant] guilty beyond a reasonable doubt.’” People v Swain, 288 Mich App 609, 638; 794 NW2d 92, 108 (2010) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Further,

It is well settled that [s]ubchapter 6.500 of the Michigan Court Rules establishes the procedures for pursuing postappeal relief from a criminal conviction. The subchapter is the exclusive means to challenge a conviction in Michigan once a defendant has exhausted the normal appellate process. Relief, however, may not be granted unless the defendant demonstrates (a) good cause for failure to have raised the grounds for relief on appeal or in a prior motion under the subchapter and (b) actual prejudice from the alleged irregularities that support the claim for relief. MCR 6.508(D)(3)(a) and (b).

People v McSwain, 259 Mich App 654, 678; 676 NW2d 236, 248-49 (2003).

Furthermore, “under MCR 6.508(D)(2), . . . a court may not grant relief from judgment if the criminal defendant’s motion alleges grounds for relief that were decided against the defendant in a prior appeal or proceeding under MCR 6.500, ‘unless the defendant establishes that a retroactive change in the law has undermined the prior decision.’” Id. at 679-80 (quoting MCR 6.508(D)(2)) (emphasis added).

In Michigan, “‘[a] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.’” People v Maxson, 482 Mich 385, 388-89; 759 NW2d 817, 820 (2008) (quoting Penry v. Lynaugh, 492 U.S. 302, 314 (1989)). Further, “[d]eciding whether a rule is ‘new’ requires a court to determine ‘whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.’” Id. (quoting O’Dell v. Netherland, 521 U.S. 151, 156 (1997)). Therefore, “[i]f a reasonable jurist would not have felt compelled by existing precedent, then the rule is new.” Id. (citing Beard v. Banks, 542 U.S. 406, 413 (2004)).

• Retroactivity under federal law

Under federal law, when a conviction is final, “defendant is entitled to relief only if a retroactive change in the law alters[s] the validity of his or her conviction.” [1]People v Gomez, 295 Mich App 411, 414-15; 820 NW2d 217, 220 (2012) (citing MCR 6.500 et seq.). Therefore, “[t]o determine whether a retroactive change can alter a conviction, the federal courts use the analysis described in Teague v Lane, 489 U.S. 288 (1989).” Id. at 414-15.

“Under Teague, a new rule of criminal procedure generally cannot be applied retroactively to alter a final judgment. Accordingly, the first step in the Teague analysis is to determine whether the rule at issue constitutes a new rule. A procedural rule is new unless it is dictated by precedent existing at the time the defendant’s conviction became final.” Id. (citing Teague, 489 U.S. at 301).

According to the Supreme Court of the United States, “[a] new rule is defined as ‘a rule that … was not dictated by precedent existing at the time the defendant’s conviction became final.’” Whorton v. Bockting, 549 U.S. 406, 416 (2007) (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)) (internal quotations omitted). Further, under federal law, “[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.’” Id. at 416 (quoting Saffle, 494 U.S. at 495).

“In order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent ‘an ‘impermissibly large risk’of an inaccurate conviction. Second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.’” Id. at 418 (quoting Schriro v. Summerlin, 542 U.S. 348, 356 (2004)). Further, “[a] rule is procedural if it ‘regulate[s] only the manner of determining the defendant’s culpability’ or if it ‘allocate[s] decision making authority.’ On the other hand, ‘[a] decision that modifies the elements of an offense is normally substantive rather than procedural,’ including, for example, a decision stating that ‘a certain fact [is] essential to the death penalty….’” People v Carp, 496 Mich 440, 536-38, 852 NW2d 801, 854-55 (2014) (quoting Schriro, 542 U.S. at 353-354)

It is found that, “[n]ew substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish[.]” Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (citing Saffle, 494 U.S. at 494-495)) (internal citations omitted). Further, “[s]uch rules apply retroactively because they ‘necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal’ or faces a punishment that the law cannot impose upon him.’” Id. (quoting Bousley v. United States, 523 U.S. 614, 620-621 (1998)); See also, Carp, 496 Mich 440, 536-38, 852 NW2d 801, 854-55 (2014).

However, “[n]ew rules of procedure . . . generally do not apply retroactively.” Id. at 352. “They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Id. “Because of this more speculative connection to innocence, [the Supreme court of the United States] give retroactive effect to only a small set of ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.’” Id. (quoting Saffle, 494 U.S. at 495). Therefore, “a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished.’” Id. (quoting Teague v. Lane, 489 U.S. 288, 313 (1989)).

• Retroactivity under state law

“Although states must apply a new rule of criminal procedure retroactively when the new rule satisfies Teague’s exceptions to the general rule of nonretroactivity, they are permitted to ‘give broader retroactive effect’ to a new rule than is required by Teague.” Id. at 496 (quoting Danforth v. Minnesota, 552 U.S. 264, 273–275 (2008)). “Despite Michigan’s having adopted its own retroactivity test that may give broader retroactive effect to some new rules than is mandated by the Teague test, Michigan nonetheless still adheres to the general principle of nonretroactivity for new rules of criminal procedure.” Carp, 496 Mich at 496. Therefore, “Michigan law has regularly declined to apply new rules of criminal procedure to cases in which a defendant’s conviction has become final.” Id. at 497 (citing Maxson, 482 Mich at 392–393). Further,

[The Supreme Court of Michigan] has consistently asserted that three factors are relevant in determining whether a new rule of criminal procedure should be applied retroactively under state law, even if such a new rule of criminal procedure does not apply retroactively under federal law:

(1) the purpose of the new rules; (2) the general reliance upon the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice.

Carp, 496 Mich at 549, 852 NW2d at 861 (citing People v Sexton, 458 Mich 43, 60–61, 580 NW2d 404 (1998)). These factors also apply to determine whether the new rule of law should be given full retroactivity, limited retroactivity, or prospectivity. Collins v Dept of Corr, 167 MichApp 263, 266-67; 421 NW2d 657, 659 (1988) (citing Faigenbaum v. Oakland Medical Center, 143 Mich.App. 303, 312-313, 373 NW2d 161 (1985)).

Additionally, in Michigan, “[u]nder plain error review, reversal is only appropriate when the plain error that affected substantial rights ‘seriously affected the fairness, integrity, or public reputation of the proceedings’ or when the defendant shows ‘actual innocence.’” People v Pipes, 475 Mich 267, 283; 715 NW2d 290, 300 (2006) (quoting People v Carines, 460 Mich 750; 597 NW2d 130 (1999)).

In Michigan, retroactive application of new rule may be appropriate when concerned to ascertainment of guilt or innocence; however, a new rule of procedure that does not affect the integrity of the fact-finding process has a prospective effect. In People v Sexton, 458 Mich 43, 62-63; 580 NW2d 404, 413-14 (1998), the defendant was charged with first-degree murder and possession of a firearm during the commission of a felony. Id. at 48. While defendant’s appeal was pending, this Court decided People v. Bender 452 Mich 594; 551 NW2d 71 (1996), ‘mandat[ing] [suppression] regarding all statements made after 5:30 p.m.” Id. at 49. “[B]efore Bender the police could legitimately rely on the fact that an inculpatory statement would not be automatically excluded when they failed to inform a suspect of the presence of counsel hired by a third party.” Id. at 66. Applying the Bender rule retroactively, the trial court suppressed defendant’s inculpatory statements and State appealed. Id. at 43.

On appeal this court analyzed the potential retroactivity of Bender and held that, “[t]he rule, by its nature, can only have a prospective effect on police conduct.” Id. at 63. The court reasoned that,

Because the doctrinal foundation for the Bender rule is prophylactic and aimed at preventing police misconduct that does not affect the truth-finding process, it is amenable to prospective application. Because the police acted in full compliance with the law as it existed at the time, the purpose of preventing police misconduct will in no way be served by retroactive application.

Id.

In the present case, Defendant was convicted for shooting and killing a man in 1987. As per the initial witness statements, they did not see who shot and killed the victim. However, the corrupt police badgered these witnesses until they changed their story into what the police wanted to frame. These facts, if proven, would substantiate misconduct on the part of the police.

Michigan courts apply a three-pronged test for evaluating state-based retroactivity. According to the first prong  (purpose, that favors retroactivity), rules addressing the question of guilt or innocence should be found to be retroactive. There is an exception where the new rule “does not affect the integrity of the fact-finding process”. In this case, according to the Sexton court, the rule is prospective in effect only. Moreover, the Sexton court states that Bender rule is prophylactic and aimed at preventing police misconduct that does not affect the truth-finding process.

The present case appears to be distinct from Sexton. It appears from the initial witness statements that the witnesses actually did not see who shot and killed the victim. Here, the police misconduct was related to badgering the witnesses to change their story into what the police wanted to frame against defendant. It seems that defendant’s conviction was a result of the police misconduct. Here, contrary to Sexton, police misconduct has affected the integrity of the fact-finding process. It can be suggested that ‘a new rule of law’ that defendant wants to rely in his motion for relief from judgment to claim actual innocence can have a retroactive effect.

CONCLUSION

In Michigan, the retroactive effect of a new rule of law is determined based on the three factors: (1) the purpose of the new rule; (2) the general reliance upon the old rule; and (3) the effect of full retroactive application of the new rule on the administration of justice.

Based on the foregoing it appears that a new rule of law can have a retrospective effect on an old conviction only if a defendant’s conviction has not become final. However, under MCR 6.500, a defendant showing that ‘a retroactive change in the law has altered the validity of his conviction’ is entitled to relief from judgment. In the present case, it appears that ‘the integrity of the fact-finding process’ related to defendant’s innocence was affected by the misconduct of the police. As the first factor favors retroactivity and it appears that police misconduct has affected the truth-finding process, retroactivity of new rule of law seems to be viable.

[1] Note, as discussed infra, that Teague permits state court to give broader retroactive effect to a new rule of law.