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Sixth Circuit: Michigan Courts’ Procedure Allowing Appellate Counsel’s Withdrawal Unconstitutional

by David M. Reutter

The U.S. Circuit Court of Appeals for the Sixth Circuit held that Michigan courts unreasonably applied clearly established federal law by allowing a defendant’s appellate counsel to withdraw and failing to appoint replacement counsel. The Court ordered a new first-tier appeal in Michigan courts.

The Court’s August 14, 2020, opinion was issued in an appeal brought by Michigan prisoner Daniel M. Pirkel. He was charged with 17 crimes that occurred in a few short months in 2007. At a January 24, 2008, plea hearing, Pirkel expressed reservations about entering a plea. The plea court allowed him 90 minutes to read the police reports. When it reconvened, two charges were dropped, and Pirkel pleaded no contest to the remaining charges. The court accepted the pleas after a colloquy into knowingness and voluntariness.

Prior to sentencing, Pirkel wrote the court to express that he was “in no way comfortable with anything pertaining to my case such as my plea, my lawyers, and my mental state.” The court said it had reviewed the tape of the plea hearing and would not allow withdrawal of the plea. It then sentenced Pirkel to 20 to 50 years on two counts of assault with intent to murder and two years for a firearms offense to run consecutively. The remainder of the sentences were concurrent to the assault with intent to murder.

John Ujlaky was appointed as Pirkel’s appellate counsel. In a letter to Pirkel, Ujlaky said he “found no issue of even colorable merit to peruse on [Pirkel’s] behalf.” He asked Pirkel to agree to terminate his appointment as counsel. Pirkel responded by raising issues, including withdrawal of his plea and ineffective assistance of counsel.

In a motion to withdraw as counsel, Ujlaky stated that he conducted a full review of the transcripts and other documents, corresponded with Pirkel, communicated with his trial counsel, and provided advice to Pirkel. Again, he asserted there were no appealable issues. The plea court agreed with his assessment at the hearing, and it allowed Ujlaky to withdraw. It denied Pirkel’s request to appoint new counsel, stating its “only obligation is to appoint one attorney for appellate review in a plea case.”

Proceeding pro se, Pirkel appealed. He argued his trial counsel was ineffective on several grounds. He also asserted Ujlaky was ineffective for raising an ineffective assistance of counsel claim and for withdrawing. Finally, he argued the plea court violated the Constitution by failing to appoint new counsel. The appellate court denied the appeal for “lack of merits in the grounds presented.” The Michigan Supreme Court declined review.

Pirkel then filed a federal habeas corpus petition. The magistrate judge found he failed to exhaust several claims and ultimately recommended the petition be dismissed. The district court dismissed the case and denied a certificate of appealability (“COA”).

The Sixth Circuit granted Pirkel’s application for a COA and appointment of counsel. On appeal, both parties agreed Pirkel’s claims were exhausted in state court, so the Sixth Circuit reviewed his claim of being denied the right to appellate counsel and challenge to the procedure for counsel’s withdrawal.

In Halbert v. Michigan, 545 U.S. 605 (2005), the Supreme Court ruled that “the Due Process and Equal Protection Clauses require the appointment of counsel for defendants convicted on their pleas, who seek access to first tier review in the Michigan Court of Appeals.” In Anders v. California, 386 U.S. 353 (1963), the Supreme Court instructed that the proper procedure for appellate counsel to withdraw requires the filing of a brief referring to anything in the record that might arguably support an appeal, allow the defendant to raise any points he chooses to, and the court must make its own investigation to determine whether the appeal is “wholly frivolous.”

The Sixth Circuit found the procedure used to allow Ujlaky to withdraw failed to “afford adequate and effective appellate review to” Pirkel. First, the determination of whether there are appealable issues must be made “by the appellate court, not every court appealed from,” the Court explained. “Next, Ujlaky failed to file a brief drawing attention to anything in the record that might arguably support Pirkel’s appeal,” the Court stated. “Finally, the trial court failed to conduct an independent determination of the merits of Pirkel’s appeal.” Instead, it relied on Ujlaky’s determination of the merits, and it referenced Ujlaky’s review in denying new appellate counsel to Pirkel. 

In light of these flawed procedures, the Court concluded that Pirkel was denied “adequate and effective appellate review.” In cases such as this, the Sixth Circuit presumes prejudice due to the effective denial of counsel on appeal. 

Accordingly, the Court reversed the district court’s order and remanded to the district court with instructions to issue a conditional writ of habeas corpus, “ordering Pirkel’s release if the State of Michigan does not grant him a new state court appeal with the constitutional protections specified in this opinion….” See: Pirkel v. Burton, 970 F.3d 684 (6th Cir. 2020) 

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Related legal case

Pirkel v. Burton



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