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Sixth Circuit: Michigan’s Ordinarily ‘Adequate’ Contemporaneous-Objection Rule, in Unique Circumstances, May Not Procedurally Bar Federal Habeas Review

by Dale Chappell 

The U.S. Court of Appeals for the Sixth Circuit held that Michigan’s contemporaneous-objection rule, requiring an objection to an error in the trial court even if the error is unknown at the time to defendant and counsel, is not an adequate state rule to procedurally bar a claim about that error on federal habeas corpus review.

Phillip Gibbs’ lawyers failed to object to the trial judge’s improper closure of the courtroom to the public during jury selection. The reason why there was no objection was because neither Gibbs nor his attorneys knew the courtroom was closed. After he was convicted of armed robbery and sentenced to 17.5 to 30 years in prison, he learned about the closure and appealed. The court of appeals remanded to the trial court to develop Gibbs’ courtroom-closure claim, and the trial judge said that closure was her standing rule and “if that’s a violation, then I violated.”

When Gibbs went back to the court of appeals, it affirmed his conviction on the basis that—despite the judge’s blatant error—his claim was procedurally defaulted because he failed to address the error when it happened. Michigan’s contemporaneous objection rule provides that a defendant must object at the time of the error, or it is forfeited on appeal, and there are no exceptions for errors that are unknown at the time. See People v. Gratton, 309 N.W.2d 609 (Mich. Ct. App. 1981); People v. Smith, 282 N.W.2d 227 (Mich. Ct. App. 1979); see also Bickham v. Winn, 888 F.3d 248 (6th Cir. 2018).

Gibbs eventually filed a federal habeas petition in the U.S. District Court for the Eastern District of Michigan, raising the courtroom-closure claim. While the court agreed that his claim “seemed to have real merit,” it stated that it was compelled to deny his petition under Bickham, a similar case in which Michigan’s contemporaneous-objection rule was upheld as “adequate” to bar a claim in federal court. The district court said Gibbs’ case was the same as that in Bickham (and his appointed lawyer admitted as much). However, the court opined that Bickham was wrongly decided because unlike the defendant in Bickham the defendants in the cases cited by the Bickham Court as support for the contemporaneous-objection rule were aware that their respective courtrooms were closed.

On appeal, Gibbs raised the same issue, and this prompted a discussion on the judge-made doctrine that a state procedural rule that is “independent and adequate” can render a claim procedurally-defaulted in federal court.

The U.S. Supreme Court described a procedural default as a “critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87 (1997). In general, this prohibits federal review of the merits of the claim, even a constitutional claim, “that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1 (2012). The Bickham Court stated that a habeas claim is procedurally defaulted only if “(1) the petitioner failed to comply with a state rule; (2) the state enforced the rule against the petitioner; and (3) the rule is an ‘adequate and independent’ state ground foreclosing review of a federal constitutional claim.” Thus, a state procedural ground that’s not “adequate” doesn’t foreclose federal review. Bickham.

Whether a procedural rule is adequate is a question of federal law. Lee v. Kemna, 534 U.S. 362 (2002). A state procedural rule may be inadequate “for several reasons,” the Sixth Circuit explained. For example, a rule that’s unconstitutional, Clifton v. Carpenter, 775 F.3d 760 (6th Cir. 2014); inconsistently applied by the state courts, Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014); or is excessively applied, Lee, would render a rule inadequate.

The Court stated that if Michigan’s contemporaneous-objection rule is inadequate in Gibbs’ case, then his claim could not be procedurally defaulted.

While the Court came short of declaring Michigan’s contemporaneous-objection rule inadequate in Gibbs’ case, leaving that up to the district court on remand, it provided some guidance with four reasons why it could be. First, no “state interest” would be served by requiring someone to object to a constitutional error of which he was unaware. The point of having such a rule would be to allow the state court to fix the error in the moment. Second, there was no state case law showing that Michigan courts consistently apply the rule. Third, there was no evidence the trial court would have allowed the courtroom to be opened had Gibbs objected, making it a “novel” rule and inadequate. And fourth, requiring Gibbs to object to an unknown error would be an “exorbitant and egregious” application of the rule, according to the Court. “Indeed, such a rule would deny due process [making it an unconstitutional rule],” the Court said.

“Under the assumption that Mr. Gibbs neither knew of nor reasonably should have known of the courtroom closure, his failure to contemporaneously object would be an inadequate state procedural ground for default,” the Court concluded.

The Court stated that it didn’t decide “cause and prejudice” but instructed that if the district court finds that Gibbs’ claim is procedurally defaulted then it will need to address cause and prejudice. It explained that “Bickham does not institute a per se rule that a petitioner can never show cause if he fails to object contemporaneously to a courtroom closure.” The issues were not before the Bickham Court.

Accordingly, the Court remanded the case for further development in the district court. See: Gibbs v. Huss, 12 F.4th 544 (6th Cir. 2021). 

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Related legal cases

Gibbs v. Huss

Bickham v. Winn

People v. Gratton

People v. Smith



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