Disentangling Michigan Court Rule 6.502(G) (2): The 'New Evidence' Exception to the Ban On Successive Motions for Relief From Judgment Does Not Contain a Discoverability Requirement

• Author: Madill, Claire V

Introduction

An alarming trend has emerged in postconviction litigation in the state of Michigan. Michigan courts have become confused by the relationship between two distinct legal doctrines that happen to share similar language. This confusion has led Michigan courts to conflate two separate legal tests. In doing so, courts have imposed significant unintended and adverse consequences on criminal defendants.

The first of the two legal doctrines that courts conflate involves the procedures governing postconviction litigation. Like all states, Michigan recognizes that a criminal conviction has serious ramifications for a person's liberty and other interests.1 Consequently, Michigan created a set of court rules, known collectively as subchapter 6.500, which outlines the procedures a prisoner may use to challenge her conviction, even after her trial and direct appeal have ended.2 Legislators drafted these rules to accommodate competing interests. On one hand, Michigan recognizes that litigation must end at some point and consequently imposes a number of procedural barriers that may prevent review of a petitioner's claim.3 At the same time, Michigan recognizes that the costs of postconviction litigation and finality are outweighed by the needs to protect individual rights and ensure the litigation of colorable constitutional claims.4 Subchapter 6.500's rules governing when a convicted defendant can file a successive postconviction motion exemplify this balance. The rules provide that under most circumstances, a defendant can file only one postconviction 6.500 motion.5 This rule aims to reduce the amount of postconviction litigation.6 At the same time, the rules permit a defendant to bring a "second or subsequent" 6.500 motion if she has "new evidence" that was not previously discovered. Michigan adopted this new evidence exception to ensure that at least some successive motions raising colorable claims prevail. This new evidence exception to the ban on successive motions, codified in section 6.502(G)(2), is the first of the two legal doctrines that Michigan courts are confusing.

The second of the two legal doctrines is called a Cress "newly discovered evidence" claim.7 The Michigan Supreme Court acknowledged that sometimes new evidence emerges after trial that undermines a defendant's conviction.8 For example, a victim may recant,9 DNA tests may be conducted,10 or a new scientific breakthrough might occur.11 To provide redress for a defendant with newly discovered evidence that casts doubt on her conviction, the court outlined a legal claim for relief in People v. Cress.12 Cress established that if a defendant's evidence satisfies four elements, then she is entitled to a new trial "on the basis of newly discovered evidence."13

Although the term "newly discovered evidence" uses similar language to the section 6.502(G)(2) "new evidence" exception to the ban on successive motions, the two doctrines are quite distinct. Subchapter 6.500, including section 6.502(G)(2), operates as a set of procedural rules and applies every time a convicted defendant challenges her conviction in postconviction proceedings.14 In contrast, Cress establishes a substantive claim for relief.15 If a convicted defendant has newly discovered evidence, she is entitled to a new trial as long as she meets the four elements of Cress.16 As a substantive doctrine, a Cress "newly discovered evidence" claim can be raised at any time after conviction. A defendant does not necessarily have to raise her Cress claim through a 6.500 motion; she can also raise it on direct appeal or in a motion for a new trial immediately after her conviction.17

Although these two legal standards are distinct, Michigan courts frequently apply the Cress four-prong test to successive 6.500 motions. Judges apply this test even if a petitioner does not raise a Cress newly discovered evidence claim but rather asserts a constitutional claim, such as an allegation that her counsel was unconstitutionally ineffective or that the state suppressed favorable evidence in violation of due process.18 Because one of the elements of Cress is that "the party could not, using reasonable diligence, have discovered and produced the evidence at trial,"19 this conflation imposes an additional discoverability element on section 6.502(G)(2)'s new evidence exception.20 This engrafting of Cress into the Michigan Court Rules governing postconviction proceedings has enormous consequences for a convicted defendant seeking to overturn her unconstitutional conviction on the basis of a non-Cress claim.21

This Note dispels the erroneous notion that a petitioner's diligence is relevant to determining whether the motion raises new evidence, permitting the petitioner to avoid the general ban on successive motions. Part I details the law relevant to this particular statutory problem: subchapter 6.500 of the Michigan Court Rules and the Cress newly discovered evidence standard. Part II outlines the problem and explains the appropriate definition of section 6.502(G)(2)'s new evidence exception. A court should permit a petitioner to avoid the ban on successive motions as long as she alleges "a claim of new evidence that was not [previously] discovered,"22 regardless of whether the evidence was discoverable at an earlier time. Part II explains why the imposition of Cress-that is, a diligence requirement - is improper when analyzing whether a 6.500 motion should be denied as successive, notwithstanding unpublished Michigan court opinions to the contrary. Courts that apply the Cress test when deciding whether a 6.500 motion falls within section 6.502(G)(2)'s new evidence exception perpetuate a misunderstanding that prevents criminal defendants from vindicating their constitutional rights.

1. Relevant Law

   The statutory interpretation mistake outlined in this Note stems from confusion over the complicated interaction between two separate provisions of Michigan law: subchapter 6.500 of the Michigan Court Rules (specifically, section 6.502(G)(2)) and the Michigan Supreme Court's ruling in Cress. This Part gives a brief overview of these two provisions of Michigan law. It concludes by explaining the differences and interaction between section 6.502(G)(2) and Cress.

   1. General Overview of Michigan's Procedures for Postconviction Relief

      Subchapter 6.500 is a set of Michigan Court Rules outlining the procedures a petitioner must follow if she wishes to collaterally attack her conviction.23 Under these rules, a petitioner with a claim of legal error may file a postconviction motion for relief from judgment after the conclusion of the direct appeal process.24 The most commonly alleged substantive claims in 6.500 motions are ineffective assistance of counsel,25 the state's failure to disclose exculpatory and material evidence to the defense (Brady violations),26 and newly discovered evidence under Cress.27 The text of subchapter 6.500 does not limit a petitioner to these specific claims, however; she is free to raise other claims such as sentencing issues.28

      Subchapter 6.500 specifies in detail the various procedures governing the postconviction challenge process. For example, various subsections lay out the requirements for the content of a 6.500 motion, describe how to properly file and serve a 6.500 motion, explain the trial court's duties upon receiving a 6.500 motion, and grant the judge authority to order an expansion of the record,29 an evidentiary hearing,30 or an oral argument.31

      Two sections of subchapter 6.500 are especially important for the purposes of this Note. First, section 6.508(D) restricts when a 6.500 motion may be granted, regardless of the underlying substantive claim or the number of 6.500 motions previously filed. Under section 6.508(D)(3), a court may not grant relief if the motion alleges grounds for relief that could have been raised on appeal or in a prior 6.500 motion, unless the petitioner demonstrates good cause and actual prejudice. The good cause requirement may be waived if the court concludes there is a significant possibility that the petitioner is innocent of the crime.32

      Second, section 6.502(G) deals with the possibility of the same petitioner filing multiple 6.500 motions. Like many postconviction regimes, section 6.502(G)(1) establishes the general rule that only one postconviction motion for relief from judgment is permitted.33 But subchapter 6.500 does not categorically ban all "second or subsequent" motions.34 Instead, the rules permit a successive 6.500 motion if the motion is "based on . . . a claim of new evidence that was not discovered before the first such motion."35 For example, if a petitioner discovers after her first 6.500 motion that her counsel failed to properly investigate the victim's time of death,36 the petitioner could file a successive 6.500 motion claiming new evidence of ineffective assistance of counsel without violating section 6.502(G)(1). Overall, section 6.502(G)(2)'s new evidence exception allows a petitioner to bypass the successive motion ban.

   2. Cress: Michigan's Legal Standard for "Newly Discovered Evidence"

      In 2003, the Michigan Supreme Court decided Cress, the decision that laid out the standard governing when "a new trial [is] to be granted on the basis of newly discovered evidence."37 Petitioner Cress was convicted of murder, but an imprisoned serial killer later confessed to the same murder.38 Because...