Maurice Munson v. ROBERT J. KAPTURE, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0318P (6th Cir.)
File Name: 04a0318p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MAURICE MUNSON,
Petitioner-Appellant,
v.
ROBERT J. KAPTURE, Warden,
Respondent-Appellee.
X
-
-
-
->
,
-
-
N
No. 03-1563
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-71956—Avern Cohn, District Judge.
Argued: August 12, 2004
Decided and Filed: September 20, 2004
Before: KEITH, MARTIN, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: James Sterling Lawrence, Detroit, Michigan, for
Appellant. Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: James Sterling Lawrence, Detroit, Michigan,
for Appellant. Laura Graves Moody, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
2 Munson v. Kapture No. 03-1563
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Maurice
Munson, a Michigan prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus. For the
reasons that follow, we AFFIRM.
I.
A jury convicted Munson of two counts of armed robbery
in violation of M.C.L. § 750.529 and two counts of assault
with intent to commit criminal sexual conduct (penetration)
in violation of M.C.L. § 750.502(G)(1). The events giving
rise to Munson’s prosecution transpired at Juanita’s House of
Beauty in Detroit, Michigan, on late Friday, June 18, or early
June 19, 1993, as Sherrease Carter, age thirty, an employee of
the beauty shop, and her sixteen-year-old niece, Shamika
Kincaid, were leaving the shop. The evidence adduced at trial
indicates that as Carter and Kincaid were leaving the shop,
Munson appeared and forced them back inside at knifepoint.
He ordered them to undress, which they did, and he
proceeded to take various items from the shop (including
money, hair clippers and jewelry), as well as items from
Carter and Kincaid (including clothing and sandals that they
had just purchased and jewelry).
Munson then took Carter into a back room and threatened
Kincaid that she would be next. In the back room, Munson
sat down on a chair and forced Carter onto his lap. Munson
put the knife down momentarily as he attempted to insert his
penis into Carter’s vagina, at which point Carter grabbed the
knife and stabbed him multiple times. Carter and Kincaid,
still naked, immediately ran out of the shop. They observed
Munson leave the shop with packages containing their newly-
purchased sandals and clothing, among other things. Carter
and Kincaid were soon picked up by a motorist who took

-- 1 of 5 --

No. 03-1563 Munson v. Kapture 3
them to the police station. When the victims later returned to
the shop, they discovered a pager that Munson had apparently
dropped during the incident.
The police located Munson by tracing the pager, which was
registered to one “Moe Rone Monson.” After discovering
that there was an individual named Maurice Munson in the
Detroit area with a criminal record, police went to his
residence, which was his aunt’s apartment. Munson’s former
girlfriend, Keysha Monique Tate, was at the apartment at the
time and permitted the police to enter after they repeatedly
knocked on the door. Munson was arrested in the apartment,
at which time the police seized, without a warrant, various
incriminating items, including cash, gauze bandages, hair
clippers, sandals, new clothing items and jewelry.
Tate gave a statement to police, which she confirmed and
elaborated upon at trial, indicating that Munson had bandages
on his chest when she arrived at the apartment Saturday
morning. Tate also stated that on the morning of his arrest,
Munson gave her a pair of sandals, various clothing items,
cash and a ring. Carter and Kincaid also positively identified
Munson as the perpetrator at separate lineups and at trial.
Among the pieces of physical evidence admitted at trial were
the pager and the items seized in the apartment upon
Munson’s arrest, which apparently were the same items stolen
from the victims and the beauty shop.
Munson did not testify at trial. He asserted an insanity
defense, with all expert witnesses agreeing that he was
mentally ill but disagreeing as to whether he was criminally
responsible for his actions. The jury found Munson mentally
ill but guilty of robbery and assault. He was sentenced to
prison for a term of twenty-five to sixty years.
Munson filed a direct appeal to the Michigan Court of
Appeals, raising only one issue: that his sentence was
disproportionately high. The Michigan Court of Appeals
4 Munson v. Kapture No. 03-1563
affirmed the conviction and sentence, and the Michigan
Supreme Court denied leave to appeal.
Munson then filed in the state trial court a post-conviction
motion for relief from judgment, in which he raised five new
claims: (1) the warrantless arrest, search and seizure deprived
him of due process; (2) he was denied a fair and impartial trial
because of prosecutorial misconduct; (3) his trial counsel
rendered ineffective assistance; (4) the cumulative effect of
the trial errors deprived him of a fair trial; and (5) his
appellate counsel rendered ineffective assistance.
The state trial court denied Munson’s motion in a written
order that rejected each of his new claims. With respect to the
prosecutorial misconduct claim, the court held that “[t]he
defendant fails to show just cause why prosecutor misconduct
was not raised in earlier appeals. Further, the conduct
complained of did not deny defendant a fair trial.” The
district court found the remaining claims to be without merit
for reasons other than Munson’s failure to raise them earlier.
The Michigan Court of Appeals denied leave to appeal in
an order that states as follows:
The Court orders that the application for leave to
appeal is DENIED because defendant has failed to meet
the burden of establishing entitlement to relief under
MCR 6.508(D).
The Court further orders that the motion to remand is
DENIED because defendant has failed to show that
development of a factual record is required for appellate
consideration of the issues. MCR 7.211(C)(1)(a)(ii).
The Michigan Supreme Court also denied leave to appeal for
the same reason, in an order stating:
On order of the Court, the delayed application for
leave to appeal from the May 24, 2000 decision of the

-- 2 of 5 --

No. 03-1563 Munson v. Kapture 5
Court of Appeals is considered, and it is DENIED,
because the defendant has failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D).
Munson next sought relief in federal court, by filing the
instant petition for a writ of habeas corpus. The petition
asserted essentially the same claims that were presented in his
motion for post-conviction relief: (1) the warrantless arrest
and search and seizure denied him due process; (2) the
prosecutor engaged in misconduct; (3) he was denied the
effective assistance of trial counsel; (4) cumulative error
rendered the trial unfair; and (5) he was denied the effective
assistance of appellate counsel. The district court held that
each claim was procedurally defaulted, but proceeded to
analyze whether ineffective assistance of trial or appellate
counsel constituted “cause” to excuse the procedural default.
Concluding that neither trial counsel nor appellate counsel
rendered ineffective assistance, the district court denied the
petition; it granted a certificate of appealability, however, on
the issues of whether Munson’s claims were each
procedurally defaulted and whether he was denied the
effective assistance of trial or appellate counsel. This appeal
followed.
II.
We review de novo the district court’s denial of a petition
for a writ of habeas corpus. Clinkscale v. Carter, No. 02-
4219, 2004 WL 1516670, at *3 (6th Cir. July 8, 2004). As
noted, the district court held that each of Munson’s habeas
claims was barred by the doctrine of procedural default.
“Under the procedural default doctrine, [a] federal court is
generally barred from considering an issue of federal law
arising from the judgment of a state court if the state
judgment rests on a state-law ground that is both independent
of the merits of the federal claim and an adequate basis for the
[state] court’s decision.” Id. at *7 (citation and internal
quotation marks omitted). We have articulated a four-part
6 Munson v. Kapture No. 03-1563
1Rule 6.508(D), which governs post-conviction relief, provides as
follows:
test to be used in determining whether a habeas claim has
been procedurally defaulted:
First, the court must determine that there is a state
procedural rule that is applicable to the petitioner’s claim
and that the petitioner failed to comply with the rule . . . .
Second, the court must decide whether the state courts
actually enforced the state procedural sanction . . . .
Third, the court must decide whether the state procedural
forfeiture is an “adequate and independent” state ground
on which the state can rely to foreclose review of a
federal constitutional claim . . . . Once the court
determines that a state procedural rule was not complied
with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate . . .
that there was “cause” for him to not follow the
procedural rule and that he was actually prejudiced by
the alleged constitutional error.
Id. at *7-*8 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986)).
For purposes of procedural default, the “state judgment”
with which we are concerned is “the last explained state court
judgment.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).
Munson argues that the last explained state court judgment is
the trial court’s opinion denying his post-conviction motion
for relief. In that opinion, the court relied on procedural
default in rejecting only one of his claims; it denied the other
claims on their merits. Contrary to Munson’s assertion,
however, the last explained state court judgment in this case
is the Michigan Supreme Court’s order denying review of
Munson’s claims based upon his failure to comply with Rule
6.508(D).1 We have held that orders such as that issued by

-- 3 of 5 --

No. 03-1563 Munson v. Kapture 7
Entitlement to R elief. The defendant has the burden of
establishing entitlement to the relief requested. The court may
not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that
is still subject to challenge on appeal pursuant to subchapter
7.200 or subchapter 7.300;
(2) alleges grounds for relief which were decided against the
defendant in a prior appeal or proceeding under this chapter,
unless the defendant establishes that a retroactive change in the
law has undermined the prior decision;
(3) alleges grounds for relief, other than jurisdictional defects,
which could have been raised on appeal from the conviction and
sentence or in a p rior motion under this subchapter, unless the
defendant demonstrates
(a) good cause for failure to raise such gro unds on appeal
or in the prior motion, and
(b) actual prejudice from the alleged irregularities that
supp ort the claim for relief . . . .
2Our agreement is subject to one qualification, however. It is
possible that the Michigan Supreme Co urt may not have been able to rely
upon Rule 6.508(D ) to deny relief with respect to Munson’s ineffective
the Michigan Supreme Court constitute “explained” state
court judgments for purposes of procedural default. See, e.g.,
Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000)
(holding that an order issued by the Michigan Supreme Court
stating that the petitioner had “failed to ‘meet the burden of
establishing entitlement to relief under MCR 6.508(D)’” –
though “brief” – constituted the last explained state court
judgment in the case).
The district court held that Munson’s habeas claims were
procedurally defaulted because Rule 6.508(D) constituted an
adequate and independent state ground on which the
Michigan Supreme Court relied in foreclosing review of the
claims. We agree.2 It is well-established in this circuit that
8 Munson v. Kapture No. 03-1563
assistance of appellate counsel claim. Subsections (1) and (2) of Rule
6.508(D) are inapplicable to Munson’s appeal. Subsection (3) bars
collateral review on grounds that could have been raised on direct ap peal,
but were not, absent a showing of cause and prejudice. M unson’s
ineffective assistance of appellate counsel claim arguably could not have
been raised on direct appeal because the appellate attorney would be
arguing that he or she was currently providing ineffective assistance of
counsel. If the M ichigan Supreme Court could not have been relying
upon procedural default to dispose of Munson’s ineffective assistance of
app ellate counsel claim, the district court would not be able to find this
claim to have been procedurally defaulted. However, the outcome of
Munson’s appeal is unaffected. As discussed below, the application of
Strickland v. Washington, 466 U.S. 668 (1984), demonstrates that even if
Munson did, in fac t, receive ineffective assistance of appellate co unsel,
the result of his appeal would have b een no different.
the procedural bar set forth in Rule 6.508(D) constitutes an
adequate and independent ground on which the Michigan
Supreme Court may rely in foreclosing review of federal
claims. See, e.g., Simpson, 238 F.3d at 407-08 (holding that
the Michigan Supreme Court’s statement that the petitioner
had “failed to ‘meet the burden of establishing entitlement to
relief under MCR 6.508(D)’” was an adequate and
independent state procedural rule that “prevents federal
review”); Burroughs v. Makowski, 282 F.3d 410, 414 (6th
Cir. 2002) (holding that “the Michigan Court of Appeals and
Michigan Supreme Court’s statements that Burroughs was not
entitled to relief under M.C.R. 6.508(D) presents a sufficient
explanation that their rulings were based on procedural
default”).
Munson argues that Simpson and Burroughs were wrongly
decided in light of the Michigan Supreme Court’s decision in
People v. Jackson, 633 N.W.2d 825 (Mich. 2001). He
maintains that Jackson establishes that Rule 6.508(D) is not
firmly established or regularly followed and, therefore, cannot
constitute an adequate and independent state ground for
purposes of procedural default. Notwithstanding the fact that
our analysis of procedural default is governed by our own
precedent, not that of the Michigan Supreme Court, Jackson

-- 4 of 5 --

No. 03-1563 Munson v. Kapture 9
does not stand for the proposition advanced by Munson. The
portion of Jackson on which he relies merely explains and
interprets this Court’s decision in Rogers v. Howes, 144 F.3d
990 (6th Cir. 1998), in which we held that Rule 6.508(D) was
not regularly applied at the time of the defendant’s
conviction, given that the rule had not, in fact, been enacted
yet. The Jackson court upheld the retroactive application of
Rule 6.508(D) to the defendant in that case, holding that our
decision in Rogers, which involved only federal court
procedural default principles, did not restrict the Michigan
courts’ ability to apply the rule.
Having determined that Munson’s habeas claims have been
procedurally defaulted, we must next consider whether he has
established the requisite “cause” and “prejudice” to permit
our consideration of the merits of his claims. See Simpson,
238 F.3d at 407 (citing Coleman v. Thompson, 501 U.S. 722,
750 (1991)). Munson argues that the cause for his procedural
default was the constitutionally ineffective assistance
rendered by his trial and appellate counsel; he argues that his
trial counsel was ineffective for failing to challenge the
admissibility of the physical evidence seized in the apartment
and that his appellate counsel was ineffective for failing to
raise on direct appeal the issue of trial counsel’s
ineffectiveness. In general, constitutionally ineffective
assistance of counsel can constitute cause for procedural
default. Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). In
this case, however, Munson’s counsel rendered no such
ineffective assistance.
Munson’s ineffective assistance claims are governed by the
familiar standard articulated in Strickland v. Washington, 466
U.S. 668 (1984), which requires him to prove both that his
counsel’s representation “fell below an objective standard of
reasonableness,” id. at 688, and “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id. at
694. The district court found that even if Munson satisfied
the first prong of Strickland, he failed to satisfy the second.
10 Munson v. Kapture No. 03-1563
We agree. Even if the physical evidence seized in the
apartment had been suppressed, there was abundant additional
evidence adduced at trial indicating Munson’s guilt. For
example, both victims positively identified Munson as the
perpetrator at trial and in separate lineups, Munson’s former
girlfriend testified about Munson’s injuries and his gifts to her
shortly after the crime was committed, and the pager left at
the scene of the crime was traced to Munson. In light of this
evidence, Munson cannot prove that there is a reasonable
probability that but for his counsels’ alleged errors, the
outcome of his trial or appeal would have been different.
Therefore, the district court correctly held that Munson’s
claims of ineffective assistance of trial and appellate counsel
lack merit and that Munson cannot rely upon either type of
alleged ineffectiveness as cause to excuse the procedural
default of his habeas claims.
AFFIRMED.

-- 5 of 5 --