Rule 206 File Name: 12a0151p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT… v. THOMAS BIRKETT , Warden

*The Honorable Kenneth F. Ripple, Senior Circuit Judge of the United States Court of Appeals
for the Seventh Circuit, sitting by designation.
1The conviction resulting from that trial was the subject of a separate habeas proceeding. Glover
v. Palmer, No. 07-CV-11305, 2010 WL 1323570 (E.D. Mich. Mar. 29, 2010), rev’d, No. 10-1577, 2012
WL 618209 (6th Cir. Feb. 28, 2012).
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0151p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SANDY GLOVER ,
Petitioner-Appellee,
v.
THOMAS BIRKETT , Warden,
Respondent-Appellant.
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N
No. 11-1614
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:07-cv-11912—Nancy G. Edmunds, District Judge.
Decided and Filed: May 25, 2012
Before: SUTTON, McKEAGUE, and RIPPLE, Circuit Judges.*
_________________
COUNSEL
ON BRIEF: Mark G. Sands, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Mark J. Kriger, N. C. Deday LaRene, LaRENE &
KRIGER, P.L.C., Detroit, Michigan for Appellee.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. While Petitioner Sandy Glover was awaiting trial
in Livingston County Jail on various charges arising from the alleged assault of his ex-
wife,1 he was implicated in the assault of another inmate at the jail. He was convicted
of the jail assault in a jury trial. Glover retained trial counsel to pursue his appeal of
1

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No. 11-1614 Glover v. Birkett Page 2
right, but the attorney failed to timely file a notice of appeal. Glover filed a delayed
application for leave to appeal in the Michigan Court of Appeals, raising various
challenges to his conviction and sentence, which the court denied “for lack of merit in
the grounds presented.” The Michigan Supreme Court also denied leave to appeal.
Glover then pursued state collateral proceedings and filed a motion for relief from
judgment in the trial court, alleging, among other claims, that appellate counsel was
ineffective for failing to timely pursue an appeal of right. The trial court denied the
motion, and the Michigan Court of Appeals and Michigan Supreme Court denied
Glover’s subsequent applications for leave to appeal the denial of his motion, for failure
to establish entitlement to relief under Mich. Ct. Rule 6.508(D). Glover then filed the
instant habeas action. The district court conditionally granted his petition, finding that
counsel was ineffective for failing to timely pursue Glover’s appeal of right. Respondent
Birkett appeals.
“We review the district court’s grant of a writ of habeas corpus de novo.” Jensen
v. Romanowski, 590 F.3d 373, 377 (6th Cir. 2009). Under the Antiterrorism and
Effective Death Penalty Act of 1996, a federal court may not grant a writ of habeas
corpus on claims adjudicated on the merits in state court unless the state court’s
adjudication of the claim “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d). In order to prevail on an ineffective assistance of counsel
claim, a petitioner must show that counsel’s performance was deficient and that he was
prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668,
687 (1984).
The parties do not dispute whether counsel’s performance was deficient;
Respondent argues only that Glover has not shown prejudice. The Supreme Court has
held that “when counsel’s constitutionally deficient performance deprives a defendant
of an appeal that he otherwise would have taken, the defendant has made out a
successful ineffective assistance of counsel claim entitling him to an appeal.” Roe v.
Flores-Ortega, 528 U.S. 470, 484 (2000). “[W]e . . . presum[e] prejudice with no further

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No. 11-1614 Glover v. Birkett Page 3
showing from the defendant of the merits of his underlying claims when the violation
of the right to counsel rendered the proceeding . . . entirely nonexistent.” Id.
Respondent argues that Glover was not completely deprived of a direct appeal
in this case because the Michigan Court of Appeals considered and denied his claims on
the merits in considering his application for leave to appeal. We previously considered,
and rejected, this argument in Hardaway v. Robinson, 655 F.3d 445 (6th Cir. 2011).
Like Glover in this case, Hardaway had filed in the state courts a delayed application for
leave to appeal, followed by a motion for relief from judgment, followed by an
application for leave to appeal the denial of his motion for relief. We found that
appellate review of the denial of collateral relief was not a sufficient substitute for a
direct appeal:
The disposition of an application for leave to appeal is within the
discretion of the Michigan Court of Appeals, and is a preliminary step to
having the case proceed as an appeal of right. See Mich. Ct. R.
7.205(D)(2), (3) . . . . Only if the leave application is granted will the
case proceed as an appeal of right. See Mich. Ct. R. 7.205(D)(3).
Furthermore, unlike the appellant in an appeal of right, the applicant
denied leave to appeal does not receive the benefit of oral argument. See
Mich. Ct. R. 7.205(D)(1). Nor does the defendant have a right to
appointed counsel on post-conviction review . . . . Taken together, these
differences render Michigan’s collateral post-conviction proceeding too
unlike an appeal of right to constitute a sufficient substitute.
Hardaway, 655 F.3d at 449-50 (emphasis added) (citation omitted). Thus, Hardaway
was “deprived . . . of the appellate proceeding altogether,” and prejudice was presumed.
Hardaway, 655 F.3d at 449 (citing Flores-Ortega, 528 U.S. at 483-84). This case is
materially indistinguishable from Hardaway.
Respondent nonetheless attempts to avoid the application of Hardaway by
arguing that Hardaway is inconsistent with the Supreme Court’s decision in Harrington
v. Richter, 131 S. Ct. 770 (2011). We have also previously considered this argument,
and rejected it, in our decision involving Glover’s prior habeas petition challenging his
conviction and sentence for the assault of his ex-wife, in which he raised an identical

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No. 11-1614 Glover v. Birkett Page 4
claim. Glover v. Palmer, No. 10-1577, 2012 WL 618209, at *2 (6th Cir. Feb. 28, 2012).
As we pointed out in that case,
Harrington addressed the question whether we should treat an
unexplained order as one on the merits. That question is different from
the antecedent question whether the proceeding giving rise to the order
is the functional equivalent of a direct appeal. And the answer to that
question, under Hardaway, is “no.”
Id.; see also Hardaway, 655 F.3d at 450. And, in any event, Hardaway was decided
after Harrington, and we are bound by its determination that post-Harrington, the denial
of an application for leave to appeal is not a sufficient substitute for a counseled direct
appeal. See 6 Cir. R. 206(c); Brown v. United States, 462 F.3d 609, 620 (6th Cir. 2006)
(“This court has long adhered to the venerable principle that a prior published decision
remains controlling unless overturned by an inconsistent decision of the United States
Supreme Court or by this court itself sitting en banc.” (internal quotation marks
omitted)).
Because counsel’s deficient performance deprived Glover of his appeal of right,
prejudice is presumed. We thus affirm the district court order conditionally granting
Glover’s petition for habeas relief.

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