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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v DAVID A. WALTERS,
Defendant-Appellee.
________________________________ PER CURIAM


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED MAY 1, 2001


No. 117495


The defendant, through retained counsel, filed a motion
for relief from judgment under MCR subchapter 6.500. the circuit court denied the motion and a After
for


motion

reconsideration, counsel filed an application for leave to
appeal, but it was denied as untimely. On rehearing, however,
Court of Appeals remanded for a hearing on whether the


untimeliness was the result of ineffective assistance of
counsel. We conclude that because the defendant had no right


to

counsel

in

proceedings

under

subchapter

6.500,

the


defendant cannot claim constitutionally ineffective assistance
of counsel in these circumstances.
I
In 1992, the defendant was convicted by a jury of


conspiracy to deliver and delivery of more than 650 grams of
cocaine1 and received a life sentence on each conviction. The


Court of Appeals affirmed,2 and we denied leave to appeal.3
In November 1998, retained counsel filed a motion for
relief from judgment on behalf of the defendant. judge denied it with an order entered The circuit
6, 1999.


January

Counsel filed a motion for reconsideration on January 26,
1999, but there was delay in deciding the motion, and it was
not until January 6, 2000, that the court issued an order
denying it.
On March 9, 2000, counsel filed a delayed application for
leave to appeal with the Court of Appeals. The Court


initially dismissed the application for lack of jurisdiction
because the application was not filed within twelve months of
the January 6, 1999, order denying the motion for postjudgment
relief. The Court of Appeals order cited MCR 7.205(F)(3) and


MCL 750.157a; MSA 28.354(1). MSA 14.15(7401)(2)(a)(i).

2


1


MCL 333.7401(2)(a)(i);


Unpublished opinion per curiam, issued May 3, 1996
(Docket No. 169513).

3

456 Mich 856 (1997).
2


People v Sconious, 448 Mich 643; 532 NW2d 840 (1995).
Counsel then filed a motion for rehearing, accompanied by
an affidavit explaining that he was unaware of the holding in
Sconious, that he had advised the defendant not to file his
application for leave to appeal in the Court of Appeals until
after the trial court decided the motion for reconsideration,
and that he failed to advise the defendant that the


application to the Court of Appeals must be filed within
twelve months of the trial court's decision denying the motion
for relief from judgment.
The Court of Appeals issued an order remanding to the
trial court for further proceedings, while retaining


jurisdiction.

Among other things, the order directed the


trial court to conduct an evidentiary hearing, "limited to
defendant's claim that his failure to timely seek appellate
review was caused by ineffective assistance of counsel. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973)." See
The


Court of Appeals denied the prosecutor's motion for rehearing,
and the prosecutor has filed an application for leave to
appeal to this Court.
II
The Court of Appeals remand order directing the circuit
court to consider whether the defendant received effective
assistance of counsel presupposes that there is a right to
effective assistance in a proceeding under


MCR subchapter 6.500. In a series of cases, the United States
3


Supreme Court has considered the question of the right to
effective assistance in postconviction remedy proceedings. As
the Court explained in Coleman v Thompson, 501 US 722,


752-753; 111 S Ct 2546; 115 L Ed 2d 640 (1991):
There is no constitutional right to an
attorney in state post-conviction proceedings.
Pennsylvania v Finley, 481 US 551; 107 S Ct 1990;
95 L Ed 2d 539 (1987); Murray v Giarratano, 492 US
1; 109 S Ct 2765; 106 L Ed 2d 1 (1989) (applying
the rule to capital cases). Consequently, a
petitioner cannot claim constitutionally
ineffective assistance of counsel in such
proceedings. See Wainwright v Torna, 455 US 586;
102 S Ct 1300; 71 L Ed 2d 475 (1982) (where there
is no constitutional right to counsel there can be
no deprivation of effective assistance). Coleman
contends that it was his attorney's error that led
to the late filing of his state habeas appeal.
This error cannot be constitutionally ineffective;
therefore Coleman must "bear the risk of attorney
error that results in a procedural default."
Wainwright v Torna, supra, is particularly applicable.
There, on direct appeal of his state convictions, the Florida
Supreme Court dismissed on the ground that the application was
not timely filed. The defendant sought habeas corpus relief


in the federal courts, claiming that he had been denied his
right to effective assistance of counsel by the failure of his
retained counsel to timely file the application to the Florida
Supreme Court. The U.S. District Court denied the petition,


but the U.S. Court of Appeals for the Fifth Circuit reversed.4
The U.S. Supreme Court in turn reversed, denying habeas corpus
relief. The Court explained:


4

649 F2d 290 (CA 5, 1981).
4


In Ross v Moffitt, 417 US 600; 94 S Ct 2437;
41 L Ed 2d 341 (1974), this Court held that a
criminal defendant does not have a constitutional
right to counsel to pursue discretionary state
appeals or applications for review in this Court.
Respondent does not contest the finding of the
District Court that he had no absolute right to
appeal his convictions to the Florida Supreme
Court. Since respondent had no constitutional
right to counsel, he could not be deprived of the
effective assistance of counsel by his retained
counsel's failure to file the application timely.4
[455 US 587-588.]
__________________________________________________ Respondent was not denied due process of law
by the fact that counsel deprived him of his right
to petition the Florida Supreme Court for review.
Such deprivation--even if implicating a due process
interest--was caused by his counsel, and not by the
State. Certainly, the actions of the Florida
Supreme Court in dismissing an application for
review that was not filed timely did not deprive
respondent of due process of law.
___________________________________________________ This Court has repeatedly recognized that Const 1963, art
1,

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