Postconviction and 6.500 motions

Let’s say you were convicted at trial or by a plea and you tried to appeal but were unsuccessful. Do you have any more options?

The short answer is yes. In Michigan, you have one more chance to challenge your conviction and sentence through what’s called a “motion for postconviction relief,” “motion for relief from judgment,” or—perhaps most commonly—“6.500 motion” (named after Subchapter 6.500 of the Michigan Court Rules, which governs these kinds of motions).

Click here to learn more about petitions for habeas corpus, another option after your first round of appeals is unsuccessful.

Generally speaking, you will only have the opportunity to file one 6.500 motion. (See below for exceptions allowing you to file a successive 6.500 motion.) But there’s no deadline for when you have to file it by. Even if your case is decades old, you may still be eligible to file a 6.500 motion.

That said, winning a 6.500 motion is no easy feat. First, you need to have a meritorious issue in your case, one that would otherwise entitle you to reversal. Uncovering such an issue is often a tall order.

Next, assuming you have a good issue in your case, under MCR 6.508(D)(3)(a), you need to show “good cause for failure to raise such grounds on appeal or in a prior motion.” In most cases, this boils down to establishing that your appeal attorney missed an issue in your case that should have been raised in the first appeal. This would establish what’s called ineffective assistance of counsel. (Click here to learn more about ineffective assistance of counsel.)

Ineffective assistance of appellate counsel is often difficult to show. Appellate attorneys are given wide latitude in deciding which issues to raise in your first appeal. An appellate attorney may have good reasons for declining to raise an issue even if it was potentially meritorious.

The court may waive the “good cause” requirement, though, “if it concludes that there is a significant possibility that the defendant is innocent of the crime.”

Moving on, assuming that you have a good issue and you’ve established that your appellate attorney was ineffective by failing to raise it in your first appeal, you must show “actual prejudice.” Here’s how MCR 6.508(D)(3)(b) defines that term:

Just like good cause, actual prejudice is often difficult to show, particularly in plea-based cases.

In terms of mechanics, a 6.500 motion must be filed in the circuit court where the conviction occurred. In some circumstances, an evidentiary hearing on the motion may be necessary. If the circuit court denies the motion, you can file an application for leave to appeal with the Michigan Court of Appeals within 6 months. With such an application, the Court of Appeals gets to make an initial determination on whether they want to hear your appeal. The court is not required to hear your appeal or to issue a decision in your case. If your application is granted, this means that the court will hear your appeal. But the court may still ultimately rule against you. If your application is denied, this means that the court will not hear your appeal at all. Your last shot will then be to file an application for leave to appeal in the Michigan Supreme Court.

Click here to learn more about applications for leave to appeal in the Michigan Supreme Court.

As mentioned above, ordinarily you only have one chance to file a 6.500 motion. There are two exceptions, though, that would entitle you to file what’s called a successive 6.500 motion. Under MCR 6.502(G)(2), “[a] defendant may file a second or subsequent motion based on a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion.” The court may also waive the one-motion limitation “if it concludes that there is a significant possibility that the defendant is innocent of the crime.”

As of January 1, 2019, a new subsection was added which broadens the scope of “new evidence” under MCR 6.502(G)(2):

(G)(3) should make it easier to succeed on 6.500 motions where the defendant was convicted based on forensic evidence that the scientific community has called into question in the years following the defendant’s conviction.

In most situations, 6.500 motions are extraordinarily difficult to win. Even if you have good issues in your case, judges are very hesitant to overturn convictions that may be several years old based on what they perceive as “technicalities.” Setting aside all the rules laid out above, the reality is that to win a 6.500 motion in most cases, you’ll need to present very compelling evidence of actual innocence. That’s usually not easy to do, even if you are in fact innocent.

I review several cases a year for clients who inquire about 6.500 motions. I end up turning away many of these cases because I simply don’t believe that there’s a fighting chance of success. As outlined above, even if you have a good issue in your case, the procedural hurdles of MCR 6.508 make it extraordinarily difficult to succeed. That said, I’ve also litigated 6.500 motions that have made it all the way to the Michigan Supreme Court. There are always going to be exceptional cases, and those are the ones that I love to discover.

If you’re interested in pursuing a 6.500 motion in your case, consult an experienced criminal appeal and postconviction attorney.