In 2008, I took a no contest plea to Attempted Murder and was subsequently sentenced to 20-50 years plus two for the weapon. However, it turned out that my attorneys (Howard Bush & Kevin Kleidon) failed to inform me that I could challenge some involuntary statements that I (allegedly) gave after I was maced, tazzed, shot, bled for 3 hours, etc. but before I received medical treatment. Since these statements were the primary reason I took the unfair deal, the plea is involuntary.
While Bush & Kleidon failed to investigate the circumstances of the statements after I brought it to their attention, the crazy stuff started while I was on appeal. First, my Appellate Attorney John Ujlaky claimed all of my claims were frivolous before he investigated any of and withdrew from the case. After I showed the trial court (Judge Paul Stutesman) that I had valid issues, he refused to appoint new counsel. I filed an appeal to Michigan’s Court of Appeals, Supreme Court, and the Western District Federal Court, before attaining relief in the Sixth Circuit Court of Appeals, 12 years after my original attorney abandoned the case. Pirkel v. Burton, 970 F3d 684 (CA 6, 2020).
What was also amazing about this appeal involves how the state courts completely ignored federal law to deny my motions, etc. Then, the Western District tried to trick me into going back into state court to “exhaust” my issues, something that “deeply disturbed” the Sixth Circuit (pg. …. of Burton). Essentially, Magistrate … and … refused to rule on my issues in 2014 & 2016, falsely stating that I did not raise all of my issues in the state courts. Thus, they argued that I needed to file more pleadings in the state courts without the assistance of counsel, despite the fact that my main issue was that I had no appellate attorney to represent me in state court.
After the Sixth Circuit vindicated me, my new appellate attorney John Zevalking filed my appeal before filing a motion to withdraw in the trial court, which is a structural error according to MCR 6.310(D) and People v. Armisted, 295 Mich App 32 (2011). Further, this deprived me of a procedure to which I was entitled, which amounts to due process, ineffective assistance of counsel, etc. After Zevalking finished jacking rec. in Michigan’s Supreme Court, I filed a 6.500 motion on January of 2023. The trial court denied this motion on April 1, 2024, claiming that Zevalking was not ineffective, as filing “another” motion to withdraw the plea would have been frivolous because of a previous motion to withdraw that I filed. Such an flawed analysis is ridiculous, as MCR 6.310(D) requires appellants to first raise a specific issue in the trial court before appealing the decision to the Court of Appeals. Otherwise, how can an attorney claim that the trial court abused its discretion on a claim that it never heard? The reality is, the trial court knows that I will eventually win on this claim, but he also knows that I will practically be paroled before I do (my ERD is 2029)
A few more details
My 2008 motion to withdraw my plea did not deal with the involuntary confession. Thus, it did not fulfill the MCR requirement to exhaust the issue in the trial court before appealing it. When responding to my 6.500, the Court made several “mistakes,” such as pretending that if a defendant raises ineffective assistance of counsel under one theory (e.g. coerced plea), it is the equivalent of any other ineffective assistance of counsel claim (e.g. coerced plea = failure to challenge involuntary statements). He did the same thing on the initial appeal, stating that he would not appoint new counsel since I was “not raising new issues” and he had already found my ineffective assistance of trial counsel claim meritless. This was in response to my claim that trial counsel failed to challenge involuntary statements, something I had not previously raised in his court.
Further, the Court used the Attorney Ujlaky’s testimony from the original appeal to bolster his claim that my plea was voluntary. Yes, Judge Stutesman used the Attorney that the Sixth Circuit found ineffective as a means to justify his denial without investigating the claims himself. Never mind that Ujlaky never investigated any of my claims and intentionally tried to sabotage the appeal. In other words, Stutesman used every bit of “evidence” at his disposal to dismiss my claims with as little effort as possible. How about that for being a fair referee? Usually, the adversarial system is supposed to pit the prosecutor against the defendant, but over & over in my case, its been me against the courts.
