Kainte Hickey v. Bonita Hoffner, 701 F. App'x 422

Background

In 2008 Kainte Deshawn Hickey was convicted of first-degree premeditated murder (life without parole) and other felonies for the fatal shooting of Bennie Peterson and the nonfatal shooting of Donteau Dennis; convictions followed a joint trial with codefendants Quonshay Mason and Andre Jackson.
The prosecution’s primary witness, Dennis, identified Hickey as the shooter and testified about events leading to the shootings; Dennis originally told police Hickey shot him over a drug debt and later implicated Mason and Jackson in Peterson’s death.
After conviction, Mason and Hoseia Turner submitted post-trial affidavits suggesting Mason or Dennis (not Hickey) shot Peterson; the trial court denied Hickey’s motion for a new trial, finding the affidavits were newly available, not newly discovered.
On direct appeal Hickey raised various claims; only later (in an application for leave to the Michigan Supreme Court) he first asserted that trial counsel was ineffective for failing to call: his sister Talonda Haley and her fiancé Willie Johnson (alibi witnesses), and Turner and Mason (exculpatory witnesses).
The Michigan Supreme Court summarily denied leave. Hickey did not pursue state post-conviction relief but filed a federal habeas petition asserting those ineffective-assistance-of-trial-counsel (IATC) claims; the district court found the IATC claims unexhausted but denied them on the merits under 28 U.S.C. § 2254(b)(2).
The Sixth Circuit held the IATC claims were unexhausted, concluded they were not plainly meritless on the record, vacated the district court’s merits denial, and remanded for the district court to determine whether a stay (Rhines stay) to allow exhaustion is appropriate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were Hickey's IATC claims exhausted in state court?	Hickey contends he presented IATC claims by raising them to the Michigan Supreme Court.	Michigan argues Hickey failed to give lower state courts a fair opportunity to rule because he first presented the claims on discretionary review and then went to federal court.	Not exhausted — presenting new claims first to the state supreme court is insufficient; Hickey may still pursue state post-conviction relief.
Were the unexhausted IATC claims plainly meritless so federal court could deny them on the merits under § 2254(b)(2)?	Hickey argues counsel was ineffective for failing to call alibi/exculpatory witnesses who would have testified he was not at the scene.	Respondent argues the claims lack merit and district court may deny unexhausted claims on the merits.	Not plainly meritless — record suggests witnesses would have testified that Hickey was absent and the only direct link was Dennis’s ID; thus claims are colorable.
Could Hickey obtain a stay-and-abeyance to return to state court to exhaust claims?	Hickey asks for a Rhines stay to exhaust in state court.	Government opposes where no good cause shown for prior failure to exhaust.	Remanded to district court to decide in the first instance whether Hickey can show good cause for failing to exhaust earlier; if so, district court should stay and hold petition in abeyance.
Should the circuit defer to state-court merits review under § 2254(d)?	N/A for these claims.	N/A.	No deference applied because no state court addressed the merits; review is de novo.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard: deficient performance and prejudice)
O’Sullivan v. Boerckel, 526 U.S. 838 (must give state courts one full round of review to exhaust federal claims)
Coleman v. Thompson, 501 U.S. 722 (procedural default and exhaustion principles)
Rhines v. Weber, 544 U.S. 269 (stay-and-abeyance standard for mixed or unexhausted claims)
Castille v. Peoples, 489 U.S. 346 (raising new claims first in state supreme court is not fair presentation)
Bigelow v. Williams, 367 F.3d 562 (failure to call known alibi witness can be ineffective assistance)
Wagner v. Smith, 581 F.3d 410 (presumption of state-court fact findings on habeas; exhaustion/fair-present rules)
Cowan v. Stovall, 645 F.3d 815 (standard of review for habeas denials)
Matthews v. Abramajtys, 319 F.3d 780 (discussing prejudice from failure to present alibi witness)