SHERMAN WAGNER, Petitioner-Appellant, v. WILLIE O. SMITH, Warden, Respondent-Appellee.
No. 07-2129
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
September 24, 2009
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206; File Name: 09a0344p.06; Argued: July 31, 2009
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 06-10514—Victoria A. Roberts, District Judge.
Before: BATCHELDER, Chief Judge; KENNEDY and McKEAGUE, Circuit Judges.
COUNSEL
OPINION
KENNEDY, Circuit Judge. Petitioner Sherman Wagner, a/k/a Billy Lynn Wagner, appeals the district court’s
FACTUAL AND PROCEDURAL BACKGROUND
Because we resolve this case on procedural grounds, a long recitation of the facts is not necessary. Instead, we refer verbatim to the relevant facts relied upon by the Michigan Court of Appeals, facts which are presumed correct on habeas review.
According to the testimony at trial, Kiley Moss and Thelyus Johnson arranged to purchase drugs from Antonio Edwards in Detroit. The two men took a bus from Lansing to Detroit, where Edwards met them. Edwards did not immediately have the drugs available. Eventually, Edwards and Sol Bryant took the men to a house where they met Deshawn Lucci. The men began to set up a scale to weigh the drugs, but moved to a back room because that was the only room with a light. While the men were in the back room, another man, whom Johnson identified as [Wagner], came into the room, pointing a gun. Johnson claimed that [Wagner] shot and robbed him, and also shot Moss. Johnson pretended to be dead and was able to leave the house after the others left. Moss, however, died from his gunshot wounds. His body was later burned when the house was set on fire.
People v. Wagner, No. 245091, *1-2 (Mich. Ct. App. October 28, 2004).
On January 7, 2004, Petitioner, through separate appellate counsel, appealed his conviction as of right to the Michigan Court of Appeals. He also moved the court to grant him an evidentiary hearing to determine whether Petitioner was denied the effective assistance of counsel.1 On February 27, 2004, the Michigan Court of Appeals granted Petitioner’s motion for an evidentiary hearing and retained jurisdiction over his other claims while the hearing was pending. The evidentiary hearing was held on April 2 and April 5, 2004, with Petitioner’s trial attorney testifying directly about his representation. On April 5, the judge presiding over the hearing ruled that Petitioner’s trial counsel had not been constitutionally deficient and denied Petitioner’s motion for a new trial. On June 25, 2004, Petitioner filed a second brief before the Michigan Court of Appeals, adding two amended ineffective assistance of counsel claims to his previous brief still pending before the court. On
Under Michigan Court Rules 6.500 et seq., a Michigan state defendant may file one post-conviction motion for relief from judgment in addition to a direct appeal as of right. This “6.500 motion” is to be filed in the county circuit court and can be appealed to the Michigan Court of Appeals and the Michigan Supreme Court. See
On June 4, 2008, a certificate of appealability was granted on two of Petitioner’s claims–the ineffective assistance of counsel claim generally, and the prosecutorial misconduct claim generally–and Petitioner was appointed new counsel to argue the merits on his behalf. In his brief to this Court, Petitioner (through his new counsel) has provided three alleged instances of ineffective assistance and at least three alleged instances of prosecutorial misconduct.
STANDARD OF REVIEW
We review de novo the district court’s decision. Hall v. Vasbinder, 563 F.3d 222, 231 (6th Cir. 2009). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), a federal court may only grant habeas corpus relief for a given claim if the state court’s adjudication of that claim:
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
ANALYSIS
I.
A federal court may not grant a writ of habeas corpus unless the applicant has exhausted all available remedies in state court.
Although the exhaustion doctrine is not a jurisdictional matter, Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000), it is a threshold question that must be resolved before we reach the merits of any claim. See Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009). Furthermore, as a general matter, a federal court may not grant a writ even on a “mixed” petition, “one containing claims that the petitioner has pressed before the state courts and claims that he has not.” Id. Therefore, each claim must be reviewed for exhaustion before any claim may be reviewed on the merits. In this case, the state has challenged three of Petitioner’s claims on exhaustion grounds: 1) the prosecutorial misconduct claim relating to the use of evidence of uncharged homicides; 2) the prosecutorial misconduct claim relating to the elicitation of false testimony; and 3) the ineffective assistance of counsel claim relating to the failure to challenge the prosecutor’s use of evidence of uncharged homicides. Upon review of each, we find that none of these claims has been properly exhausted.
A. Prosecutorial Misconduct–Use of Prior Murder Evidence
The government argues that Petitioner has not exhausted his first claim of prosecutorial misconduct, that the prosecutor impermissibly implicated Petitioner during trial in the unrelated murders of Kamal Logan and William Moody. In response, Petitioner cites to three sections in his state court briefs in an attempt to show that this claim was fairly presented to the state courts. First, Petitioner claims that the headings in his first brief to the Michigan Court of Appeals sufficiently stated the claim. Second, he claims that the body of this brief, specifically within Claim VIII, sufficiently states the legal and factual basis for this claim. Finally, Petitioner claims that, in his second brief submitted to the Court of Appeals after completion of the evidentiary hearing, he fairly and fully stated this claim yet again.
We find, however, that the language cited by Petitioner fails to meet the “fair presentation” standard, and that Petitioner thus never exhausted this claim. First, despite Petitioner’s argument to the contrary, the headings in his state appellate brief did not fairly present the claim to the Michigan Court of Appeals. Although Petitioner cites to several of his brief’s headings, Heading VIII comes closest to correctly stating the claim that the prosecutor impermissibly implicated Petitioner in two unrelated murders.2 That heading reads:
fairly presented the factual basis of this specific prosecutorial misconduct claim if the heading itself makes no mention of the prosecutor’s use of the unrelated and uncharged murders.
The language in the body of the brief to which Petitioner cites is no more helpful to his cause. Petitioner relies on a section of his brief which states that “the Prosecutor’s pervasive conduct throughout the proceedings denied him . . . a fair trial,” and that “[t]he Prosecutor deliberately interjected irrelevant and prejudicial evidence throughout the entire trial.” This language suffers from the same defect as the headings on which Petitioner relies. While the language may barely state a sufficient legal basis for the claim, it fails entirely to state a factual basis for the claim. General references to “pervasive misconduct” and “irrelevant and prejudicial evidence” simply do not serve as a fair presentation of the specific claim that the prosecutor impermissibly brought up two murders not at issue in the trial.
Petitioner then cites to a different section of the brief which states that the prosecutor brought in “bad acts evidence” and “did everything possible to portray the Appellant as a bad man.” Petitioner also refers to a statement in his state appellate brief where he accused the prosecutor of inserting “prejudicial evidence of his prior arrests . . . .” This language, if read in a vacuum, seems more like the specific factual basis needed to fairly present this claim. However, when read in context of the paragraph from which this language comes, it is apparent that Petitioner was not in fact referring to this specific prosecutorial misconduct claim at all. In his brief to the Michigan Court of Appeals, Petitioner focused his prosecutorial misconduct claim on other alleged misconduct: namely, that the prosecutor impermissibly elicited evidence of his aliases, mugshots,
language to which Petitioner cites can only refer to a wholly distinct prosecutorial misconduct claim and does not fairly present the claim in question here.
Finally, Petitioner relies on the language found in his second brief to the Michigan Court of Appeals, which was filed after the evidentiary hearing. In this brief, Petitioner explains in some detail how, during Petitioner’s own testimony, the prosecutor questioned him about the two unrelated murders and implicated him as the assailant in each instance. However, because this brief only addressed new evidence acquired from the evidentiary hearing regarding the effectiveness of Petitioner’s trial counsel, it only expounds upon Petitioner’s ineffective assistance of counsel claims and does not readdress the prosecutorial misconduct claims. The brief does mention the pertinent conduct of the prosecutor, but it does so in the context of ineffective assistance allegations, not in the context of a prosecutorial misconduct claim. Petitioner argues that this distinction is irrelevant, and focuses only on the fact that this language was presented to the Court of Appeals. However, the doctrine of exhaustion requires that the same claim under the same theory be presented to the state courts before raising it in a federal habeas petition. See Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987); Williams v. Bagley, 380 F.3d 932, 970 (6th Cir. 2004)). The language cited from the Brief After Remand, however, makes the claim in the context of an ineffective assistance claim, and so does not present the same claim under the same theory. Thus, this language cannot be used to satisfy the exhaustion requirement.
In sum, Petitioner cites to no language in any of his state court briefs that suffices to present fairly this claim to the state courts. Therefore, Petitioner has failed to exhaust the claim that the prosecutor impermissibly injected unrelated murder evidence into Petitioner’s trial.
B. Prosecutorial Misconduct–Eliciting False Testimony
The government also argues that Petitioner has not exhausted a second claim of prosecutorial misconduct, that the prosecutor knowingly elicited false or perjured testimony from Edwards. Although this is a closer question, we find that Petitioner has also failed to exhaust this claim in the state courts. Petitioner points to mention in his brief to the Michigan Court of Appeals of a “manifest injustice” due to the fact that “[t]he People used Antonio Edwards’ perjured testimony to convert him.” The brief even includes specific factual allegations that underlie the perjured testimony claim. However, Petitioner’s allegation here was not made in the context of a prosecutorial misconduct claim at all. Rather, it was made as a basis for a judicial misconduct claim, and was made under the following heading:
I. The TRIAL COURT CLEARLY ERRED WHEN SHE FAILED TO GRANT APPELLANT WAGNER AN EVIDENTIARY HEARING AND A
NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE OF A KEY PROSECUTION WITNESS WHO WAS INDUCED BY THE PROSECUTION AND THE POLICE TO TESTIFY FALSELY AGAINST THE APPELLANT AT TRIAL IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW.
(Emphasis added.) Additionally, the legal precedent to which he cites relates to the standard for reviewing a trial court’s allegedly improper behavior, not the standard of review for a prosecutorial misconduct claim. Indeed, as is evidenced by the language of the heading, Petitioner was not even challenging the judge’s failure to rebuke the prosecutor for her misconduct, but rather was challenging the judge’s decision not to grant an evidentiary hearing to investigate the allegedly perjured testimony. Petitioner need not cite to “chapter and verse” of the appropriate constitutional law, Slaughter, 450 F.3d at 236, but the language used by Petitioner in the state court simply failed to present in the same factual and legal posture the claim he now alleges before this Court. See Newton, 349 F.3d at 877; see also Pillette, 824 F.2d at 497.
Petitioner also refers this Court to his supplemental state appellate brief, where he quite clearly laid out the prosecutorial misconduct claim in question, highlighted all of the relevant facts, and cited to appropriate Supreme Court precedent regarding the prosecutorial duty to correct perjured testimony. As noted previously, however, this supplemental brief addresses and analyzes Petitioner’s ineffective assistance of counsel claims rather than his prosecutorial misconduct claims. Thus, it did not present the prosecutorial misconduct claim to the state court in the same legal and factual terms as Petitioner did before this Court. With no other language to rely on, Petitioner therefore did not fairly present this claim to the state courts, which means that it must also be deemed unexhausted.
C. Ineffective Assistance of Counsel--Failure to Object to Prior Murder Evidence
The government also argues that Petitioner has not exhausted the claim that his trial attorney was ineffective for failing to object during Petitioner’s cross-examination to questions about the uncharged homicides. While Petitioner points to sections of his state court briefs that might be sufficient to exhaust this claim before the Michigan Court of Appeals, he did not present the “same claim under the same theory,” Pillette, 824 F.2d at 497, in his pro se appeal to the Michigan Supreme Court. For a claim to be reviewable at the federal level, each claim must be fairly presented at every stage of the state appellate process. See Hafley, 902 F.2d at 483; see also Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002); Winegar, 435 F. Supp. at 289.
In his brief to the Michigan Supreme Court, Petitioner raised a claim of ineffective assistance of counsel based on his counsel’s failure to object to or exclude evidence of Petitioner’s aliases and the “evidence of crimes attached to those aliases.” In a section of that brief presenting a claim of prosecutorial misconduct, Petitioner also included a recitation of the facts surrounding the prosecutor’s misuse of evidence of uncharged homicides. Petitioner never, however, presented claim for relief based on his counsel’s failure to object to the evidence of uncharged homicides, and so the Michigan Supreme Court never had the opportunity to address the claim together with its supporting facts. As we cannot say that he has fairly presented this claim to the state courts, we find that Petitioner failed to
II.
Despite Petitioner’s failure to present these claims to the state courts, the exhaustion doctrine would pose no bar to our review if there were no longer any state avenue available with which to pursue these unpresented claims and seek adequate relief. See
III.
One question remains: what is to be done with Wagner’s federal petition if it contains unexhausted claims? This we leave for the district court, in conjunction with the parties, to resolve. See Harris, 553 F.3d at 1031. In Harris, this Court laid out the options a district court may pursue when dealing with a petition that contains unexhausted claims:
When faced with this predicament in the past, we have . . . remanded the case to the district court so that it could do one of four things: (1) dismiss the mixed petition in its entirety, Rhines [v. Weber, 544 U.S. 269, 274 (2005)]; (2) stay the petition and hold it in abeyance while the petitioner returns to state court to raise his unexhausted claims, id. at 275 . . .; (3) permit the petitioner to dismiss the unexhausted claims and proceed with the exhausted claims, id. at 278 . . .; or (4) ignore the exhaustion
requirement altogether and deny the petition on the merits if none of the petitioner’s claims has any merit,
28 U.S.C. § 2254(b)(2) .
Id. at 1031-32 (citing Rockwell v. Yukins, 217 F.3d 421, 425 (6th Cir. 2000)). In Rhines, the Supreme Court noted that the “stay and abeyance” method should only be available in instances where the petitioner can: 1) show good cause for failing to present the claims before the state court in the first instance, and 2) show that his unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 277. Because we must dismiss the petition for failure to exhaust, we do not reach the merits of Petitioner’s claims. However, we note that Petitioner’s claims, particularly the unexhausted claims, are not “plainly meritless.” See id. Therefore, assuming Petitioner can show good cause for failing to present these claims to the state court in the first instance,5 we see no reason why the district court should
CONCLUSION
For the foregoing reasons, we VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.