Newton v. Million

• Decision Date: 17 November 2003
• Docket Number: No. 01-6116.,01-6116.
• Citation: 349 F.3d 873
• Parties: Billy Dewayne NEWTON, Petitioner-Appellee, v. George R. MILLION, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

349 F.3d 873

Billy Dewayne NEWTON, Petitioner-Appellee, v. George R. MILLION, Warden, Respondent-Appellant.

No. 01-6116.

United States Court of Appeals, Sixth Circuit.

Argued: May 6, 2003.

Decided and Filed: November 17, 2003.

Pursuant to Sixth Circuit Rule 206 Petition for Rehearing Denied En Banc: February 25, 2004.

COPYRIGHT MATERIAL OMITTED

ARGUED: Dennis W. Shepherd, Office of the Attorney General, Frankfort, Kentucky, for Appellant.

David J. Guarnieri, Johnson, Judy, True & Guarnieri, Frankfort, Kentucky, for Appellee.

ON BRIEF: Courtney Jones Hightower, Office of the Attorney General, Frankfort, Kentucky, for Appellant.

David J. Guarnieri, Johnson, Judy, True & Guarnieri, Frankfort, Kentucky, for Appellee.

Before: KRUPANSKY, SILER, and COLE, Circuit Judges.

SILER, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. COLE, J. (pp. 879-81), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

The Commonwealth of Kentucky, on behalf of the warden, appeals the district court's decision to grant a conditional writ of habeas corpus to Billy Dewayne Newton. Newton's petition alleges that the state trial court's failure to instruct the jury on the defense of self-protection against multiple aggressors violated his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. For the reasons that follow, we REVERSE the district court's grant of the writ.

BACKGROUND

The charges against Newton arose out of an altercation that took place on November 16, 1996. The following facts were presented in the opinion of the Kentucky Supreme Court:

The victim [William Hutcherson] and Newton had their first confrontation early in the afternoon. Later that day, in a billiard room parking lot, the victim and Newton started fighting after a minor automobile collision involving vehicles of friends. The victim and Newton scuffled on the ground, and the victim was stabbed several times in the lower left chest, on the right upper abdomen and the fatal wound was on his upper right thigh, near the groin area. A third person tried unsuccessfully to break up the fight. The leg wound was 3 inches deep and it cut both the femoral artery and the vein, severing them completely. The fatal leg wound was discovered by the EMS worker in the ambulance on the way to the hospital. The victim was pronounced dead at 11:15 p.m. Newton left the scene but was soon apprehended. Newton was arrested and charged with murder, and the knife used to stab the victim was recovered.

Newton v. Commonwealth, No. 98-SC-0014-MR, slip op. at 2-5 (Ky. Dec. 16, 1999) (unpublished).

At trial, Newton testified that he believed Hutcherson was armed. He also told the jury that Jamey Woolums did not try to break up the fight but instead joined in Hutcherson's attack. As a consequence, he began stabbing randomly in the air to protect himself against both men. The trial court instructed the jury on self-defense, but did not instruct the jury concerning the defense against multiple aggressors.¹ In December 1997, Newton was convicted of murder and was sentenced to forty years in prison.

Newton appealed to the Kentucky Supreme Court. He claimed that the trial judge was required to instruct the jury that he had a right to defend himself against both Hutcherson and Woolums since they were multiple aggressors acting in concert. In an unpublished opinion, the Supreme Court of Kentucky affirmed Newton's conviction and sentence. It noted that Woolums kicked Newton at least twice during the scuffle, but concluded that the trial court's refusal to give a multiple aggressor instruction was not error under the factual circumstances of the case.

Later, Newton filed a petition for habeas corpus relief, raising four issues, including his claim regarding the multiple aggressor self-protection instruction. The magistrate judge recommended that the petition be dismissed for procedural default. The magistrate judge reasoned that Newton failed to apprise the state court of the federal constitutional nature of his claim. Alternatively, the magistrate judge recommended that the petition be dismissed on grounds that Newton failed to establish that the allegedly improper jury instructions resulted in a clear violation of due process.

The district court dismissed three of Newton's claims with prejudice but determined that his jury instruction claim was not procedurally barred. In ruling on this claim, the district court determined that the Kentucky Supreme Court's factual findings were not fairly supported by the record. The district court cited the above-quoted portion of the Kentucky Supreme Court decision as evidence that it misconstrued Woolums's behavior as an attempt to "break up the fight."² Because Woolums participated in the fight, the district court concluded that the trial court should have provided a multiple aggressor jury instruction and its failure to do so violated Newton's right to due process. As a consequence, the district court granted the writ.

DISCUSSION

A. Procedural Default

As an initial matter, the Commonwealth challenges the district court's finding that Newton "fairly presented" his federal claim to the state court. It maintains that Newton committed procedural default, arguing that he made only a vague reference to the Fifth and Fourteenth Amendment and failed to cite federal or state cases that employ federal constitutional analysis. The fact that the Kentucky Supreme Court failed to engage in federal constitutional analysis, the Commonwealth contends, is further evidence that Newton failed to apprise the state court of the nature of his claim.

Federal courts do not have jurisdiction to consider a claim in a habeas petition that was not "fairly presented" to the state courts. A claim may only be considered "fairly presented" if the petitioner asserted both a factual and legal basis for his claim in state court. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000). Although general allegations of the denial of a "fair trial" or "due process" have been held insufficient to "fairly present" federal constitutional claims, id. at 681, a petitioner need not recite "book and verse on the federal constitution." Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir.1984) (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)).

A petitioner can take four actions in his brief which are significant to the determination as to whether a claim has been fairly presented: "(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law." McMeans, 228 F.3d at 681 (citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir.1987)).

Newton's brief in the Kentucky Supreme Court provided a detailed recitation of the facts and specifically stated that the trial court's refusal to instruct the jury on the issue of self-protection against multiple aggressors "violated [his] right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution." This is sufficient to have fairly presented the federal nature of his claim to the state court. There is no requirement that the petitioner cite to cases that employ federal constitutional analysis where he has phrased his claim in terms of a denial of a specific constitutional right. See Carter v. Bell, 218 F.3d 581, 606-07 (6th Cir.2000) (holding that the habeas petitioner fairly presented his claim in his state post-conviction petitions by stating that the statute at issue failed to narrow the class of persons eligible for death penalty in violation of his Eighth Amendment rights). Moreover, the fact that the Supreme Court of Kentucky neglected Newton's federal claim does not deprive this court of jurisdiction. See Koontz, 731 F.2d at 368 ("[T]he exhaustion requirement `cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely presented in petitioner's brief in state court.'") (citations omitted).

B. Standard of Review

"This court applies de novo review to the decision of the district court in a habeas corpus proceeding." Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003) (citing Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000)). Newton filed his federal habeas corpus petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified principally at 28 U.S.C. § 2254(d). Pursuant to this provision, a federal court may grant Newton's writ of habeas corpus only if the Kentucky court's judgment

(1) 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 (2) 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.

By its very language, 28 U.S.C. § 2254(d) "is applicable only to habeas claims that were `adjudicated on the merits in State court ...'" Maples, 340 F.3d at 436. In the case sub judice, as the state court "did not assess the merits of a claim properly raised in a habeas petition, the deference due under AEDPA does not apply." Id. at 436 (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001)) (applying pre-AEDPA standards to a habeas petition filed pursuant to § 2254 because "no state court reviewed the merits of [the] claim"). Accordingly, the AEDPA standard is inapplicable, as this court "reviews questions of law and mixed questions of law and fact de novo." Maples, 340 F.3d at 436 (citing Williams, 260 F.3d at 706).

C. Petitioner's Habeas Claim

Newton contends that his right to due...