581 F.3d 410 (6th Cir. 2009), 07-2129, Wagner v. Smith

Docket Nº:07-2129.
Citation:581 F.3d 410
Opinion Judge:KENNEDY, Circuit Judge.
Party Name:Sherman WAGNER, Petitioner-Appellant, v. Willie O. SMITH, Warden, Respondent-Appellee.
Attorney:Robert A. Amicone II, Squire, Sanders & Dempsey L.L.P., Cincinnati, Ohio, for Appellant. Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. Pierre H. Bergeron, Thomas D. Amrine, Colter L. Paulson, Squire, Sanders & Dempsey L.L.P., Cincinnati, Ohio, for A...
Judge Panel:Before BATCHELDER, Chief Judge; KENNEDY and McKEAGUE, Circuit Judges.
Case Date:September 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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581 F.3d 410 (6th Cir. 2009)

Sherman WAGNER, Petitioner-Appellant,

v.

Willie O. SMITH, Warden, Respondent-Appellee.

No. 07-2129.

United States Court of Appeals, Sixth Circuit.

September 24, 2009

Argued: July 31, 2009.

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[Copyrighted Material Omitted]

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ARGUED:

Robert A. Amicone II, Squire, Sanders & Dempsey L.L.P., Cincinnati, Ohio, for Appellant.

Debra M. Gagliardi, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

ON BRIEF:

Pierre H. Bergeron, Thomas D. Amrine, Colter L. Paulson, Squire, Sanders & Dempsey L.L.P., Cincinnati, Ohio, for Appellant.

Raina I. Korbakis, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before BATCHELDER, Chief Judge; KENNEDY and McKEAGUE, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

Petitioner Sherman Wagner, a/k/a Billy Lynn Wagner, appeals the district court's

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denial of his petition for a writ of habeas corpus. In his various state and federal appeals relating to his 2002 state murder trial, Wagner has made numerous claims of violations that he claims warrant reversal of his conviction. Wagner's certificate of appealability in this Court has been limited to the following claims: 1) prosecutorial misconduct based on the prosecutor's reference to unrelated murder investigations of Petitioner; 2) prosecutorial misconduct based on the prosecutor's failure to correct perjured testimony; 3) ineffective assistance of counsel based on counsel's failure to object to the prosecutor's reference to the prior murder investigations; 4) ineffective assistance of counsel based on counsel's failure to challenge the testimony of witness Antonio Edwards; 5) ineffective assistance of counsel based on counsel's failure to challenge the testimony of witness Thelyus Johnson; and 6) ineffective assistance of counsel based on counsel's inappropriate remarks during closing argument. For the reasons which follow, we find three of Wagner's claims to be unexhausted; therefore, we VACATE the judgment of the district court and REMAND for further proceedings.

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. 28 U.S.C. § 2254(e)(1):

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, 2004 WL 2412712, *1-2 (Mich.Ct.App. Oct. 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

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October 28, 2004, the Michigan Court of Appeals rejected each of Petitioner's claims and affirmed his conviction. Petitioner, now filing pro se, appealed this judgment to the Michigan Supreme Court, but on November 2, 2005, that court exercised its discretion not to review the case and denied Petitioner's appeal.

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 M.C.R. 6.509. Petitioner chose not to file such a motion, however, and opted instead to proceed directly to federal court and file a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 7, 2006, Petitioner filed his habeas petition in the Eastern District of Michigan, alleging prosecutorial misconduct, ineffective assistance of counsel, due process violations, and judicial misconduct. On August 15, 2007, the district court denied Wagner's petition, rejecting the merits of his claims without addressing whether the procedural requirements of each claim had been satisfied.

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:

(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.

28 U.S.C. § 2254(d). " In applying these standards, we examine the holdings of the Supreme Court as they existed at ‘ the time of the relevant state-court decision.’ " Hall, 563 F.3d at 232 (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). We may also examine the decisions of other courts, including our own decisions, to determine if a legal principle was clearly established by the Supreme Court. Id. (citing Smith v. Stegall, 385 F.3d 993, 998 (6th Cir.2004)).

ANALYSIS

I.

A federal court may not grant a writ of habeas corpus unless the applicant has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A). To be properly exhausted, each claim must have been " fairly presented" to the state courts. See, e.g., Frazier v. Huffman, 343 F.3d 780, 797 (6th Cir.2003). This includes a requirement that the applicant present the issue both to the state court of appeals and the state supreme court. See Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.1990) (citing Winegar v. Corr. Dep't, 435 F.Supp. 285, 289 (W.D.Mich.1977)). Fair presentation requires that the state courts

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be given the opportunity to see both the factual and legal basis for each claim. See, e.g., id. (citing Alley v. Bell, 307 F.3d 380, 386 (6th Cir.2002)); Newton v. Million, 349 F.3d 873, 877 (6th Cir.2003). This does not mean that the applicant must recite " chapter and verse" of constitutional law. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir.2006). But the applicant is required to make a specific showing of the alleged claim. Finally, a federal court cannot grant habeas relief if there still is a potential state remedy for the state courts to consider. See 28 U.S.C. § 2254(b)(1)(B). Put otherwise, if a state remedy is no longer available at the time of the federal petition, the exhaustion doctrine poses no bar to federal review. See id.; Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

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...

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