Saulsberry v. Lee, 17-6157

• Citation: 937 F.3d 644
• Decision Date: 30 August 2019
• Docket Number: No. 17-6157,17-6157
• Parties: Antonio L. SAULSBERRY, Petitioner-Appellant, v. Randy LEE, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

937 F.3d 644

Antonio L. SAULSBERRY, Petitioner-Appellant,

v.Randy LEE, Warden, Respondent-Appellee.

No. 17-6157

United States Court of Appeals, Sixth Circuit.

Argued: March 14, 2019

Decided and Filed: August 30, 2019

SUTTON, Circuit Judge.

This tale of two trials began when Tennessee charged Antonio Saulsberry with (1) premeditated murder and (2) two counts of felony murder. The first jury convicted him of premeditated murder and did not return a verdict on the two felony murder counts, all consistent with the court’s instructions to consider the felony murder counts only if it acquitted Saulsberry of premeditated murder. The state appellate court reversed Saulsberry’s premeditated murder conviction and remanded for a second trial solely on the two felony murder counts. The second jury convicted Saulsberry on both felony murder counts, and he received a life sentence. He filed a federal habeas petition challenging his retrial on double jeopardy grounds. The district court denied the petition, and we affirm.

I.

In 1995, the manager of a Memphis restaurant was murdered during a closing-time robbery. Saulsberry worked at the restaurant and helped to plan the robbery. But he was not there during the robbery or when the restaurant’s manager was shot and killed.

In 1997, Saulsberry went to trial in state court. In addition to a robbery count and a conspiracy count, he faced three counts of first-degree murder—premeditated murder, murder during a robbery, and murder during a burglary—all distinct offenses in Tennessee. The trial court forbade the jury from considering the murder counts together. Only if the jury found Saulsberry not guilty of premeditated murder could it "proceed to inquire whether [he is] guilty of [either count of felony murder]." R. 68-13 at 43.

The jury convicted Saulsberry of premeditated murder as well as robbery and conspiracy. He received a life sentence for the first conviction plus fifty years for the others. In line with the court’s instructions, the jury did not return a verdict on the two felony murder counts.

The Tennessee Court of Criminal Appeals affirmed Saulsberry’s robbery and conspiracy convictions. But it reversed the murder conviction for insufficient evidence. The court remanded the case for a retrial on the two felony murder counts. State v. Saulsberry , No. 02C01-9710-CR-00406, 1998 WL 892281, at *6 (Tenn. Crim. App. Dec. 21, 1998). Saulsberry moved to dismiss the new prosecution on double jeopardy grounds, but the state courts rejected the argument. In 2010, a new jury convicted him of both counts of felony murder, and the trial court sentenced him to life in prison. State v. Saulsberry , No. W2010-01326-CCA-R3-CD, 2011 WL 1327664, at *1 (Tenn. Crim. App. Apr. 7, 2011). Saulsberry’s direct appeal and applications for state post-conviction relief failed.

In 2007, Saulsberry filed an uncounseled § 2254 petition while awaiting retrial in Tennessee, arguing that the second trial for felony murder would violate the Double Jeopardy Clause. After more twists and turns, none relevant here, the district court denied Saulsberry’s amended, counseled petition in 2017. We gave him permission to appeal and appointed new counsel.

II.

Standard of review. Acting pro se, Saulsberry in 2007 filed a § 2254 petition seeking to halt the second trial for the two felony murder counts on double jeopardy grounds. That petition creates two modest complications when it comes to our standard of review. The first is that we review pre-judgment petitions under the more general provisions of § 2241. The second is that a jury subsequently convicted him of two counts of felony murder, and we review post-judgment petitions under § 2254. That means he was right all along, and his original § 2254 petition must be treated like any other § 2254 petition. A brief refresher on a state prisoner’s two roads to habeas relief confirms that Saulsberry’s petition has come full circle.

The broader form of habeas relief is § 2241, which authorizes federal intervention for state prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The narrower form of relief is § 2254, which applies to a subset of state prisoners. Out of respect for the final decisions of state courts, see Williams v. Taylor , 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), Congress bars federal courts from granting habeas relief to state prisoners who are "in custody pursuant to the judgment of a State court," 28 U.S.C. § 2254(b)(1), unless the inmate clears several additional obstacles, such as a more rigorous standard of review, Felker v. Turpin , 518 U.S. 651, 662, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

Inmates with final state court judgments thus must travel down the § 2254 road, while pretrial detainees must travel down the § 2241 path. Phillips v. Court of Common Pleas , 668 F.3d 804, 809 (6th Cir. 2012). In reviewing habeas applications, substance trumps form. If the applicant is a pretrial detainee, we apply the § 2241 rules even if he brings a § 2254 application. Christian v. Wellington , 739 F.3d 294, 297–98 (6th Cir. 2014). And the reverse is true. We apply the § 2254 rules to an individual’s post-judgment application even if he brings a § 2241 application. All of this explains the numerical gymnastics of this case. At first, Saulsberry was a beneficiary of the substance-trumps-form doctrine. That’s why we could think of his inaccurately characterized § 2254 petition initially as a § 2241 petition. But what can be beneficial in one direction can be less so in the other. The same doctrine requires us to think about his current application as a § 2254 petition because his arguments all seek to remove him from "custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(b)(1) ; see Christian , 739 F.3d at 297–98 ; Dominguez v. Kernan , 906 F.3d 1127, 1137–38 (9th Cir. 2018).

The reality is that § 2254 is the "exclusive vehicle" of habeas relief for prisoners in custody under a state judgment. Walker v. O’Brien , 216 F.3d 626, 633 (7th Cir. 2000) ; Dominguez , 906 F.3d at 1135 ("Because § 2254 limits the general grant of habeas relief under § 2241 it is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment." (quotation omitted)); see Bryan R. Means, Postconviction Remedies § 5:2 (2019) (concluding that the weight of authority identifies " § 2254 [as] the exclusive avenue" for state prisoners in this setting). It offers no exception for a prisoner who filed a petition still pending at the time of his conviction. Dominguez , 906 F.3d at 1137 ("Courts and commentators have recognized that, if the petition is filed by a pre-trial detainee under § 2241 who is subsequently convicted, the federal court may convert the § 2241 petition to a § 2254 petition." (quotation omitted)); Means, supra (noting this means AEDPA applies to such a petitioner’s claims). Any other approach would not make sense. Saulsberry’s requested relief targets his state judgment in just the same way as if it preceded his petition. Every circuit that has considered the question agrees that it follows from the text of § 2254 and this practical reality of prisoners’ challenges that § 2254 governs a pending § 2241 petition in the event of a conviction. See, e.g. , Hartfield v. Osborne , 808 F.3d 1066, 1071–72 (5th Cir. 2015) ; Yellowbear v. Wyo. Att’y Gen. , 525 F.3d 921, 924 (10th Cir. 2008) ; see also Jackson v. Coalter , 337 F.3d 74, 78–79 (1st Cir. 2003) ; Dominguez , 906 F.3d at 1137–38.

As a result, we must apply the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act. We thus measure the state court’s decision against holdings of the United States Supreme Court. White v. Woodall , 572 U.S. 415, 419, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014). And we thus may grant relief only if the decision was "contrary to, or involved an unreasonable application of" those rules. 28 U.S.C. § 2254(d)(1). That doesn’t mean "merely wrong" or even "clear error." White , 572 U.S. at 419, 134 S.Ct. 1697. Only an "objectively unreasonable" mistake, id. , one "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement," slips through the needle’s eye of § 2254, Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Saulsberry nonetheless maintains that we should treat his petition as a § 2241 challenge. In support, he offers an unpublished decision of this court that did not apply § 2254 rules to a pretrial petition despite the petitioner’s intervening conviction. See Smith v. Coleman , 521 F. App'x 444, 447 & n.2 (6th Cir. 2013). But the cases on which Smith briefly relied, see Dickerson v. Louisiana , 816 F.2d 220 (5th Cir. 1987) ; Stow v. Murashige , 389 F.3d 880 (9th Cir. 2004), "do not address" that point. Smith , 521 F. App'x at 452 (White, J., concurring). Further, they arose in circuits that have since reached the opposite conclusion, see Hartfield , 808 F.3d at 1071–72 (holding that § 2254 governs a pending § 2241 petition in the event of a conviction); Dominguez , 906 F.3d at 1137–38 (holding that § 2241 governs a pending § 2254 petition in the event of a vacated judgment).

Carafas v. LaVallee does not alter this conclusion either. 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). It stands for the idea that a prisoner’s release does not moot a pending habeas petition. But Saulsberry remains in custody. No question of mootness exists. And Carafas does not remotely say (or hold) that we should treat a petition attacking a final state judgment as though it challenged pretrial detention.

Double jeopardy. Saulsberry contends that, by convicting him of premeditated murder and remaining silent on the two counts of felony murder, the first jury impliedly acquitted him of those counts. In...