Anderson v. Harless, 81-2066

Decision Date01 November 1982
Docket NumberNo. 81-2066,81-2066
Citation74 L.Ed.2d 3,103 S.Ct. 276,459 U.S. 4
PartiesCharles E. ANDERSON, Warden v. Jack E. HARLESS
CourtU.S. Supreme Court

PER CURIAM.

Respondent was convicted of two counts of first degree murder and was sentenced to life imprisonment. The Michigan Court of Appeals affirmed respondent's conviction, Peo- ple v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), and the Michigan Supreme Court, on review of the record, denied respondent's request for relief. Petn for Cert 30a.

Respondent then filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. s 2254, in the United States District Court for the Eastern District of Michigan. He alleged, inter alia, that the trial court's instruction on "malice"-a crucial element in distinguishing between second degree murder and manslaughter under Michigan law-was unconstitutional.1 In particular, respondent focused on the following language from the trial court's lengthy charge:

"Malice is implied from the nature of the act which caused the death. Malice can be implied from using the weapon on another person. You are not obligated to reach the conclusion, but you must imply malice if you find death was implied (sic) by the use of a gun against another." Petn for Cert 59a.

Relying primarily on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the District Court held that this instruction unconstitutionally shifted the burden of proof to respondent and was inconsistent with the presumption of innocence. Harless v. Anderson, 504 F.Supp. 1135 (1981). The court also held that respondent had exhausted available state-court remedies, as required by 28 U.S.C. §§ 2254(b) and (c), since his conviction had been reviewed by both the Michigan Court of Appeals and the Michigan Supreme Court. The District Court ordered that the application for writ of habeas corpus be granted unless respondent was retried within 90 days.

The United States Court of Appeals for the Sixth Circuit affirmed. Harless v. Anderson, 664 F.2d 610 (1982). The court held that re- spondent's claim had been properly exhausted in the state courts, because respondent had presented to the Michigan Court of Appeals the facts on which he based his federal claim and had argued that the malice instruction was "reversible error." See People v. Harless, 78 Mich.App., at 748, 261 N.W.2d, at 43. The court also emphasized that respondent, in his brief to the Michigan Court of Appeals, had cited People v. Martin, 392 Mich. 553, 221 N.W.2d 336 (1974)-a decision predicated solely on state law in which no federal issues were decided, but in which the defendant had argued broadly that failure to properly instruct a jury violates the Sixth and Fourteenth Amendments. In the view of the United States Court of Appeals, respondent's assertion before the Michigan Court of Appeals that the trial court's malice instruction was erroneous, coupled with his citation of People v. Martin, supra, provided the Michigan courts with sufficient opportunity to consider the issue encompassed by respondent's subsequent federal habeas petition.

We reverse. In Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), we made clear that 28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim. Id., at 276-277, 92 S.Ct., at 512-513. It is not enough that all the facts necessary to support the federal claim were before the state courts, id., at 277, 92 S.Ct., at 513, or that a somewhat similar state-law claim was made. See, e.g., Gayle v. LeFevre, 613 F.2d 21 (CA2 1980); Paullet v. Howard, 634 F.2d 117, 119-120 (CA3 1980); Wilks v. Israel, 627 F.2d 32, 37-38 (CA7), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1980); Connor v. Auger, 595 F.2d 407, 413 (CA8), cert. denied, 444 U.S. 851, 100 S.Ct. 104, 62 L.Ed.2d 67 (1979). In addition, the habeas petitioner must have "fairly presented" to the state courts the "substance" of his federal habeas corpus claim. Picard, supra, 404 U.S. at 275, 277-278, 92 S.Ct. at 512, 513-514. See also, Rose v. Lundy, —- U.S. ——, ——, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).

In this case respondent argued on appeal that the trial court's instruction on the element of malice was "erroneous." He offered no support for this conclusion other than a citation to, and three excerpts from, People v. Martin, supra-a case which held that, under Michigan law, malice should not be implied from the fact that a weapon is used. See Petn for Cert 47a-49a, 51a-53a.2 Not surprisingly, the Michigan Court of Appeals interpreted respondent's claim as being predicated on the state-law rule of Martin, and analyzed it accordingly. 78 Mich.App., at 748-750, 261 N.W.2d, at 43.

The United States Court of Appeals concluded that "the due process ramifications" of respondent's argument to the Michigan court "were self-evident," and that respondent's "reliance on Martin was sufficient to present the state courts with the substance of his due process challenge to the malice instruction for habeas exhaustion purposes." 664 F.2d, at 612. We disagree. The District Court based its grant of habeas relief in this case on the doctrine that certain sorts of "mandatory presumptions" may undermine the prosecution's burden to prove guilt beyond a reasonable doubt and thus deprive a criminal defendant of due process. See Sandstrom, supra; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Court of Appeals affirmed on the same rationale. However, it is plain from the record that this constitutional argument was never presented to, or considered by, the Michigan courts. Nor is this claim even the same as the constitutional claim advanced in Martin-the defendant there asserted a broad federal due process right to jury instructions that "properly explain" state law, 392 Mich., at 558, 221 N.W.2d, at 339, and did not rely on the more particular analysis developed in cases such as Sandstrom, supra.3 Since it appears that respondent is still free to present his Sandstrom claim to Michigan Court of Appeals, see People v. Berry, 10 Mich.App. 469, 474-475, 157 N.W.2d 310, 312-313 (1968), we conclude that he has not exhausted his available state-court remedies as required by 28 U.S.C. § 2254. Accordingly, the petition for certiorari and respondent's motion for leave to proceed in forma pauperis are granted, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice STEVENS, with whom Justice BRENNAN, and Justice MARSHALL join, dissenting.

Few issues consume as much of the scarce time of federal judges as the question whether a state prisoner adequately exhausted his state remedies before filing a petition for a federal writ of habeas corpus. Distressingly, the Court seems oblivious of this fact and takes action in this case that can only exacerbate that problem.

On the merits the question presented by this case is whether a somewhat garbled jury instruction contained a mandatory presumption that required a finding of malice or merely a permissive inference that allowed the jury to make such a finding.1 The parties seem to agree that if the in- struction is considered mandatory, the respondent's conviction must be set aside under principles that are well settled in Michigan 2 and in the federal courts. 3

The Michigan Court of Appeals rejected respondent's construction of the jury instruction and therefore affirmed his conviction. After the Supreme Court of Michigan denied leave to appeal and after the state trial court denied a subsequent motion for a new trial, respondent commenced this federal habeas corpus proceeding.

The Federal District Court carefully analyzed the difference between a permissive inference and a mandatory presumption and concluded that the Michigan Court of Appeals' construction of the jury instruction was simply untenable. Harless v. Anderson, 504 F.Supp. 1135, 1138 (1981). It also considered and rejected the argument that the respondent had not exhausted his state remedies. Id., at 1139.

On appeal, the Court of Appeals for the Sixth Circuit affirmed, 664 F.2d 610 (1982). That Court first carefully considered the warden's contention that respondent's state remedies had not been exhausted because his federal claim had not been fairly presented to the state courts. After explaining in some detail why the federal claim necessarily presented the very question that the state court had already resolved against the respondent, the Court of Appeals concluded "that the Michigan courts had a fair opportunity to consider the issue encompassed by Harless' habeas corpus petition." Id., at 611. Thereafter, the Court of Appeals reviewed and upheld the District Court's holding on the merits.

I agree with the sensible approach to the exhaustion issue that was followed by the District Court and the Court of Ap- peals.4 I also believe that approach was entirely faithful to Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438, which requires only that the "substance" of the federal claim (not the form) be "fairly presented" to the state courts.5 In this case the only arguable justification for dismissing the petition for failure to exhaust is a possibility that the state court might decide the instruction issue differently if phrased in terms of Sandstrom v. United States rather than in terms of People v. Martin. See note 4, supra. That possibility is virtually nonexistent. The Court apparently perceives this case as a simple application of Picard; I think it can only be explained as an expansion of Picard. Such an expansion should be accompanied by a more careful analysis than the Court provides in this case, and it should not be undertaken without full briefing and argument.

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