Barker v. Yukins

Decision Date30 January 1998
Docket NumberNo. 97-CV-71292-DT.,97-CV-71292-DT.
Citation993 F.Supp. 592
PartiesStacey BARKER, Petitioner, v. Joan YUKINS, et al., Respondents.
CourtU.S. District Court — Eastern District of Michigan

Stuart G. Friedman, Ann Arbor, MI, for Petitioner.

K. Davison Hunter, Asst. Atty. Gen., Lansing, MI, for Respondents.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING PLAINTIFF'S HABEAS CORPUS ACTION

ROSEN, District Judge.

This matter having come before the Court on the December 4, 1997 Report and Recommendation of United States Magistrate Judge Paul J. Komives recommending that the Court deny Plaintiff's petition for a writ of habeas corpus, and that this case, accordingly, be dismissed; and Petitioner having timely filed Objections to the Magistrate's Report and Recommendation; and the Court having reviewed the Magistrate Judge's Report and Recommendation, Petitioner's Objections thereto, and the Court's file of this action and having concluded that, for the reasons stated in the Report and Recommendation, Plaintiff's petition for habeas corpus relief should be denied; and the Court being otherwise fully advised in the premises,

IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation of December 4, 1997 be, and hereby is, adopted by this Court.

IT IS FURTHER ORDERED that, for the reasons set forth in the Magistrate Judge's Report and Recommendation, Plaintiff's petition for habeas corpus relief be, and hereby is DENIED and the above-captioned case, therefore, is DISMISSED.

REPORT AND RECOMMENDATION

KOMIVES, United States Magistrate Judge.

I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus.

II. REPORT:

A. Procedural History

1. Petitioner Stacey Barker is a state prisoner, currently confined at Scott Correctional Facility in Plymouth, Michigan.1

2. On November 17, 1987, petitioner was convicted of first degree murder, MICH. COMP. LAWS § 750.316, following a jury trial in Oakland County Circuit Court. On December 4, 1987, she was sentenced to a mandatory term of nonparolable life imprisonment.

3. Petitioner appealed as of right to the Michigan Court of Appeals, raising the following claims:

I. WAS DEFENDANT DENIED EQUAL PROTECTION AND HER RIGHT TO AN IMPARTIAL JURY WHEN THE PROSECUTOR USED A PEREMPTORY CHALLENGE TO STRIKE A BLACK VENIRE PERSON FROM THE

JURY, AND THE TRIAL COURT ERRED IN UPHOLDING THE PROSECUTOR'S IMPERMISSIBLE EXERCISE OF THAT CHALLENGE?

II. DID THE COURT DENY DEFENDANT A FAIR TRIAL WHEN IT DECLINED A DEFENSE REQUEST TO INSTRUCT THE JURY THAT A PERSON IS ENTITLED TO USE DEADLY FORCE IN DEFENDING HERSELF AGAINST WHAT SHE HONESTLY BELIEVES IS THE DANGER OF SEXUAL ASSAULT?

III. DID THE TRIAL COURT ABUSE ITS DISCRETION AND DENY DEFENDANT A FAIR TRIAL WHEN IT ADMITTED INTO EVIDENCE OVER DEFENSE OBJECTION A FOURTEEN MINUTE VIDEO TAPE OF THE CRIME SCENE AND THE BODY OF THE DECEDENT WHEN THE TAPE WAS HIGHLY INFLAMMATORY AND UNNECESSARY TO ILLUMINATE A MATERIAL ISSUE IN THE CASE?

IV. DID THE TRIAL COURT ABUSE ITS DISCRETION AND DENY DEFENDANT A FAIR TRIAL WHEN IT INTRODUCED INTO EVIDENCE TWO COLOR PHOTOGRAPHS OF THE DECEASED WHICH WERE NOT RELEVANT TO A DISPUTED MATERIAL ISSUE AND FAR MORE PREJUDICIAL THAN PROBATIVE?

The court of appeals found no merit in any of these claims and affirmed petitioner's conviction in a published opinion. People v. Barker, 179 Mich.App. 702, 446 N.W.2d 549 (1989) (per curiam). One judge separately concurred, concluding that the trial court's refusal to specifically instruct the jury that petitioner was entitled to use deadly force to resist a sexual assault was erroneous, but that such error was harmless. Barker, 179 Mich.App. at 711, 446 N.W.2d at 552 (Kelly, J., concurring).

4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court granted the application for leave to appeal, "limited to the issue whether the trial judge erred reversibly by refusing to instruct the jury that defendant was entitled to use deadly force to resist sexual assault." People v. Barker, 435 Mich. 867, 457 N.W.2d 691 (1990). The Supreme Court affirmed the court of appeals decision on different grounds, concluding that although the trial court erred in failing to give the requested instruction, the error was harmless. People v. Barker, 437 Mich. 161, 468 N.W.2d 492 (1991). One justice dissented, concluding that the error was not harmless. Barker, 437 Mich. at 165-74, 468 N.W.2d at 494-95 (Levin, J., dissenting).

5. Petitioner, represented by counsel, filed the instant petition for habeas corpus on March 27, 1997. She raises two grounds for writ of habeas corpus:

I. THE MICHIGAN SUPREME COURT DEPRIVED MS. BARKER OF THE CONSTITUTIONAL RIGHT TO A TRIAL BY JURY (TOGETHER WITH ALL OF ITS ATTENDANT RIGHTS) WHERE THE SUPREME COURT UPHELD HER CONVICTION DESPITE AN ADMITTEDLY DEFECTIVE JURY INSTRUCTION BECAUSE THE COURT BELIEVED THE STATE'S WITNESSES OVER THE DEFENSE WITNESSES.

II. MS. BARKER WAS DENIED EQUAL PROTECTION (AND HER RIGHT TO AN IMPARTIAL JURY) WHEN THE PROSECUTOR USED A PEREMPTORY CHALLENGE TO STRIKE A BLACK VENIREPERSON FROM THE JURY, AND THE TRIAL COURT ERRED IN UPHOLDING THE PROSECUTOR'S IMPERMISSIBLE EXERCISE OF THAT CHALLENGE.

6. Respondents filed their answer on September 18, 1997. They contend that petitioner's first claim is unexhausted and therefore barred by the procedural default doctrine, and that petitioner's second claim does not entitle her to the writ of habeas corpus.

B. Exhaustion of State Remedies

Respondents argue that petitioner has failed to exhaust her first claim in the state courts by "fairly presenting" the claim to the Michigan Supreme Court. Generally, a habeas petitioner must exhaust her state law remedies before seeking federal habeas relief by fairly presenting the substance of each federal constitutional claim in state court. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275-278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). "A petitioner `fairly presents' his claim to the state courts by citing a provision of the Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir.1993). In general, a petitioner has satisfied the exhaustion requirement when he has presented his claim to the state's highest court. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990).

If a petition contains both exhausted and unexhausted claims, the general rule is to dismiss such mixed petitions for exhaustion of all claims. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, a petitioner's failure to exhaust state remedies does not deprive the court of its jurisdiction to consider the merits of the habeas petition. Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). A federal court may decide a habeas petition on the merits when the grounds for relief are without merit or are not cognizable on habeas review. Cain v. Redman, 947 F.2d 817, 820 (6th Cir.1991); Prather v. Rees, 822 F.2d 1418, 1421-1422 (6th Cir.1987). In these circumstances, the court should dismiss the non-federal or frivolous claim on its merits to save the state courts the useless review of meritless constitutional claims. Cain, 947 F.2d at 820.

In both the Michigan Court of Appeals and the Michigan Supreme Court, petitioner raised a claim that the trial court's failure to instruct the jury that she was entitled to use lethal force to resist a sexual assault deprived her of a fair trial. However, respondent argues that these claims were formulated differently than petitioner's habeas claim, which asserts that petitioner was deprived of her constitutional right to trial by jury by the Supreme Court's decision affirming her conviction. In support of their position, respondents rely on Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). However, the Court should conclude that Duncan does not support respondent's position.

In Duncan, as respondents correctly note, the Court did state that "mere similarity of claims is insufficient to exhaust." Duncan, 513 U.S. at 366. However, the import of this passage is understood only in the context of the case. In Duncan, the petitioner had raised a state law evidentiary claim in the state court system, without asserting that the error deprived him of a fair trial under the Due Process Clause. He then filed a habeas petition in federal court asserting such a constitutional violation. Noting that the purpose of the exhaustion requirement is "to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights," id. at 365 (internal quotation omitted), the Court reasoned that the petitioner's state law evidentiary claim, although similar to his constitutional claim, was insufficient:

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

Id. at 366.

In this case, the state courts were alerted to the fact that petitioner was raising a claim under the United States Constitution. In her brief to the Michigan Supreme Court, for example, petitioner asserted that she had been denied her right to due process under the constitution because the jury had not been properly instructed, citing to Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) and U.S. CONST. amends. V, XIV. See Br. in Supp. of Application for Leave to Appeal, at 19 (docket entry # 21).2...

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    ...District of Michigan also found the Fifth and Seventh Circuits' categorization approach to be appropriate. See Barker v. Yukins, 993 F.Supp. 592, 600-01 (E.D.Mich.1998).6 In a footnote Neelley acknowledges that "[t]he overlap between the statute and Teague is not complete," Neelley, 138 F.3......
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