Coury v. Livesay
| Decision Date | 07 March 1988 |
| Docket Number | Civ. A. No. 3:86-0626. |
| Citation | 707 F. Supp. 961 |
| Parties | Moses A. COURY, Petitioner, v. Gary LIVESAY, etc., et al., Respondents. |
| Court | U.S. District Court — Middle District of Tennessee |
Thomas A. Thinnes, Martin Lieberman, Phoenix, Ariz., Kenneth J. Ries, Neal & Harwell, Nashville, Tenn., for petitioner.
Jerry Smith, Kathy M. Principe, Office of the Atty. Gen., Nashville, Tenn., for respondents.
NEESE, Senior District Judge, by designation and assignment.
The petitioner Mr. Moses A. Coury applied for the writ of habeas corpus, claiming he is in the custody of the respondent-warden pursuant to the judgment of September 24, 1983 of the Criminal Court of Tennessee for its 21st judicial district (encompassing Williamson County) in violation of the Constitution, Fifth Amendment, Right Against Self-Incrimination Clause, and Sixth Amendment, Right to a Fair and Impartial Jury Clause. 28 U.S.C. §§ 2241(c)(3), 2254(a). It is claimed he was denied a fair trial because of prejudice arising from prosecutorial-misconduct in (a) his improper statements in the courtroom relative to the considerable expense incurred by the state of Tennessee in bringing the matter to trial and to the estimated strength of his case, and (b) his comment in the presence of the jury on the failure of the petitioner to testify in violation of the Constitution, Fifth Amendment, supra.
This Court reviewed the record and finds, with respect to the claim herein of prosecutorial-misconduct due to improper statements made in the courtroom, that Mr. Coury has not exhausted his available state-remedies.1 Therefore, his petition herein must be dismissed in its entirety. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982); Bowen v. State of Tennessee, 698 F.2d 241, 243-2442 (6th Cir.1983) (en banc).
As a condition-precedent to seeking federal habeas corpus relief, a state-prisoner is obligated to exhaust his available state-remedies, by presenting his federal-constitutional claims to the state courts, 28 U.S. C. § 2254(b), (c), Preiser v. Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 1827, 18302, 36 L.Ed.2d 439 (1973). This is "to give the State an initial `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971). (Citations omitted).
In order to have exhausted his state-remedies, Mr. Coury must have presented fairly his claims herein to the state courts as federal-constitutional claims and not merely as similar respective claims arising under state-law. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.1984); see also, Picard v. Connor, 404 U.S. 270, 275-276, 92 S.Ct. 509, 5122, 30 L.Ed.2d 438 (1971). "A difference in legal theory between that urged in the state courts and in a petition for a writ of habeas corpus precludes exhaustion. * * *" Wilks v. Israel, 627 F.2d 32, 3810 (7th Cir.1980), cert. den., 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), cited with approval in Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 2771, 74 L.Ed.2d 3 (1982).
Mr. Coury presented his claim of prosecutorial-misconduct herein to the courts of Tennessee in the following language:
The issue presented for review concerns the improper conduct of the District Attorney General ... during the course of the trial, and the related failure of the Trial Court to grant a mistrial or even give precautionary instructions due to this misconduct.
In support of his assertion, he cited Tennessee case-law discussing the proper and improper conduct on the part of the prosecuting attorney.2
All of these cases were predicated on state-law and did not involve a federal-constitutional issue. See Anderson v. Harless, supra, at n. 3. Although he does cite the federal case of Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), he used it merely to establish the proper role of a prosecuting-attorney and not as a case employing constitutional analysis relative to prosecutorial-misconduct. Consequently, this Court cannot "assume that the state courts ... were ... alerted to consider, and did consider the constitutional claim." Daye v. Attorney General of State of New York, 696 F.2d 186, 1956 (2d Cir.1982).
Mr. Coury must give the courts of Tennessee an opportunity to "pass on the validity of his federal- constitutional claim" before resorting to this Court. Parker v. Rose, 728 F.2d 392, 394-395 (6th Cir.1984). Tennessee's Post-Conviction Procedure Act, T.C.A. §§ 40-30-101, et seq., is available to him for that purpose. 28 U.S.C. § 2254(c).
It appearing on a review of the record that an evidentiary-hearing is not required herein and that the petitioner is not entitled to relief herein for his failure to have first exhausted his available state-remedies, his petition hereby is
DISMISSED. Rule 8(a), Rules — § 2254 Cases. Should the petitioner give timely notice of an appeal from this order and the judgment to be entered herein, Rule 58(1), F.R.Civ.P., such notice will be treated also as an application for a certificate of probable-cause. Rule 22(b), F.R.App.P. As the exhaustion of available state-remedies, as a matter of law is implicated, such certificate WILL issue. Id.
The petitioner Mr. Moses A. Coury filed a motion for a new trial or, in the alternative, to alter the judgment herein of October 8, 1986, dismissing his petition for the federal writ of habeas corpus for failure to exhaust his available state-remedies with respect to his claim of prosecutorial-misconduct.
Indeed, there do exist "ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, which include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney General of State of New York, 696 F.2d 186, 194 (2d Cir.1982).
None of the state or federal cases cited in Mr. Coury's briefs to our state courts employed constitutional analysis in addressing the issue of prosecutorial misconduct; nor does he make any claim that he was denied due process of law or the right to a fair trial. He now claims, however, that "a prosecutorial misconduct claim, necessarily is an attack on the constitutionality sic of the trial."
When addressing a claim of prosecutorial misconduct due to an allegedly inflammatory summation by the prosecuting attorney, a Circuit Court held that "an isolated emotional remark in a summation ... does not approach the circumstances that might arguably be deemed sufficient to alert a state court that a due process violation is claimed." Kirksey v. Jones, 673 F.2d 58, 60 (2d Cir.1982). This Court is unwilling to hold that all claims of prosecutorial misconduct fall "well within the mainstream of constitutional litigation", Daye v. Attorney General of State of New York, supra, thus automatically alerting a Court of a state that a federal-constitutional question is at issue.
In his motion herein, Mr. Coury cites to this Court several federal cases, addressing the issue of prosecutorial misconduct as a violation of the federal Constitution; it would have served his purpose better had he cited such cases to the courts of Tennessee; if he had done so, he would have exhausted his state remedies, thereby enabling this Court to address such issue.
Rather, the petitioner's argument to the court of Tennessee was that the trial judge erred in not granting a mistrial on the ground that the prosecuting attorney's remarks were improper. The state courts could well have approached such an issue from a procedural standpoint or as an abuse of judicial discretion; but the Court of Criminal Appeals of Tennessee held simply that:
This Court cannot say that Mr. Coury alerted fairly the courts of Tennessee to his contention that a fundamental federal-constitutional guarantee was at issue. Therefore, his motion in both its alternatives hereby is
DENIED. Should the petitioner give timely notice of an appeal from this order and the judgment to be entered herein, Rule 58(1), F.R.Civ.P., such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), F.R. App.P. As the exhaustion of available state remedies, as a matter of law is implicated, such certificate WILL issue. Id.
I
An evidentiary hearing on the merits of the petitioner's application for the federal writ of habeas corpus was conducted on February 22, 1988, limited to his claim that he was convicted of crime by an unfair and partial jury, Constitution, Sixth Amendment, Right to a Fair and Impartial Jury Clause, in violation of his right to the due process of the law, Constitution, Fourteenth Amendment, § 1. Rule 8(a), Rules — § 2254 Cases. From such evidence it hereby is
FOUND that the petitioner did not establish by probative proof his claimed violation of either of his aforestated federal-constitutional rights.
The petitioner Mr. Moses A. Coury is in the custody of the respondent-warden pursuant to the...
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