Ferguson v. Knight

• Decision Date: 11 March 1987
• Docket Number: No. 85-5726,85-5726
• Citation: 809 F.2d 1239
• Parties: Algar FERGUSON, Petitioner-Appellant, v. Judge James A. KNIGHT, and David L. Armstrong, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1239

809 F.2d 1239

Algar FERGUSON, Petitioner-Appellant, v. Judge James A. KNIGHT, and David L. Armstrong, Respondents-Appellees.

No. 85-5726.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 18, 1986.

Decided Jan. 27, 1987.

Rehearing and Rehearing En Banc Denied March 11, 1987.

Joseph R. Johnson (argued), Office of the Atty. Gen., Frankfort, Ky., for respondents-appellees.

Eldred E. Adams, Jr. (argued), Louise, Ky., for petitioner-appellant.

Before MERRITT, JONES and NELSON, Circuit Judges.

PER CURIAM, ON APPELLEES' PETITION FOR REHEARING.

Twice convicted in state court on charges of trafficking in marijuana, petitioner Ferguson sought federal habeas corpus relief in respect of his second conviction. We initially affirmed the denial of habeas relief, as reported at 792 F.2d 581, holding that under the test applied in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), there was sufficient evidence for a rational jury to find the requisite intent to "traffic" in the marijuana discovered with Mr. Ferguson at the time of his arrest. We thought it significant, in this connection, that Mr. Ferguson had pleaded guilty to another trafficking charge only four months earlier.

Mr. Ferguson petitioned for rehearing, and in a decision reported at 797 F.2d 289 we vacated our initial decision and held that habeas relief should have been granted on the strength of Dawson v. Cowan, 531 F.2d 1374 (6th Cir.1976). (Dawson held that in a trial for rape it was plain error of constitutional magnitude for a Kentucky trial court to admit evidence of a prior rape conviction, under the state's habitual offender statute, without giving an appropriate limiting instruction. Notwithstanding the defendant's failure to request such an instruction at the time of trial, the error was held to require the granting of federal habeas relief.) Mr. Ferguson had made no similar argument in this case, had not cited Dawson to us, and--unlike the petitioner in Dawson, as we gather from the fact that there had been a state court appeal presenting the issue of ineffective assistance of counsel in that case--Mr. Ferguson had made no attempt to present a claim of instructional error to the state courts.

A petition for rehearing of our second decision has been filed by the appellees, and upon reconsideration we have concluded we were in error in thinking ourselves bound by Dawson. The judgment affirming the district court's denial of habeas relief will therefore be reinstated.

* * * The statute that authorizes federal courts to entertain applications for writs of habeas corpus in behalf of state prisoners whose incarceration is claimed to be in violation of the United States Constitution provides that no such application shall be granted

"... unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. Sec. 2254(b).

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), a case decided six years after Dawson, this statute was held to embody a "total exhaustion" rule. That rule requires dismissal of federal habeas petitions that assert multiple claims not all of which were previously presented in state court. "A rigorously enforced total exhaustion rule," the Supreme Court noted, would "encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error." Id. at 518-19, 102 S.Ct. at 1203. To deny state courts that opportunity would be "unseemly," the Supreme Court suggested, given the doctrine of comity which obtains in our dual system of government. Id. at 518, 102 S.Ct. at 1203, quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950).

If Mr. Ferguson had claimed, in his petition for habeas corpus, that he was entitled to habeas relief because of the state trial court's failure to give an unrequested limiting instruction as to the earlier trafficking conviction, Rose v. Lundy would seem on its face to require dismissal of the petition, no such claim ever having been presented to the state courts. A claim cannot be "exhausted," strictly speaking, without its substance having been "fairly presented" to the state court. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). "The state courts must be provided with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon the petitioner's constitutional claim." Sampson v. Love, 782 F.2d 53, 55 (6th Cir.1986) (emphasis supplied). And as we pointed out in Haggins v. Warden, 715 F.2d 1050, 1054 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984), citing Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), "[a] claim is not 'fairly presented' merely because all of the facts necessary to support the federal claim were before the state court or because the constitutional claim seems self-evident."

The federal habeas statute also provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. Sec. 2254(c). Turning this provision on its head, Mr. Ferguson might conceivably argue that he has "exhausted" the Dawson claim--even though that claim was never presented to the Kentucky courts--if Kentucky law now forecloses him from presenting the claim under the state's collateral attack procedures. See Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985), where we suggested that "no exhaustion problem" existed, as to an issue not presented to the Ohio courts, because the habeas petitioner's failure to raise that issue on direct appeal had foreclosed him, under Ohio law, from litigating the issue in collateral state court proceedings.

Kentucky, like Ohio, makes provision for collateral attacks on criminal convictions (see Kentucky Rules of Criminal Procedure (hereinafter cited as "RCr") 11.42 and Kentucky Revised Statutes Sec. 419.020), but it is not entirely clear to us whether the Kentucky courts would entertain a collateral attack on Mr. Ferguson's conviction based on the trial court's failure to give an unrequested jury instruction. On the one hand, RCr 9.54(2) says that:

"No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion...."

On the other hand, RCr 10.26 says that:

"A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."

In Bell v. Commonwealth, 566 S.W.2d 785 (Ky.App.1978), a Kentucky Court of Appeals applied the former provision in a direct appeal situation where the appellant explicitly relied on Dawson v. Cowan, 531 F.2d 1374, supra. It was the appellant's contention on appeal in Bell that the Kentucky trial court had committed error of constitutional magnitude in failing to give an unrequested limiting instruction on the significance of a prior misdemeanor conviction of which the jury had been informed for enhancement-of-penalty purposes. Flatly refusing to apply Dawson v. Cowan, which arguably had roots in the Kentucky law as it existed prior to adoption of subsection (2) of RCr 9.54, the Kentucky court stated:

"The present law in Kentucky requires the parties to make an objection, or otherwise that objection is waived. We do not find the alleged error to be so clear, prejudicial or reversible that it could not be waived under all of the circumstances in this misdemeanor conviction." 566 S.W.2d at 788.

The case at bar involves a felony conviction, to be sure, and not a misdemeanor conviction, but the tone of Bell hardly suggests that the Kentucky courts would be likely to entertain a Dawson claim presented by Mr. Ferguson. The fact that such a claim would now have to be advanced in a collateral proceeding, as opposed to a direct appeal, makes the prospects for its acceptance even dimmer. We cannot be certain of how the Kentucky courts would react to a Dawson-based collateral attack on Mr. Ferguson's conviction, however, unless and until such an attack is actually made in the Kentucky courts.

As far as our disposition of the matter before us is concerned, we think it is immaterial whether Kentucky law would or would not treat Mr. Ferguson's failure to request a limiting instruction as an insurmountable procedural bar to state court relief. If no such procedural bar exists, Mr. Ferguson must be denied federal habeas relief because of his failure to exhaust his state remedy. If the procedural bar does exist, he must be denied habeas relief because of his manifest inability to meet the "cause and prejudice" test applied by the United States Supreme Court in cases such as Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), Murray v. Carrier, 477 U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and Smith v. Murray, 477 U.S. ----, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

Except in the extraordinary case "where a constitutional violation has probably resulted in the conviction of one who is actually innocent," Murray v. Carrier, supra, 477 U.S. at ----, 106 S.Ct. at 2650, 91 L. Ed.2d at 413, these post-Dawson Supreme Court decisions teach that a federal habeas court may not set aside a...