Harless v. Anderson, 81-1145

Decision Date24 November 1981
Docket NumberNo. 81-1145,81-1145
Citation664 F.2d 610
PartiesJack E. HARLESS, Petitioner-Appellee, v. Charles E. ANDERSON, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Frank J. Kelley, Atty. Gen. of Mich., Thomas L. Casey, Stephen Schuesler, Asst. Attys. Gen., Lansing, Mich., for respondent-appellant.

Jack E. Harless, William Burnham, Detroit, Mich., for petitioner-appellee.

Before MERRITT and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Respondent Anderson, Warden of the Southern Michigan State Prison, appeals an order conditionally granting habeas relief to petitioner Harless, unless the State should retry him within ninety days. On June 12, 1975, Harless was convicted by a Detroit Recorder's Court jury of two counts of first degree murder. Harless received a mandatory life sentence with no possibility of parole. Harless then appealed to the Michigan Court of Appeals, which affirmed his conviction in People v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977). On June 21, 1979, the Michigan Supreme Court reviewed the Court of Appeals record and denied Harless' request for relief.

Harless petitioned the District Court on February 29, 1980, for a writ of habeas corpus, alleging that a jury instruction on malice denied him due process by creating a conclusive presumption on an issue that the State must prove. On January 8, 1981, the District Court, 504 F.Supp. 1135, granted a conditional writ, concluding that Harless had exhausted available state remedies, and that the malice instruction denied Harless due process. Harless is currently out on bond.

Respondent now appeals, contending that the District Court erred by: 1) finding that Harless exhausted available state remedies; and 2) concluding that the malice instruction was an improper conclusive presumption. We reject both of respondent's contentions and therefore affirm the District Court's judgment.

In our view, Harless adequately exhausted available state remedies for purposes of 28 U.S.C. §§ 2254(b) and (c). The respondent concedes that Harless presented to the state appellate courts all the facts on which he based his federal constitutional claim. Respondent contends, however, that the state courts had no opportunity to correct the constitutional error, because Harless did not explicitly complain to the state courts that the malice instruction denied him due process.

Although we do not have before us Harless' state appellate papers, we learn from the Michigan Court of Appeals opinion the substance of Harless' contention before that court: "The trial court committed reversible error by instructing the jury incorrectly on the implication (sic) of malice that might be drawn from defendant's use of a deadly weapon, the effect of which was to remove the possible finding of manslaughter." People v. Harless, 261 N.W.2d 41, 43 (1977) (emphasis added). At Harless' trial the court gave the following definition of malice to the jury:

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. (emphasis added).

Harless claimed on appeal that this instruction was reversible error under People v. Martin, 392 Mich. 553, 221 N.W.2d 336 (1974), a case holding that the law does not imply malice from the use of a deadly weapon. In Martin, appellant challenged his murder conviction on numerous state and constitutional grounds. The gist of Martin's appeal was that he was denied a fair trial because certain instructions failed to provide the jury with sufficient understanding of the elements of the crimes charged, to enable them to perceive the crucial distinctions between first and second degree murder, and manslaughter. In particular, Martin challenged a malice instruction through which the jury was informed that the law implies malice from the use of a deadly weapon. The Court of Appeals ultimately decided as a matter of state law that the malice instruction "erroneously categorized (the...

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15 cases
  • Darden v. Wainwright
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 22, 1984
    ...views the exhaustion requirement is also evident from Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), rev'g 664 F.2d 610 (6th Cir.1982), where the Court granted certiorari and reversed on exhaustion alone. See 459 U.S. at 8, 103 S.Ct. at 280 (Stevens, J., joined by Bren......
  • Daye v. Attorney General of State of New York
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 9, 1982
    ...is, the message does not seem to be having the desired effect on the lower courts. Anderson v. Harless, supra, reversed Harless v. Anderson, 664 F.2d 610 (6th Cir.1981), one of the cases upon which my colleagues originally relied. However, my colleagues now dismiss the Supreme Court's rever......
  • Johnston v. Love
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 22, 1996
    ...his due process challenge to the ... instruction for habeas exhaustion purposes." Id. at 6, 103 S.Ct. at 277 (quoting Harless v. Anderson, 664 F.2d 610, 612 (6th Cir.1981)). In reversing the court of appeals, the Court stated "it is plain from the record that this constitutional argument wa......
  • Bush v. Stephenson
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • August 13, 1986
    ...707 F.2d 241 (6th Cir.1983), affirmed by an equally divided court, 466 U.S. 1, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984); Harless v. Anderson, 664 F.2d 610 (6th Cir.1981), rev'd on other grounds, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982). See also Rook v. Rice, 783 F.2d 401, 405 (4th Cir.),......
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