McBee v. Grant

• Decision Date: 10 June 1985
• Docket Number: No. 83-1754,83-1754
• Citation: 763 F.2d 811
• Parties: Dendalee McBEE, Petitioner-Appellant, v. William F. GRANT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 811

763 F.2d 811

Dendalee McBEE, Petitioner-Appellant, v. William F. GRANT, Respondent-Appellee.

No. 83-1754.

United States Court of Appeals, Sixth Circuit.

Submitted April 10, 1985.

Decided June 10, 1985.

Dendalee H. McBee, pro se.

Frank J. Kelley, Atty. Gen. of Michigan, Thomas C. Nelson, Asst. Atty. Gen., Corrections Div./Criminal Appeal Sec., Lansing, Mich., for respondent-appellee.

Before CONTIE and MILBURN, Circuit Judges, and BROWN, Senior Circuit Judge.

CONTIE, Circuit Judge.

Dendalee McBee appeals the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition. McBee appeared pro se below and continues pro se before this court. We affirm.

I.

The facts relevant to this appeal are undisputed. On January 22, 1971, McBee was convicted of murder in the first degree in a Michigan state court. The state's evidence was chiefly as follows. On August 20, 1970, Larry Sweat was shot and killed while riding in the front seat of an automobile driven by Edward Vanisacker. McBee and Robert Hobbs were in the rear seat. Vanisacker testified that he heard shots while driving, turned his head and saw McBee holding a gun. He testified that McBee then said, "beautiful ... he died nice." Hobbs testified that McBee shot Sweat twice and then said "beautiful ... he didn't squirm." Hobbs also testified that McBee later admitted he had been paid to kill Sweat. Two other witnesses testified that McBee admitted shooting Sweat.

A significant part of McBee's defense was that he was unable to form the specific intent to commit first degree murder due to involuntary intoxication. ¹ He testified that earlier that evening Sweat had given him a beer which had a peculiar taste and that after drinking the beer he began hallucinating. He denied having any memory of the incident. A psychiatrist was called by the defense. He testified that he believed McBee had been suffering from "toxic hallucinosis" at the time of the killing and that McBee had been temporarily unable to understand what was occurring. Lay witnesses offered some corroboration of this defense theory, testifying that they observed McBee acting strangely during the relevant time period. The prosecution also presented psychiatric testimony. Its expert testified that he did not believe McBee had been on hallucinatory drugs at the time of the shooting and that McBee had known what he was doing.

Although no insanity instruction was requested, the trial court did instruct the jury on the defense's theory of a lack of specific intent. In addition, the court gave the usual instructions on the burden of proof and the presumption of innocence. At issue in this appeal are the court's instructions on malice and intent. Although McBee did not object to these instructions at trial, he now argues that they shifted a burden of proof to him in violation of the due process clause of the fourteenth amendment. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

Shortly after giving the malice and intent instructions, the trial judge made the following comment:

At this time I am going to make a comment which is not a part of the instructions and is not binding on you. The comment is this: It is quite easy for any person who is charged with a serious crime to claim that he blacked out and remembers nothing. Now back to the instructions.

McBee's second claim is that this comment by the trial judge on the defense's theory denied him a fair trial.

The procedural history of this case is as follows. McBee first filed a new trial motion, not raising either of the grounds now advanced, on February 22, 1974. On an appeal of right, McBee did raise the issue of improper comment by the trial judge. The Michigan Court of Appeals affirmed the conviction in November 1975. McBee did not seek review of this decision in the Michigan Supreme Court. On July 21, 1977, McBee filed a delayed motion for a new trial. This motion raised both issues presented in this habeas petition. The trial court denied the motion and in January 1978 the Michigan Court of Appeals denied leave to appeal. The Michigan Supreme Court, however, remanded the case to the court of appeals. See People v. McBee, 407 Mich. 939, 291 N.W.2d 927 (1979). Apparently, the Sandstrom issue now raised was then before that court, even though the Michigan Supreme Court referred only to the issues raised in the 1975 appeal when remanding to the court of appeals. See 407 Mich. at 939, 291 N.W.2d 927. Following this remand, the Michigan Court of Appeals again affirmed the conviction. Leave to appeal this last court of appeals decision was denied by the Michigan Supreme Court on October 8, 1982. McBee then filed the instant habeas corpus petition.

The district court held that the cause and prejudice test of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), barred consideration of McBee's Sandstrom claim and that no error of constitutional magnitude occurred in the trial court's comments to the jury on McBee's theory of defense.

II.

The district court found that both of McBee's claims have been exhausted and the respondent does not contest this holding. The claims clearly have been exhausted since they were "fairly presented to the state courts." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). See also Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam); Duckworth v. Serrano, 454 U.S. 1, 100 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam).

Apart from exhaustion, there remains the question of whether McBee's failure to object to the jury instructions precludes him from raising the Sandstrom claim. The rule is, of course, that the failure to abide by a state's contemporaneous objection rule will bar habeas review of the issue absent a showing of cause for the failure to object and actual prejudice flowing from the asserted error. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fornash v. Marshall, 686 F.2d 1179 (6th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983) (applying the cause and prejudice standard in the context of a Sandstrom claim). The cause and prejudice standard is not applied, however, when the state court overlooks the procedural default and instead disposes of the issue on the merits, 99 S.Ct. 2213, 2219-2223, 60 L.Ed.2d 777. See County Court of Ulster v. Allen, 442 U.S. 140, 147-54 (1979); Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.), reh'g denied, 633 F.2d 443 (1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). When a state court disposes of a claim by relying on the procedural default but also discusses the merits, Sykes applies if the procedural default was at least a "substantial basis" for the decision. See Hockenbury, 620 F.2d at 115.

In this case, the Michigan Court of Appeals disposed of McBee's Sandstrom argument with the following language:

The record reflects that the trial judge also gave the jury an unobjected to instruction similar to that condemned by our Supreme Court in People v. Wright.... However, we do not find that the instruction has amounted to reversible error in this case because defendant did not object to the instruction and because the judge appended to it a caution to the jury that the law does not presume a person intends the natural and ordinary consequences of a voluntary action if "the facts and circumstances of the killing or the evidence create a reasonable doubt whether the killing was done without deliberation, premeditation, malice or intent to kill."

Clearly, the state court both relied on procedural grounds and briefly reviewed the merits of McBee's claim. This disposition, in terms of the relative emphasis attached to the procedural default, is strikingly similar to that appearing in Hockenbury, see 620 F.2d at 115, where we held that the procedural default was a substantial basis of the disposition of the claim.

In this case the decision of the Kentucky Supreme Court makes it clear that its denial of petitioner's claim was based, in substantial part, on petitioner's failure to comply with the state's contemporaneous objection requirement.... [T]he Court's review of the merits of petitioner's claim was cursory at best.... The Court did not make a complete analysis on the merits of petitioner's claim, nor did it make a concrete ruling on the effect of the factual distinction that it had noted. Instead it relied on the procedural ground in denying petitioner's claim. Finally, it is aparent that the nature of Kentucky's contemporaneous objection rule required the Court to make a cursory review of the merits of petitioner's claim. As stated, the Kentucky rule precludes appellate review of matters which are not objected to, unless manifest injustice resulted. At least some review of the merits of the defendant's claim must be made in order to determine whether to apply the procedural rule or review the merits on the basis of manifest injustice. Consequently, we conclude that the Kentucky Supreme Court's denial of petitioner's claim was substantially based on the state procedural ground, despite the cursory review of the merits of petitioner's claim.

620 F.2d at 115-16 (footnote omitted). Michigan also has a manifest injustice element in its contemporaneous objection rule ² and, as in Hockenbury, this explains the brief review of the merits of McBee's claim. We reach the same conclusion that the court reached in Hockenbury and hold that the state court's decision was based at least in substantial part on its contemporaneous objection rule. See Hollin v. Sowders, 710 F.2d 264, 267-68 (6th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1300, 79 L.Ed.2d 699 (1984); Jones v. Jago, 701 F.2d 45, 47 n. 2 (6th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 274, 78 L.Ed.2d 255 (1983).

Although a state court's reliance on its contemporaneous objection rule normally triggers the...