Pillette v. Foltz

• Decision Date: 23 July 1987
• Docket Number: No. 86-1245,86-1245
• Citation: 824 F.2d 494
• Parties: Charles E. PILLETTE, Petitioner-Appellant, v. Dale FOLTZ & Frank Kelley, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 494

824 F.2d 494

Charles E. PILLETTE, Petitioner-Appellant, v. Dale FOLTZ & Frank Kelley, Respondents-Appellees.

No. 86-1245.

United States Court of Appeals Sixth Circuit.

Argued June 15, 1987.

Decided July 23, 1987.

Craig W. Haehnel, argued, Haehnel, Orlebeke & Haehnel, Grand Rapids, Mich., for petitioner-appellant.

Jeffrey Caminsky, Asst. Wayne County Prosecutor, Detroit, Mich., for respondents-appellees.

Before KENNEDY and MILBURN, Circuit Judges; and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Petitioner Charles E. Pillette appeals from a district court order dismissing without prejudice his habeas corpus petition for failure to fully exhaust state remedies. Petitioner first argues that he has sufficiently exhausted available state remedies with regard to his claim of ineffective assistance of counsel. He secondly argues in the alternative that even if his state remedies have not been exhausted, he should not be required to pursue them because any further attempt to obtain redress for his claim would be futile. For the reasons which follow, we affirm.

I.

In 1976, petitioner and his codefendant, Scarlet Smith, were charged with several felonies under Michigan law in connection with the death of Smith's three year old daughter, Josette. Petitioner and Smith were each charged with one count of felony murder in the perpetration of a rape, one count of first degree premeditated murder, and two counts of first degree criminal sexual conduct. Petitioner and Smith were tried before two separate juries in a joint trial. At one point during the joint trial, Smith called upon Dr. Ames Robey, a psychiatrist, to testify concerning a prior interview he had with Smith. Although Dr. Robey testified on Smith's behalf, petitioner's jury was not excused. Dr. Robey referred during his testimony to several statements Smith had related to him concerning petitioner's past behavior. ¹ Petitioner's counsel did not object to Dr. Robey's references nor did he request that petitioner's jury be removed during Dr. Robey's testimony.

The jury for petitioner found him guilty of felony murder and guilty of two counts of first degree criminal sexual conduct. Petitioner was sentenced to three concurrent terms of life imprisonment. Petitioner appealed his convictions and on March 19, 1980, the Michigan Court of Appeals set aside the felony murder conviction, reducing the conviction to manslaughter or, at the prosecutor's option, retrial on second degree murder. The court affirmed the criminal sexual conduct convictions. ²

In July of 1982, petitioner filed his pro se habeas petition with the district court pursuant to 28 U.S.C. Sec. 2254. On February 24, 1984, the district court denied the petition and petitioner brought his first timely appeal to this court.

In his appeal, petitioner raised several arguments, including his claims that he was arrested without probable cause, that a confession should have been suppressed as resulting from an illegal arrest, and that he was denied effective assistance of counsel. Petitioner asserted several grounds in support of his ineffective assistance of counsel claim, one of which was his contention that he was prejudiced by counsel's failure either to have petitioner's jury excused during Dr. Robey's testimony or to object to Dr. Robey's references to petitioner. Petitioner believed that Dr. Robey's testimony violated his right to confrontation under the principles set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). At oral argument before this court, it was questioned whether petitioner had presented this specific ineffectiveness claim to the state courts, thereby exhausting his state remedies with regard to the claim. This court subsequently vacated the judgment of the district court and remanded for a determination of whether petitioner had fully exhausted his state remedies with regard to each claim. Pillette v. Foltz, 779 F.2d 52 (6th Cir.1985) (unpublished per curiam).

On remand, the district court limited its inquiry to determining whether petitioner had exhausted available state remedies with regard to his ineffectiveness claim based on Dr. Robey's testimony. The court found that the claim had not been exhausted and therefore petitioner's claim for relief presented a mixed petition involving both exhausted and unexhausted claims. Because the district court could not take cognizance of such a mixed petition under the holding of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the court entered an order on January 21, 1986, dismissing petitioner's habeas petition without prejudice.

Petitioner's federally appointed attorney, Craig Haehnel, wrote a letter to Judge Michael Stacey of the Wayne County Circuit Court in Michigan, explaining the ineffectiveness claim and the problem of nonexhaustion. Haehnel informed Judge Stacey that the district court's disposition would necessitate filing a delayed motion for a new trial before the Wayne County Circuit Court. Because petitioner was indigent and unable to obtain private counsel, Haehnel requested that either himself or another attorney be appointed to represent petitioner in the state courts.

The Wayne County Prosecuting Attorney responded in a letter to Judge Stacey opposing any appointment of state counsel, particularly in light of petitioner's failure to formally move for such appointment. The prosecutor also observed that any further post-conviction review was available only by leave of the court.

On February 5, 1986, Judge Stacey advised Haehnel that the prosecutor's position was valid. Petitioner then filed a pro se motion for appointment of state counsel which Judge Stacey denied on February 19, 1986.

Haehnel thereafter sought a certificate of probable cause from the district court to appeal the court's dismissal order. The court issued the certificate on March 6, 1986, after which this timely appeal was filed.

II.

A state prisoner must exhaust all available state remedies before bringing a habeas petition under 28 U.S.C. Sec. 2254. This generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review. Franklin v. Rose, 811 F.2d 322, 325 (6th Cir.1987); Ferguson v. Knight, 809 F.2d 1239, 1241 (6th Cir.1987). Although the exhaustion requirement is not jurisdictional, it is strictly enforced, Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674 (1984), and if the habeas petition contains any issues which are not exhausted, the entire petition must be dismissed. Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982). Although there is a strong presumption in favor of requiring state prisoners to pursue all available state remedies with regard to each and every claim, there are also limited circumstances under which the failure to do so will not act as a complete bar to federal habeas review. Granberry v. Greer, --- U.S. ----, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). Granberry involved the situation where a petitioner asserts a claim before the district court which he arguably has not exhausted, but the state fails to raise nonexhaustion as a defense until the case reaches the court of appeals. Under those circumstances, the court of appeals should "take a fresh look at the issue [and] determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim." 107 S.Ct. at 1675.

Petitioner contends that he has sufficiently exhausted his claim that he was denied effective assistance of counsel because his attorney failed to object to Dr. Robey's testimony or request to have petitioner's jury removed during the testimony. ³ 3] Petitioner refers the court to his original state appeal to the Michigan Court of Appeals, where his counsel moved to remand the case for an evidentiary hearing "to adequately explore the representation afforded defendant-appellant by trial counsel." In petitioner's view, if such a hearing had been held, any problem concerning Dr. Robey's testimony and trial counsel's failure to recognize it as a problem would have been discovered. Petitioner also relies on two prior Sixth Circuit decisions, Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir.), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981), and Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir.1978).

Wiley involved the situation where a petitioner fails to preserve a claim before the state trial court, presents it to the state supreme court, but the state supreme court declines to address the merits of the claim. Under those circumstances, this court held that the claim was "fairly presented" to the state courts as required by the exhaustion requirement, that the state appellate court was obligated to examine the claim on its merits, and that the state court's failure to do so did not undermine the exhausted nature of the claim. 647 F.2d at 646-47. Accordingly, this court concluded that the petitioner's exhausted claim was properly before this court in a habeas proceeding.

In Rachel, the petitioner's trial counsel had failed to properly object to improper closing remarks made by the state prosecutor in compliance with the state's contemporaneous objection...