Prather v. Rees, 85-6124

• Decision Date: 19 August 1987
• Docket Number: No. 85-6124,85-6124
• Parties: Robert A. PRATHER, Petitioner-Appellant, v. John REES, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1418

822 F.2d 1418

Robert A. PRATHER, Petitioner-Appellant, v. John REES, Warden, Respondent-Appellee.

No. 85-6124.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 17, 1986.

Decided July 6, 1987.

Rehearing and Rehearing En Banc Denied Aug. 19, 1987.

Andrew T. Coiner (argued), Lexington, Ky., for petitioner-appellant.

David Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., David Smith (argued) Kay Winebrenner, for respondent-appellee.

Before NELSON and RYAN, Circuit Judges, and ENSLEN, District Judge. ^*

RYAN, Circuit Judge.

Petitioner appeals the district court's judgment denying him habeas corpus relief. A jury convicted Prather of attempted armed robbery. He now contends that the Kentucky trial court denied him a fair trial because: (1) the judge refused to instruct the jury on the lesser-included offense of attempted second-degree robbery; and (2) the judge refused to instruct the jury on the defense of entrapment. We affirm.

Prather got in touch with John Henon, who happened to be a paid police informant, and asked Henon if he wished to help Prather rob a van which would be carrying about $50,000 of the Executive Inn's money to the bank. Prather had obtained a blueprint of the Inn and formulated a plan for hijacking the van while it was in the parking lot of the Inn. According to the plan, Prather and Henon would jump the guards, drive the van into the country, kill the guards and split the cash. Prather was to perform the robbery and killings, while Henon drove. Henon amended the plan to eliminate killing the guards.

Henon contacted the police who told him to "lay low" and get more information. Henon met with Prather again, and they "cased the joint." Later, Prather obtained a sawed-off shotgun. Henon took the gun to the police, who filed down the firing pin, making the gun inoperable; they also loaded it with blanks. Prather divulged more details of the plan to Henon, who relayed the information to the police. On the morning of the crime, Henon put the gun in the trunk of the car, awoke Prather, and drove him to the Inn. At the Inn, Henon unlocked the trunk and gave the gun to Prather. Prather placed the gun on the floor of the car, unloaded.

Two undercover police officers replaced the drivers of the van; they entered the van, and proceeded towards the bank. However, they left the parking lot early, foiling Prather's original plan. Prather and Henon followed the van, looking for an opportunity to rob it. Another van filled with police officers followed them. Because the police were fearful that Prather may have obtained another gun, when the vehicles stopped for a red light they moved in and arrested Prather. The shotgun was under Prather's feet, on the floor of the car.

At trial, Prather's attorney submitted requested jury instructions on attempted second-degree robbery and entrapment. He argued that the jury instruction on attempted second-degree robbery was necessary because the gun was inoperable and the jury could find Prather was not armed with a deadly weapon. The court declined to give either instruction.

Prather was convicted of attempted armed robbery and appealed. The Kentucky Court of Appeals found insufficient evidence to convict, and reversed the trial court's denial of directed verdict. The Court of Appeals concluded that Prather committed no "substantial step" toward commission of the crime. It did not address the jury instruction issues that Prather raises here. The Kentucky Supreme Court reversed the Court of Appeals and affirmed the judgment of the trial court. In the state's appeal to the Kentucky Supreme Court, Prather, as appellee, argued that the Court of Appeals correctly decided that the evidence was insufficient to prove guilt, and then noted that if the Supreme Court should disagree, it should remand to the Court of Appeals for consideration of three other unidentified issues the Court of Appeals failed to address. Prather later argued, in a supplemental brief, that the Supreme Court could not reverse the Court of Appeals' decision because of double jeopardy. The Supreme Court found that the evidence sufficiently established that Prather committed a substantial step toward commission of an armed robbery, and that the double jeopardy argument was meritless. ¹

Prather states in his brief that both jury instruction issues raised here were raised in the Kentucky appellate courts but were not addressed by those courts. The state does not controvert this claim by Prather. Upon review of Prather's brief before the Kentucky Supreme Court, we find no reference to the issues he now raises.

I. Exhaustion

Although the state has not raised the issue, we must initially determine whether Prather has exhausted his claims in the state courts. Parker v. Rose, 728 F.2d 392, 394 (6th Cir.1984). Although this court has the discretionary power to do so, it ordinarily will not review state court proceedings under a habeas corpus petition unless the defendant has exhausted his claims before the state courts. ² Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations. 28 U.S.C. Sec. 2254(b); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). Defendant exhausts his claim if he has fairly presented the substance of his claim to the highest court in the state. Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir.1984). ³

We find two potential exhaustion issues: whether Prather fairly presented the substance of his constitutional claim to the state courts, and whether his grounds for asserting that the lesser-included offense jury instructions were necessary, are the same now as they were when he presented them to the state courts.

A.

The first issue, whether Prather fairly presented the substance of his constitutional claims to the state courts, encompasses two sub-issues. The first of them derives from the fact that Prather never raised either of the jury instruction issues before the Kentucky Supreme Court. The Kentucky Supreme Court stated that Prather properly raised only two issues in defense of the Court of Appeals' judgment insufficiency of the evidence and double jeopardy. Since these are the only issues Prather raised in the brief before the Kentucky Supreme Court, Prather has not exhausted his claims before the state supreme court, and ordinarily we would not, therefore, entertain his habeas petition. Next, even if defendant had raised the jury instruction issues in the state supreme court in order to exhaust those claims, he was required to raise them as constitutional issues, not as issues of state law. At trial, Prather merely argued that the instructions were proper as a matter of state law. Consequently, he did not exhaust his claims. "[T]he habeas petitioner must present his claim to the state courts as a federal constitutional issue--not merely as an issue arising under state law." Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.1984). See also United States v. Fairman, 707 F.2d 936, 940-41 (7th Cir.1983), where defendant raised his claim in the state court as a state evidence-law question, and the Seventh Circuit held that the federal constitutional violation allegedly caused by the trial court's disposition of the state evidence-law question was not exhausted. See also Dougan v. Ponte, 727 F.2d 199 (1st Cir.1984). ⁴

B.

The second "exhaustion" issue relates to whether Prather has changed the grounds of his claim that the trial court violated his rights by not issuing the lesser-included offense jury instruction. Again, Prather must have raised the claimed constitutional violation in the state courts. At the time of trial, Prather argued that the lesser-included offense jury instruction was proper because the jury could rationally find that he was not armed with a deadly weapon because the weapon was inoperable. In his habeas petition, Prather argues that the instruction was necessary because the jury could find he was not armed with a deadly weapon because he never armed himself with the shotgun the morning he attempted the crime. If the difference between these contentions is a difference in legal theory, Prather did not exhaust his claim in the state courts. And if Prather exhausted one of his claims but did not exhaust the other, the court would ordinarily dismiss the whole petition as a "mixed petition." Haggins v. Warden, 715 F.2d 1050 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984). But if the difference is merely a variation in the legal theory, rather than a different legal claim, he has exhausted his claim. Fairman, 707 F.2d at 940; Macon v. Lash, 458 F.2d 942, 948 (7th Cir.1972).

C.

Although the statutes and case law require exhaustion, exhaustion raises only federal-state comity concerns and is not a jurisdictional limitation on the power of the court. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); Duckworth, 454 U.S. at 4, 102 S.Ct. at 19-20; Schwartzmiller, 752 F.2d at 1344; Parker v. Turner, 626 F.2d 1 (6th Cir.1980). Therefore, this court can ignore the exhaustion requirement, and in its discretion reach the merits of the petitioner's claim. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Granberry, 481 U.S. at ----, 107 S.Ct. at 1673, 95 L.Ed.2d 119 (1987).

The state attorney general has not addressed the exhaustion issue in this case, and has actually conceded the issue at trial. Several courts have held that when the state fails to raise exhaustion, it has waived it. Bradburn v. McCotter, 786 F.2d 627, 629 (5th Cir.1986); Pennington v. Spears, 779 F.2d 1505, 1506 (11th Cir.1986); Praylow v. Martin, 761 F.2d 179, 182 n. 2 (4th Cir.1985), cert. denied, 474 U.S. 1009 106 S.Ct. 535, 88 L.Ed.2d 466 (1985); Walker v. Lockhart, 763 F.2d 942, 955-56 n. 26 (8th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3332, 92 L.Ed.2d 738 (1986). Other courts have noted that the...