LUKITY v. ELO

Full title: Anthony Lukity, Petitioner, v. Frank Elo, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Oct 10, 2000

Civil No. 99-CV-74849-DT (E.D. Mich. Oct. 10, 2000)

Opinion

Civil No. 99-CV-74849-DT

October 10, 2000

OPINION AND ORDER OF SUMMARY DISMISSAL

Honorable John Corbett O'Meara, United States District Judge

I. INTRODUCTION

Chris Anthony Lukity, ("petitioner"), presently confined at the Mound Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction on one count of criminal sexual conduct, first-degree, M.C.L.A. 750.520b(1)(b); M.S.A. 28.788(2)(I)(b). For the reasons stated below, the petition is DISMISSED WITHOUT PREJUDICE.

II. BACKGROUND

Petitioner was convicted of the above offense following a jury trial in the Macomb County Circuit Court. The Michigan Court of Appeals reversed petitioner's conviction, finding that several nonconstitutional errors had occurred in petitioner's case and that the errors were not harmless. People v. Lukity, 179955 (Mich.Ct.App. October 3, 1997). The prosecutor appealed to the Michigan Supreme Court, which reversed the judgment of the Michigan Court of Appeals and reinstated the conviction. People v. Lukity, 460 Mich. 484; 596 N.W.2d 607 (1999). Petitioner has now filed an application for a writ of habeas corpus, seeking relief on the following six grounds:

I. Deprivation of a liberty interest without due process, whereby the trial court abused its discretion and the petitioner was denied fundamental due process and a fair trial when the prosecution witnesses were allowed to testify regarding their opinion and understanding of the character/reputation of the alleged victim for truthfulness and honesty before she or any other witness even testified concerning the CSC-I allegation in this case.

II. Deprivation of a liberty interest, whereby petitioner was denied fundamental due process and a fair trial by the trial court's permitting the prosecutor to introduce other bad acts evidence and/or the prosecutor's failure to provide the required pre-trial notice of its intent to introduce other bad acts evidence at petitioner's trial.

III. Deprivation of a liberty interest, whereby the prosecutor's improper conduct in this case irreparably prejudiced petitioner Lukity and shifted the burden of proof to petitioner, denying him fundamental due process and a fair trial.

IV. Deprivation of a liberty interest, whereby the trial court abused its discretion and denied petitioner fundamental due process and a fair trial by allowing improper and prejudicial "expert" opinion testimony in this case.

V. Deprivation of a liberty interest without due process, whereby petitioner was denied effective assistance of counsel in this case.

VI. Deprivation of a liberty interest without due process, whereby petitioner was denied fundamental due process and a fair trial by each individual error noted herein and/or the cumulative effect of such errors.

III. DISCUSSION

The petition for writ of habeas corpus must be dismissed without prejudice because petitioner failed to exhaust Claims I, II, and IV by raising them each as a federal constitutional claim in the Michigan courts, relying instead solely on Michigan case law and evidentiary rules to support his claims.

As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254 (b) and (c); Picard v. Connor, 404 U.S. 270, 275-278 (1971); Hannah v. Conley, 49 F.3d 1193, 1195 (6th Cir. 1995). Federal courts will not review a habeas corpus petition when a state prisoner has not first presented his or her claims to the state courts and exhausted all state court remedies available to him or her. Rogers v. Howes, 144 F.3d 990, 992 (6^th Cir. 1998). The AEDPA (Antiterrorism and Effective Death Penalty Act) preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has failed to do so. Welch v. Burke, 49 F. Supp.2d 992, 998 (E.D. Mich. 1999)(Cleland, J.).

In the present case, respondent contends that claims I, II, and IV have not been properly exhausted because they were not presented to the state courts as federal constitutional claims. The exhaustion requirement requires that a federal habeas petitioner fairly present the substance of each federal constitutional claim to state courts using citations to the United States Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns. Levine v. Torvik, 986 F.2d 1506, 1516 (6^th Cir. 1993); Matthews v. Abramajys, 92 F. Supp.2d 615, 627 (E.D. Mich. 2000)(Tarnow, J.). In order to exhaust state court remedies, a habeas petitioner must present his or her 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 (6^th Cir. 1984) (cites omitted). It is not enough that all the facts necessary to support the federal claim were presented to the state courts, or that a somewhat similar state law claim was made. Anderson v. Harless, 459 U.S. 4, 6 (1982). The doctrine of exhaustion requires that the same claim under the same theory be presented to the state courts before raising it in a federal habeas petition. Pillette v. Foltz, 824 F.2d at 497. The mere similarity of claims between the state appeals and the federal habeas petition is insufficient for exhaustion purposes. Duncan v. Henry, 513 U.S. 364, 366 (1995). For purposes of the exhaustion rule, a claim in state court based on a state evidentiary rule is insufficient to alert a state court of a claim alleging that the evidentiary error amounted to a violation of the due process clause under the U.S. Constitution. Jamison v. Collins, 100 F. Supp.2d 521, 580 (S.D. Ohio 1998).

In the present case, the Michigan Court of Appeals reversed petitioner's convictions on the basis of the errors asserted in petitioner's Claims I, II, and IV. However, a review of petitioner's brief on appeal to the Michigan Court of Appeals, as well as the brief filed in response to the prosecutor's appeal in the Michigan Supreme Court, demonstrates that petitioner raised these issues solely as state law claims. Petitioner did not cite to any provisions of the federal constitution, nor did he cite to any federal decisions to support his arguments. In fact, in reversing petitioner's conviction, the Michigan Court of Appeals found that the errors in this case were "preserved, nonconstitutional error". People v. Lukity, Slip. Op. at * 6. In reinstating petitioner's conviction, the Michigan Supreme Court concluded that petitioner's nonconstitutional error was not grounds for reversal under Michigan's harmless error statute because petitioner had failed to prove that it was more probable than not that a different outcome would have resulted without the error. People v. Lukity, 460 Mich. at 491-497, citing to M.C.L.A. 769.26; M.S.A. 28.1096. The Michigan Supreme Court noted, however, that this harmless error statute would not apply to preserved, constitutional error. Id. at 495, fn. 3. It is clear that the claims raised by petitioner were raised by and considered as state law claims, as opposed to federal constitutional issues.

The only possible references to any federal law are in the headings of petitioner's three claims, in which petitioner indicated that the trial court's evidentiary rulings denied petitioner fundamental due process and a fair trial. As the respondent correctly points out, these brief references are insufficient to exhaust these claims for purposes of federal habeas review. General appeals to broad constitutional principles, such as due process, equal protection, or the right to a fair trial, are insufficient to establish the exhaustion of federal claims, for purposes of habeas review. Hiivala v. Wood, 195 F.3d 1098, 1106 (9^th Cir. 1999) (citing to Gray v. Netherland, 518 U.S. 152, 162-163 (1996)); See also Alley v. Bell, 101 F. Supp.2d 588, 613 (W.D. Tenn. 2000) (to exhaust state remedies, it is not enough for a petitioner to make a general appeal to a constitutional guarantee as broad as due process); Edkins v. Travis, 969 F. Supp. 139, 142 (W.D.N Y 1997)(petitioner's reference in his state appellate brief to "denial of a fair trial" was insufficient to alert state appellate court of his federal constitutional claim and, thus, was insufficient to fulfill exhaustion requirement). It is not enough to scatter the words "due process" in a brief; counsel must sketch an argument about why the conviction violates that clause. "Due process" is such a `ductile concept' that such phrase-dropping is the equivalent of no argument at all. Riggins v. McGinnis, 50 F.3d 492, 494 (7^th Cir. 1995)( citing to United States v. Agurs, 427 U.S. 97, 106-107 (1976)). A lawyer need not develop a constitutional argument at length, but he must make one; the words "due process" are not an argument. Riggins, 50 F.3d at 494.

In the present case, petitioner's brief reference in the headings of his appeals brief that the errors complained of violated due process and his right to a fair trial were insufficient to put the state courts on notice that petitioner was alleging that his federal constitutional rights had been violated. The Michigan appellate courts perceived petitioner's argument as one resting on state law and addressed it that way and did not perceive any constitutional implications in petitioner's contentions, Riggins, 50 F.3d at 494. This Court concludes that petitioner has failed to properly exhaust Claims I, II, and IV by presenting them to the Michigan courts as federal constitutional claims.

A habeas petition containing both exhausted and unexhausted claims must be dismissed in its entirety. Nasr v. Stegall, 978 F. Supp. 714, 716 (E.D. Mich. 1997) (Zatkoff J.). A federal habeas petitioner has failed to exhaust his claims if he or she seeks to raise issues that have not been considered by the state court but for which state court remedies remain available. Hannah v. Conley, 49 F.3d at 1195; United States ex. rel. Drain v. Washington, 52 F. Supp.2d 856, 863 (N.D. Ill. 1999). Exhaustion is a problem, however, only if the state still provides a remedy for the habeas petitioner to pursue, thus providing the state courts an opportunity to correct a constitutionally infirm state court conviction. Rust v. Zent, 17 F.3d 155, 160 (6^th Cir. 1994). If no state procedure remains available, the federal habeas court must treat the issue as a procedural default and petitioner will not be allowed to raise a new claim unless he can show cause to excuse his failure to present this claim in an appropriate manner to the state courts and actual prejudice to his defense at trial or on appeal. Id.; see also Coleman v. Thompson, 501 U.S. 722, 735 fn. 1 (1991).

Respondent contends that petitioner's claims are procedurally defaulted because he no longer has a procedure available under Michigan law to present these issues as federal constitutional claims. While acknowledging that Michigan provides a procedure for postconviction relief, respondent notes that M.C.R. 6.508 (D)(2) indicates that a state court may not consider grounds for relief in a post-conviction motion that have already been decided against a defendant in a prior appeal. Respondent therefore argues that petitioner would be precluded under M.C.R. 6.508 (D)(2) from raising these claims again as federal constitutional issues in the Michigan courts because he would simply be attempting to raise these claims again using a new legal argument.

While respondent's arguments may have merit, the Court is not prepared to procedurally default petitioner in lieu of dismissing the petition without prejudice. Respondent has cited to no Michigan cases in support of his argument that the Michigan courts would not consider petitioner's claims if they were raised anew as federal issues, nor has this Court been able to find any. The somewhat unsettled state law with respect to remedies that might be available to a petitioner is a factor to consider in deciding whether a federal court should proceed on the merits of a petition rather than require a petitioner to exhaust state court remedies. Burkett v. Love, 89 F.3d 135, 142 (3^rd Cir. 1996). However, clarification of this issue by the state courts is highly desirable and counsels in favor of the exhaustion of state court remedies rather than a resolution on the merits. Id. Given the inability to conclude that there is an absence of available state corrective procedures, the principles of federal-state comity dictated by the exhaustion doctrine compel this Court to defer to the State of Michigan to interpret its own postconviction statute. See Rivers v. Martin, 484 F. Supp. 162, 165 (W.D. Va. 1980). This Court will therefore resolve any doubts concerning the availability of state corrective processes against exhaustion. Id. Because it is unclear whether the state courts would be willing to consider these claims as new grounds for relief when raised as federal constitutional claims rather than nonconstitutional state law errors, this Court will resolve any doubts concerning the availability of Michigan's postconviction relief statute against exhaustion.¹

1 Petitioner's method of properly exhausting these claims in the state courts would be through filing a motion for relief from judgment with the Macomb County Circuit Court under M.C.R. 6.502. A trial court is authorized to appoint counsel for petitioner, seek a response from the prosecutor, expand the record, permit oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508(B) and (C). Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. at 717.

Because petitioner has failed to raise all of his habeas claims as federal constitutional issues in state court, the petition is subject to dismissal as a mixed petition containing both exhausted and unexhausted claims. Welch v. Burke, 49 F. Supp.2d at 998.²

2 Given this Court's conclusion that petitioner has failed to exhaust these three claims, it is unnecessary to address respondent's argument that petitioner's remaining three claims are unexhausted because he failed to cross-appeal the Michigan Court of Appeals' decision affirming these other three claims at the time that the State of Michigan appealed the Michigan Court of Appeals' decision to the Michigan Supreme Court. The Court notes that although petitioner did not cross-appeal the Michigan Court of Appeals' decision, he did include all six claims in his appellee's brief to the Michigan Supreme Court. Respondent has not cited any case law in support of his argument that petitioner did not fairly present these remaining claims to the Michigan Supreme Court when he failed to cross appeal, and thus, the Court considers this argument to be waived. See United States ex. rel. Hindi v. Warden of McHenry County Jail, 82 F. Supp.2d 879, 883 (N.D. Ill. 2000) (argument for which respondent in habeas proceeding cited no supporting case law was waived and would not be addressed by district court).

IV. CONCLUSION

The Court concludes that petitioner did not exhaust state remedies for all his claims, and that he has an available state remedy. The Court DISMISSES the petition WITHOUT PREJUDICE to petitioner's right to renew his petition after presenting his first, second and fourth claims as federal constitutional issues at all levels of state court review or aft ending and resubmitting his habeas petition with only exhausted claims III, V and VI.