Respondent was convicted of first-degree murder after a jury
trial in a Michigan state court, and the Michigan Court of Appeals
affirmed. The Michigan Supreme Court, on review of the record,
denied relief. Respondent then obtained habeas corpus relief in
Federal District Court, which held that the trial court's jury
instruction allowing malice to be implied from the fact that a
weapon was used unconstitutionally shifted the burden of proof to
respondent and was inconsistent with the presumption of innocence.
The District Court also held that respondent had exhausted
available state court remedies, as required by 28 U.S.C. § 2254.
The Federal Court of Appeals affirmed, holding that the exhaustion
requirement was met because respondent had presented to the
Michigan Court of Appeals the facts on which he based his federal
claim, had argued that the malice instruction was "reversible
error," and had cited
People v. Martin, 392 Mich. 553, 221
N.W.2d 33, -- a decision predicated solely on state law, but in
which the defendant had argued broadly that failure to properly
instruct a jury violates the Sixth and Fourteenth Amendments.
Held: The requirement under 28 U.S.C. § 2254 that the
state courts must have been provided a "fair opportunity" to apply
controlling legal principles to the facts bearing upon the federal
habeas petitioner's constitutional claim was not met here. The
"substance" of respondent's federal habeas corpus claim was not
fairly presented to the state courts so as to meet § 2254's
exhaustion requirement. The Michigan Court of Appeals interpreted
respondent's claim as being predicated on the state law rule of
Martin, supra, that malice should not be implied from the
fact that a weapon was used, and the record shows that respondent's
constitutional argument was never presented to, or considered by,
the Michigan courts.
Certiorari granted; 664 F.2d 610, reversed and remanded.
PER CURIAM.
Respondent was convicted of two counts of first-degree murder
and was sentenced to life imprisonment. The Michigan Court of
Appeals affirmed respondent's conviction,
People
Page 459 U. S. 5
v. Harless, 78 Mich.App. 745, 261 N.W.2d 41 (1977), and
the Michigan Supreme Court, on review of the record, denied
respondent's request for relief. App. to Pet. for Cert. 30a.
Respondent then filed a petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, in the United States District Court
for the Eastern District of Michigan. He alleged,
inter
alia, that the trial court's instruction on "malice" -- a
crucial element in distinguishing between second-degree murder and
manslaughter under Michigan law -- was unconstitutional. [
Footnote 1] In particular, respondent
focused on the following language from the trial court's lengthy
charge:
"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."
App. to Pet. for Cert. 59a.
Relying primarily on
Sandstrom v. Montana, 442 U.
S. 510 (1979), the District Court held that this
instruction unconstitutionally shifted the burden of proof to
respondent and was inconsistent with the presumption of innocence.
504 F.
Supp. 1135 (1981). The court also held that respondent had
exhausted available state court remedies, as required by 28 U.S.C.
§§ 2254 (b) and (c), since his conviction had been reviewed by both
the Michigan Court of Appeals and the Michigan Supreme Court. The
District Court ordered that the application for writ of habeas
corpus be granted unless respondent was retried within 90 days.
The United States Court of Appeals for the Sixth Circuit
affirmed. 664 F.2d 610 (1982). The court held that respondent's
Page 459 U. S. 6
claim had been properly exhausted in the state courts, because
respondent had presented to the Michigan Court of Appeals the facts
on which he based his federal claim and had argued that the malice
instruction was "reversible error."
See People v. Harless,
supra, at 748, 261 N.W.2d at 43. The court also emphasized
that respondent, in his brief to the Michigan Court of Appeals, had
cited
People v. Martin, 392 Mich. 553,
221 N.W.2d
336 (1974) -- a decision predicated solely on state law in
which no federal issues were decided, but in which the defendant
had argued broadly that failure to properly instruct a jury
violates the Sixth and Fourteenth Amendments. In the view of the
United States Court of Appeals, respondent's assertion before the
Michigan Court of Appeals that the trial court's malice instruction
was erroneous, coupled with his citation of
People v. Martin,
supra, provided the Michigan courts with sufficient
opportunity to consider the issue encompassed by respondent's
subsequent federal habeas petition.
We reverse. In
Picard v. Connor, 404 U.
S. 270 (1971), we made clear that 28 U.S.C. § 2254
requires a federal habeas petitioner to provide the state courts
with a "fair opportunity" to apply controlling legal principles to
the facts bearing upon his constitutional claim.
Id. at
404 U. S.
276-277. It is not enough that all the facts necessary
to support the federal claim were before the state courts,
id. at
404 U. S. 277,
or that a somewhat similar state law claim was made.
See, e.g.,
Gayle v. LeFevre, 613 F.2d 21 (CA2 1980);
Paullet v.
Howard, 634 F.2d 117, 119-120 (CA3 1980);
Wilks v.
Israel, 627 F.2d 32, 37-38 (CA7),
cert. denied, 449
U.S. 1086 (1980);
Conner v. Auger, 595 F.2d 407, 413
(CA8),
cert. denied, 444 U.S. 851 (1979). In addition, the
habeas petitioner must have "fairly presented" to the state courts
the "substance" of his federal habeas corpus claim.
Picard,
supra, at 275, 277-278.
Cf. Rose v. Lundy,
455 U. S. 509,
455 U. S. 518
(1982).
Page 459 U. S. 7
In this case, respondent argued on appeal that the trial court's
instruction on the element of malice was "erroneous." He offered no
support for this conclusion other than a citation to, and three
excerpts from,
People v. Martin, supra -- a case which
held that, under Michigan law, malice should not be implied from
the fact that a weapon is used.
See App. to Pet. for Cert.
47a-49a, 51a-53a. [
Footnote 2]
Not surprisingly, the Michigan Court of Appeals interpreted
respondent's claim as being predicated on the state law rule of
Martin, and analyzed it accordingly. 78 Mich.App. at
748-750, 261 N.W.2d at 43.
The United States Court of Appeals concluded that "the due
process ramifications" of respondent's argument to the Michigan
court "were self-evident," and that respondent's
"reliance on
Martin was sufficient to present the state
courts with the substance of his due process challenge to the
malice instruction for habeas exhaustion purposes."
664 F.2d at 612. We disagree. The District Court based its grant
of habeas relief in this case on the doctrine that certain sorts of
"mandatory presumptions" may undermine the prosecution's burden to
prove guilt beyond a reasonable doubt, and thus deprive a criminal
defendant of due process.
See Sandstrom, supra; In re
Winship, 397 U. S. 358
(1970). The Court of Appeals affirmed on the same rationale.
However, it is plain from the record that this constitutional
argument was never presented to, or considered by, the Michigan
courts. Nor is this claim even the same as the constitutional claim
advanced in
Martin -- the defendant there asserted a broad
federal due process right to jury instructions that "properly
explain" state law, 392 Mich. at 558, 221 N.W.2d at 339, and did
not rely on the more particular analysis developed in cases such as
Sandstrom, supra. [
Footnote 3]
Page 459 U. S. 8
Since it appears that respondent is still free to present his
Sandstrom claim to the Michigan Court of Appeals,
see
People v. Berry, 10 Mich.App. 469, 474-475, 157 N.W.2d 310,
312-313 (1968), we conclude that he has not exhausted his available
state court remedies, as required by 28 U.S.C. § 2254. Accordingly,
the petition for certiorari and respondent's motion for leave to
proceed
in forma pauperis are granted, the judgment of the
United States Court of Appeals for the Sixth Circuit is reversed,
and the case is remanded to that court for further proceedings
consistent with this opinion.
It is so ordered.
[
Footnote 1]
Respondent was convicted of.first-degree murder, which requires
proof not only of "malice" but also of premeditation. For this
reason, petitioner argues that any error in the trial court's
definition of malice was harmless. In light of our disposition, we
do not reach the issue.
[
Footnote 2]
Respondent was represented by counsel on appeal.
[
Footnote 3]
We doubt that a defendant's citation to a state court decision
predicated solely on state law ordinarily will be sufficient to
fairly apprise a reviewing court of a potential federal claim
merely because the defendant in the cited case advanced a federal
claim. However, it is clear that such a citation is insufficient
when, as here, the federal claim asserted in the cited case is not
even the same as the federal claim on which federal habeas relief
is sought.
See Picard v. Connor, 404 U.
S. 270,
404 U. S. 276
(1971).
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.
Few issues consume as much of the scarce time of federal judges
as the question whether a state prisoner adequately exhausted his
state remedies before filing a petition for a federal writ of
habeas corpus. Distressingly, the Court seems oblivious of this
fact, and takes action in this case that can only exacerbate that
problem.
On the merits the question presented by this case is whether a
somewhat garbled jury instruction contained a mandatory presumption
that required a finding of malice or merely a permissive inference
that allowed the jury to make such a finding. [
Footnote 2/1] The parties seem to agree that, if
the instruction
Page 459 U. S. 9
is considered mandatory, the respondent's conviction must be set
aside under principles that are well settled in Michigan [
Footnote 2/2] and in the federal courts.
[
Footnote 2/3]
The Michigan Court of Appeals rejected respondent's construction
of the jury instruction, and therefore affirmed his conviction.
After the Supreme Court of Michigan denied leave to appeal, and
after the state trial court denied a subsequent motion for a new
trial, respondent commenced this federal habeas corpus
proceeding.
The Federal District Court carefully analyzed the difference
between a permissive inference and a mandatory presumption, and
concluded that the Michigan Court of Appeals' construction of the
jury instruction was simply untenable.
504
F. Supp. 1135, 1138 (1981). It also considered and rejected the
argument that the respondent had not exhausted his state remedies.
Id. at 1139.
On appeal, the Court of Appeals for the Sixth Circuit affirmed,
664 F.2d 610 (1982). That court first carefully considered the
Warden's contention that respondent's state remedies had not been
exhausted, because his federal claim had not been fairly presented
to the state courts. After explaining in some detail why the
federal claim necessarily presented the very question that the
state court had already resolved against the respondent, the Court
of Appeals concluded "that the Michigan courts had a fair
opportunity to consider the issue encompassed by Harless' habeas
corpus petition."
Id. at 612. Thereafter, the Court of
Appeals reviewed and upheld the District Court's holding on the
merits.
I agree with the sensible approach to the exhaustion issue that
was followed by the District Court and the Court of Appeals.
[
Footnote 2/4]
Page 459 U. S. 10
I also believe that approach was entirely faithful to
Picard
v. Connor, 404 U. S. 270,
which requires only that the "substance" of the federal claim (not
the form) be "fairly
Page 459 U. S. 11
presented" to the state courts. [
Footnote 2/5] In this case, the only arguable
justification for dismissing the petition for failure to exhaust is
a possibility that the state court might decide
Page 459 U. S. 12
instruction issue differently if phrased in terms of
Sandstrom v. Montana, 442 U. S. 510,
rather than in terms of
People v. Martin, 392 Mich. 553,
221 N.W.2d
336 (1974).
See 459 U.S.
4fn2/4|>n. 4,
supra. That possibility is virtually
nonexistent. The Court apparently perceives this case as a simple
application of
Picard; I think it can only be explained as
an expansion of
Picard. Such an expansion should be
accompanied by a more careful analysis than the Court provides in
this case, and it should not be undertaken without full briefing
and argument.
But even if I shared the Court's analysis of the exhaustion
question in this particular case, I would nevertheless take issue
with its decision to grant certiorari for the sole purpose of
correcting what it considers to be a technical, procedural error.
It is not appropriate for this Court to expend its scarce resources
crafting opinions that correct technical errors in cases of only
local importance where the correction in no way promotes the
development of the law. [
Footnote
2/6]
If the Court of Appeals was correct in its appraisal of the
merits, the respondent should be given a prompt retrial. If that
court was incorrect on the merits, nothing will be gained by
requiring the respondent to present his claim to three
Page 459 U. S. 13
more sets of Michigan judges and two more sets of federal judges
before this Court decides whether the substantive error merits our
review.
Cf. Rose v. Lundy, 455 U.
S. 509,
455 U. S. 545
(STEVENS, J., dissenting). I respectfully dissent.
[
Footnote 2/1]
The instruction stated:
"Members of the jury, the term malice is a technical term which
has to do with the doing of a cruel act against another human being
without excuse or justification. The doing of a cruel act against
another human being without excuse or justification. 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 by the use of a gun against another."
App. to Pet. for Cert. 59a.
[
Footnote 2/2]
See People v. Martin, 392 Mich. 553,
221 N.W.2d
336 (1974).
[
Footnote 2/3]
Compare Ulster County Court v. Allen, 442 U.
S. 140,
with Sandstrom v. Montana, 442 U.
S. 510.
[
Footnote 2/4]
Because this Court's description of the Court of Appeals'
treatment of the exhaustion issue is so abbreviated, it seems
appropriate to quote in full the relevant portion of that
opinion:
"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 in 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 issue of malice] as a presumption of law, rather than a
permissible inference.' 221 N.W.2d at 341. However, Martin's
constitutional argument was broadly phrased: failure to explain the
law properly to a jury through adequate instructions abridges the
due process right to a fair trial. The Court of Appeals neither
rejected nor refined this constitutional argument. Rather, it seeks
to have accepted it tacitly, for, in response to defendant's
argument that his Sixth and Fourteenth Amendment rights to a fair
trial had been abridged by an inadequate manslaughter instruction,
the court stated that 'an erroneous or misleading charge denies the
defendant the right to have a properly instructed jury pass upon
the evidence.'
Id. at 341. Although it did not
specifically label this a
federal right, the court clearly
felt that a properly instructed jury is a prerequisite to a fair
trial."
"In our view, Harless' reliance on Martin was sufficient to
present the state courts with the substance of his due process
challenge to the malice instruction for habeas exhaustion purposes.
The substance of Harless' state appeal, although unartfully
phrased, sufficiently asked the state court to consider that the
incorrect malice instruction denied Harless a fair jury trial by
effectively eliminating the possibility of a manslaughter verdict
from the jury's consideration. In our view, the due process
ramifications were self-evident. Under
Picard v. Connor,
404 U. S.
270 (1971), a habeas petitioner need not label his state
claim as federal or constitutional. Given the elasticity of the due
process concept, we are convinced that the Michigan courts had a
fair opportunity to consider the issue encompassed by Harless'
habeas corpus petition."
664 F.2d at 611412.
[
Footnote 2/5]
In
Picard, the habeas petitioner had argued in the
Massachusetts courts that his indictment had been contrary to
Massachusetts law and that, if the procedures used in his case had
been in accord with Massachusetts law, then those procedures could
not be approved without reference to whether the Fifth Amendment's
requirement of a grand jury indictment applied to the States
through incorporation in the Fourteenth Amendment. 404 U.S. at
404 U. S. 277.
This Court held that such an argument did not give the State a fair
opportunity to consider the proposition that its treatment of the
petitioner denied him equal protection, in view of the
Commonwealth's otherwise universal commitment to grand jury
indictments in felony cases.
In this case, the federal courts ordered habeas relief on the
theory that the "operative effect" of the instruction quoted above
was to cause the jury to use an unconstitutional mandatory
presumption of malice. It held that the instruction was therefore
inconsistent with
Sandstrom, supra. 664 F.2d at 612.
Accord, ante at
459 U. S. 7. In
state court, the defendant had argued that the instruction was
inconsistent with
People v. Martin, supra, because
Martin had struck down an instruction that caused the jury
to use a mandatory presumption of malice.
See People v.
Harless, 78 Mich.App. 745, 749, 261 N.W.2d 41, 43 (1977). The
substance of the argument -- that the instruction deprived him of
fair jury consideration because it created a mandatory presumption
of malice -- is the same.
[
Footnote 2/6]
In many respects, this case is merely a sequel to
Board of
Education of Rogers, Ark. v. McCluskey, 458 U.
S. 966. In my dissent in that case, I observed:
"As JUSTICE REHNQUIST has reminded us, in "our zeal to provide
equal justice under law,' we must never forget that this Court
is not a forum for the correction of errors." Boag v.
MacDougall, 454 U. S. 364,
454 U. S.
367-368 (1982) (dissenting opinion)."
"To remain effective, the Supreme Court must continue to decide
only those cases which present questions whose resolution will have
immediate importance far beyond the particular facts and parties
involved."
"This case illustrates how ineffectively the Court is
supervising its discretionary docket."
Id. at
458 U. S. 971
(footnote omitted).