RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Newton v. Million No. 01-6116 ELECTRONIC CITATION: 2003 FED App. 0407P (6th Cir.) File Name: 03a0407p.06 GUARNIERI, Frankfort, Kentucky, for Appellee. ON BRIEF: Courtney Jones Hightower, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for UNITED STATES COURT OF APPEALS Appellant. David J. Guarnieri, JOHNSON, JUDY, TRUE & GUARNIERI, Frankfort, Kentucky, for Appellee. FOR THE SIXTH CIRCUIT _________________ SILER, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. COLE, J. (pp. 11-12), delivered a BILLY DEWAYNE NEWTON, X separate dissenting opinion. Petitioner-Appellee, - - _________________ - No. 01-6116 v. - OPINION > _________________ , GEORGE R. MILLION , Warden, - SILER, Circuit Judge. The Commonwealth of Kentucky, Respondent-Appellant. - on behalf of the warden, appeals the district court’s decision - to grant a conditional writ of habeas corpus to Billy Dewayne - Newton. Newton’s petition alleges that the state trial court’s - failure to instruct the jury on the defense of self-protection N against multiple aggressors violated his right to due process Appeal from the United States District Court under the Fifth and Fourteenth Amendments of the United for the Eastern District of Kentucky at Frankfort. States Constitution. For the reasons that follow, we No. 00-00075—Joseph M. Hood, District Judge. REVERSE the district court’s grant of the writ.

Argued: May 6, 2003 BACKGROUND

Decided and Filed: November 17, 2003 The charges against Newton arose out of an altercation that took place on November 16, 1996. The following facts were Before: KRUPANSKY, SILER, and COLE, Circuit presented in the opinion of the Kentucky Supreme Court: Judges. The victim [William Hutcherson] and Newton had their _________________ first confrontation early in the afternoon. Later that day, in a billiard room parking lot, the victim and Newton COUNSEL started fighting after a minor automobile collision involving vehicles of friends. The victim and Newton ARGUED: Dennis W. Shepherd, OFFICE OF THE scuffled on the ground, and the victim was stabbed ATTORNEY GENERAL, Frankfort, Kentucky, for several times in the lower left chest, on the right upper Appellant. David J. Guarnieri, JOHNSON, JUDY, TRUE & abdomen and the fatal wound was on his upper right

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thigh, near the groin area. A third person tried that he had a right to defend himself against both Hutcherson unsuccessfully to break up the fight. The leg wound was and Woolums since they were multiple aggressors acting in 3 inches deep and it cut both the femoral artery and the concert. In an unpublished opinion, the Supreme Court of vein, severing them completely. The fatal leg wound Kentucky affirmed Newton’s conviction and sentence. It was discovered by the EMS worker in the ambulance on noted that Woolums kicked Newton at least twice during the the way to the hospital. The victim was pronounced dead scuffle, but concluded that the trial court’s refusal to give a at 11:15 p.m. Newton left the scene but was soon multiple aggressor instruction was not error under the factual apprehended. Newton was arrested and charged with circumstances of the case. murder, and the knife used to stab the victim was recovered. Later, Newton filed a petition for habeas corpus relief, raising four issues, including his claim regarding the multiple Newton v. Commonwealth, No. 98-SC-0014-MR, slip op. at aggressor self-protection instruction. The magistrate judge 2-5 (Ky. Dec. 16, 1999) (unpublished). recommended that the petition be dismissed for procedural default. The magistrate judge reasoned that Newton failed to At trial, Newton testified that he believed Hutcherson was apprise the state court of the federal constitutional nature of armed. He also told the jury that Jamey Woolums did not try his claim. Alternatively, the magistrate judge recommended to break up the fight but instead joined in Hutcherson’s that the petition be dismissed on grounds that Newton failed attack. As a consequence, he began stabbing randomly in the to establish that the allegedly improper jury instructions air to protect himself against both men. The trial court resulted in a clear violation of due process. instructed the jury on self-defense, but did not instruct the jury concerning the defense against multiple aggressors.1 In The district court dismissed three of Newton’s claims with December 1997, Newton was convicted of murder and was prejudice but determined that his jury instruction claim was sentenced to forty years in prison. not procedurally barred. In ruling on this claim, the district court determined that the Kentucky Supreme Court’s factual Newton appealed to the Kentucky Supreme Court. He findings were not fairly supported by the record. The district claimed that the trial judge was required to instruct the jury court cited the above-quoted portion of the Kentucky Supreme Court decision as evidence that it misconstrued Woolums’s behavior as an attempt to “break up the fight.”2 1 The jury instruction was as follows: Because Woolums participated in the fight, the district court concluded that the trial court should have provided a multiple Even though the Defendant might otherwise be guilty of Murder aggressor jury instruction and its failure to do so violated under Instruction No. 5, or M anslaughter in the First Degree Newton’s right to due process. As a consequence, the district under Instructio n No . 6, if at the time the Defendant killed court granted the writ. W illiam Hutcherson, he believed that W illiam Hutcherson was then and there about to use physical force upon him, he was privileged to use such physical force against William Hutcherson 2 as he believed to be necessary in order to protect himself against The Kentucky Supreme Co urt inconsistently characterized it, but including the right to use deadly physical force in so doing W oolums’s behavior during the scuffle. At one point in the opinion, the only if he believed it to be necessary in order to pro tect himself court states that a third individual, pre sumably W oolums, attem pted to from death or serious physical injury at the hands of William break up the fight. At a later point in the discussion, however, the court Hutcherson. acknowledges testimony that W oolums also kicked Newton. No. 01-6116 Newton v. Million 5 6 Newton v. Million No. 01-6116

DISCUSSION Newton’s brief in the Kentucky Supreme Court provided a detailed recitation of the facts and specifically stated that the A. Procedural Default trial court’s refusal to instruct the jury on the issue of self- protection against multiple aggressors “violated [his] right to As an initial matter, the Commonwealth challenges the due process of law under the Fifth and Fourteenth district court’s finding that Newton “fairly presented” his Amendments of the United States Constitution.” This is federal claim to the state court. It maintains that Newton sufficient to have fairly presented the federal nature of his committed procedural default, arguing that he made only a claim to the state court. There is no requirement that the vague reference to the Fifth and Fourteenth Amendment and petitioner cite to cases that employ federal constitutional failed to cite federal or state cases that employ federal analysis where he has phrased his claim in terms of a denial constitutional analysis. The fact that the Kentucky Supreme of a specific constitutional right. See Carter v. Bell, 218 F.3d Court failed to engage in federal constitutional analysis, the 581, 606-07 (6th Cir. 2000) (holding that the habeas Commonwealth contends, is further evidence that Newton petitioner fairly presented his claim in his state post- failed to apprise the state court of the nature of his claim. conviction petitions by stating that the statute at issue failed to narrow the class of persons eligible for death penalty in Federal courts do not have jurisdiction to consider a claim violation of his Eighth Amendment rights). Moreover, the in a habeas petition that was not “fairly presented” to the state fact that the Supreme Court of Kentucky neglected Newton’s courts. A claim may only be considered “fairly presented” if federal claim does not deprive this court of jurisdiction. See the petitioner asserted both a factual and legal basis for his Koontz, 731 F.2d at 368 (“[T]he exhaustion requirement claim in state court. McMeans v. Brigano, 228 F.3d 674, 681 ‘cannot turn upon whether a state appellate court chooses to (6th Cir. 2000). Although general allegations of the denial of ignore in its opinion a federal constitutional claim squarely a “fair trial” or “due process” have been held insufficient to presented in petitioner’s brief in state court.’”) (citations “fairly present” federal constitutional claims, id. at 681, a omitted). petitioner need not recite “book and verse on the federal constitution.” Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. B. Standard of Review 1984) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). “This court applies de novo review to the decision of the A petitioner can take four actions in his brief which are district court in a habeas corpus proceeding.” Maples v. significant to the determination as to whether a claim has Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Harris v. been fairly presented: “(1) reliance upon federal cases Stovall, 212 F.3d 940, 942 (6th Cir. 2000)). Newton filed his employing constitutional analysis; (2) reliance upon state federal habeas corpus petition after the enactment of the cases employing federal constitutional analysis; (3) phrasing Antiterrorism and Effective Death Penalty Act of 1996 the claim in terms of constitutional law or in terms (AEDPA), codified principally at 28 U.S.C. § 2254(d). sufficiently particular to allege a denial of a specific Pursuant to this provision, a federal court may grant Newton’s constitutional right; or (4) alleging facts well within the writ of habeas corpus only if the Kentucky court’s judgment mainstream of constitutional law.” McMeans, 228 F.3d at 681 (citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. (1) resulted in a decision that was contrary to, or 1987)). involved an unreasonable application of, clearly established Federal law, as determined by the Supreme No. 01-6116 Newton v. Million 7 8 Newton v. Million No. 01-6116

Court of the United States; or (2) resulted in a decision (1896), the Court reversed a murder conviction arising out of that was based on an unreasonable determination of the a gunfight. The defendant had requested that the trial court facts in light of the evidence presented in the State court give both a manslaughter and a self-defense instruction. proceeding. Although self-defense may be inconsistent with the charge of manslaughter, the Court recognized that a full defense By its very language, 28 U.S.C. § 2254(d) “is applicable necessitated both instructions. Similarly, in United States v. only to habeas claims that were ‘adjudicated on the merits in Mathews, 485 U.S. 58, 63-64 (1988), the Supreme Court held State court . . .’” Maples, 340 F.3d at 436. In the case sub that even if a defendant denies one or more elements of the judice, as the state court “did not assess the merits of a claim crime, he is entitled to an affirmative defense instruction properly raised in a habeas petition, the deference due under whenever there is sufficient evidence from which a reasonable AEDPA does not apply.” Id. at 436 (citing Williams v. Coyle, jury could find for him on this issue. 260 F.3d 684, 706 (6th Cir. 2001)) (applying pre-AEDPA standards to a habeas petition filed pursuant to § 2254 In dictum, we have interpreted Mathews as establishing a because “no state court reviewed the merits of [the] claim”). rule that ‘“a defendant is entitled to an instruction as to any Accordingly, the AEDPA standard is inapplicable, as this recognized defense for which there exists evidence sufficient court “reviews questions of law and mixed questions of law for a reasonable jury to find in his favor[.]”’ See Taylor v. and fact de novo.” Maples, 340 F.3d at 436 (citing Williams, Withrow, 288 F.3d 846, 852 (6th Cir. 2002) (quoting 260 F.3d at 706). Mathews, 485 U.S. at 63-64). Specifically, in Taylor this court stated that, in certain circumstances, “failure to instruct C. Petitioner’s Habeas Claim a jury on self-defense when the instruction has been requested and there is sufficient evidence to support such a charge Newton contends that his right to due process under the violates a criminal defendant’s rights under the due process Fifth and Fourteenth Amendments was violated when the trial clause.” Taylor, 288 F.3d at 851. We reasoned that “the right court refused to give a multiple aggressor qualification in the to present a defense would be meaningless were a trial court jury instruction. Specifically, he argues that the trial court completely free to ignore that defense when giving denied him a meaningful opportunity to put forth a complete instructions.” Id. at 852. Nevertheless, it was dictum, defense based on his theory of self-defense–that he stabbed because we held that if that was the law, the petitioner’s randomly in the air because he believed it was necessary to conduct did not warrant such an instruction on self-defense. protect himself against the concerted actions of Hutcherson and Woolums. Unlike the defendant in Taylor, however, Newton’s claim does not rest on the court’s denial of a self-defense The Supreme Court has interpreted the due process clause instruction. Rather, he challenges the specific content of the to require that criminal defendants be afforded a meaningful instruction, namely the omission of Woolums’s name. opportunity to present a complete defense. See California v. Trombetta, 467 U.S. 479, 485 (1984). In keeping with this Newton argues that his case is analogous to Barker v. principle, it has ruled that a defendant is entitled to an Yukins, 199 F.3d 867 (6th Cir. 1999). In Barker, this circuit affirmative defense instruction even though it may be held that a trial court’s failure to give a self-defense inconsistent with other portions of his requested jury instruction that specifically stated that the defendant was instructions. In Stevenson v. United States, 162 U.S. 313 justified in using deadly force to repel a rape under Michigan No. 01-6116 Newton v. Million 9 10 Newton v. Million No. 01-6116

law violated the petitioner’s due process right to put forth a as a whole, were so infirm that they rendered the entire trial complete defense and rendered the trial fundamentally fundamentally unfair.”). The jury was instructed on self- unfair.3 We reasoned that, under the instructions given, the defense under the law of Kentucky. The nature of the jury could have found the petitioner’s testimony to be particular instruction given is a matter of state law, and we are credible but still have convicted her of murder under the not at liberty to grant a writ of habeas corpus simply because mistaken belief that a sexual assault does not rise to the level we find the state court’s decision was incorrect under state of death or great bodily harm under the law. Id. In our case, law. See Williams v. Taylor, 529 U.S. 362, 411 (2000) the court instructed the jury on self-defense. Newton’s (O’Connor, J., concurring). complaint is that it did not include multiple offenders. REVERSED. We have found no Supreme Court case which holds that a criminal defendant’s right to present a defense includes the right to a specific jury instruction, particularly one that goes beyond a general affirmative defense. Nor do we believe that the omission of Woolums’s name violated Newton’s right to present a defense or resulted in an error of a constitutional dimension. See Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000) (“To warrant habeas relief because of incorrect jury instructions, a Petitioner must show that the instructions,

3 This court also held that the Michigan Supreme Court violated the due process clause and the Sixth Amendment when it determined that no reaso nable juror could have found the petitioner acted to protect herself from being raped. Id. at 875-76. In this court’s view, the evidence supported a finding of self-defense, and by reaching the conclusion that no juror would have believed the petitioner’s defense, the Michigan Supreme Court necessarily believed some of the evidence but discredited other evidence. Id. By impermissibly weighing the evidence, the Michigan Supreme Court exceeded the scope of its authority and imprope rly invaded the province of the jury, which is prohibited by the due process clause and the S ixth Am endment. Id. Newton make s an analogo us claim that the trial judge impro perly invaded the province of the jury by making factual determinations that should have bee n pro perly d elegated to the jury. N ewton’s claim misconstrues our hold ing in Barker. In Barker, the Michigan Supreme Court evaluated the facts presented and discredited evidence proffered on behalf of the petitioner. Here, the judge determined that there was insufficient evidence to sup port the requested jury instruc tion. T here is no evidence to suggest that the trial judge disbelieved Newton’s testimony and the evid ence he presented. No. 01-6116 Newton v. Million 11 12 Newton v. Million No. 01-6116

_________________ In this respect the instruction at issue was more problematic than the one that we found to violate due process in Barker v. DISSENT Yukins, 199 F.3d 867 (6th Cir. 1999). In that case, we held _________________ that due process mandated the reversal of a defendant’s murder conviction because the instruction to the jury – R. GUY COLE, JR., Circuit Judge. There is no dispute although broadly recognizing the right to use deadly force that: (1) the Due Process Clause requires that a criminal when facing the danger of death or serious bodily harm – did defendant be provided “a meaningful opportunity to present not specifically instruct the jury that the use of deadly force a complete defense”; (2) that this right compels the trial court was lawful in order to prevent a sexual assault. Id. at 871 - to instruct the jury as to all relevant defenses, Taylor v. 73. We so held notwithstanding the fact that the instruction Withrow, 288 F.3d 846, 582 (6th Cir. 2002); (3) that that was given to the jury was reasonably read as including Kentucky law permitted Newton to defend himself against the right to defend oneself against a sexual assault, and we did multiple aggressors; (4) that Newton presented evidence at so even under a far more deferential standard of review than trial that there was more than one person attacking him; and the de novo review which we must undertake here. See id. at (5) that the trial court’s instructions to the jury permitted it to 871 (applying AEDPA’s deferential standard of review). find that Newton acted in self-defense only if he “believed Given, then, that we have held it is an unreasonable that William Hutcherson was then and there about to use application of clearly established federal due process law to physical force upon him, he was privileged to use such issue an instruction to the jury that is simply too broad, our physical force against William Hutcherson as he believed to precedent leaves us no choice but to hold, on a de novo be necessary in order to protect himself against it.” review, that an instruction that actually precludes the jury from evaluating Newton’s self-defense claim also violates due It thus becomes clear that contrary to the majority’s process. assertions, the problem was not that the instruction to the jury was too general – the problem was that it was too specific. Nevertheless, the majority rejects Newton’s due process Had the trial court instructed the jury simply that “the claim because, according to the majority, Newton challenges defendant has a right to protect himself against the threat of not the omission of a self-defense instruction, but rather the physical force” – a general instruction that nonetheless would specific content of the instruction. Under the majority’s view, not foreclose the jury from considering Newton’s self-defense then, an instruction which stated that “Newton is entitled to claim – I might agree with the majority. But the instruction an acquittal if he acted in self defense provided that he was that was actually given to the jury took off the table any defending himself against a man wearing a blue jacket,” claims of defense that did not involve both: (1) Newton’s would comport with due process. As this example illustrates, belief that Hutcherson was about to use physical force against however, the mere inclusion of an instruction – no matter how him; and (2) an attempt to protect himself from physical force much it nullifies the arguments that the law entitles the at the hands of Hutcherson. As a result of this instruction, a defendant to make – is insufficient to pass constitutional jury could have found that Newton was reasonably defending muster. That this violation came in the form of an erroneous, himself against multiple attackers yet still felt compelled to rather than omitted instruction, is wholly irrelevant. convict Newton of murder – a result that would be plainly Accordingly, I respectfully dissent. contrary to the law under which Newton was tried.