Stone v. Brandon , 226 F. App'x 458 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0198n.06
Filed: March 15, 2007
No. 06-5284
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WAYNE BRANDON, WARDEN, )
)
Respondent-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOSEPH M. STONE, ) MIDDLE DISTRICT OF TENNESSEE
)
Petitioner-Appellee. )
)
)
Before: KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellee Joseph M. Stone (“Stone”)
filed the instant action seeking a writ of habeas corpus. The district court granted the writ based on
a finding of ineffective assistance of counsel, and Respondent-appellant Wayne Brandon
(“Brandon”) subsequently appealed. Because we conclude that the ground upon which the district
court granted relief was not fairly presented to the state courts by Stone and therefore that he has not
exhausted his state court remedies as required by 28 U.S.C. § 2254(b)(1), we vacate the writ and
remand to the district court with instructions that the district court determine whether Stone can
demonstrate that his failure to exhaust is excusable and, if not, to dismiss the petition.
*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
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I.
Stone was indicted in state court on multiple counts of theft, larceny, and burglary. During
plea negotiations, Stone received multiple offers from the prosecution, each presenting a distinct
sentencing scheme. Following entry of a guilty plea in which he agreed to submit to the court for
sentencing without a recommendation from the prosecution, Stone was sentenced to a total of twenty
years in prison. On direct appeal, the Tennessee Court of Criminal Appeals affirmed his sentence.
Stone timely filed a pro se motion for postconviction relief, claiming that he received ineffective
assistance of counsel and that his guilty plea was not knowing and voluntary. Following an
evidentiary hearing, the trial court denied relief. The Tennessee Court of Criminal Appeals affirmed,
Stone v. State, No. M2003-00731-CCA-R3-PC, 2004 WL 300123 (Tenn. Crim. App. Feb. 17, 2004),
and the Tennessee Supreme Court declined review.
Stone filed a petition for a writ of habeas corpus in federal district court, seeking relief on
a number of grounds, including several claims that his trial counsel, Brent Horst (“Horst”), rendered
constitutionally deficient performance as defined by Strickland v. Washington, 466 U.S. 668 (1984)
and Hill v. Lockhart, 474 U.S. 52 (1985). The only issue on appeal is related to Stone’s claim that
Horst’s failure to advise him on the merits of the various plea offers presented to him and provide
guidance regarding which of those offers he should have taken constituted ineffective assistance of
counsel. The district court was persuaded by Stone’s claim and granted relief.
Brandon argued before the district court, as he does on appeal, that the particular Strickland
claim upon which relief was granted was not fairly presented to the Tennessee state courts.
Consequently, according to Brandon, this claim was unexhausted and cannot support the district
court’s granting of a writ. We agree with Brandon that Stone did not fairly present this particular
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Strickland claim to the Tennessee courts. Stone’s failure to raise this claim before the Tennessee
courts is fatal to his habeas petition, and we therefore vacate the order of the district court and
remand.1
II.
In the habeas context, we review the district court’s legal conclusions de novo and its factual
findings for clear error. Carter v. Bell, 218 F.3d 581, 590 (6th Cir. 2000). Before a habeas
petitioner may seek relief based on an asserted federal claim, he or she must exhaust available state
remedies. 28 U.S.C. § 2254(b)(1)(A). Questions of exhaustion are legal questions we review de
novo. Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006). In order to satisfy this
exhaustion requirement, “a petitioner’s claim must be ‘fairly presented’ to the state courts before
seeking relief in the federal courts.” Whiting v. Burt, 395 F.3d 602, 612 (6th Cir. 2005) (citing
Baldwin v. Reese, 541 U.S. 27, 29 (2004)). A claim is fairly presented if that “claim [has been]
presented to the state courts under the same theory in which it is later presented in federal court.”
Williams v. Bagley, 380 F.3d 932, 969 (6th Cir. 2004) (quoting Wong v. Money, 142 F.3d 313, 322
(6th Cir. 1998)). The relevant inquiry for determining whether a claim has been “fairly presented”
is whether the federal claim raised in the habeas petition is “separate and distinct” from the federal
claim or claims brought before the state courts. See Williams, 380 F.3d at 969; Wong, 142 F.3d at
322. In the context of ineffective assistance claims, “to the extent that [such a] claim is based upon
a different allegedly ineffective action than the claim presented to the state courts, the claim has not
1
The exhaustion issue is dispositive, and we therefore need not reach the merits of the
decision of the district court in granting relief.
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been fairly presented.” Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003) (citing Pillette v.
Foltz, 824 F.2d 494, 497 (6th Cir. 1987)).
On the record before us, it is clear that the ineffective assistance complained of in Stone’s
habeas petition and relied upon by the district court in granting relief resulted from allegedly
deficient performance not brought to the attention of the state courts. Having reviewed the entire
record of the state proceedings, we are unable to find any reference by Stone to the issue upon which
relief was granted by the district court. The first mention of Horst’s deficient performance in failing
to advise him regarding the merits of the various plea offers set out before him is in his amended
petition for relief filed with the district court.
Stone’s allegations of ineffective assistance presented to the Tennessee courts can be divided
into several broad categories: (1) inadequate communication and availability; (2) insufficient
investigation of Stone’s case; (3) poor advocacy; and (4) insufficient explanation of the nature and
consequences of Stone’s guilty plea. What is clear from scouring the state court record is that Stone
nowhere claimed that Horst failed to advise him regarding the merits of the various plea offers made
by the prosecution. Whether or not the district court was correct that the absence of this advice
renders trial counsel’s performance constitutionally deficient, the exhaustion requirement demands
that Stone first utilize any state court process available to him prior to presenting that claim in a
federal habeas proceeding. Accordingly, Stone is not entitled to relief.
Stone’s reliance on Vasquez v. Hillery, 474 U.S. 254 (1986), is misplaced. Stone is correct
that Vasquez provides that a habeas petitioner may supplement the evidentiary record before the
district court so long as the supplementary evidence “d[oes] not fundamentally alter the legal claim
already considered by the state courts.” 474 U.S. at 260. This holding, however, is not relevant to
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the matter at issue in this case: whether Stone raised the claim upon which he was granted habeas
relief before the Tennessee courts. While Stone argues that his ineffective assistance claim has
remained essentially unchanged throughout his state and federal postconviction proceedings, our
own review of the record demonstrates that Stone is incorrect. Prior to the filing of his amended
habeas petition with the district court, the particular theory upon which Stone sought and was
ultimately granted relief can be found nowhere in the record. Whatever Vasquez may say about
supplemental evidence, the controlling law of this circuit is that exhaustion requires a petitioner to
present his or her legal theory to the state courts before seeking federal relief. As Stone failed to
comply with this requirement, his request for relief must be denied.
III.
For the foregoing reasons, we vacate the order of the district court granting the writ and
remand with instructions.
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