Tyrone White v. Lynn Dingle , 267 F. App'x 489 ( 2008 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-2005
    ___________
    Tyrone White,                          *
    *
    Petitioner - Appellant,     *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Minnesota.
    Lynn Dingle,                           *
    *       [UNPUBLISHED]
    Respondent - Appellee.      *
    ___________
    Submitted: January 17, 2008
    Filed: February 27, 2008
    ___________
    Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
    ___________
    PER CURIAM.
    The district court1 dismissed without prejudice Tyrone White’s petition for
    habeas corpus under 
    28 U.S.C. § 2254
     because it was a “mixed petition” – one that
    included both exhausted and unexhausted claims. Because the dispositive issue was
    whether White “fairly presented” a particular claim to the Minnesota state courts, the
    district court granted him a certificate of appealability on the following issue only:
    “Did White exhaust his state-court remedies with respect to Ground Three of his
    habeas petition by fairly presenting [a federal] constitutional challenge to the jury
    1
    The Honorable Patrick J. Schiltz, United States District Judge for the District
    of Minnesota.
    instructions in his direct appeal to the Minnesota Supreme Court?” We answer that
    question in the negative and, accordingly, affirm.
    I
    A Minnesota jury found White guilty of first-degree felony murder and
    attempted first-degree premeditated murder. On direct appeal to the Minnesota
    Supreme Court, White raised four issues, including challenges that Minnesota’s
    accomplice liability statute was unconstitutional and the trial court erroneously
    instructed the jury regarding accomplice liability. See State v. White, 
    684 N.W.2d 500
    , 502 (Minn. 2004) (“White I”). The Minnesota Supreme Court affirmed his
    conviction. See 
    id.
     White then pursued post-conviction relief in state court asserting,
    among other grounds, ineffective assistance of appellate counsel. The state courts
    denied White’s state habeas petition. See State v. White, 
    711 N.W.2d 106
    , 113 (Minn.
    2006) (“White II”).
    White subsequently sought a federal writ of habeas corpus, raising six claims,
    including a federal constitutional claim that the Minnesota trial court deprived him of
    his right to a fair trial by improperly instructing the jury on accomplice liability
    (“federal fair trial” claim). A magistrate judge2 issued a report and recommendation
    that concluded that White had not exhausted this claim. Because White’s petition
    included both exhausted and unexhausted claims, the magistrate judge recommended
    dismissing White’s petition without prejudice. See, e.g., Rose v. Lundy, 
    455 U.S. 509
    , 510 (1982). The district court adopted the magistrate judge’s report and
    recommendation.
    As he did before the district court, White contends on appeal that he fairly
    presented the “federal fair trial” claim to the Minnesota courts. White further argues
    2
    The Honorable Susan Richard Nelson, United States Magistrate Judge for the
    District of Minnesota.
    -2-
    that even if he failed to exhaust this claim, it is not procedurally defaulted because he
    can establish “cause and prejudice” to excuse the procedural default.
    II
    “In reviewing a federal district court’s denial of habeas corpus relief, we review
    findings of fact for clear error and conclusions of law de novo.” Bell v. AG of Iowa,
    
    474 F.3d 558
    , 560 (8th Cir. 2007).
    III
    A state prisoner seeking federal habeas relief must first exhaust his available
    state remedies. See 
    28 U.S.C. § 2254
    (b). By doing so, the prisoner gives the State the
    “‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal
    rights.” Duncan v. Henry, 
    513 U.S. 364
    , 365 (1995) (per curiam) (quoting Picard v.
    Connor, 
    404 U.S. 270
    , 275 (1971)). The State has had its opportunity when the
    prisoner “fairly presents” his claim “in each appropriate state court (including a state
    supreme court with powers of discretionary review), thereby alerting th[ose] court[s]
    to the federal nature of the claim.” Baldwin v. Reese, 
    541 U.S. 27
    , 29 (2004)
    (citations omitted). “In order to fairly present a federal claim to the state courts, the
    petitioner must have referred to ‘a specific federal constitutional right, a particular
    constitutional provision, a federal constitutional case, or a state case raising a pertinent
    federal constitutional issue in a claim before the state courts.’” McCall v. Benson, 
    114 F.3d 754
    , 757 (8th Cir. 1997) (quoting Myre v. State of Iowa, 
    53 F.3d 199
    , 200 (8th
    Cir. 1995)). “If a petitioner has not presented his habeas corpus claim to the state
    court, the claim is generally defaulted.” Barrett v. Acevedo, 
    169 F.3d 1155
    , 1161 (8th
    Cir. 1999) (en banc).
    White asserts that he fairly presented the “federal fair trial” claim by
    challenging both the erroneous jury instructions and the constitutionality of
    Minnesota’s accomplice statute. We consider these arguments in turn.
    -3-
    A
    Before the Minnesota Supreme Court, White challenged the jury instructions
    on two grounds. First, he argued that the trial court erred, as a matter of state law, by
    instructing the jury that an “objective” rather than “subjective” standard applied in
    determining whether a crime was reasonably foreseeable under Minnesota’s
    accomplice statute. Second, he argued that as a result of improperly instructing the
    jury on accomplice liability, the trial court deprived him of his right to a fair trial.
    White characterized this latter error as having “constitutional importance” because
    “[e]lementary to a fair trial and due process is that the jury is fully and accurately
    instructed as to the elements of the charged offense . . . .” Appellant’s Appx. at 32
    (quoting State v. Gebremariam, 
    590 N.W.2d 781
    , 783 (Minn. 1999)).
    White’s state law challenge obviously does not raise a federal issue.3 The
    question then is whether White’s non-specific and general reference to due process
    “fairly presented” his “federal fair trial” claim to the Minnesota Supreme Court. We
    agree with the district court that it did not. Although White alleged that the trial court
    violated his due process rights by improperly instructing the jury, he did not argue that
    this error violated the Federal Constitution. He also did not cite any relevant federal
    constitutional cases in support of this due process argument.4 White contends,
    however, that referencing “due process” in his brief to the Minnesota Supreme Court
    meets the “fairly presented” standard. Our precedents foreclose that argument. We
    3
    The Minnesota Supreme Court rejected his statutory argument because the trial
    court’s “instructions . . . , read as a whole, did not serve to confuse or mislead the jury
    and did not materially misstate the law.” White I, 684 N.W.2d at 509.
    4
    Indeed, White cited a lone Minnesota state case in support of his “fair trial”
    argument before the Minnesota Supreme Court. That case, however, makes no
    mention of the Federal Constitution. That White’s briefing, with respect to the alleged
    erroneous jury instructions, lacked any reference to the Federal Constitution or
    relevant case law is not surprising given his focus on their impropriety as a matter of
    state law.
    -4-
    have repeatedly held that a federal habeas petitioner does not fairly present a federal
    issue to the state courts unless he refers to a specific federal right or federal
    constitutional provision, or cites pertinent case law discussing the federal issue in
    question. For example, in Jones v. Luebbers, 
    359 F.3d 1005
     (8th Cir. 2004) (a case
    cited by White), we concluded that the habeas petitioner fairly presented a federal due
    process claim to the state courts by expressly referring to the Due Process Clause of
    the Fourteenth Amendment. Jones, 
    359 F.3d at 1012
    ; see also Wyldes v. Hundley, 
    69 F.3d 247
    , 251 (8th Cir. 1995), cert. denied, 
    517 U.S. 1172
     (1996) (“At minimum,
    though, the petitioner during direct appeal must have explicitly referred the state
    courts to the United States Constitution or federal case law.”). Thus, White did not
    fairly present the “federal fair trial” claim to the Minnesota Supreme Court by
    claiming generally that a defendant’s due process rights are violated when a trial court
    fails to instruct a jury properly.
    B
    White also argues that challenging Minnesota’s accomplice statute on federal
    due process grounds was sufficient to raise a federal due process challenge with
    respect to the erroneous jury instructions, i.e., that the trial court denied him of the
    right to a fair trial by instructing the jury incorrectly. We disagree. These were
    distinct federal constitutional challenges, and as such raising one does not impliedly
    raise the other.
    White argued Minnesota’s accomplice statute was unconstitutional because it
    allowed the State to convict him “without the requisite mental state,” White I, 684
    N.W.2d at 508; and that the statute which permitted the State to do so is a federal due
    process violation under In re Winship, 
    397 U.S. 358
     (1970). That challenge was,
    however, wholly distinct from his “federal fair trial” claim which alleged a deprivation
    of federal due process on account of the jury being improperly instructed. These
    challenges were therefore alike only to the extent they both alleged federal due
    process violations. But fairly presenting a particular federal challenge with respect
    -5-
    to one issue does not serve to fairly present that federal challenge with respect to any
    issue. Cf. Baldwin, 
    541 U.S. at 30-33
     (observing that a habeas petitioner who raises
    a federal ineffective assistance of trial counsel claim does not also raise a federal
    ineffective assistance of appellate counsel claim when his state petition only
    references the Federal Constitution with respect to his trial counsel claim even though
    the petition contained both ineffective assistance of trial and appellate counsel claims);
    see also Gray v. Netherland, 
    518 U.S. 152
    , 162-65 (1996) (explaining that petitioner,
    who asserted both “notice-of-evidence” and “misrepresentation” federal due process
    challenges with respect to the introduction of certain evidence, does not fairly present
    both challenges by merely presenting one or the other to the State’s courts).
    Accordingly, we reject White’s contention that he fairly presented the “federal fair
    trial” claim to the Minnesota Supreme Court by challenging the constitutionality of
    Minnesota’s accomplice statute on federal due process grounds.
    C
    Finally, we find no merit to White’s argument that he has established cause and
    prejudice to excuse his procedurally defaulted “federal fair trial” claim.5
    IV
    For the foregoing reasons, we affirm the judgment of the district court.
    ______________________________
    5
    White concedes that the“federal fair trial” claim is procedurally defaulted if he
    did not “fairly present” it on his direct appeal to the Minnesota Supreme Court.
    -6-