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Michael Dale Harlow v. Secretary

February 24, 2012

MICHAEL DALE HARLOW, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Steven D. Merryday United States District Judge

ORDER

Harlow petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his convictions for burglary of a dwelling, grand theft of an automobile, and dealing in stolen property, for which convictions Harlow serves fifteen years as a prison releasee re-offender. Numerous exhibits ("Respondent's Exhibit __") support the response. (Doc. 13) The two grounds asserted in the petition allege that the trial judge committed fundamental error by sending a witness to the jury room with the jurors during a break in that witness's testimony and that trial counsel was ineffective for not objecting to the judge's allegedly fundamental error. Although admitting the petition's timeliness (Response at 8, Doc. 13), the respondent correctly contends that the first ground is procedurally barred from federal review and that the second ground lacks merit.

FACTS*fn1

While working for his father and uncle renovating and landscaping a home, Dixon stole jewelry, electronic equipment, and a car from the home. He abandoned the car in a parking lot and sold the stolen items at several local pawn shops. Harlow was questioned by the police and, after Miranda warnings, he confessed to the thefts and the burglary and disclosed the pawn shops where he sold the items. One of the pawn shop owners identified Harlow as the individual who sold several of the items.

EXHAUSTION AND PROCEDURAL DEFAULT

In ground one Harlow alleges that the trial committed fundamental error and violated his right to due process by sending a witness to the jury room with the jurors during a break in that witness's testimony. The respondent correctly argues that Harlow failed to present this claim to the state court as a federal claim.

A petitioner must present each claim to a state court before raising the claim in federal court. "[E]xhaustion of state remedies requires that petitioners 'fairly presen[t]' federal claims to the state courts in order to give 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), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518-19 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error."), and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) ("[T]he applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated."). Also, a petitioner must present to the federal court the same claim presented to the state court. Picard v. Connor, 404 U.S. at 275 ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). "Mere similarity of claims is insufficient to exhaust." Duncan v. Henry, 513 U.S. at 366.

A petitioner must alert the state court that he is raising a federal claim and not just a state law claim.

A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal."

Baldwin v. Reese, 541 U.S. 27, 32 (2004). As a consequence, "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) ("The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.") (citations omitted).

Finally, presenting a federal claim to a state court without the facts necessary to support the claim is insufficient. See, e.g., Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983) ("The exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in support of the writ before the federal court.").

In his state post-conviction petition, Harlow presented his allegation of fundamental error only as a state law claim. Briefing an issue as a matter of state law is not sufficient to exhaust a federal claim on the same grounds.

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Adequately identifying an issue as a federal claim is not difficult.

A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal."

Baldwin v. Reese, 541 U.S. 27, 32 (2004). In his state post-conviction petition, Harlow asserted no federal authority supporting his fundamental error claim and he never labeled his claim as "federal." Consequently, Harlow failed to properly ...


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