Billy Dewayne Newton v. GEORGE R. MILLION, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0407P (6th Cir.)
File Name: 03a0407p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BILLY DEWAYNE NEWTON,
Petitioner-Appellee,
v.
GEORGE R. MILLION, Warden,
Respondent-Appellant.
X
-
-
-
->
,
-
-
-
-
-
N
No. 01-6116
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 00-00075—Joseph M. Hood, District Judge.
Argued: May 6, 2003
Decided and Filed: November 17, 2003
Before: KRUPANSKY, SILER, and COLE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Dennis W. Shepherd, OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellant. David J. Guarnieri, JOHNSON, JUDY, TRUE &
2 Newton v. Million No. 01-6116
GUARNIERI, Frankfort, Kentucky, for Appellee.
ON BRIEF: Courtney Jones Hightower, OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellant. David J. Guarnieri, JOHNSON, JUDY, TRUE &
GUARNIERI, Frankfort, Kentucky, for Appellee.
SILER, J., delivered the opinion of the court, in which
KRUPANSKY, J., joined. COLE, J. (pp. 11-12), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
SILER, Circuit Judge. The Commonwealth of Kentucky,
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
against multiple aggressors violated his right to due process
under the Fifth and Fourteenth Amendments of the United
States Constitution. For the reasons that follow, we
REVERSE the district court’s grant of the writ.
BACKGROUND
The charges against Newton arose out of an altercation that
took place on November 16, 1996. The following facts were
presented in the opinion of the Kentucky Supreme Court:
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
started fighting after a minor automobile collision
involving vehicles of friends. The victim and Newton
scuffled on the ground, and the victim was stabbed
several times in the lower left chest, on the right upper
abdomen and the fatal wound was on his upper right

-- 1 of 6 --

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

-- 2 of 6 --

No. 01-6116 Newton v. Million 5
DISCUSSION
A. Procedural Default
As an initial matter, the Commonwealth challenges the
district court’s finding that Newton “fairly presented” his
federal claim to the state court. It maintains that Newton
committed procedural default, arguing that he made only a
vague reference to the Fifth and Fourteenth Amendment and
failed to cite federal or state cases that employ federal
constitutional analysis. The fact that the Kentucky Supreme
Court failed to engage in federal constitutional analysis, the
Commonwealth contends, is further evidence that Newton
failed to apprise the state court of the nature of his claim.
Federal courts do not have jurisdiction to consider a claim
in a habeas petition that was not “fairly presented” to the state
courts. A claim may only be considered “fairly presented” if
the petitioner asserted both a factual and legal basis for his
claim in state court. McMeans v. Brigano, 228 F.3d 674, 681
(6th Cir. 2000). Although general allegations of the denial of
a “fair trial” or “due process” have been held insufficient to
“fairly present” federal constitutional claims, id. at 681, a
petitioner need not recite “book and verse on the federal
constitution.” Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir.
1984) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)).
A petitioner can take four actions in his brief which are
significant to the determination as to whether a claim has
been fairly presented: “(1) reliance upon federal cases
employing constitutional analysis; (2) reliance upon state
cases employing federal constitutional analysis; (3) phrasing
the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleging facts well within the
mainstream of constitutional law.” McMeans, 228 F.3d at
681 (citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir.
1987)).
6 Newton v. Million No. 01-6116
Newton’s brief in the Kentucky Supreme Court provided a
detailed recitation of the facts and specifically stated that the
trial court’s refusal to instruct the jury on the issue of self-
protection against multiple aggressors “violated [his] right to
due process of law under the Fifth and Fourteenth
Amendments of the United States Constitution.” This is
sufficient to have fairly presented the federal nature of his
claim to the state court. There is no requirement that the
petitioner cite to cases that employ federal constitutional
analysis where he has phrased his claim in terms of a denial
of a specific constitutional right. See Carter v. Bell, 218 F.3d
581, 606-07 (6th Cir. 2000) (holding that the habeas
petitioner fairly presented his claim in his state post-
conviction petitions by stating that the statute at issue failed
to narrow the class of persons eligible for death penalty in
violation of his Eighth Amendment rights). Moreover, the
fact that the Supreme Court of Kentucky neglected Newton’s
federal claim does not deprive this court of jurisdiction. See
Koontz, 731 F.2d at 368 (“[T]he exhaustion requirement
‘cannot turn upon whether a state appellate court chooses to
ignore in its opinion a federal constitutional claim squarely
presented in petitioner’s brief in state court.’”) (citations
omitted).
B. Standard of Review
“This court applies de novo review to the decision of the
district court in a habeas corpus proceeding.” Maples v.
Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Harris v.
Stovall, 212 F.3d 940, 942 (6th Cir. 2000)). Newton filed his
federal habeas corpus petition after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), codified principally at 28 U.S.C. § 2254(d).
Pursuant to this provision, a federal court may grant Newton’s
writ of habeas corpus only if the Kentucky court’s judgment
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme

-- 3 of 6 --

No. 01-6116 Newton v. Million 7
Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.
By its very language, 28 U.S.C. § 2254(d) “is applicable
only to habeas claims that were ‘adjudicated on the merits in
State court . . .’” Maples, 340 F.3d at 436. In the case sub
judice, as the state court “did not assess the merits of a claim
properly raised in a habeas petition, the deference due under
AEDPA does not apply.” Id. at 436 (citing Williams v. Coyle,
260 F.3d 684, 706 (6th Cir. 2001)) (applying pre-AEDPA
standards to a habeas petition filed pursuant to § 2254
because “no state court reviewed the merits of [the] claim”).
Accordingly, the AEDPA standard is inapplicable, as this
court “reviews questions of law and mixed questions of law
and fact de novo.” Maples, 340 F.3d at 436 (citing Williams,
260 F.3d at 706).
C. Petitioner’s Habeas Claim
Newton contends that his right to due process under the
Fifth and Fourteenth Amendments was violated when the trial
court refused to give a multiple aggressor qualification in the
jury instruction. Specifically, he argues that the trial court
denied him a meaningful opportunity to put forth a complete
defense based on his theory of self-defense–that he stabbed
randomly in the air because he believed it was necessary to
protect himself against the concerted actions of Hutcherson
and Woolums.
The Supreme Court has interpreted the due process clause
to require that criminal defendants be afforded a meaningful
opportunity to present a complete defense. See California v.
Trombetta, 467 U.S. 479, 485 (1984). In keeping with this
principle, it has ruled that a defendant is entitled to an
affirmative defense instruction even though it may be
inconsistent with other portions of his requested jury
instructions. In Stevenson v. United States, 162 U.S. 313
8 Newton v. Million No. 01-6116
(1896), the Court reversed a murder conviction arising out of
a gunfight. The defendant had requested that the trial court
give both a manslaughter and a self-defense instruction.
Although self-defense may be inconsistent with the charge of
manslaughter, the Court recognized that a full defense
necessitated both instructions. Similarly, in United States v.
Mathews, 485 U.S. 58, 63-64 (1988), the Supreme Court held
that even if a defendant denies one or more elements of the
crime, he is entitled to an affirmative defense instruction
whenever there is sufficient evidence from which a reasonable
jury could find for him on this issue.
In dictum, we have interpreted Mathews as establishing a
rule that ‘“a defendant is entitled to an instruction as to any
recognized defense for which there exists evidence sufficient
for a reasonable jury to find in his favor[.]”’ See Taylor v.
Withrow, 288 F.3d 846, 852 (6th Cir. 2002) (quoting
Mathews, 485 U.S. at 63-64). Specifically, in Taylor this
court stated that, in certain circumstances, “failure to instruct
a jury on self-defense when the instruction has been requested
and there is sufficient evidence to support such a charge
violates a criminal defendant’s rights under the due process
clause.” Taylor, 288 F.3d at 851. We reasoned that “the right
to present a defense would be meaningless were a trial court
completely free to ignore that defense when giving
instructions.” Id. at 852. Nevertheless, it was dictum,
because we held that if that was the law, the petitioner’s
conduct did not warrant such an instruction on self-defense.
Unlike the defendant in Taylor, however, Newton’s claim
does not rest on the court’s denial of a self-defense
instruction. Rather, he challenges the specific content of the
instruction, namely the omission of Woolums’s name.
Newton argues that his case is analogous to Barker v.
Yukins, 199 F.3d 867 (6th Cir. 1999). In Barker, this circuit
held that a trial court’s failure to give a self-defense
instruction that specifically stated that the defendant was
justified in using deadly force to repel a rape under Michigan

-- 4 of 6 --

No. 01-6116 Newton v. Million 9
3This 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 Sixth 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 delegated 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 support the requested jury instruction. T here is
no evidence to suggest that the trial judge disbelieved Newton’s testimony
and the evid ence he presented.
law violated the petitioner’s due process right to put forth a
complete defense and rendered the trial fundamentally
unfair.3 We reasoned that, under the instructions given, the
jury could have found the petitioner’s testimony to be
credible but still have convicted her of murder under the
mistaken belief that a sexual assault does not rise to the level
of death or great bodily harm under the law. Id. In our case,
the court instructed the jury on self-defense. Newton’s
complaint is that it did not include multiple offenders.
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,
10 Newton v. Million No. 01-6116
as a whole, were so infirm that they rendered the entire trial
fundamentally unfair.”). The jury was instructed on self-
defense under the law of Kentucky. The nature of the
particular instruction given is a matter of state law, and we are
not at liberty to grant a writ of habeas corpus simply because
we find the state court’s decision was incorrect under state
law. See Williams v. Taylor, 529 U.S. 362, 411 (2000)
(O’Connor, J., concurring).
REVERSED.

-- 5 of 6 --

No. 01-6116 Newton v. Million 11
_________________
DISSENT
_________________
R. GUY COLE, JR., Circuit Judge. There is no dispute
that: (1) the Due Process Clause requires that a criminal
defendant be provided “a meaningful opportunity to present
a complete defense”; (2) that this right compels the trial court
to instruct the jury as to all relevant defenses, Taylor v.
Withrow, 288 F.3d 846, 582 (6th Cir. 2002); (3) that
Kentucky law permitted Newton to defend himself against
multiple aggressors; (4) that Newton presented evidence at
trial that there was more than one person attacking him; and
(5) that the trial court’s instructions to the jury permitted it to
find that Newton acted in self-defense only if he “believed
that William Hutcherson was then and there about to use
physical force upon him, he was privileged to use such
physical force against William Hutcherson as he believed to
be necessary in order to protect himself against it.”
It thus becomes clear that contrary to the majority’s
assertions, the problem was not that the instruction to the jury
was too general – the problem was that it was too specific.
Had the trial court instructed the jury simply that “the
defendant has a right to protect himself against the threat of
physical force” – a general instruction that nonetheless would
not foreclose the jury from considering Newton’s self-defense
claim – I might agree with the majority. But the instruction
that was actually given to the jury took off the table any
claims of defense that did not involve both: (1) Newton’s
belief that Hutcherson was about to use physical force against
him; and (2) an attempt to protect himself from physical force
at the hands of Hutcherson. As a result of this instruction, a
jury could have found that Newton was reasonably defending
himself against multiple attackers yet still felt compelled to
convict Newton of murder – a result that would be plainly
contrary to the law under which Newton was tried.
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.
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 –
although broadly recognizing the right to use deadly force
when facing the danger of death or serious bodily harm – did
not specifically instruct the jury that the use of deadly force
was lawful in order to prevent a sexual assault. Id. at 871 -
73. We so held notwithstanding the fact that the instruction
that was given to the jury was reasonably read as including
the right to defend oneself against a sexual assault, and we did
so even under a far more deferential standard of review than
the de novo review which we must undertake here. See id. at
871 (applying AEDPA’s deferential standard of review).
Given, then, that we have held it is an unreasonable
application of clearly established federal due process law to
issue an instruction to the jury that is simply too broad, our
precedent leaves us no choice but to hold, on a de novo
review, that an instruction that actually precludes the jury
from evaluating Newton’s self-defense claim also violates due
process.
Nevertheless, the majority rejects Newton’s due process
claim because, according to the majority, Newton challenges
not the omission of a self-defense instruction, but rather the
specific content of the instruction. Under the majority’s view,
then, an instruction which stated that “Newton is entitled to
an acquittal if he acted in self defense provided that he was
defending himself against a man wearing a blue jacket,”
would comport with due process. As this example illustrates,
however, the mere inclusion of an instruction – no matter how
much it nullifies the arguments that the law entitles the
defendant to make – is insufficient to pass constitutional
muster. That this violation came in the form of an erroneous,
rather than omitted instruction, is wholly irrelevant.
Accordingly, I respectfully dissent.

-- 6 of 6 --