Milton Harris v. Raymond Booker

The Honorable Richard Mills, United States District Judge for the Central District of Illinois,*
sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0733n.06
Filed: October 11, 2007
No. 06-1321
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MILTON HARRIS,
Petitioner-Appellant,
v.
RAYMOND BOOKER,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: COLE and COOK, Circuit Judges; and MILLS, District Judge.*
COOK, Circuit Judge. Following a bench trial, Milton Harris was convicted of second-
degree homicide for killing Sammy Wright. On appeal from the denial of his petition for habeas
corpus, he claims that insufficient evidence supports his conviction. We affirm.
I. Facts and Procedural History
When Milton Harris walked by Sammy Wright’s house one night in 1999, Wright made
threatening or harassing statements to Harris while allegedly brandishing a gun. Harris went to his
own house, and, some time later, returned to Wright’s house with a shotgun. Wright was still on his
porch and continued to threaten or harass Harris, and eventually Harris shot and killed Wright.

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Michigan tried Harris for the shooting, and, after a bench trial, the state court found Harris
guilty of second-degree murder (though the prosecution had pressed the first-degree offense). The
court began its discussion of Harris’s mental state by noting, “The only issue really is that of intent
because for first-degree murder . . . the defendant must have actually intended to kill the victim.”
In concluding that Harris lacked the intent necessary for first-degree murder, the court repeatedly
referred to Harris’s “anger,” and concluded that he lacked “actual intent . . . to kill,” but still
concluded that he “knowingly created a very high risk of death or great bodily harm knowing that
death could result from his actions.” The court further concluded that Harris’s actions “were not
justified.” Toward the end of its discussion, the court explained that “one of the words we used to
hear is hot blood and I think this was a shooting which came from hot blood.” The court, however,
had previously stated,
Now, in this case there was time [between Wright accosting Harris and Harris
returning to shoot Wright.] The defendant was home, he was in a position of safety,
he could have stayed there. If he felt he had been treated badly or dissed, in today’s
language, he could have chosen to ignore it. If he felt he had been threatened, he
could have called the police . . . .”
Ultimately, the court rejected the first-degree offense and instead found Harris guilty of second-
degree murder.
Harris appealed, claiming that the trial court’s inconsistent findings on his intent failed to
support the second-degree offense; that is, because the trial court mentioned “hot blood,” it should

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In Michigan, “Voluntary manslaughter is an intentional killing committed under the1
influence of passion or hot blood produced by adequate provocation, and before a reasonable time
has passed for the blood to cool and reason to resume its habitual control.” People v. Fortson, 507
N.W.2d 763, 765 (Mich. Ct. App. 1993) (per curiam) (citing People v. Pouncey, 471 N.W.2d 346,
349–50 (Mich. 1991)).
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have convicted him of voluntary manslaughter. The Michigan Court of Appeals affirmed, People1
v. Harris, No. 231398, 2002 WL 1424839 (Mich. Ct. App. June 28, 2002), but the Michigan
Supreme Court vacated and remanded “for further findings of fact regarding the defendant’s intent,”
People v. Harris, 659 N.W.2d 240 (Mich. 2003) (table). On remand, the state trial court provided
detailed findings of fact. The court explained that its “erroneous and unfortunate use of the phrase
‘that this was [a] shooting which came from hot blood[,]’ was in no way intended to mean that it
meets the test for voluntary manslaughter.” It went on to explain at length why the record did not
support a voluntary manslaughter conviction: in short, a reasonable person would not have been
acting out of irresistible passion given the amount of time Harris had to “cool off” following
Wright’s harassment. It then reiterated its finding that Harris “knowingly created a very high risk
of death or great bodily harm, knowing that death or harm would be the likely result of his actions.”
The trial court again found Harris guilty of second-degree murder. The Michigan Court of Appeals
affirmed, People v. Harris, No. 231398, 2003 WL 21771746 (Mich. Ct. App. July 31, 2003) (mem.),
and the Michigan Supreme Court denied leave to appeal, People v. Harris, 674 N.W.2d 155 (Mich.
2003) (table).

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Harris filed a habeas petition—rather than independently brief his claim, he attached a copy
of the briefs he had previously presented to the state courts. A magistrate judge recommended
denying the petition, and the district court adopted the magistrate’s report and denied the petition.
Harris moved for a Certificate of Appealability, which the district court denied. On appeal this court
granted a Certificate of Appealability but only as to Harris’s claim that “the evidence presented
before the trial court regarding [his] intent required the reduction of his conviction from second-
degree murder to voluntary manslaughter.”
II. Sufficiency of the Evidence as to Harris’s Intent
Harris claims that the state trial court erred by convicting him of second-degree murder when,
according to Harris, the facts adduced at trial support only voluntary manslaughter.
The first question is whether Harris exhausted this claim in state court. We determine he did
not. To satisfy the exhaustion requirement, a state prisoner must present his claim to the state courts,
and he must present it as the denial of some federal constitutional right. Duncan v. Henry, 513 U.S.
364, 365–66 (1995) (“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.”). The prisoner need not “cite book and verse on the federal
constitution,” id. at 365; he need only “fairly present” his claim to the state court, see Picard v.
Connor, 404 U.S. 270, 275 (1971); Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003). In this
circuit, fair presentation generally depends on whether the prisoner has “(1) reli[ed] upon federal

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cases employing constitutional analysis; (2) reli[ed] upon state cases employing federal constitutional
analysis; (3) phras[ed] the claim in terms of constitutional law or in terms sufficiently particular to
allege a denial of a specific constitutional right; or (4) alleg[ed] facts well within the mainstream of
constitutional law.” Newton, 349 F.3d at 877 (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir. 2000)); see also Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004). “General allegations
of the denial of rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present claims’ that specific
constitutional rights were violated.” McMeans, 228 F.3d at 681.
In response to the government’s contention that he has not met this standard, Harris argues
that his “claims of insufficiency of evidence . . . [are] ‘well within the mainstream of the pertinent
constitutional law.’” See id. We cannot agree, as Harris’s filings did not sufficiently apprise the
state courts of the federal constitutional nature of his claims. In the brief submitted to the Michigan
Court of Appeals (before the Michigan Supreme Court remanded for further findings on his intent),
Harris argued that the trial court “failed to apply the correct rule of [state] law” to its “specific
findings of fact concerning the circumstances surrounding the killing,” in violation of Mich. Ct. R.
6.403. He relied exclusively on state-court cases, all of which concern only the state of mind
required to support different degrees of homicide as a matter of state law. In his 2003 application
for leave to appeal to the Michigan Supreme Court, he continued to question the application of
Michigan homicide law to the facts of his case. Review of the record does not reveal any other briefs
submitted by Harris, and a habeas petitioner bears the burden of establishing that he has exhausted
in state court. See Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003) (citing Rust v. Zent, 17 F.3d

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155, 160 (6th Cir. 1994)). Because Harris has no remaining state court avenue in which to properly
exhaust this claim, it is procedurally defaulted, and he has not attempted to show cause and prejudice
sufficient to excuse the default. See Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002).
Even if we were to find this claim exhausted, Harris still could not prevail. He cannot
establish that the evidence was insufficient to support his conviction for second-degree murder.
Under Jackson v. Virginia, Harris must show that “no rational trier of fact could have found proof
of guilt [of second-degree murder] beyond a reasonable doubt.” 443 U.S. 307, 324 (1979). After
the Michigan Supreme Court’s remand, the trial court clarified any ambiguity in its earlier findings
and found the facts necessary to support every element of a conviction for second-degree murder.
See, e.g., People v. Smith, 731 N.W.2d 411, 414–15 (Mich. 2007) (defining the elements of second-
degree murder as “(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant
acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the
death”); People v. Neal, 506 N.W.2d 618, 620 (Mich. Ct. App. 1993) (defining “malice” as “an
intent to kill, an intent to do great bodily harm, or an intent to create a high risk of death or great
bodily harm with knowledge that such is the probable result”).
Finally, to the extent Harris claims that the trial court’s initial findings compelled a
conviction of voluntary manslaughter under Michigan homicide law, his claim is not cognizable on
federal habeas review, as “it is not the province of a federal habeas court to reexamine state-court

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determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see also Ege
v. Yukins, 485 F.3d 364, 375 (6th Cir. 2007).
III. Double Jeopardy Clause
Harris also invokes the Double Jeopardy Clause to complain of the state courts’ findings
regarding his mental state. He claims that both the trial court and the Michigan Supreme Court (in
its remand order) either explicitly or implicitly acquitted him of second-degree murder by finding
the evidence legally insufficient, and therefore, the trial court on remand could not constitutionally
convict him of that offense. Given that this issue lacks certification, even implicitly, we decline to
address either exhaustion or the merits of the claim. See 28 U.S.C. § 2253(c).
IV. “Right to Present a Defense”
We treat likewise Harris’s argument—concededly uncertified for review—that the state trial
court violated his federal constitutional “right to present a meaningful defense” when it denied his
motion for a continuance to locate a res gestae witness after the prosecution had endorsed the witness
but failed to produce him for trial.
V. Conclusion
We affirm the judgment of the district court.

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R. GUY COLE, JR., Circuit Judge, concurring. I concur in the majority’s opinion, but
write separately because I believe this Court should reach Harris’s sufficiency of the evidence claim.
I agree with the majority that Harris’s claim must fail on the merits.
The majority declines to reach Harris’s sufficiency of the evidence claim, finding that his
claim is not exhausted because it was not presented as a federal constitutional claim in the state
courts. (Maj. Op. 4-5.) However, as the majority notes, this Court does reach claims that allege
“facts well within the mainstream of constitutional law.” (Maj. Op. at 5.) Although Harris failed to
couch his claim in terms of federal law before the state courts, success of his sufficiency of the
evidence claim in the state system would necessarily implicate federal due process concerns. I thus
find Harris’s claim to be within the mainstream of constitutional law and would reach the claim’s
merits.
In any event, I agree with the majority’s analysis and finding regarding the merits of this
claim (Maj. Op. at 6) and concur with the result of the opinion.

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