                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.

                                                   3
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



                                                     4
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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