                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0112n.06

                                            No. 17-2473

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
 KEVIN MICHAEL-DORMAN BELTOWSKI,                           )                      Mar 12, 2019
                                                           )                  DEBORAH S. HUNT, Clerk
         Petitioner-Appellant,                             )
                                                           )
                                                                   ON APPEAL FROM THE
 v.                                                        )
                                                                   UNITED STATES DISTRICT
                                                           )
                                                                   COURT FOR THE EASTERN
 SHAWN BREWER, Warden,                                     )
                                                                   DISTRICT OF MICHIGAN
                                                           )
         Respondent-Appellee.                              )


       Before: KETHLEDGE, WHITE and BUSH, Circuit Judges.

       KETHLEDGE, Circuit Judge. Kevin Beltowski appeals the district court’s denial of his

habeas petition, arguing that a jury instruction at his trial violated due process and that his counsel

provided ineffective assistance. We reject both arguments and affirm.

                                                  I.

       Beltowski and his friend, Timothy Moraczewski, ran a marijuana grow house in Detroit.

On the evening of September 26, 2010, Beltowski encountered Moraczewski at the house. Soon

the two men began to argue about their marijuana operation. In the midst of the argument,

Moraczewski aimed a rifle at Beltowski and fired a shot past his head. During the ensuing struggle,

Beltowski choked Moraczewski with the rifle’s shoulder strap.

       Minutes later, Beltowski called Moraczewski’s brother, Jeffrey, to tell him about the fight.

During that call, Beltowski said that he had choked Moraczewski “until he turned purple” and then

had held the strap “for another thirty seconds.” (Beltowski later maintained that he released the
No. 17-2473, Beltowski v. Brewer


strap seconds after Moraczewski passed out.) Beltowski also told Jeffrey that Moraczewski might

still be alive, so Jeffrey rushed over to the house—where he found Moraczewski lying on a couch

with the rifle strap twisted around his neck. According to Jeffrey, the strap was twisted so tightly

that he had to rotate the rifle four times to loosen the strap. Jeffrey rushed Moraczewski to the

hospital, where Moraczewski was declared dead. Soon thereafter, the State charged Beltowski

with murder.

       At trial, Beltowski argued that he had acted in self-defense. The trial court instructed the

jury on self-defense under Michigan law without objection. The jury found Beltowski guilty of

second-degree murder. On direct appeal, Beltowski challenged his conviction on various grounds,

none of which concerned the self-defense instruction. In state post-conviction proceedings,

however, Beltowski argued that the instruction violated due process. The Wayne County Circuit

Court rejected that argument, and the Michigan Court of Appeals and Michigan Supreme Court

denied Beltowski’s application for an appeal.

       Beltowski thereafter filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254,

arguing among other things that the self-defense instruction violated due process and that his

counsel provided ineffective assistance. The district court denied the petition. This appeal

followed.

                                                II.

       We review a district court’s denial of a habeas petition de novo. See Mendoza v. Berghuis,

544 F.3d 650, 652 (6th Cir. 2008). Although the State argues that Beltowski’s claims are

procedurally defaulted, we cut to the merits because a procedural analysis would only complicate

the case. See Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011).




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       Beltowski claims that the jury instruction on self-defense violated due process. The Wayne

County Circuit Court rejected this claim on the merits, which Beltowski argues was “an

unreasonable application of” clearly established Supreme Court precedent.                 28 U.S.C.

§ 2254(d)(1). To succeed on that argument, he must show that no “fairminded” jurist could have

rejected his claim that the instruction violated due process. Harrington v. Richter, 562 U.S. 86,

101 (2011) (internal quotation marks omitted).

       The Supreme Court has made clear that “not every ambiguity, inconsistency, or deficiency

in a jury instruction” violates due process. Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per

curiam). Rather, the error “must be so egregious” that it rendered “the entire trial fundamentally

unfair.” White v. Mitchell, 431 F.3d 517, 533 (6th Cir. 2005). And few instructional errors “violate

fundamental fairness.” Estelle v. McGuire, 502 U.S. 62, 73 (1991) (internal quotation marks

omitted).   Moreover, fundamental fairness is the type of “general standard” where under

§ 2254(d)(1) state courts have particular “leeway . . . in reaching outcomes in case-by-case

determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

       Beltowski argues that the self-defense instruction violated due process in four respects.

First, the trial court instructed the jury that “the person claiming self-defense must not have acted

wrongfully and brought on the assault.” Under Michigan law, a person cannot claim self-defense

if he was “the initial aggressor.” People v. Riddle, 649 N.W.2d 30, 35 n.8 (Mich. 2002). Beltowski

asserts that the jury instruction in his case was “overly broad” because, he says, the jury could have

found that he acted wrongfully and brought on the assault even if he was not the initial aggressor.

See Beltowski Br. at 27. In support, he proposes various hypothetical scenarios purporting to show

that the jury could have improperly rejected his self-defense argument. But a jury instruction does

not violate due process simply because there is a hypothetical “possibility that the jury misapplied



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the instruction.” Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (internal quotation marks and

alterations omitted). Here, as the Wayne County Circuit Court noted, the instruction “essentially

describe[s] a person who is the aggressor[] or initiator of an altercation.” Hence the instruction

was fair enough for constitutional purposes.

       Second, the trial court instructed the jury that “the defendant must have honestly and

reasonably believed that he had to use force to protect himself from the imminent unlawful use of

force by another.” Beltowski asserts that the instruction required the jury to assess whether

Moraczewski’s actions were unlawful rather than whether Beltowski reasonably believed the

actions to be unlawful. But the instruction here almost exactly tracked the language in Michigan’s

self-defense statute. See Mich. Comp. Laws § 780.972. And both the statute and the instruction

required the jury to assess the reasonableness of Beltowski’s belief, not the lawfulness of

Moraczewski’s actions. See People v. Orlewicz, 809 N.W.2d 194, 201 (Mich. Ct. App. 2011).

Moreover, the trial court specifically instructed the jury that so long as Beltowski’s “belief was

honest and reasonable” he could defend himself even if it turned out later that “he was wrong about

how much danger he was in.” Hence this argument too is meritless.

       Third, the trial court instructed the jury that “the right to defend [oneself] only lasts as long

as it seems necessary for the purpose of protection.” Under Michigan law, a person may act in

self-defense only if he “honestly and reasonably believes” that the use of force “is necessary.”

Mich. Comp. Laws § 780.972. Beltowski objects that the words “protection” and “seems” appear

nowhere in the statute. But these words are simply another way of saying that the person must

reasonably believe that the act of self-defense is necessary. See Riddle, 649 N.W.2d at 39. Hence

this argument also fails.




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       Finally, Beltowski argues that the trial court should have included certain language that

appears in Michigan’s model jury instructions. But an “omission” or “incomplete instruction” is

less likely to violate due process “than a misstatement of the law.” Henderson v. Kibbe, 431 U.S.

145, 155 (1977). And a federal court may not grant habeas relief simply because an instruction

deviated from a state’s model jury instructions. See Estelle, 502 U.S. at 72. Here, the self-defense

instruction “as a whole” shows that these omissions did not render Beltowski’s entire trial

fundamentally unfair. See Sarausad, 555 U.S. at 191 (internal quotation marks omitted). Thus,

the state court reasonably found that the instruction did not violate due process.

       Beltowski also argues that his counsel provided ineffective assistance by failing to argue

that the self-defense instruction violated his constitutional rights. But that argument fails because,

as shown above, such an argument would lack merit. See Shaneberger v. Jones, 615 F.3d 448,

452 (6th Cir. 2010).

       The district court’s judgment is affirmed.




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