                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1088n.06

                                           No. 09-2606
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                              Oct 18, 2012
                               FOR THE SIXTH CIRCUIT                            DEBORAH S. HUNT, Clerk


JOHN SWANIGAN,                         )
                                       )
      Petitioner-Appellant,            )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF MICHIGAN
JERI ANN SHERRY,                       )
                                       )
      Respondent-Appellee.             )                          OPINION
_______________________________________)


Before: MARTIN, MOORE, and COOK, Circuit Judges.

        KAREN NELSON MOORE, Circuit Judge. In 2003, a Michigan jury convicted John

Swanigan of possession of cocaine with intent to deliver, possession of marijuana with intent to

deliver, and possession of a firearm during the commission of a felony. John Swanigan sought

habeas relief under 28 U.S.C. § 2254(d) on the basis of numerous grounds, all of which the district

court denied. We granted a certificate of appealability on only one claim: whether Swanigan’s

constitutional rights were violated when the firearm-possession charge identified a specific type of

gun but the jury was instructed to convict if it found that Swanigan possessed “a firearm,” and the

proof at trial demonstrated at least two guns were found during his arrest. In light of the Supreme

Court’s repeated message that habeas relief is reserved for extreme malfunctions by the state courts,

see Harrington v. Richter, 131 S. Ct. 770, 786 (2011), we have no choice but to AFFIRM in this

case.
No. 09-2606
Swanigan v. Sherry


                                        I. BACKGROUND

        Swanigan was arrested on February 11, 2003, following a search conducted at his home in

Wayne County, Michigan. Michigan v. Swanigan, No. 250439 (Mich. Ct. App. Mar. 1, 2005)

(unpublished opinion). The police arrived at 10:00 p.m. and began knocking on the door, but

received no response. During this time, the police “heard yelling and footsteps, and saw shadows

of people running throughout the living area.” Id. at 3. After the police gained entry by ramming

the door down, they observed in plain view in the living room a loaded nine-millimeter handgun on

the arm of a chair, in addition to various drugs and drug paraphernalia. Id. The officers detained

Swanigan as he emerged from the basement, where the police discovered a plastic container that

“contained more than 408 grams of cocaine and a forty-caliber firearm.” Id.1

        In addition to two drug counts, Swanigan was charged by information with possessing a

firearm during the commission of a felony in violation of Michigan Compiled Laws § 750.227b. The

information has not been provided to us in full, but the parties agree that Swanigan was charged in

Count 3 specifically with “hav[ing] in his/her possession a firearm, to wit: 9MM, at the time he/she

committed or attempted to commit a felony, to wit, [felony possession with intent to distribute



       1
         Swanigan and the state periodically refer to the presence of three firearms in the house.
Swanigan cites only the trial testimony of Officer Butler for the proposition that the police also found
a black Taurus handgun, but Officer Butler’s testimony does not make clear whether the black
Taurus and the nine millimeter are one and the same. See R. 9 (Trial Tr. II at 29-32) (Page ID # 405-
08) (discussing finding a firearm on the table and on the chair, but only introducing one gun into
evidence, a Taurus, referenced as the “only actual firearm aside from [the police’s]” in the living
room). Because the Michigan Court of Appeals discusses only one firearm in addition to the one
in the basement, we limit our consideration to the facts as found by that court.

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cocaine or marijuana].” Appellant Br. at 25-26; Appellee Br. at 16. The jury was instructed,

however, that Swanigan could be convicted of Count 3 if it determined “that at the time the

defendant committed or attempted to commit those [felony drug] crimes he knowingly carried or

possessed a firearm.” R. 11 (Trial Tr. IV at 25-26) (Page ID #731-32) (emphasis added).

       Swanigan filed a direct appeal challenging in part the sufficiency of the evidence relating to

the firearm-possession charge. The Michigan Court of Appeals affirmed, holding that the evidence

was sufficient to attribute Swanigan with constructive possession of either the nine-millimeter

firearm in the living room or the firearm found in the basement. Swanigan, No. 250439 (Mich. Ct.

App. Mar. 1, 2005). Swanigan filed a motion for reconsideration, adding his claim that the jury

instructions constructively amended his indictment. The Michigan Court of Appeals denied

reconsideration in a one-sentence order. Michigan v. Swanigan, No. 250439 (Mich. Ct. App. Apr.

21, 2005). Swanigan’s application for discretionary review before the Michigan Supreme Court,

which included the jury-instruction claim, was also denied. Michigan v. Swanigan, No. 128658

(Mich. Sept. 28, 2005).

       Swanigan filed his initial habeas petition in the United States District Court for the Eastern

District of Michigan in February 2006. The district court determined that Swanigan’s jury-

instruction claim was not exhausted because it was raised on direct appeal in a motion for

reconsideration, and the district court then stayed Swanigan’s habeas petition so he could return to

state court. R. 16 (Dist. Ct. Order 1/30/07 at 7) (Page ID #1064). Swanigan’s motion for post-

conviction relief in the Wayne County Circuit Court was denied pursuant to Michigan Court Rules


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§ 6.508(D)(2) and (3). Michigan v. Swanigan, No. 03-3372-01 (Mich. Wayne Cnty. Cir. Ct. Apr.

19, 2007). The state court concluded that “[e]very one of the issues raised has been addressed or

easily could have been addressed by defendant on direct appeal,” but did not clarify which of

Swanigan’s numerous claims fell into which category. Id. The Michigan Court of Appeals denied

review “for lack of merit in the grounds presented.” Michigan v. Swanigan, No. 278457 (Mich. Ct.

App. Jul. 23, 2007). And the Michigan Supreme Court again denied discretionary review “because

the defendant has failed to meet the burden of establishing entitlement to relief under MCR

6.508(D).” Michigan v. Swanigan, No. 134517 (Mich. Dec. 28, 2007).

       Swanigan then returned to federal court to reopen his habeas petition with his jury-instruction

claim now properly exhausted. The district court held that Swanigan’s jury-instruction claim was

procedurally defaulted because the trial court denied relief on a state procedural rule—failure to raise

the claim on direct appeal. R. 36 (Dist. Ct. Order 11/30/09 at 3-4) (Page ID #1557-58). We granted

a certificate of appealability because we determined that reasonable jurists could debate the merits

of the jury-instruction claim and the district court’s conclusion that it had been procedurally

defaulted. Swanigan v. Sherry, No. 09-2606 (6th Cir. Aug. 9, 2010) (unpublished order).

                                  II. STANDARD OF REVIEW

       We review de novo a district court’s legal conclusions in a habeas corpus proceeding. Goff

v. Bagley, 601 F.3d 445, 455 (6th Cir. 2010), cert. denied, 131 S. Ct. 1045 (2011). Because

Swanigan filed his petition after the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), we are governed by its strictures. Id. at 455-56. Under AEDPA, a habeas


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application by a person in state custody with respect to claims adjudicated on the merits may not be

granted unless the state court’s adjudication

        (1) resulted in a decision that was contrary to, or involved an unreasonable
            application of, clearly established Federal law, as determined by the Supreme
            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.

28 U.S.C. § 2254(d).

                               III. JURY-INSTRUCTION CLAIM

        Swanigan argues that the district court erred in denying habeas because the state court did

not reject his jury-instruction claim on a procedural ground and the state court’s denial of relief was

an unreasonable application of clearly established federal law as set forth by the Supreme Court in

Stirone v. United States, 361 U.S. 212 (1960). Because we hold that the state court’s decision was

not unreasonable on the merits, we do not address Swanigan’s arguments relating to procedural

default. See Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003) (citing Lambrix v. Singletary,

520 U.S. 518, 525 (1997)), cert. denied, 543 U.S. 880 (2004).

        Clearly established federal law holds that “[t]he right to have the grand jury make the charge

on its own judgment is a substantial right which cannot be taken away with or without court

amendment.” Stirone, 361 U.S. at 218-19. In Stirone, the defendant was charged with a violation

of the Hobbs Act for his actions’ effects in the sand industry. At trial, however, proof was offered

of potential criminal misconduct in the sand and the steel industry, and the jury was instructed that

it could convict if it found a violation in either. “This was fatal error,” because the instruction meant

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Swanigan v. Sherry


that the steel industry “might have been the basis upon which the trial jury convicted [the]

petitioner,” and if that were the case, “he was convicted on a charge the grand jury never made

against him” in violation of the Fifth Amendment. Id. at 219.

       The analogy between this case and Stirone should be obvious: Swanigan was charged with

possession of a 9mm firearm, but at trial, proof was offered of potential criminal possession of the

9mm and one other firearm. The jury was instructed that it could convict Swanigan if it found that

he possessed “a firearm,” R. 11 (Trial Tr. IV at 26) (Page ID #732), not just the 9mm firearm

identified in the charging document. Just as in Stirone, therefore, “it cannot be said with certainty

that with a new basis for conviction added, [Swanigan] was convicted solely on the charge made in

the indictment the grand jury returned.” Stirone, 361 U.S. at 217. And if we cannot know whether

the basis of the jury’s conviction was the 9mm or some other firearm, the variance between

indictment and proof “destroyed [Swanigan’s] substantial right to be tried only on charges presented

in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be

treated as nothing more than a variance and then dismissed as harmless error.” Id.

       But, the differences between this case and Stirone are also obvious. The facts alleged in

Stirone’s indictment differed significantly from the additional proof put on at trial. The indictment

alleged that Stirone interfered with shipments of sand used to make concrete from another state into

Pennsylvania. The additional proof was that his actions could amount to a violation if the jury found

that the concrete in question “was used for constructing a mill which would manufacture articles of

steel to be shipped in interstate commerce.” Id. at 214 (internal quotation marks omitted). The


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evidence relating to current shipments of sand interstate was wholly unrelated to the evidence

relating to future shipments of steel interstate. An individual who comes to court to defend against

charges for his conduct in the sand industry and is instead forced to defend also against his acts in

a wholly separate industry is understandably prejudiced by the variance. Here, however, the charged

act and the proof all related to the same police raid, on the same date and time, and in the same

house—Swanigan’s house—where Swanigan was arrested. The differences in proof were minimal,

and the evidence used to defend against such proof would functionally be the same.

       Nor has the Supreme Court held that all variations between the indictment and the proof at

trial are of the fatal Stirone variety, despite the sweeping language in that case, even when the

indictment is specific and the proof is more broad. In Berger v. United States, 295 U.S. 78, 81

(1935), the Supreme Court held that there was no fatal variance when a defendant was charged and

convicted of participating in one specific conspiracy but the proof at trial encompassed two

conspiracies. Although there was no jury instruction in Berger to convict if the defendant was

deemed to have participated in either—the second conspiracy was meant to target the co-

defendants—the Supreme Court in Berger emphasized that “no variance ought ever to be regarded

as material where the allegation and proof substantially correspond, or where the variance was not

of a character which could have misled the defendant at the trial.” Id. at 83 (quoting Wash. & G. R.

Co. v. Hickey, 166 U.S. 521, 531 (1897)) (internal quotation marks omitted).2


       2
        The lower courts have drawn a line between Berger and Stirone, calling a Berger-like
discrepancy a non-fatal variance and a Stirone-like discrepancy a constructive amendment. See
Gaither v. United States, 413 F.2d 1061, 1071-72 (D.C. Cir. 1969); see also United States v. Beasley,

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       Certainly, there are differences between this case and Berger as well. There was no jury

instruction, as here, that the defendant could be convicted if found to participate in either conspiracy

and not just the one charged. But would it be unreasonable for a state court to conclude that this

case is closer to Berger than Stirone? No.3 And Swanigan does not argue that his defense was

prejudiced by the failure of the indictment to charge all possible weapons in violation of the law

clearly established by Berger. The firearms were seized in the same house during the police raid in

which Swanigan was arrested, and he does not challenge the Michigan Court of Appeals’s finding

that the evidence was sufficient to convict Swanigan of possessing any one of the two firearms.

       The state-court decision may have been incorrect, but we cannot conclude that it was an

unreasonable application of clearly established federal law as announced by the Supreme Court.

                                        IV. CONCLUSION

       For the aforementioned reasons, we AFFIRM the judgment of the district court.




583 F.3d 384, 389-90 (6th Cir. 2009). The Supreme Court has yet to adopt these labels.
       3
         Indeed, we ourselves have previously held that where the indictment charges the defendant
with carrying one type of firearm, but the proof identifies four firearms in the house and the jury is
told to convict if the “the defendant carried any firearm,” the variance is not fatal. United States v.
Robison, 904 F.2d 365, 368-69 (6th Cir.), cert. denied, 498 U.S. 946 (1990).

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