        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2      Newton v. Million                           No. 01-6116
     ELECTRONIC CITATION: 2003 FED App. 0407P (6th Cir.)
                 File Name: 03a0407p.06                    GUARNIERI, Frankfort, Kentucky, for Appellee.
                                                           ON BRIEF: Courtney Jones Hightower, OFFICE OF THE
                                                           ATTORNEY GENERAL, Frankfort, Kentucky, for
UNITED STATES COURT OF APPEALS                             Appellant. David J. Guarnieri, JOHNSON, JUDY, TRUE &
                                                           GUARNIERI, Frankfort, Kentucky, for Appellee.
               FOR THE SIXTH CIRCUIT
                 _________________                           SILER, J., delivered the opinion of the court, in which
                                                           KRUPANSKY, J., joined. COLE, J. (pp. 11-12), delivered a
 BILLY DEWAYNE NEWTON,             X                       separate dissenting opinion.
           Petitioner-Appellee, -
                                    -                                            _________________
                                    -  No. 01-6116
            v.                      -                                                OPINION
                                     >                                           _________________
                                    ,
 GEORGE R. MILLION , Warden, -
                                                              SILER, Circuit Judge. The Commonwealth of Kentucky,
         Respondent-Appellant. -                           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
                                   N                       against multiple aggressors violated his right to due process
       Appeal from the United States District Court        under the Fifth and Fourteenth Amendments of the United
     for the Eastern District of Kentucky at Frankfort.    States Constitution. For the reasons that follow, we
     No. 00-00075—Joseph M. Hood, District Judge.          REVERSE the district court’s grant of the writ.

                   Argued: May 6, 2003                                            BACKGROUND

         Decided and Filed: November 17, 2003                The charges against Newton arose out of an altercation that
                                                           took place on November 16, 1996. The following facts were
   Before: KRUPANSKY, SILER, and COLE, Circuit             presented in the opinion of the Kentucky Supreme Court:
                   Judges.                                     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
                        COUNSEL                                started fighting after a minor automobile collision
                                                               involving vehicles of friends. The victim and Newton
ARGUED: Dennis W. Shepherd, OFFICE OF THE                      scuffled on the ground, and the victim was stabbed
ATTORNEY GENERAL, Frankfort, Kentucky, for                     several times in the lower left chest, on the right upper
Appellant. David J. Guarnieri, JOHNSON, JUDY, TRUE &           abdomen and the fatal wound was on his upper right

                             1
No. 01-6116                                   Newton v. Million           3   4       Newton v. Million                                 No. 01-6116

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

                        DISCUSSION                                     Newton’s brief in the Kentucky Supreme Court provided a
                                                                    detailed recitation of the facts and specifically stated that the
A. Procedural Default                                               trial court’s refusal to instruct the jury on the issue of self-
                                                                    protection against multiple aggressors “violated [his] right to
  As an initial matter, the Commonwealth challenges the             due process of law under the Fifth and Fourteenth
district court’s finding that Newton “fairly presented” his         Amendments of the United States Constitution.” This is
federal claim to the state court. It maintains that Newton          sufficient to have fairly presented the federal nature of his
committed procedural default, arguing that he made only a           claim to the state court. There is no requirement that the
vague reference to the Fifth and Fourteenth Amendment and           petitioner cite to cases that employ federal constitutional
failed to cite federal or state cases that employ federal           analysis where he has phrased his claim in terms of a denial
constitutional analysis. The fact that the Kentucky Supreme         of a specific constitutional right. See Carter v. Bell, 218 F.3d
Court failed to engage in federal constitutional analysis, the      581, 606-07 (6th Cir. 2000) (holding that the habeas
Commonwealth contends, is further evidence that Newton              petitioner fairly presented his claim in his state post-
failed to apprise the state court of the nature of his claim.       conviction petitions by stating that the statute at issue failed
                                                                    to narrow the class of persons eligible for death penalty in
   Federal courts do not have jurisdiction to consider a claim      violation of his Eighth Amendment rights). Moreover, the
in a habeas petition that was not “fairly presented” to the state   fact that the Supreme Court of Kentucky neglected Newton’s
courts. A claim may only be considered “fairly presented” if        federal claim does not deprive this court of jurisdiction. See
the petitioner asserted both a factual and legal basis for his      Koontz, 731 F.2d at 368 (“[T]he exhaustion requirement
claim in state court. McMeans v. Brigano, 228 F.3d 674, 681         ‘cannot turn upon whether a state appellate court chooses to
(6th Cir. 2000). Although general allegations of the denial of      ignore in its opinion a federal constitutional claim squarely
a “fair trial” or “due process” have been held insufficient to      presented in petitioner’s brief in state court.’”) (citations
“fairly present” federal constitutional claims, id. at 681, a       omitted).
petitioner need not recite “book and verse on the federal
constitution.” Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir.        B. Standard of Review
1984) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)).
                                                                      “This court applies de novo review to the decision of the
  A petitioner can take four actions in his brief which are         district court in a habeas corpus proceeding.” Maples v.
significant to the determination as to whether a claim has          Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Harris v.
been fairly presented: “(1) reliance upon federal cases             Stovall, 212 F.3d 940, 942 (6th Cir. 2000)). Newton filed his
employing constitutional analysis; (2) reliance upon state          federal habeas corpus petition after the enactment of the
cases employing federal constitutional analysis; (3) phrasing       Antiterrorism and Effective Death Penalty Act of 1996
the claim in terms of constitutional law or in terms                (AEDPA), codified principally at 28 U.S.C. § 2254(d).
sufficiently particular to allege a denial of a specific            Pursuant to this provision, a federal court may grant Newton’s
constitutional right; or (4) alleging facts well within the         writ of habeas corpus only if the Kentucky court’s judgment
mainstream of constitutional law.” McMeans, 228 F.3d at
681 (citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir.               (1) resulted in a decision that was contrary to, or
1987)).                                                                 involved an unreasonable application of, clearly
                                                                        established Federal law, as determined by the Supreme
No. 01-6116                           Newton v. Million         7   8     Newton v. Million                            No. 01-6116

  Court of the United States; or (2) resulted in a decision         (1896), the Court reversed a murder conviction arising out of
  that was based on an unreasonable determination of the            a gunfight. The defendant had requested that the trial court
  facts in light of the evidence presented in the State court       give both a manslaughter and a self-defense instruction.
  proceeding.                                                       Although self-defense may be inconsistent with the charge of
                                                                    manslaughter, the Court recognized that a full defense
   By its very language, 28 U.S.C. § 2254(d) “is applicable         necessitated both instructions. Similarly, in United States v.
only to habeas claims that were ‘adjudicated on the merits in       Mathews, 485 U.S. 58, 63-64 (1988), the Supreme Court held
State court . . .’” Maples, 340 F.3d at 436. In the case sub        that even if a defendant denies one or more elements of the
judice, as the state court “did not assess the merits of a claim    crime, he is entitled to an affirmative defense instruction
properly raised in a habeas petition, the deference due under       whenever there is sufficient evidence from which a reasonable
AEDPA does not apply.” Id. at 436 (citing Williams v. Coyle,        jury could find for him on this issue.
260 F.3d 684, 706 (6th Cir. 2001)) (applying pre-AEDPA
standards to a habeas petition filed pursuant to § 2254                In dictum, we have interpreted Mathews as establishing a
because “no state court reviewed the merits of [the] claim”).       rule that ‘“a defendant is entitled to an instruction as to any
Accordingly, the AEDPA standard is inapplicable, as this            recognized defense for which there exists evidence sufficient
court “reviews questions of law and mixed questions of law          for a reasonable jury to find in his favor[.]”’ See Taylor v.
and fact de novo.” Maples, 340 F.3d at 436 (citing Williams,        Withrow, 288 F.3d 846, 852 (6th Cir. 2002) (quoting
260 F.3d at 706).                                                   Mathews, 485 U.S. at 63-64). Specifically, in Taylor this
                                                                    court stated that, in certain circumstances, “failure to instruct
C. Petitioner’s Habeas Claim                                        a jury on self-defense when the instruction has been requested
                                                                    and there is sufficient evidence to support such a charge
  Newton contends that his right to due process under the           violates a criminal defendant’s rights under the due process
Fifth and Fourteenth Amendments was violated when the trial         clause.” Taylor, 288 F.3d at 851. We reasoned that “the right
court refused to give a multiple aggressor qualification in the     to present a defense would be meaningless were a trial court
jury instruction. Specifically, he argues that the trial court      completely free to ignore that defense when giving
denied him a meaningful opportunity to put forth a complete         instructions.” Id. at 852. Nevertheless, it was dictum,
defense based on his theory of self-defense–that he stabbed         because we held that if that was the law, the petitioner’s
randomly in the air because he believed it was necessary to         conduct did not warrant such an instruction on self-defense.
protect himself against the concerted actions of Hutcherson
and Woolums.                                                          Unlike the defendant in Taylor, however, Newton’s claim
                                                                    does not rest on the court’s denial of a self-defense
   The Supreme Court has interpreted the due process clause         instruction. Rather, he challenges the specific content of the
to require that criminal defendants be afforded a meaningful        instruction, namely the omission of Woolums’s name.
opportunity to present a complete defense. See California v.
Trombetta, 467 U.S. 479, 485 (1984). In keeping with this             Newton argues that his case is analogous to Barker v.
principle, it has ruled that a defendant is entitled to an          Yukins, 199 F.3d 867 (6th Cir. 1999). In Barker, this circuit
affirmative defense instruction even though it may be               held that a trial court’s failure to give a self-defense
inconsistent with other portions of his requested jury              instruction that specifically stated that the defendant was
instructions. In Stevenson v. United States, 162 U.S. 313           justified in using deadly force to repel a rape under Michigan
No. 01-6116                                   Newton v. Million           9    10    Newton v. Million                            No. 01-6116

law violated the petitioner’s due process right to put forth a                 as a whole, were so infirm that they rendered the entire trial
complete defense and rendered the trial fundamentally                          fundamentally unfair.”). The jury was instructed on self-
unfair.3 We reasoned that, under the instructions given, the                   defense under the law of Kentucky. The nature of the
jury could have found the petitioner’s testimony to be                         particular instruction given is a matter of state law, and we are
credible but still have convicted her of murder under the                      not at liberty to grant a writ of habeas corpus simply because
mistaken belief that a sexual assault does not rise to the level               we find the state court’s decision was incorrect under state
of death or great bodily harm under the law. Id. In our case,                  law. See Williams v. Taylor, 529 U.S. 362, 411 (2000)
the court instructed the jury on self-defense. Newton’s                        (O’Connor, J., concurring).
complaint is that it did not include multiple offenders.
                                                                                 REVERSED.
   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,


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