NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0111n.06 No. 12-1281 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
SPENCERWI L L I AMS, Petitioner-Appellee , v. HUGH WOL FEN BA RGER, W arde n, Respondent-Appe llant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN
OPI NI ON

Be fore : SI L ER and COOK, Circuit Judges; STEEH, District Judge * STEEH, District J udg e. Spencer Wil liams pleade d g uilty to second- deg ree murder afte r his involvement in a

n arme d robber

y resulting in the death of Daniel Gar cia. Wil liams was sentenc ed to life in prison by the State of Michig an. He subsequently filed a writ of habea s corpus, contending that his g uilty plea was involuntary and thus unconstitutional. The district court ag ree d and g rante d him a conditional writ of habe as cor pus. For the following rea sons, we re verse .

I
.

The Honora

ble Geor g e C. Steeh, Uni t ed S t at es District J udg e for the Easter n District of * Michig an, sitting by

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On Dec ember

8, 2007, Wil liams and an acc omplice, Dave ll Johnson, planne d a robber y to steal marijuana from Mr. Gar cia. During the robber y , J ohnson shot and killed Mr. Gar cia. Wil liams

w a s s u b s e q u e n tl y c h a r g e d with first deg ree felony murder, arme d robber y , and being a habitual felon. On Marc h 3, 2009, Wil liams’s counsel indicated that Wil liams intended to enter a plea of g uilty to second- deg ree murder. Echoing the State’s offe r, the trial court stated th at Wil liams could plead g uilty to second- deg ree murder or g o to trial for first-deg ree felony murder. Wil liams responded, “sec ond-deg ree murder? No, Sir. Idon’t understa nd how it can be come se cond-de g ree murder.” The prosec utor then put the offe r on the re cord a nd explained to W illiams t hat “if y ou enter a plea to murder second, then we would drop the felony murder and y ou would have no chanc e of l ife without parole , that ’s g one, and we’ d drop the arme d robber y and we’ d drop the [habitual felon char g e].” Wil liams procee ded to plead guilty to second-de g ree murder.
At sentenc ing on Ma

rch 25, 2009, Williams moved to withdraw his g uilty plea. He state d to the court that when he enter ed his plea, “I was just say in’ ‘Ye s, y es,’ but basica lly , sir, I swea r to y ou, I didn’t understand a word y ou wer e sayin’.” The court indicated to Wil liams that “[t] he Court made sure y ou understood what the prosec ution’s offe r was. You ag ree d to plead g uilty to seconddeg ree murder. You wer e put under oath. You g ave testimony that established the fac tual basis for second- deg re e m u rd er . . .” The court found that Wil liams’s “plea was voluntarily made, understanding , knowing , willing, and there would be substantial prejudice to the prosec ution if [i t] let [hi m] withdraw [the] plea.” The court then de nied his motion t o withdraw his plea
.

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Wil liams appea led to the Michig an Court of Appea ls, arguing that his plea was not knowing and voluntary
. Wil liams argued that his alleg edly involuntary p lea violated “state and fede ral constitutional due proce ss g uara ntees.” The Michig an Court of Appea ls denied Wil liams’s appea l for lack of m er i t. Wil liams then submitt ed an application for leave to appea l to the Michig an Supreme Court. The Mic higa n Supreme Court also denie d Wil liams’s application.
Wil liams petitioned the district court for a writ of habea s corpus, ag ain asser ting that his plea
was not knowing and voluntary
. Wil liams attache d to t he petition the brief he submitt ed to the Michig an Court of Appea ls and the Michig an Supreme Court. The Mag istrate J udg e issued a Report and Recommenda tion that the district court g rant W i l l i ams his reque sted relief
. The Mag istrate J udg e conclude d that Wil liams’s plea of g uilty was not v o l u n t ar i l y , knowing ly , and intelligently made beca

use Wil liams did not understand the nature and elements of second- deg ree murder. Thus, the t ri al court’s decision that the plea was knowing , intelligent and voluntary involved an
unrea sonable application of clea rly established fede ral law. Th e d is trict court adopted the Mag istrate J udg e’s Report and R ecommenda tion and gra

nted W illiams a conditional writ of habeas corpus. The State timely

appea led.
I I
. Be fore addre ssing the merits of the claim on appea l, we must first decide whether Wil liams’s due proce ss claim was exhausted in the state courts. W agner v. Smith , 581 F.3d 410, 415 (6th Cir. 2009) (e x plaining tha t exhausti on of state remedies is a threshold barrier to rea ching the merits of - 3 -No. 12-1281

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a claim). The responde nt argues that the claim upon which habea s relief was gra n t ed was unexhausted beca

use Wil liams never argued in the state courts that he did not understand the nature
or elements of second- deg ree murder. The responde nt contends that Wil liams’s argu ment in the state court of appea ls and Michig an Supreme Court focuse d solely on the sentenc ing conseque nces of his plea, hence that the district court err oneously g rante d habea s relief on a claim that was not fairly prese nted to the state c ourts.
A habea s petitioner’s claim must have been “fa irly prese nted” to the state courts in order to be considere d proper ly exhausted, meaning that t h e state courts must have been “g iven the opportunity to see both the fac tual and leg al basis for eac h claim.” Id
. at 415 (citation omitted). To satisfy this require ment, the petitioner must argue his claim under the s am e leg al theory that was prese nted to the state courts. Carter v. Mitchell , 693 F.3d 555, 568 (6th Cir. 2012); see also Pillette

v. Foltz , 824 F.2d 494, 497 (6th Cir. 1987). “Ge nera l alleg ations of the denial of rig hts to a fair trial
an d due proce ss do not fairly prese nt claims that specific constitutional rig hts wer e violated”; th e claim m ust alleg e the denial of a s p ec ific constit utional rig ht. Slaughter v. Parker , 450 F.3d 224, 236 (6th Cir. 2006) (interna l quotations and citations omitt ed).
Her e, Wil liams argued in the state courts that his plea of g uilty to second- deg ree murder was not voluntary , knowing , or intelligent. A plea that is not v o l u ntarily , knowing ly , or intelligently made is a violation of one ’s due pr ocess r ights, Hende rson v. Morgan , 426 U.S. 637, 645 (1976), and results in the denial of a specific constitutional rig ht. Thus, Wil liams did arg ue the denial of a
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spec i fi c co n s tituti onal rig ht; but, he did not do so under the same leg al theory advanc ed in this proce eding
. We ag ree with the State of Michig an that Wil liams did not argue in the state courts the claim upon which habea s relief was g rante d. The fac ts Wil l i am s re l i ed upon in his state court briefing focuse d solely on the State’s promise of a sentenc e well below that of life in prison. He repe atedly sug g ests that he should be permitted to w ithdraw his ple a of g uilty beca use of a “misappre hension of the value of commitments made to him,” as they perta in to his sentenc e. Wil liams argued that he firmly believed that he would re ceive eig hteen y ear s’ imprisonment f or plea ding g

uiltyto seconddeg ree murder and that afte r rec ei v i n g a l i fe sentenc e, the State’s promise as to the plea barg ain beca me illusory
. As such, Wil liams’s argument hinge d on his “lac k of understanding of the potential conseque nces of the alleg ed ‘plea barg ain.’” Howeve r, knowing the conseque nces of a g uilty plea t o s ec ond-deg ree murder is not the same leg al theory as knowing the elements of second- deg ree murder. Despite Wil liams’s many statements that “he was panickin’,” that he was “g oin’ cra zy ,” or that he didn’t “under stand what[] [was] g oing on,” nowher e in his analy sis at the state level does he arg ue that he was unawa

re of the eleme n t s o f t h e o ff ense of conviction or that his attorney or the court should have explained the elements of second- deg ree murder but failed to do so. Acc ording ly , beca use t he claim that Wil liams prese nted t o the s tate courts was not ar g ued under the s ame lega l

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olfenbarger theory , as our prec edent requires, we find that W i l l i am s ’s cl ai m as i t was presented to the di strict court for habea s review

is unex hausted.
I I I
. Even if we wer e to find that Wil liams’s claim was sufficie ntly exhaus t ed , i t wo u ld nonetheless fail on the merits. “On a fede ral habea s appea l from a state court judgme nt, we revie w 1

a district c ourt’s leg al conclusions and mix ed questions of law and fac t de novo, and we revie w its fac tual finding s for clea

r err or.” Ruelas v. W

olfenbarger , 580 F.3d 403, 408 (6th Cir. 2009) (citation omitted). The State of Michig an argues that if the claim upon which habea s relief was g rante d was
ex h aust ed, habea s relief is still not war rante d. The State contends that the district court failed t o aff ord the state courts the appropr iate defe renc e as require d by the Antiterror ism and Effe ctive Death Penalty Act (“ AEDPA”)
. Un d er AEDPA, fede ral courts are prohibited from setting aside a state court jud gm en t sustaining a prisoner’ s conviction on any claim adjudicated on the m erits, unl ess: (1) the decision “wa s contra

ry to, or involved an u n re as o n able application of, clea rly established Fe dera l law, as deter mined by t h e S u p reme Court of the United States[,] ” or (2) the decision “wa s based on an
unrea sonable determination of t he facts i n l i gh t o f t h e evidence presente d” to the s tate courts. 28 U.S.C. § 2254(d). “A state court de cision is ‘contrar y to’ established fe dera l law i f t he state c ourt
W e ar e permitted to revie w the merits of a claim even when the petitioner has fai l ed t o 1 exhaust his claim in t he state c ourts. See 28 U.S.C. 2254(b)(2). - 6 -No. 12-1281

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arr ived at a conclusion opposite to one reac hed by the S upreme Court on a question of law or if it decide s a case differ ently than the Supreme Cour t o n ma te rially indisti ng uishable fac ts.” Ruelas , 580 F.3d at 408 (citation omitted). Whil e “cle arly established” law i n cl u d es o n l y the holdings of the Supreme Court, not its dicta, Bailey v. Mitchell , 271 F.3d 652, 655 (6th Cir. 2001), courts may look to the decisions of lower fede ral courts to assess whether a principle has been “cle arly established.”
A defe ndant waives sever al fede ral constitutional rig hts when pleading g uilty , and to ensure that the defe ndant appre ciates the conseque nces of this waiver , the Supreme Court mandates that the plea must be voluntarily , knowing ly , and intelligently made. Brady v. United States , 397 U.S. 742, 7 4 8 -5 0 (1970). A plea cannot be voluntarily and intelligently made wher e a defe ndant does n o t
rec eive “re al n o t i ce o f t he true nature of the char g e ag ainst him, the first and most universally
rec og nized require ment of due proce ss.” Smi t h v. O’Grady , 312 U.S. 329, 334 (1941). “Without adequate notice of the nature of the char g e ag ai nst him, or proof that he in fac t understood the char g e, the plea cannot be voluntary .” Hende rson, 426 U.S. at 645. And wher e a defe ndant pleads g uilty to a crime and he is not informed of the elements of that crime, the standard for a “voluntary , knowing , and intelligent” plea is not met and the plea is invalid. Bradshaw v. Stumpf , 545 U.S. 175, 183 (2005). During the plea colloquy , the trial court is not require d to inform the defe ndant of the nature and elements of the crime, so long as “the rec ord acc urate ly ref lects that the nature of the char g e and the elements of the crime were ex p l ai n ed to the defe ndant by his own, competent counsel.” Id
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olfenbarger (citation omitted). Where competent counsel assure s the court that the defe ndant has been informed of the nature and elements of the crime, we may rely on this assura nce to find that the defe ndant has been proper ly informed. Id
. I ndeed, even absent a clea r showing on the rec ord, we presume that counsel did in fac t explain the nature of the offe nse to the defe ndant. Hende rson , 426 U.S. at 647. But even if our presumption is incorre ct, the rec ord i n d i cate s that Wil liams admitted fac ts establishing e ach e lement of sec ond-deg ree murder.
I n Michig an, the elements of the l esser -included offense of second-deg ree murder ar e: (1 )
a death; (2) cause d by an act of the defe ndant; (3) with malice; and (4) without justification. People

v. Mendoza , 664 N.W.2d 6 8 5 , 6 8 9 (Mich. 2003). Malice is define d as “an intent to commit an unjustified and inexcusable killing[,] ” id
. at 691 (citation omitted), or “the wanton and wilful disreg ard of the likelihood that the natura l tendenc y of such behavior is to cause death or g reat bodily harm.” People v. W

erner , 659 N.W.2d 688, 692 (Mich. C t. App. 2002) (interna l quotation marks and citation omitted). W illiams repe atedly denies any intent to kill the vi ctim, and the prosecutor ag ree s that Wil liams d i d n o t intend to kill any one. Howeve r, Michig an law does not require Wil liams to have the specific intent to kill in order to satisfy the in t en t el em en t o f second- deg ree murder. Her e, Wil liams admits to planning the rob b er y wi t h t h e shooter, a Dave ll J ohnson. He admits to flee ing with J ohnson, who had taken the drug s from the victim afte r the shooting. Wil liams never claimed that he tried to intervene to stop the shooting, despite “panicking ” during the robber y or try ing to make J ohnson g ain control of himself. Wil liams also never denies knowing his acc omplice had a g un. Wil liams’s protestation that he was “g uilty of setting Dan up with some - 8 -No. 12-1281

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fools that basica lly don’t know the meaning of life” indicated that Wil liams used his friendship with the victim to rende r the victim vulnera ble to the robber

y . Unfortuna tely for Wil liams, the require d element of malice is established by his admission that he planned an arme d robber y , there by cre ating
a high risk of violence and harm to the victim. See W erne r , s u p r a . T hese fac ts, as admitted by Wil liams and rec ited by the trial court, establish the fac tual basis for the plea of g uilty to seconddeg ree murder. A ccor dingly , Wil liams’s plea wa s knowing ly and voluntarily

made.
I V.
For all of the for eg oing r easons, we REVERSE the district court’s g rant of ha beas r elief.

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