NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1088n.06 No. 09-2606 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OHN SWANI GAN, P etitioner -Appellant,

v. J ERI ANN SHERRY, Respondent-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE EAST E RN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: M ARTIN, MOORE, and COO K, C ircuit Judges. KA REN NELSO N MOORE, Circuit Judge. I n 2003, a Michig an jury convicted J ohn Swanig an of possession of co ca i n e with intent to deliver, possession of marijuana with intent to deliver, and possessi o n o f a firea rm during the commission of a felony

. J ohn Swanig an soug ht habea s relief under 28 U.S.C. § 2254(d) on the basis of numerous g rounds, all of which the district
court denied. We gra n t ed a cer tificate of appea lability on only one claim: whether Swanig an’s constitutional rig hts wer e violated when the firea rm-possession char g e identified a specific ty pe of g un but the jury

was instructe d to c onvict if it f ound that Swanig an possessed “ a fire arm,” and the proof a t trial demonstrated a t least two g uns were found during his arre st. I n light of the Supreme Court’s repe ated messag e that habea s relief is rese rved for extreme malfunctions by the state courts, see Harrington v. Richter , 13 1 S

. Ct. 770, 786 (2011), we have no choice but to AF F IRM in this

case .No. 09-2606

Swanigan v. Sherry

I. BACKG ROUND Swanig an wa s arr ested on F ebrua ry 11, 2003, following a sea rch c onducted at his home in Way ne County , Michig an. Michigan v. Swanigan , No. 250439 (Mich. Ct. App. Mar. 1, 2005) (unpublished opinion). The police arr ived at 10:00 p.m. and beg an k n ocking on the door, but

rec eived no r esponse. Dur ing this time, the pol ice “hear d y elling and footst eps, and saw shadows of people running throug hout the living ar ea.” Id. at 3. Afte r t he poli ce ga ined entry by ramming the door down, they observe d in plain view in the living room a loaded nine-millimeter handg un on t h e ar m of a chair , in addition to various drugs and drug para pherna lia. Id. The officer s detained Swanig an as he emer g ed from the baseme nt, wher e the police discov er ed a p l ast ic container that “conta ined more tha

n 408 g rams of c ocaine and a f orty -ca liber fire arm.” Id. 1 I n addition to two drug counts , S wa n i gan was char g ed by information with possessing a firea rm during the commission of a felony in violation of Michig an Compil ed L aws § 750.227b. The information has not been provided to us in full, but the parties ag ree that Swanig an was char g ed in Count 3 specific ally with “hav[ing ] in his/her possession a firea rm, to wit: 9MM, at the time he/she committed or attemp t ed t o commit a felony , to wit, [felony possession with intent to distribute

Swanig an and the state periodica lly ref er to the prese nce of three firearm s i n t h e house. 1 Swanig an cites only the trial testimony of Offic er Butler for the proposition that the police also found a black Taurus handg un, but Offic er Butler ’s testimony does not m ak e cl ea r whether the black Taurus and the nine milli meter are one and the same. See R. 9 (Tria l Tr. I I at 29-32) (Pag e I D # 405- 08) (discussing finding a fi re ar m o n t h e t able and on the chair , but only introducing one g un into evidenc e, a Taurus, ref

ere nced as the “only actua l firea rm aside from [t he police’s] ” i n t h e l i v i ng room). Be cause the M ichig an C ourt of Appeals discusses onl y one f i re ar m in addition to the one in the baseme nt, we limit our considera tion to the facts as f ound by that court. 2No. 09-2606

Swanigan v. Sherry

coca ine or marijuana ].” Appellant Br

. at 25-26; Appellee Br

. at 16. The jury was instructed, howeve r, that Swanig an could be convicted of Count 3 if it deter mined “that at t h e t i m e the defe ndant committed or attempted to commit those [felony drug ] crimes he knowing ly ca rr i ed o r possessed a firea

rm.” R. 11 (Tr ial Tr. I V at 25-26) (Pag e I D #731-32) ( emphasis adde d). Swanig an filed a direc t appea l challeng ing in part the sufficie ncy of the evidenc e rela ting to the firea rm-possession char g e. The Michig an Court of Appea ls aff irmed, holding that the evidenc e

was sufficie nt to attribute Sw an i gan wi th constructive possession of either the nine-millimeter firea rm in the living room or the firea rm found in the baseme nt. Swanigan , No. 250439 (Mich. Ct. Ap p . Mar. 1, 2005). Swanig an filed a motion for rec onsideration, adding his claim th at t h e j u ry instructions constructively amende d his indict m en t. The Michig an Court of Appea ls denied

rec onsideration in a one-se ntence order

. Michigan v. Swanigan , No. 250439 (Mich. Ct. App. Apr. 21, 2005). Swanig an’s application for discretionar y revie w befor e the Michig an Supreme Court, which included the jury -i n s t ru cti on claim, was also denied. Michigan v. Swanigan , No. 128658 (Mich. Sept. 28, 2005). Swanig an filed his initial habea s petition in the United States District Court for the Easter n District of M i ch i gan in Fe bruar y 2006. The district court deter mined that Swanig an’s jury

instruction claim was not exhausted b ecause it was raised on direc t appea l in a motion for

rec onsideration, and the district court then stay ed Swanig an’s habea s petition so he could return to state court. R. 16 (Dist. Ct. Orde r 1/30/07 at 7 ) (P age I D #1064). Swanig an’s motion for postconviction relief in the Way ne County Circuit Court was denied pursuant to Michig an Court Rules

3No. 09-2606

Swanigan v. Sherry § 6.508(D)( 2) and ( 3). Michigan v. Swanigan , No. 03-3372-01 (Mich. W ay ne C nty

. Cir. Ct. Apr. 19, 2007). The state cour t conclude d that “[e]very one of the issues raised has been addre ssed or easily could have been addre ssed by defe ndant on direc t appea l,” but did not clar i fy wh i ch of Swanig an’s numerous claims fell into which cate g ory . Id. The Michig an Court of Appea ls denied revie w “for lack of merit in the g rounds prese nted.” Michigan v. Swanigan , No. 278457 (Mich. Ct. App. J ul. 23, 2007). And the Michig an Supreme Court ag ain denied discretionar y revie w “bec ause the defe ndant has failed to meet the burden of establishing entitlement t o relief under MCR 6.508(D).” Michigan v. Swanigan , No. 134517 (Mich. De c. 28, 2007). Swanig an then returne d to f e d e r a l c ourt to reope n his habea s petition with his jury -instruction claim now prope rly

exhausted. The district cour t held that Swanig an’s jury -instruction claim wa s proce durally defa

ulted beca use the trial court denied relief on a state proce dural rule—fa ilure to raise the claim on direc t appea l. R. 36 (Dist. Ct. Orde r 11/30/09 at 3-4) (Pag e I D #1557-58). We g rante d

a cer tificate of appea lability beca use we deter

mined that rea sonable jurists c ould de bate the merits of the jury -instruction claim and the district court’s conclusion t h at it had been proce durally defa ulted. Swanigan v. Sherry , No. 09-2606 (6th Cir. Aug . 9, 2010) (unpublished orde r). II. ST ANDAR

D OF REVIEW We revie w de novo a district court’s leg al conclusions in a habea s corpus proce eding

. Goff

v. Bagley , 601 F.3d 445, 455 (6th Cir. 2010), cert. denied , 1 3 1 S

. C t. 1045 (2011). Be cause Swanig an filed his petition afte r the eff ective date of the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (“A EDPA”), we are g overne d by its strictures. Id. at 455-56. Under AEDPA, a habea s

4No. 09-2606

Swanigan v. Sherry application by a person in state custody with respe ct to claims adjudicate d on the merits may not be g rante d unless the state c ourt’s adjudica tion (1) resulted in a decision that was contra ry to, or involved an u n re as onable application of, clear ly

established Feder al l aw, as deter mined by the S upreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable deter mination of t he fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 28 U.S.C. § 2254(d). III. JURY-INSTRUCTION CLAIM Swanig an arg ues t hat t he dis trict court erre d in deny ing habea s b eca use t he st ate court did
not reje ct his jury -instruction claim on a proce dural g round and the state court’s denial of relief was

an unrea sonable application of clea rly established fede ral law as set forth by the Supreme Court in Stirone v. United States , 361 U.S. 212 (1960). Be cause we hold that the state court’s decision was

n ot unrea sonable on the merits, we do not addre ss Swanig an’s arg uments rela ting to proce dural defa ult. See Hudson v. Jones , 351 F.3d 212, 215- 16 (6th Cir. 2003) (citing Lambrix v. Singletary , 520 U.S. 518, 525 (1997)), cert. de nied , 543 U.S. 880 (2004). Clearly established fede ral law holds that “[t] he rig ht to have the g rand jury make the char g e

on its own judgme nt is a substantial ri gh t which cannot be taken awa y with or without court amendment.” Stirone , 361 U.S. at 218- 19. I n Stirone , the defe ndant was char g ed with a violation of the Hobbs Act for his a ctions’ eff ects in the sand industry

. At trial, howeve r, proof was offe red 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 fata l err or,” beca use the instruction meant 5No. 09-2606

Swanigan v. Sherry

t h at t h e steel industry “mig ht have been the basis upon which the trial jury convicted [t he] petitioner,” and if that wer e the case , “he was convicted on a char g e the g rand jury n ev er made ag ainst him” in violation of the Fifth Amendme nt. Id. at 219. The analog y betwee n this case and Stirone should be obvious: Swanig an was char g ed with possession of a 9mm f

irea rm, but at trial, proof was offe red of potential criminal possession of the 9mm and one other firea

rm. The jury was instructed that it could convict Swanig an if it found that he p o s s essed “a firea

rm,” R. 11 (Tria l Tr. I V at 26) (Pag e I D #732), not just the 9mm firea rm identified in the char g ing doc ument. J ust as in Stirone , there fore , “it cannot be said with c erta inty that with a new basis for conviction added, [S wanig an] was convicted solely on the char g e made in the indictment the g rand jury returne d.” 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 firea rm, the varia

nce betwee n indictment and proof “destroy ed [S wanig an’s] substantial rig ht to be tried only on char g es prese nted in an indictment r eturne d by a g rand jury

. Depr ivation of such a basic rig ht is far too se rious to be
trea ted as nothing more than a varia nce a nd then dismissed as harmless e rror .” Id. But, the diffe re nces betwee n this case and Stirone are also obvious. The fac ts alleg ed in Stirone’s indictment differ ed signific antly from the additional proof put on at trial. The indictment alleg ed that Stirone interfe red with shipments of sand used to make concr ete from another state into Pennsy lvania. The additional proof was that his actions could amount to a violation if the jury found that the concr ete in question “wa s used for constructing a mill which would manufa cture article s of steel to be shipped in in terstate commerc e.” Id. at 214 (interna l quotation marks omitted). The

6No. 09-2606

Swanigan v. Sherry

evidenc e rela ting to curr ent shipments of sand interstate wa s wh olly unrela ted to the evidenc e rela ting to future shipments of steel interstate. An individual who comes to court to defe nd ag ainst char g es for

his conduct in the sand industry and is instead for ced to de fend a lso ag ainst his acts in

a wholly separ ate industry is understanda bly prejudice d by the varia nce. Her e, howeve r, the char g ed
act and the proof all rela ted to the same police raid, on the same date and t i m e, an d in the same house—Swanig an’s house—whe re Swanig an was arr ested. The differ ence s in proof wer e minimal, and the e vidence used to defe nd ag ainst such proof w ould functionally be the sa me. Nor has the Supreme Court he ld tha t a ll va riations betwee n the indictment and the proof at trial are of the fata l Stirone varie ty , despite t h e s we ep i n g l anguag e in that case , even when the indictment is specific and the pro o f i s m o re b road. I n Berger v. United States , 295 U.S. 78, 81 (1935), the Supreme Court held that there was no fata l varia nce when a defe ndant was char g ed and convicted of participa t i n g i n o ne specific conspirac y but the proof at trial encompa ssed two conspirac ies. Althou gh t h er e wa s no jury instruction in Berger to convict if the defe ndant was deeme d to have participa ted in ei t h er—the second conspirac y was meant to targ et the codefe ndants—the Supreme Court in Berger emphasized that “no varia nce oug ht ever to be reg arde d

as materia l w here the alleg ation and proof substantially corr espond, or wher e the varia nce was not of a char acte r which could have misled the defe ndant at the trial.” Id. at 83 (quoting W ash. & G. R. Co. v. Hick

ey , 166 U.S. 521, 531 (1897)) ( internal quotation marks omitted). 2

Th e lower courts have draw n a line betwee n Berger and Stirone , calling a Berger -like 2 discrepa ncy a non-fa tal varia

nce and a S t i r o ne -like discrepa ncy a constructive amendment. See Gaither v. United States , 413 F.2d 1061, 1071-72 (D.C. Cir. 1969); see also United States v. Beasley , 7No. 09-2606

Swanigan v. Sherry Certainly , there are differ ence s betwee n this case and Berger as well. There was no jury instruction, as here , that the defe ndant could be convicted if found to participa te in either conspirac y and not just the one char g ed. But would it b e u n r ea s o n a b le for a state court to conclude that this

case is closer t o Berger than Stirone ? No. And Swanig an does not arg ue that his defe nse was 3 prejudice d by the failure of the indictment to char g e all possible wea pons in violation of the law clea rly established by Berger

. The firea rms wer e seized in the same house during the police raid in which Swanig an was arr ested, and he does not c halleng e the Michig an Court of Appea ls’s finding that the evidenc e wa s sufficient to convic t Swaniga n of possessing any

one of the two firea

rms. The state-c ourt decision may have been incorre ct, but we cannot conclud e t h at it was an

unrea sonable a

pplication of cle arly

established fe dera l law as a nnounced by

the Supreme Court. IV. CONCLUSION For the af oreme ntioned rea sons, we AF F IRM the judg ment of the district cour t.

583 F.3d 384, 389- 90 (6th Cir. 2009). The Supre me Court has y et to adopt these la bels. I ndeed, we ourselves have previously held that wher e the indictment char g es the defe ndant 3 with c arr y ing one ty

pe of firea

rm, but the proof identifies four firea rms in the house and the jury is told to convict if the “the defe ndant car ried any firea

rm,” the varia

nce is not fata l. United States v. Robison , 904 F.2d 365, 368- 69 (6th Cir.), cert. de nied , 498 U.S. 946 (1990). 8