John Swanigan v. Jeri Sherry

Filing

OPINION filed : the district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Karen Nelson Moore (authoring) and Deborah L. Cook, Circuit Judges.

Case: 09-2606

Document: 006111468964

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1088n.06
No. 09-2606
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

)
)
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Petitioner-Appellant,
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v.
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JERI ANN SHERRY,
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)
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Respondent-Appellee.
_______________________________________)

FILED
Oct 18, 2012
DEBORAH S. HUNT, Clerk

JOHN SWANIGAN,

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

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.

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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(unpublished opinion).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

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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 # 40508) (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 juryinstruction 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 postconviction 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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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 codefendants—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

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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.
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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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