826 F. 2d 1062 - Coury v. Livesay

This matter is before the court upon consideration of petitioner's appeal from the district court's judgment dismissing his 28 U.S.C. Sec. 2254 habeas corpus petition for failure to exhaust state remedies. The matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the parties' briefs, the panel agrees unanimously that oral argument is not needed.

Petitioner alleged in the district court, among other allegations, that his trial was unfair because the prosecutor improperly commented before the jury that the case presented the best circumstantial evidence he had ever seen. The district court determined that the issue was not exhausted because it was primarily supported by state law rather than federal law when presented to the state courts.

Upon consideration, this court concludes that the district court's judgment must be vacated and the case remanded for consideration on the merits because the issue was presented broadly enough in the state courts to appraise the state courts of the federal constitutional nature of the claim. Franklin v. Rose, 811 F.2d 322 (6th Cir. 1987). Precisely, the issue was a segment of the single claim of prosecutorial misconduct and petitioner supported the claim with federal caselaw and state caselaw employing federal constitutional analysis to alert the state courts that the claim was of a federal constitutional magnitude. Franklin v. Rose, 811 F.2d at 322; see Doyle v. Attorney General of the State of New York, 696 F.2d 186 (2d Cir. 1982) (en banc).

It is therefore ORDERED that the district court's judgment be and hereby is vacated and the case is remanded to the district court for further consideration on the merits.