Barbara Jean Mercer v. Anthony Stewart, Warden

Section § 2254(d)(2) allows habeas review for a violation of a state petitioner’s rights where the state court’s adjudication of the proceeding “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.” At Petitioner’s trial, evidence was presented to support the theory that Shemel Thomas was killed in defense of Petitioner. Nevertheless, the Michigan Court of Appeals concluded that the record contained “no evidence” to support a defense of others instruction. Is this question properly addressed under 28 U.S.C. § 2254(d)(2) as this Court held in Brumfield v. Cain, 576 U.S. 305 (2015). Or, is it properly disposed of under 28 U.S.C. § 2254(d)(1) as a “mixed question of law and fact”? Contrary to this Court’s precedent, the Sixth Circuit found in the decision below that “whether to provide a jury instruction” based on a particular set of facts “is not the kind of fact-based determination subject to scrutiny under § 2254(d)(2).” Mercer v. Stewart, 171 F.4th 897, 905 (6th Cir. 2026); McMullan v. Booker, 761 F.3d 662 (6th Cir. 2014). In a case like this, where the error involved a state court’s misreading of the factual record, the lower court’s decision conflicts with precedent from this Court, from the Ninth Circuit, and highlights the tension within the opinions of the Sixth Circuit. Under Sixth Circuit precedent, factual issues like the one in this case can never reach §2254(d)(2). Following the Sixth Circuit’s analysis in Keahey v. Marquis, 978 F.3d 474, 478–81 (6th Cir. 2020), it is clear that so long as the factual error involves a defense that this Court has not squarely and explicitly named as one a defendant has a right to present, §2254 petitioners who have been deprived of the right to present a defense in the Sixth Circuit have no path to relief once a state court has made an unreasonable determination of the facts.