Kevin Michael-Dorman Beltowski v. SHAWN BREWER, Warden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0112n.06
No. 17-2473
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KEVIN MICHAEL-DORMAN BELTOWSKI,
Petitioner-Appellant,
v.
SHAWN BREWER, Warden,
Respondent-Appellee.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
Before: KETHLEDGE, WHITE and BUSH, Circuit Judges.
KETHLEDGE, Circuit Judge. Kevin Beltowski appeals the district court’s denial of his
habeas petition, arguing that a jury instruction at his trial violated due process and that his counsel
provided ineffective assistance. We reject both arguments and affirm.
I.
Beltowski and his friend, Timothy Moraczewski, ran a marijuana grow house in Detroit.
On the evening of September 26, 2010, Beltowski encountered Moraczewski at the house. Soon
the two men began to argue about their marijuana operation. In the midst of the argument,
Moraczewski aimed a rifle at Beltowski and fired a shot past his head. During the ensuing struggle,
Beltowski choked Moraczewski with the rifle’s shoulder strap.
Minutes later, Beltowski called Moraczewski’s brother, Jeffrey, to tell him about the fight.
During that call, Beltowski said that he had choked Moraczewski “until he turned purple” and then
had held the strap “for another thirty seconds.” (Beltowski later maintained that he released the

-- 1 of 5 --

No. 17-2473, Beltowski v. Brewer
-2-
strap seconds after Moraczewski passed out.) Beltowski also told Jeffrey that Moraczewski might
still be alive, so Jeffrey rushed over to the house—where he found Moraczewski lying on a couch
with the rifle strap twisted around his neck. According to Jeffrey, the strap was twisted so tightly
that he had to rotate the rifle four times to loosen the strap. Jeffrey rushed Moraczewski to the
hospital, where Moraczewski was declared dead. Soon thereafter, the State charged Beltowski
with murder.
At trial, Beltowski argued that he had acted in self-defense. The trial court instructed the
jury on self-defense under Michigan law without objection. The jury found Beltowski guilty of
second-degree murder. On direct appeal, Beltowski challenged his conviction on various grounds,
none of which concerned the self-defense instruction. In state post-conviction proceedings,
however, Beltowski argued that the instruction violated due process. The Wayne County Circuit
Court rejected that argument, and the Michigan Court of Appeals and Michigan Supreme Court
denied Beltowski’s application for an appeal.
Beltowski thereafter filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254,
arguing among other things that the self-defense instruction violated due process and that his
counsel provided ineffective assistance. The district court denied the petition. This appeal
followed.
II.
We review a district court’s denial of a habeas petition de novo. See Mendoza v. Berghuis,
544 F.3d 650, 652 (6th Cir. 2008). Although the State argues that Beltowski’s claims are
procedurally defaulted, we cut to the merits because a procedural analysis would only complicate
the case. See Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011).

-- 2 of 5 --

No. 17-2473, Beltowski v. Brewer
-3-
Beltowski claims that the jury instruction on self-defense violated due process. The Wayne
County Circuit Court rejected this claim on the merits, which Beltowski argues was “an
unreasonable application of” clearly established Supreme Court precedent. 28 U.S.C.
§ 2254(d)(1). To succeed on that argument, he must show that no “fairminded” jurist could have
rejected his claim that the instruction violated due process. Harrington v. Richter, 562 U.S. 86,
101 (2011) (internal quotation marks omitted).
The Supreme Court has made clear that “not every ambiguity, inconsistency, or deficiency
in a jury instruction” violates due process. Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per
curiam). Rather, the error “must be so egregious” that it rendered “the entire trial fundamentally
unfair.” White v. Mitchell, 431 F.3d 517, 533 (6th Cir. 2005). And few instructional errors “violate
fundamental fairness.” Estelle v. McGuire, 502 U.S. 62, 73 (1991) (internal quotation marks
omitted). Moreover, fundamental fairness is the type of “general standard” where under
§ 2254(d)(1) state courts have particular “leeway . . . in reaching outcomes in case-by-case
determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Beltowski argues that the self-defense instruction violated due process in four respects.
First, the trial court instructed the jury that “the person claiming self-defense must not have acted
wrongfully and brought on the assault.” Under Michigan law, a person cannot claim self-defense
if he was “the initial aggressor.” People v. Riddle, 649 N.W.2d 30, 35 n.8 (Mich. 2002). Beltowski
asserts that the jury instruction in his case was “overly broad” because, he says, the jury could have
found that he acted wrongfully and brought on the assault even if he was not the initial aggressor.
See Beltowski Br. at 27. In support, he proposes various hypothetical scenarios purporting to show
that the jury could have improperly rejected his self-defense argument. But a jury instruction does
not violate due process simply because there is a hypothetical “possibility that the jury misapplied

-- 3 of 5 --

No. 17-2473, Beltowski v. Brewer
-4-
the instruction.” Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (internal quotation marks and
alterations omitted). Here, as the Wayne County Circuit Court noted, the instruction “essentially
describe[s] a person who is the aggressor[] or initiator of an altercation.” Hence the instruction
was fair enough for constitutional purposes.
Second, the trial court instructed the jury that “the defendant must have honestly and
reasonably believed that he had to use force to protect himself from the imminent unlawful use of
force by another.” Beltowski asserts that the instruction required the jury to assess whether
Moraczewski’s actions were unlawful rather than whether Beltowski reasonably believed the
actions to be unlawful. But the instruction here almost exactly tracked the language in Michigan’s
self-defense statute. See Mich. Comp. Laws § 780.972. And both the statute and the instruction
required the jury to assess the reasonableness of Beltowski’s belief, not the lawfulness of
Moraczewski’s actions. See People v. Orlewicz, 809 N.W.2d 194, 201 (Mich. Ct. App. 2011).
Moreover, the trial court specifically instructed the jury that so long as Beltowski’s “belief was
honest and reasonable” he could defend himself even if it turned out later that “he was wrong about
how much danger he was in.” Hence this argument too is meritless.
Third, the trial court instructed the jury that “the right to defend [oneself] only lasts as long
as it seems necessary for the purpose of protection.” Under Michigan law, a person may act in
self-defense only if he “honestly and reasonably believes” that the use of force “is necessary.”
Mich. Comp. Laws § 780.972. Beltowski objects that the words “protection” and “seems” appear
nowhere in the statute. But these words are simply another way of saying that the person must
reasonably believe that the act of self-defense is necessary. See Riddle, 649 N.W.2d at 39. Hence
this argument also fails.

-- 4 of 5 --

No. 17-2473, Beltowski v. Brewer
-5-
Finally, Beltowski argues that the trial court should have included certain language that
appears in Michigan’s model jury instructions. But an “omission” or “incomplete instruction” is
less likely to violate due process “than a misstatement of the law.” Henderson v. Kibbe, 431 U.S.
145, 155 (1977). And a federal court may not grant habeas relief simply because an instruction
deviated from a state’s model jury instructions. See Estelle, 502 U.S. at 72. Here, the self-defense
instruction “as a whole” shows that these omissions did not render Beltowski’s entire trial
fundamentally unfair. See Sarausad, 555 U.S. at 191 (internal quotation marks omitted). Thus,
the state court reasonably found that the instruction did not violate due process.
Beltowski also argues that his counsel provided ineffective assistance by failing to argue
that the self-defense instruction violated his constitutional rights. But that argument fails because,
as shown above, such an argument would lack merit. See Shaneberger v. Jones, 615 F.3d 448,
452 (6th Cir. 2010).
The district court’s judgment is affirmed.

-- 5 of 5 --