Gary Thomas Fischer v. Noah Nagy

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 13, 2025
• Docket: 24-1196
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0397n.06

No. 24-1196

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Aug 13, 2025 KELLY L. STEPHENS, Clerk ) GARY THOMAS FISCHER, ) Petitioner-Appellant, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ) NOAH NAGY, Warden, MICHIGAN ) Respondent-Appellee. ) OPINION )

Before: GILMAN, STRANCH, and LARSEN, Circuit Judges.

STRANCH, J., delivered the opinion of the court in which GILMAN, J., concurred. LARSEN, J. (pp. 10–17), delivered a separate opinion concurring in the judgment.

JANE B. STRANCH, Circuit Judge. Gary Thomas Fischer appeals the district court’s

denial of his petition for a writ of habeas corpus. Fischer alleges in his petition that his state trial

counsel provided ineffective assistance when his counsel failed to communicate a plea deal he

received from the State. Fischer argues that the district court erred in holding that he had failed

to exhaust his claim in state court as required by 28 U.S.C. § 2254(d). For the reasons that follow,

we REVERSE the judgment of the district court and REMAND for further proceedings.

I. BACKGROUND

A. Facts

This case stems from an alleged altercation between Fischer and Heather Miner, a woman

with whom he had been in a casual relationship. According to Miner, she and Fischer had been

seeing each other on and off for several years until September 2018. On September 17, 2018, No. 24-1196, Fischer v. Nagy

Miner and Fischer had an argument that culminated in Miner telling Fischer that she did not want

to talk to him and blocking his phone number. Fischer continued to call Miner repeatedly that

evening.

Miner went to bed and woke up some time later to see Fischer in her home, to which he

had access because he had helped her fix her garage and still had the garage access code. When

Miner woke up, Fischer attempted to climb into her bed and told her she needed to be nice. He

smelled of alcohol. Miner began screaming at him to get out. Fischer refused, so Miner used her

feet to push him out of her bed. Miner pushed Fischer to the door of her bedroom while Fischer

began to claim that Miner could not make him leave because he was drunk and should not be

forced to drive away.

Miner eventually threatened to call the police if Fischer did not leave. When she reached

for her phone, Fischer grabbed it from her and twisted her arm behind her back. Miner and Fischer

began striking and shoving each other in an attempt to take control of the phone. Eventually

Fischer obtained control of the phone again and used it to hit Miner on the head. The physical

altercation resumed. By the time of trial, Miner had difficulty remembering all of the details of the

altercation, but recalled Fischer slamming her head on the ground, beating her on the head, and

knocking out one of her teeth. Miner then attacked Fischer’s genitals, and he released her. When

he did so, Miner ran outside, and Fischer followed her. Miner grabbed her phone out of his hand,

ran inside, locked him out, picked up a knife from the kitchen for self-protection, and called 911.

Fischer broke into the house and attempted to take the knife from Miner and cut her with it. Fischer

fled when the police arrived.

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B. Procedural History

Fischer was charged with first degree home invasion under Mich. Comp. Laws

§ 750.110a(2), interfering with a crime report under Mich. Comp. Laws § 750.483a, resisting and

obstructing a police officer under Mich. Comp. Laws § 750.81d(1), and aggravated assault under

Mich. Comp. Laws § 750.81a(1). He proceeded to trial, and a jury found him guilty of first degree

home invasion, resisting and obstructing a police officer, and aggravated assault. The trial court

sentenced Fischer as a fourth habitual offender under Mich. Comp. Laws § 769.12 and imposed a

sentence of 15 to 50 years. Fischer appealed. He was represented by new counsel on appeal.

Michigan has a procedure allowing a state appellate court to remand to the trial court during

direct appeal so that the appellant can establish facts supporting a claim of ineffective assistance

of counsel raised on direct appeal, rather than leaving the factual development for collateral review.

People v. Ginther, 212 N.W.2d 922, 925 (Mich. 1973). These evidentiary hearings are known as

Ginther hearings. Mitchell v. Mason, 325 F.3d 732, 736 (6th Cir. 2003). The appellant must move

to remand to the trial court, identifying in the motion an issue to be reviewed on appeal, and support

the motion with an affidavit or offer of proof regarding the facts to be established at the hearing.

Mich Ct. R. 7.21(C)(1)(a).

On his direct appeal, Fischer filed both an appellate brief and a motion to remand for a

Ginther hearing. In his brief, Fischer addressed issues that were already on the record, challenging

a jury instruction, the guidelines scoring at sentencing, and the application of the habitual offender

enhancement. In the motion to remand, Fischer asked to expand the record on several claims of

ineffective assistance of counsel, not including the one raised here. The Michigan Court of

Appeals initially denied the motion to remand without prejudice for failure to persuade the court

of the necessity of the remand. Fischer renewed his motion, this time including a claim that

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Fischer’s trial counsel had been ineffective because his trial counsel had received a plea offer and

had failed to communicate it. Fischer supported this claim with an affidavit from his appellate

counsel, which alleged that trial counsel had informed her that the prosecutor had communicated

a plea offer. The Michigan Court of Appeals once again denied the motion without prejudice.

Fischer refiled for a third time with the same evidence on this point, and the Michigan Court of

Appeals denied the motion. The court then went on to decide the merits of Fischer’s appeal.

In its opinion, the Michigan Court of Appeals addressed the arguments in Fischer’s

appellate brief, but did not address the ineffective assistance claim regarding the plea offer. The

court affirmed Fischer’s conviction but held that the trial court had improperly applied the habitual

offender enhancement and remanded for resentencing. Fischer filed an application in the Michigan

Supreme Court for leave to appeal both his conviction and the Court of Appeals’ denial of his

motion for remand. The Michigan Supreme Court denied his application. On remand from the

Court of Appeals for resentencing, the trial court sentenced Fischer to 11 to 30 years of

imprisonment.

Fischer then filed a petition for a writ of habeas corpus in federal district court. In his

petition, he raised a single claim: that his trial counsel was ineffective for failing to communicate

a plea offer. The Warden argued in district court that Fischer had failed to exhaust his state

remedies on this issue because he had not raised the issue in his state appellate brief or in a state

habeas petition. The district court ruled that Fischer had not fairly presented his ineffective

assistance of counsel claims to the Michigan courts by raising them in the motion to remand and

that he had failed to exhaust his state remedies. The court recognized that our court has held that

raising an ineffective assistance claim in a Michigan motion to remand is sufficient to exhaust it

for the purpose of federal habeas review. R. 14, PageID 2143 (citing Elmore v. Foltz, 768 F.2d

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773, 775 (6th Cir. 1985)). But the district court concluded that we had overruled ourselves. R. 14,

PageID 2143-44 (citing Woods v. Booker, 450 F. App’x 480 (6th Cir. 2011)). The district court,

therefore, dismissed Fischer’s petition.

II. ANALYSIS

We review de novo a district court’s decision to deny a petition for a writ of habeas corpus.

Pinchon v. Myers, 615 F.3d 631, 638 (6th Cir. 2010). In particular, we review de novo the question

of whether a petitioner has failed to exhaust his state court remedies. McBride v. Skipper, 76 F.4th

509, 512 (6th Cir. 2023).

Before a prisoner may petition for a writ of habeas corpus in federal court, he must exhaust

the available remedies in state court. 28 U.S.C. § 2254(b)(1). To do so, he must fairly present his

claims to the state courts by giving them a full opportunity to review any constitutional issues,

citing or employing similar federal law arguments and facts to those he seeks to present in federal

court. Anderson v. Harless, 459 U.S. 4, 6 (1982). To exhaust a federal habeas claim, the petitioner

must properly raise the claim in each appropriate state court throughout the appellate process.

Baldwin v. Reese, 541 U.S. 27, 29 (2004). Where the petitioner has failed to exhaust his state law

claims through the appropriate procedures, but the state, nonetheless, considered his claims on the

merits, he has satisfied the exhaustion requirement. Castille v. Peoples, 489 U.S. 346, 351 (1989).

The petitioner bears the burden of demonstrating that he has exhausted his state claims. Rust v.

Zent, 17 F.3d 155, 160 (6th Cir. 1994).

Both parties now agree that Fischer has met the exhaustion requirement of § 2254(b)(1),

but they disagree as to why. Fischer alleges that he properly presented his ineffective assistance

of counsel claims to both the Michigan Court of Appeals and the Michigan Supreme Court, and

those courts failed to consider his claims on the merits. The Warden argues that Fischer failed to

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properly present his claim to the state court, but the state court nonetheless considered his claim

on the merits, triggering an exception to the exhaustion requirement.

This court has had several occasions to address whether a petitioner has appropriately

exhausted his state court remedies by filing a motion to remand for a Ginther hearing that sets

forth a claim of ineffective assistance of counsel not raised in an appellate brief. In Elmore v.

Foltz, we considered the appeal of a habeas petitioner who, like Fischer, had filed a motion for

remand to the trial court to develop the factual record on ineffective assistance of counsel but had

not raised the issue in an appellate brief or state habeas petition. 768 F. 2d 773, 774–75 (6th Cir.

1985). The Warden there, as here, characterized the motion for a remand as a procedural device

that does not require a decision on the merits. Id. at 775. We noted that, at the time, a motion to

remand was Elmore’s only option for presenting the substance of his claim to the Michigan courts

because it would have been procedurally improper to raise the issue in his appellate brief. Id. We

held that

Elmore’s motion to remand was a procedurally proper approach to securing review of the issues, given the length and detail of that motion, and given the denial of the motion for ‘lack of merit,’ we cannot say that Elmore failed to fairly present his constitutional claims to the Michigan Court of Appeals.

Id.

In Woods v. Booker, we declined to extend Elmore to cases in which a defendant raised the

claim he presents on habeas review in a motion to remand but failed to brief the merits in that

motion or follow the appropriate procedures to obtain review of that motion on the merits. 450 F.

App’x 480, 489-490 (6th Cir. 2011).1 Woods, like Fischer and Elmore, raised a claim of

ineffective assistance of counsel in a motion to remand. Id. at 487. But unlike Fischer and Elmore,

1 Contrary to the district court’s conclusions on the matter, Woods did not overrule Elmore. It merely declined to extend Elmore to a factually distinct circumstance.

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Woods failed to make a procedurally correct motion for a Ginther hearing, and his argument

regarding ineffective assistance of counsel was limited to a cursory statement. Id. at 488-89. As

a result of the procedural defects, his motion to remand was summarily denied by the Michigan

courts. Id. at 490. We stated that “[t]he fair presentation requirement is not satisfied when a claim

is presented in state court in a procedurally inappropriate manner that renders consideration of the

merits unlikely.” Id. at 489. Because Woods had failed to allege his ineffective assistance claim

in a manner that allowed appropriate review of the merits by the state courts, we held that he had

failed to exhaust his state remedies. Id.

Finally, in Nali v. Phillips, we were presented with a petitioner who had filed a pro se

motion to remand so that the trial court could hold an evidentiary hearing on his ineffective

assistance of counsel claim. 681 F.3d 837, 852 (6th Cir. 2012). Rather than addressing whether

Nali’s complex motion to remand was procedurally appropriate, we noted that the inquiry could

be resolved simply by determining whether the state courts had the opportunity to adjudicate Nali’s

claim on the merits. Id. We held that if the court reached the merits of the argument, the argument

had been fairly presented notwithstanding any procedural defects that might or might not have

been present. Id. The Michigan Court of Appeals “denied Nali's motion to remand ‘for

[petitioner’s] failure to persuade the Court of the need to remand.” Id. “The Supreme Court of

Michigan denied Nali’s application because it was ‘not persuaded that the questions presented [by

petitioner] should be reviewed’ by the Court.” We concluded that Nali’s ineffective assistance

claim was thus adjudicated on the merits in the state courts.” Id. So, Nali’s claim was

appropriately exhausted. Id.

From these cases, we can draw several principles. First, a petitioner may appropriately

exhaust his state remedies in a motion to remand—i.e., the fact that the claim is raised in a motion

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to remand rather than an ordinary appellate brief does not inherently render the claim unexhausted

(although other procedural issues associated with the choice to follow that procedure might).

Elmore, 768 F. 2d at 775. But, second, the mere fact that a claim is referenced in a motion to

remand is not sufficient on its own. Woods, 450 F. App’x at 489-490. Instead, the petitioner must

sufficiently follow appropriate procedures in state court such that the state court may fairly review

the claim on the merits. Id. And, third, the fact that a state court purported to review the claim on

the merits demonstrates that it had the opportunity to review the claim on the merits. Nali, 681

F.3d at 852.

We do not reach the question of whether Fischer appropriately followed Michigan

procedural rules, because, under our own precedent, Fischer did not present his ineffective

assistance claim in a manner so procedurally defective as to render the Michigan Courts unable to

pass upon it. He included substantial briefing on the issue in his motion to remand, setting forth

his constitutional claim and the facts supporting it. The Michigan Court of Appeals and Michigan

Supreme Court treated Fischer’s motion to remand the same way those courts treated the remand

in Nali. Under our precedent, therefore, the Michigan courts reached the merits for habeas

purposes. Id. Because the Michigan Court of Appeals denied Fischer’s claim on the merits, we

conclude that the court had the opportunity to review Fischer’s claim on the merits. As in Elmore,

“given the length and detail of [Fischer’s] motion, and given the denial of the motion [on the

merits], we cannot say that [Fischer] failed to fairly present his constitutional claims to the

Michigan Court of Appeals.” Elmore, 768 F. 2d at 775. Fischer fairly presented his claim, and

the Michigan courts considered that claim on the merits. It has been appropriately exhausted and

may, therefore, be considered on a petition for a writ of habeas corpus. Id.

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III. CONCLUSION

Fischer has satisfied the exhaustion requirement found in § 2254(b)(1). The judgment of

the district court is REVERSED. We REMAND for further proceedings consistent with this

opinion.

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LARSEN, Circuit Judge, concurring in the judgment. In Nali v. Phillips, 681 F.3d 837 (6th

Cir. 2012), this court, without citing any Michigan cases or rules, misinterpreted Michigan law

and practice. Since Nali, Michigan courts have exposed Nali’s errors. Because Michigan courts

have the final say on Michigan law, see Vroman v. Brigano, 346 F.3d 598, 603 (6th Cir. 2003), I

question Nali’s precedential force, see Hampton v. United States, 191 F.3d 695, 701 (6th Cir.

1999). And, absent Nali, I have serious doubts about whether Fischer exhausted his claim.

Both Fischer and the Warden nevertheless agree that Fischer has exhausted his claim,

though they disagree about why, and neither party questions Nali’s precedential force. But

whether Nali binds this panel in light of subsequent (and previous, unexamined) Michigan caselaw

is a question both “antecedent to . . . and ultimately dispositive of” the exhaustion issue. U.S. Nat’l

Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (citation omitted).

Thus, it would be within our discretion to reconsider Nali, even though neither party raised the

issue. See id. Yet, here, there has been no opportunity for input by the parties. See id. at 448.

And the underlying question turns on an interpretation of state, not federal, law. Cf. City of Pontiac

Retired Emps. Ass’n v. Schimmel, 726 F.3d 767, 783 (6th Cir. 2013) (Griffin, J., dissenting) (“It is

especially inappropriate for a federal court to rule on an unanswered question of state law sua

sponte.”), vacated on reh’g en banc, 751 F.3d 427 (6th Cir. 2014). So the prudent course seems

to be to take the case as the parties presented it to us, leaving to future litigation the question of

Nali’s binding character and its merits.1

1 In fairness to the district judge, neither party even mentioned Nali in the district court. It was not until this court issued a certificate of appealability based on Nali that its importance came to the forefront of this litigation. See Fischer v. Nagy, No. 24-1196 (6th Cir. June 21, 2024) (order).

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Applying Nali, I agree that Fischer has exhausted his claim. I thus concur in the judgment.

Yet because “unexamined assumptions have a way of becoming, by force of usage, unsound law,”

McCormick v. United States, 500 U.S. 257, 280 (1991) (Scalia, J., concurring), I write separately

to call attention to Nali’s errors. And, given Nali’s uncertain future, I note my additional doubts

about the relevance of Elmore v. Foltz, 768 F.2d 773 (6th Cir. 1985).

I.

In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Congress set out

procedural requirements that state prisoners must follow to obtain federal habeas relief. See Shinn

v. Ramirez, 596 U.S. 366, 377 (2022); 28 U.S.C. § 2254. One requirement, “exhaustion,” demands

that prisoners give the state courts “an initial opportunity to pass upon and correct alleged

violations of prisoners’ federal rights.” Shinn, 596 U.S. at 378 (citation omitted). The onus is on

the petitioner to prove exhaustion. Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003). Ordinarily,

this requires the petitioner to raise his federal claim in state court in accordance with state

procedures.2 Shinn, 596 U.S. at 378. But a petitioner who has not presented his claim in a

procedurally appropriate manner has still exhausted it if the state court “actually passed upon the

claim.” Castille v. Peoples, 489 U.S. 346, 351 (1989). Apart from this exception, a claim raised

2 If a state prisoner failed to follow appropriate state procedures when raising his federal claim, and state courts will no longer hear the claim due to the procedural failures, the petitioner has “technically exhausted” his claim. Shinn, 596 U.S. at 378. Yet in such instances, the doctrine of procedural default—“an important ‘corollary’ to the exhaustion requirement”—applies. Id. (quoting Davila v. Davis, 582 U.S. 521, 527 (2017)). Under that doctrine, federal courts “generally decline to hear any federal claim that was not presented to the state courts ‘consistent with [the State’s] own procedural rules.’” Id. (alteration in original) (quoting Edwards v. Carpenter, 529 U.S. 446, 453 (2000)). The Warden does not argue that procedural default applies here.

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“for the first and only time in a procedural context” in which a state court would ordinarily not

consider its merits has not been exhausted. Id.

A.

In Nali, as here, the defendant had filed in the Michigan Court of Appeals a motion to

remand his case to the trial court for a “Ginther hearing”—an evidentiary hearing that permits a

defendant to develop a claim of ineffective assistance of counsel for direct appeal. Nali, 681 F.3d

at 839; see People v. Ginther, 212 N.W.2d 922, 925 (Mich. 1973). The state appellate court denied

his motion “‘for [petitioner’s] failure to persuade the Court of the need to remand’ the case at that

time.” Nali, 681 F.3d at 852 (alteration in original). Nali then sought leave to appeal from the

Michigan Supreme Court. Id. The Michigan Supreme Court denied the request because it was

“not persuaded that the questions presented [by petitioner] should be reviewed.” Id. (alteration in

original). Without referencing any Michigan caselaw interpreting these phrases, Nali concluded

that these decisions were on the merits and that the petitioner, therefore, had exhausted his

ineffective-assistance claim. Id.; see Castille, 489 U.S. at 351 (treating a claim as exhausted

“where the State has actually passed upon the claim”).

The problem is, neither order by the state appellate courts was on the merits. Start with the

Michigan Supreme Court’s denial of leave to appeal. The Michigan Supreme Court used its

standard decretal language: it was “not persuaded that the questions presented [by petitioner]

should be reviewed.” Nali, 681 F.3d at 852 (alteration in original). The state supreme court’s

order in this case contained the same language. [R. 12-11, PageID 1926.] Time and again, the

Michigan Supreme Court has expressed that such denials are not decisions on the merits. See

Haksluoto v. Mt. Clemens Reg’l Med. Ctr., 901 N.W.2d 577, 582 n.3 (Mich. 2017) (citing Frishett

v. State Farm Mut. Auto. Ins. Co., 378 Mich. 733, 734 (1966)); People v. Poole, 862 N.W.2d 652,

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652 (Mich. 2015) (order); Grievance Adm’r v. Lopatin, 612 N.W.2d 120, 134 (Mich. 2000); Great

Lakes Realty Corp. v. Peters, 57 N.W.2d 901, 903 (Mich. 1953); Malooly v. York Heating &

Ventilating Corp., 258 N.W. 622, 624 (Mich. 1935). Indeed, the Supreme Court of the United

States has recognized that the Michigan Supreme Court has “long described its denials of

applications for leave to appeal” as “import[ing] no expression of opinion upon the merits of the

case.” Brown v. Davenport, 596 U.S. 118, 142 (2022) (citation omitted).

Nali also misunderstood the Michigan Court of Appeals’ denial of Nali’s motion to

remand. That order had denied the motion “for [petitioner’s] failure to persuade the Court of the

need to remand” at the time. Nali, 681 F.3d at 852 (alteration in original). The state court of

appeals in the present case likewise denied Fischer’s motion “for failure to persuade the Court of

necessity of a remand at this time.” R. 12-9, Order, PageID 1418. Such orders are not

adjudications “on the merits.” Michigan caselaw in an analogous context illustrates this: Orders

by the Michigan Court of Appeals denying leave for interlocutory appeal typically include

“language indicating that the application was denied because the Court was not persuaded that

immediate appellate review was necessary.” Pioneer State Mut. Ins. Co. v. Michalek, 946 N.W.2d

812, 817 n.6 (Mich. Ct. App. 2019). “There is no merits language in those denial orders,” the

Michigan Court of Appeals has explained, “because no merits determination was made; instead,

the panel has simply determined appellate intervention was not necessary at the time.” Id.

(emphasis added).

This is not to say that denial orders can never be on the merits. Sometimes they are. But

when they are, the court says so by denying the request for “lack of merit in the grounds presented.”

Id. at 817. Indeed, that seems to be the court’s practice when it denies motions to remand on the

merits. See People v. Hayden, 348 N.W.2d 672, 684 (Mich. Ct. App. 1984) (stating that, because

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a previous panel “denied defendant’s motion to remand on th[e] same [ineffective-assistance-of-

counsel] issue ‘for lack of merit in the grounds presented,’” the law-of-the-case doctrine precluded

the current panel “from reaching the merits of th[e] issue”).

In Elmore v. Foltz, for instance, the Michigan Court of Appeals used merits-based language

in its denial order. There, the state prisoner had sought to develop an ineffective-assistance claim

on direct appeal by filing a motion to remand in the Michigan Court of Appeals. 768 F.2d at 774.

The state court denied the request for “lack of merit in the grounds presented.” Id. (emphasis

added). Eventually, the case made its way to this court on habeas review. The State argued that,

by raising his claim only in a motion to remand, the petitioner had failed to exhaust his state

remedies. Id. at 775. We disagreed. Id. In doing so, we reasoned in part that the “denial of the

motion [was] for ‘lack of merit.’” Id. Put differently, because the state court had “actually passed

upon the claim,” we were assured the petitioner had exhausted his claim. Castille, 489 U.S. at

351.

Treating the denial order in Elmore as a merits adjudication, and therefore finding

exhaustion, made sense. When the Michigan Court of Appeals denies an application to appeal

“for lack of merit in the grounds presented, the order means what it says—it is on the merits of the

case.” Pioneer, 946 N.W.2d at 817. That rule also applies to its denials of motions to remand.

See Hayden, 348 N.W.2d at 684. But in Nali and the present case, the denial orders contained “no

merits language,” meaning “no merits determination was made.” Pioneer, 946 N.W.2d at 817 n.6.

Nali thus erred in deeming the Michigan Court of Appeals’ denial order a decision on the merits.

B.

Given Nali’s precarious position, another word on Elmore seems appropriate. As

explained above, in Elmore, our exhaustion determination rested in part on the fact that the

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Michigan Court of Appeals had denied the motion to remand “for ‘lack of merit.’” 768 F.2d at

775. But we also relied on our assessment that Elmore’s motion “was proper under [a] former

Michigan General Court Rule” in effect at the time of his state-court proceedings. Id.; see also

Woods v. Booker, 450 F. App’x 480, 489 (6th Cir. 2011) (remarking that, “at the time of Elmore’s

direct appeal, a motion to remand was the proper way to handle his claim”). It’s unclear what,

exactly, that rule provided. But whatever the former court rule, Fischer points to no current

Michigan court rule that states that raising claims in a motion to remand is an appropriate way to

present them for merits adjudication in the Michigan Court of Appeals.

Instead, Michigan rules and caselaw suggest the contrary. Michigan Court

Rule 7.212(C)(5) requires an appellate brief’s statement of questions to “stat[e] concisely and

without repetition the questions involved in the appeal.” The Michigan Court of Appeals routinely

cites this rule as grounds for declining to entertain an issue not presented in the statement of

questions. See, e.g., People v. Anderson, 953 N.W.2d 451, 455 n.1 (Mich. Ct. App. 2020); People

v. Fonville, 804 N.W.2d 878, 889–90 & n.31 (Mich. Ct. App. 2011); People v. Unger, 749 N.W.2d

272, 306 (Mich. Ct. App. 2008). It would seem, then, that raising an issue outside the appellate

brief’s statement of questions would not fairly present it for consideration on the merits.3 Indeed,

3 Even if the Michigan Court of Appeals has some discretion to entertain claims not contained in the statement of questions, see, e.g., People v. Smith, 2015 WL 1119716, at *5–6 (Mich. Ct. App. Mar. 12, 2015), that wouldn’t mean that a petitioner who has presented the substance of his claims in a procedurally incorrect manner has “fairly presented” them to the court of appeals. That’s because raising a claim “for the first and only time in a procedural context in which its merits will not be considered” in the ordinary course does not “constitute ‘fair presentation.’” Castille, 489 U.S. at 351. Our decision in Robinson v. Horton, 950 F.3d 337 (6th Cir. 2020), illustrates the point. There, we held that raising a claim in a manner inconsistent with the Michigan Supreme Court’s rules governing applications for leave to appeal did not “fairly present” the claim to that court. Id. at 345. That was true even though the application specifically referred the Supreme Court to “the issues as raised in my Court of Appeals brief.” Id. We held that such a maneuver did not “fairly

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the backward-looking focus in Elmore indicates that, even by the time of Elmore’s federal habeas

proceedings, his state-court procedural moves would no longer have sufficed. See, e.g., 768 F.2d

at 775 (“No one disputes that his motion to remand was proper under [the] former Michigan

General Court Rule . . . .” (emphasis added)); id. (basing its reasoning on Michigan rules in effect

“[d]uring the time the Michigan Court of Appeals had jurisdiction of Elmore’s case”); see also

Woods, 450 F. App’x at 489 (describing Elmore as “hing[ing] on” the Michigan rules in effect at

the time of Elmore’s state-court direct appeal).

In sum, Elmore’s statement that it was procedurally proper to raise a claim in a motion to

remand explicitly rested on a Michigan court rule that is no longer in place. And the current

Michigan rules and caselaw indicate that a motion to remand is not a proper vehicle for raising

appellate claims on the merits. See Woods, 450 F. App’x at 489 (noting that because the Michigan

Court of Appeals “review[s] only those claims ‘stated in the questions presented,’” “[i]t follows

that, as a general matter, a motion to remand would not fairly present an issue”). So, as with Nali,

I question whether this portion of Elmore continues to bind us. See Hampton, 191 F.3d at 701.

Ultimately, however, that issue does not govern the resolution of this case, which hinges

on Castille’s recognition that, regardless of state procedural rules, a petitioner has exhausted his

claim if the state courts passed upon it. The majority opinion “do[es] not reach the question of

whether Fischer appropriately followed Michigan procedural rules.” Maj. Op. at 8. Rather, it

present” the claim because “the Michigan Supreme Court would have had to ‘read beyond’ the application to ‘alert it to the presence’ of” the federal issue. Id. (quoting Baldwin v. Reese, 541 U.S. 27, 32 (2004)). The same would be true, it appears, if a defendant doesn’t present the issue in his statement of questions: the Michigan Court of Appeals would have to “read beyond” the statement of questions in the appellate brief to find the substance of the federal issue, so the question would not be “fairly presented.” Of course, if the court does “read beyond” and decides the claim on the merits, then the claim is still exhausted. See Castille, 489 U.S. at 351; Brian R. Means, Federal Habeas Manual Ch. 9C Summary (June 2025 Update) (summarizing § 9C:20).

-16- No. 24-1196, Fischer v. Nagy

determines that, under Nali, the Michigan courts denied Fischer’s claim on the merits and,

accordingly, “[i]t has been appropriately exhausted.” Id. at 9. I agree.

II.

So where does this leave Nali and Elmore? To be decided. Generally, “[o]ne panel of this

court may not overrule the decision of another panel.” United States v. Ferguson, 868 F.3d 514,

515 (6th Cir. 2017). An exception exists, however, when our prior holding turned on a question

of state law and “there has been ‘an indication from the [state] courts that they would have decided

[the question] differently.’” Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348, 357 (6th Cir.

2018) (citation omitted). That is the case here with respect to Nali and, seemingly, with respect to

part of Elmore. Nali cited no Michigan caselaw in reaching its conclusion, and Michigan cases

both before and after Nali have indicated that we were wrong. Meanwhile, current Michigan rules

and caselaw suggest that Michigan courts would decide the procedural propriety of raising an issue

only in a motion to remand differently today than we did in Elmore.

Still, this court hasn’t had the benefit of briefing or argument on the issue of Nali’s

interpretation of Michigan law and practice. Cf. U.S. Nat’l Bank, 508 U.S. at 448; Wiese USA,

Inc. v. Haulotte Grp./Bil-Jax, Inc., 858 F. App’x 909, 910 (6th Cir. 2021). Though I am skeptical,

perhaps the crucible of adversarial testing could produce persuasive defenses of it. And as long as

Nali is on the books, Elmore’s interpretation of state law isn’t dispositive. Thus, the question of

the two cases’ precedential sway is better left to another day.

To resolve this case, we need only decide whether the Michigan courts adjudicated

Fischer’s claim “on the merits.” Nali says that they did. So I concur in the judgment.

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