Reaffirming Exhaustion via Ginther Motions: Sixth Circuit Clarifies § 2254 Procedure in Fischer v. Nagy

1  Introduction

The United States Court of Appeals for the Sixth Circuit has once again addressed the complex intersection between Michigan’s unique Ginther procedure and the federal exhaustion requirement that governs habeas corpus petitions filed under 28 U.S.C. § 2254. In Gary Thomas Fischer v. Noah Nagy, decided on 13 August 2025, the panel (Judge Stranch writing, Judge Gilman concurring, Judge Larsen concurring in the judgment) reversed a district court ruling that had dismissed Fischer’s habeas petition for failure to exhaust state remedies. The central issue was whether Fischer had “fairly presented” an ineffective-assistance-of-counsel claim to the Michigan courts merely by raising it in repeated motions to remand for an evidentiary (Ginther) hearing—even though the claim never appeared in his formal state appellate briefs.

By holding that a sufficiently developed motion to remand does satisfy exhaustion where the Michigan appellate courts respond to that motion, the Sixth Circuit reaffirmed its earlier precedent (Elmore v. Foltz) and cabined later, unpublished skepticism (Woods v. Booker). The decision provides critical guidance to district courts, habeas counsel, and Michigan litigants about how and when federal courts will deem a claim “exhausted” for AEDPA purposes.

2  Summary of the Judgment

• The district court dismissed Fischer’s § 2254 petition, concluding that his ineffective-assistance claim (failure of trial counsel to convey a plea offer) had not been exhausted in state court.
• The Sixth Circuit reversed. Applying Elmore v. Foltz, 768 F.2d 773 (6th Cir. 1985), the panel held that Fischer did fairly present the claim by filing detailed motions to remand for a Ginther hearing, and that the Michigan Court of Appeals and Michigan Supreme Court addressed (and rejected) those motions “on the merits” for habeas purposes.
• Consequently, the dismissal was erroneous, and the case was remanded to the district court for consideration of the habeas claim on its merits.

3  Analysis

3.1 Precedents Cited and Their Influence

1. Elmore v. Foltz (1985)
   First Sixth-Circuit decision to treat a motion to remand (denied for “lack of merit”) as a vehicle that fairly presents an ineffective-assistance claim. Fischer relies heavily on Elmore to justify treating detailed Ginther motions as proper exhaustion.
2. Woods v. Booker (2011) (unpublished)
   Held that a perfunctory, procedurally defective motion to remand without substantive briefing does not satisfy exhaustion. The district court thought Woods “overruled” Elmore; the Sixth Circuit clarifies that Woods merely distinguished Elmore on facts.
3. Nali v. Phillips (2012)
   Declared exhaustion satisfied where the Michigan courts denied a remand motion and later leave to appeal, viewing those denials as merits-based. Judge Larsen’s concurrence questions Nali’s reading of Michigan practice but accepts it as binding absent further briefing.
4. Castille v. Peoples (1989) (U.S. Supreme Court)
   Establishes that a claim is exhausted if the state courts have actually passed on it, even if the procedural posture was unusual.
5. Other Authorities
   Anderson v. Harless, Baldwin v. Reese, Pinchon v. Myers, McBride v. Skipper, and Michigan procedural decisions such as People v. Ginther and Mich. Ct. R. 7.211(C)(1)(a) and 7.212(C)(5).

3.2 The Court’s Legal Reasoning

Step 1 – Identify the controlling exhaustion standard.
Under § 2254(b)(1) a petitioner must “fairly present” each federal claim to the state’s highest court, giving the state a meaningful opportunity to correct the alleged constitutional violation.

Step 2 – Distill principles from earlier Sixth-Circuit cases.
The majority organizes prior precedent into three rules:

1. A claim may be exhausted through a motion to remand; the vehicle is not disqualifying (Elmore).
2. The motion must contain enough substance and follow Michigan procedures sufficiently that merits review is possible; a skeletal or procedurally defaulted motion fails (Woods).
3. If the state appellate courts nevertheless reach the merits (even summarily), exhaustion is satisfied (Nali).

Step 3 – Apply those rules to Fischer.

• Fischer’s second and third remand motions laid out the Sixth-Amendment claim in detail, attached an affidavit, and sought factual development—mirroring Elmore.
• Michigan appellate courts denied the motions in language identical to Nali; therefore they had the opportunity to consider the merits.
• Hence “fair presentation” occurred and the exhaustion prerequisite is met.

Step 4 – Reject the district court’s reliance on Woods.
The panel stresses that Woods addressed deficient motions with perfunctory statements; Fischer’s motions were robust and procedurally acceptable.

3.3 Potential Impact of the Decision

1. Clarifies Exhaustion Jurisprudence. District courts in the Sixth Circuit must treat detailed Ginther-remand motions as capable of exhausting claims—even if the underlying issue never appears in the brief’s “Questions Presented.”
2. Incentivizes Thorough Motions in Michigan Appeals. Michigan practitioners will now draft remand motions with fuller constitutional analysis, confident that federal courts will credit such efforts.
3. Limits Over-Reliance on Woods. The decision confines Woods to its narrow facts and prevents summary dismissals of habeas petitions on exhaustion grounds where the petitioner’s remand motion was substantive.
4. Foreshadows En Banc or State-Law Clarification. Judge Larsen’s separate opinion invites future panels, perhaps en banc, to re-examine Nali and the correct reading of Michigan procedure—signalling potential doctrinal evolution.
5. Practical Effect on Plea-Offer Claims. Petitioners alleging counsel’s failure to convey plea bargains may obtain federal review sooner, without first filing a separate state post-conviction motion.

4  Complex Concepts Simplified

• Exhaustion Requirement (§ 2254(b)(1)). Before a federal court can hear a state prisoner’s habeas claim, the claim must have been raised in the state courts through the normal appellate chain, giving those courts the first chance to fix any constitutional error.
• Ginther Hearing. In Michigan, a special evidentiary hearing ordered by the appellate court during direct appeal to develop a factual record for claims of ineffective assistance of counsel (People v. Ginther, 1973).
• Motion to Remand. A procedural device in the Michigan Court of Appeals requesting that the case be sent back to the trial court for a Ginther hearing. Must include (1) the claim, (2) an affidavit or offer of proof, and (3) a statement of necessity.
• “Fair Presentation.” The doctrine requiring a petitioner to present the same federal claim, based on the same facts and legal theory, to state courts.
• Merits Determination vs. Procedural Denial. A state court may dispose of a motion either (a) for procedural defect (e.g., untimely, improper format) or (b) on the merits (meaning it found the claim unpersuasive). Under Castille, the latter counts toward exhaustion.

5  Conclusion

Fischer v. Nagy reinforces a pragmatic, claimant-friendly view of exhaustion in the Sixth Circuit: where a Michigan defendant diligently details his ineffective-assistance claim in a properly supported motion to remand for a Ginther hearing, federal courts will treat the issue as exhausted—even if the Michigan appellate courts ultimately decline to order the hearing. The decision harmonizes earlier Sixth-Circuit precedents, underscores the continued vitality of Elmore, confines Woods, and, while left unchallenged in this case, casts a spotlight on the unsettled status of Nali. Going forward, litigants and courts alike must recognize that the adequacy of exhaustion turns less on the stylistic placement of a claim and more on whether the state judiciary had a real opportunity to adjudicate it. This clarification will likely streamline habeas litigation and ensure substantive federal review of colorable constitutional grievances emerging from Michigan’s criminal courts.