UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ DORREON D. MCBRIDE, │ Petitioner-Appellant, │ > No. 21-1042 │ v. │ │ GREGORY SKIPPER, Warden, │ │ Respondent-Appellee. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:18-cv-13525—Denise Page Hood, District Judge.

Argued: October 27, 2022

Decided and Filed: August 4, 2023

Before: SILER, NALBANDIAN, and READLER Circuit Judges

_________________

COUNSEL ARGUED: Brett Wierenga, JONES DAY, Washington, D.C., for Appellant. Autumn A. Gruss, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Brett Wierenga, JONES DAY, Washington, D.C., for Appellant. Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. _________________

OPINION _________________

NALBANDIAN, Circuit Judge. A Michigan jury convicted Dorreon McBride of murder. After unsuccessfully contesting his conviction in state court, he sought federal habeas relief. But because he failed to exhaust one of his claims in state court, the district court dismissed his No. 21-1042 McBride v. Skipper Page 2

petition without prejudice. Rather than return to state court to litigate his unexhausted claim or refile in federal court without the unexhausted claim, McBride moved to reconsider. In doing so, he cited for the first time the Supreme Court’s decision in Rhines v. Weber, which gives courts facing habeas petitions with both exhausted and unexhausted claims two options besides dismissal. The district court denied his motion. McBride now argues that the district court should have sua sponte considered alternatives to dismissal. We disagree and AFFIRM the district court’s judgment.

I.

On June 22, 2015, following the Detroit Freedom Festival fireworks display, members of Paul Mitchell’s family argued with a group of neighborhood men over a carelessly thrown firecracker. The conflict escalated when a man wearing a black shirt with a red, orange, and yellow flame design arrived and pulled out a gun. Tensions temporarily subsided when members of the family fled to their home and the armed group walked away. But the night turned more explosive.

Mitchell and his cousin, Otis Parker, got into Mitchell’s truck to go buy drinks. As they drove, shots were fired, killing Mitchell. Parker recognized the man with the black shirt as one of the shooters. Other witnesses who were present for the initial altercation identified the man in the black shirt as Dorreon McBride.

The government charged McBride with first degree murder, assault with intent to commit murder, carrying a concealed weapon, and carrying a firearm during the commission of a felony. McBride went to trial in state court in December 2015. A jury convicted him on the concealed carry charge but hung on the other charges. In a second trial in May 2016, a jury convicted McBri