Davis v. Secretary for Dept. of Corrections

• Citation: 341 F.3d 1310
• Decision Date: 15 August 2003
• Docket Number: No. 01-16602.,01-16602.
• Parties: Joseph H. DAVIS, Jr., Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, James Crosby, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

341 F.3d 1310

Joseph H. DAVIS, Jr., Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, James Crosby, Respondent-Appellee.

No. 01-16602.

United States Court of Appeals, Eleventh Circuit.

DECIDED: August 15, 2003.

Janice Bergmann (Court-Appointed), Fed. Pub. Def., Fort Lauderdale, FL, Kathleen M. Williams (Court-Appointed), Miami, FL, for Petitioner-Appellant.

Jill Kramer Traina, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT and WILSON, Circuit Judges, and LIMBAUGH^*, District Judge.

PER CURIAM:

This appeal requires us to determine whether we should look to the outcome of the trial or the outcome of the appeal in determining whether a petitioner was prejudiced when his attorney failed to preserve his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claim for appellate review.¹ In addressing this issue we must determine whether Jackson v. Herring, 42 F.3d 1350, 1361-62 (11th Cir.1995) (requiring the petitioner to show some likelihood of a more favorable result at trial had trial counsel raised the Batson claim), or Eagle v. Linahan, 279 F.3d 926, 943-44 (11th Cir.2001) (requiring a showing of some likelihood of a more favorable result on appeal had appellate counsel raised a Batson claim), controls. As we find that trial counsel is acting in an appellate role when he fails to preserve a Batson claim, we believe that Eagle, not Jackson, controls. Accordingly, we vacate the district court's order denying Joseph H. Davis, Jr. habeas relief and remand this case for further proceedings consistent with this opinion.

BACKGROUND

Davis was indicted for first degree murder, burglary with a firearm, and possession of a firearm during the course of an armed burglary, and, on July 18, 1996, a jury found him guilty of all three charges. Thereafter, he was sentenced to life in prison plus consecutive sentences of fifteen years and 201.7 months of imprisonment. Davis appealed, raising various issues.

Among the issues Davis raised on direct appeal was a Batson claim. Essentially, he asserted that the trial court erred in overruling his attorney's Batson challenge, because the court inadvertently attributed the statements of one venireperson to another.² Although the Florida Third District Court of Appeal found that Davis's Batson claim was "well taken," it declined to address it because his attorney failed to preserve the issue for appeal. Davis v. State, 710 So.2d 723, 724 (Fla. Dist.Ct.App.1998) (per curiam) (citing Joiner v. State, 618 So.2d 174 (Fla.1993)).³ As a result, the court affirmed the first degree murder and burglary convictions.⁴ Id.

Thereafter, Davis filed a Florida Rule of Criminal Procedure 3.850 motion in which he asserted, among other things, that he received ineffective assistance of trial counsel, because his attorney failed to preserve his Batson challenge. That motion, however, was denied on March 16, 2000, and the court of appeal affirmed the denial on June 28, 2000. See State v. Davis, Fla. Cir. Ct.2000 (No. 95-023785, Mar. 16, 2000), aff'd, 763 So.2d 332 (Fla.Dist.Ct. App.2000) (per curiam) (unpublished table decision). As a result, Davis filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in the Southern District of Florida. In that petition, he raised the same claims that were raised in his Rule 3.850 motion but added a substantive equal protection claim based upon the government's improper exercise of its peremptory challenges. The magistrate judge recommended that the petition be denied, and the district court, adopting the report and recommendation of the magistrate judge, denied the petition. See Davis v. Moore, No. 00-02976-CV-ASG (S.D.Fla. Oct. 23, 2001). The district court, however, granted Davis a certificate of appealability.

STANDARD OF REVIEW

We review a district court's denial of a § 2254 petition de novo. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). As Davis filed his § 2254 petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that Act apply. See Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir.1998) (per curiam). As a result, the district court normally could not grant habeas relief under § 2254 for claims that were adjudicated on the merits in state court unless the state court's "decision ... was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In this case, however, such deference was not required.

Although Davis raised his claim of ineffective assistance of counsel in failing to preserve the Batson claim in his Rule 3.850 motion, the state courts failed to address it in denying relief. Instead, the state courts construed his motion as resting on the clearly unsupported assertion that trial counsel failed to raise a Batson claim.⁵ As the Florida courts failed to resolve the merits of Davis's claim, the present controversy falls outside of § 2254(d)(1)'s requirement that we defer to state court decisions that are not contrary to, or an unreasonable application of, clearly established federal law. See id.; Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003) (When a state court denies relief by making an unreasonable application of the first prong of the test for ineffective assistance of counsel and thus never reaches the second prong, application of the second prong in federal habeas proceedings is de novo.); Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002) (interpreting § 2254(d)(1)'s requirement of deference with respect to federal claims "adjudicated on the merits in State court proceedings" (internal quotation marks omitted)), cert. denied, ___ U.S. ___, 123 S.Ct. 1511, 155 L.Ed.2d 225 (2003).

DISCUSSION

Davis asserts that he received ineffective assistance of counsel when his attorney failed to preserve his Batson claim.⁶ Ineffective assistance of counsel claims are governed by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which established a two-pronged test that a habeas petitioner must satisfy to obtain relief. Under Strickland, the petitioner "must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id.

On the record before us, there is no question that Davis's counsel performed deficiently in failing, as required by Florida's Joiner rule, to renew Davis's Batson challenge before accepting the jury.⁷ The parties, however, relying upon Eagle and Jackson, dispute whether we should look to the outcome of the trial or the outcome of the appeal in determining whether Davis was prejudiced by his attorney's performance.

Jackson and Eagle both confronted a state's use of peremptory strikes to remove black veniremembers from the jury pool in a manner highly suggestive of unconstitutional racial discrimination. See Batson, 476 U.S. at 89, 106 S.Ct. 1712 (holding that racial discrimination by the state in the selection of juries violates the Equal Protection Clause). In Jackson, the prosecutor had used twelve of twenty-two peremptory strikes to exclude all twelve black venire members who were qualified to serve as jurors, leaving an all-white jury to pass on the defendant's guilt and decide whether she should be sentenced to death. 42 F.3d at 1354. In Eagle, the prosecutor had used eight or nine peremptory strikes to excuse black venire members. See 279 F.3d at 930 & n. 3, 941. Both patterns led this Court to conclude that an objectively reasonable defense attorney would have challenged the state's conduct under the Equal Protection Clause of the Fourteenth Amendment. Id. at 943; Jackson, 42 F.3d at 1360. Yet in Jackson the petitioner's trial attorney and in Eagle the petitioner's appellate attorney had failed to do so.

In both cases, we turned from our conclusion that counsel had performed deficiently to the showing of prejudice required to establish constitutionally ineffective assistance of counsel.⁸ In Jackson, we required the petitioner to show some likelihood of a more favorable result at trial had trial counsel raised the equal protection claim. 42 F.3d at 1361-62. In Eagle, we required a showing of some likelihood of a more favorable result on appeal had appellate counsel raised a Batson claim. 279 F.3d at 943-44.

At first blush, it might appear that following Jackson would be proper as that case, like this one, dealt with the performance of trial counsel while Eagle dealt with the performance of appellate counsel. This means of distinguishing between Jackson and Eagle, however, fails to take account of Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

In Flores-Ortega, a habeas petitioner argued that his trial counsel rendered constitutionally ineffective assistance when, by neglecting to file timely notice in the trial court, she failed to preserve the petitioner's right of appeal. Id. at 474, 120 S.Ct. 1029. The United States Supreme Court held that Strickland's prejudice prong required the petitioner to show "that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484, 120 S.Ct. 1029. Flores-Ortega thus establishes that the prejudice showing required by Strickland is not always fastened to the forum in which counsel performs deficiently: even when it is trial counsel who represents a client ineffectively in the trial court, the relevant focus in assessing prejudice may be the client's appeal.

Under the peculiar circumstances of this case the only effect of trial counsel's negligence was on Davis's appeal. Unlike the situation in Jackson where defense counsel "remained absolutely silent as prosecutor Hudson struck all blacks from the venire," 42 F.3d at 1360 — Davis's trial coun...