Simmons v. Beyer

• Decision Date: 10 February 1995
• Docket Number: No. 92-5370,92-5370
• Citation: 44 F.3d 1160
• Parties: Lawrence L. SIMMONS, Appellant, v. Howard L. BEYER; and The Attorney General of the State of New Jersey, W. Cary Edwards.
• Court: U.S. Court of Appeals — Third Circuit

Page 1160

44 F.3d 1160

Lawrence L. SIMMONS, Appellant, v. Howard L. BEYER; and The Attorney General of the State of

New Jersey, W. Cary Edwards.

No. 92-5370.

United States Court of Appeals, Third Circuit.

Argued Oct. 7, 1993.

Decided Jan. 4, 1995.

Sur Petition for Rehearing

Feb. 10, 1995.

John V. Saykanic (argued), Passaic, NJ, for appellant.

Ronald S. Fava, Passaic County Prosecutor, Jane E. Hendry (argued), Office of County Prosecutor, Paterson, NJ, for appellees.

Before: HUTCHINSON, COWEN and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

We granted Lawrence L. Simmons' request for a certificate of probable cause and now must decide: (1) whether voir dire transcripts, missing after a 13-year delay between Simmons' sentencing and direct appeal, are indispensable to review his claim that the prosecution improperly exercised its peremptory challenges to exclude African Americans from the jury, and (2) whether this delay violated Simmons' constitutional right to due process and a speedy appeal. ¹ The district court denied Simmons' reopened petition for a writ of habeas corpus. We will reverse because, although the district court correctly concluded that Simmons' right to due process was violated, it erred by concluding that the violation was cured when Simmons received his direct appeal.

I.

In 1977, Simmons was sentenced to life imprisonment plus 21 to 25 years. Although immediately after sentencing he expressed his desire to appeal, and never waived his right to appeal, Simmons' conviction and sentence were not reviewed for 13 years. His appointed trial counsel did not file a notice of appeal or promptly transfer Simmons' case to the appellate division of the New Jersey By this time, however, portions of the trial record including a lengthy in camera voir dire of prospective jurors were missing. The Appellate Division remanded the case for the limited purpose of reconstructing the record, and the judges who had presided over the jury selection and the remainder of the trial and sentencing held reconstruction hearings. Simmons challenged the sufficiency of the reconstructed record in federal district court, but his motion was denied without prejudice to his right to challenge the record in the state appellate proceedings. In 1990, the Appellate Division affirmed Simmons' conviction and sentence, and the New Jersey Supreme Court denied his petition for certification. In 1991, the United States Supreme Court denied Simmons' petition for a writ of certiorari. The district court then denied his reopened petition for a writ of habeas corpus, and he now appeals.

                Public Defender.  Thereafter, despite requests from Simmons and his trial counsel, the Public Defender failed to promptly seek an appeal.  Ultimately, the federal district court granted Simmons a conditional writ of habeas corpus, directing that a writ would issue unless the state gave him an appeal or a new trial.  Thus, after he had pursued collateral review in the state and federal courts from 1980 to 1988, the New Jersey Superior Court, Appellate Division finally permitted Simmons to file a notice of appeal nunc pro tunc.   After spending more than a decade in prison, Simmons was granted his first appeal as of right
                

II.

Simmons contends that the manner in which the prosecutor exercised his peremptory challenges violated the federal and state law principles articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986). In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the prosecution from exercising peremptory challenges to exclude potential petit jurors based on race or race-based assumptions. 476 U.S. at 89, 106 S.Ct. at 1719. Similarly, in Gilmore, the New Jersey Supreme Court held that its state constitution prohibits the prosecution's use of peremptory challenges "to remove potential petit jurors who are members of a cognizable group on the basis of their presumed group bias." 511 A.2d at 1154. Before analyzing the merits of Simmons' peremptory challenge claim, we must resolve two preliminary issues: (1) whether Batson and Gilmore apply to this case, and (2) whether Simmons' claim is barred under the "adequate and independent state ground" doctrine. ²

A.

In Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam), the Court concluded that Batson does not apply retroactively on collateral review of a final conviction. Id. at 258, 106 S.Ct. at 2879. In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), however, the Court held that Batson does apply "to litigation pending on direct state or federal review or not yet final when Batson was decided." Id. at 316, 107 S.Ct. at 709. It reasoned that the integrity of judicial review requires consistent application of "our best understanding of governing constitutional principles," id. at 323, 107 S.Ct. at 713 (quoting Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 1173, 28 L.Ed.2d 404 (1971)), and fairness requires allegiance to "the principle of treating similarly situated defendants the same." Id.

Here, Simmons' 1977 conviction did not become final until 1991 when the United States Supreme Court denied his petition for a writ of certiorari. See Allen, 478 U.S. at 258 n. 1, 106 S.Ct. at 2880 n. 1 (citation omitted). Although this case was before the Supreme Court in 1982, in conjunction with Simmons' efforts to get a direct appeal, it did not then become final in the relevant sense. Simmons' first appeal as of right was the critical missing step, and his intervening applications The irony is that the egregious delay in granting Simmons a direct appeal inadvertently gave him the benefit of the Batson decision. Had Simmons received a timely review, his conviction would have been final before 1986. In a sense, he is a "chance beneficiary" of the Batson rule. See Griffith, 479 U.S. at 323, 107 S.Ct. at 713. Simmons, however, was not similarly situated with other defendants convicted in 1977 whose convictions became final before Batson was decided. Those other defendants did not suffer a 13-year delay before getting appellate review, and we see no reason to bend the rule in Griffith to deny Simmons the constitutional protection afforded in Batson.

for collateral review did not render his conviction final. See Caspari v. Bohlen, --- U.S. ----, ----, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Accordingly, the Batson decision, announced in 1986, applies to this case.

B.

The Gilmore court itself delineated its holding's rule of application:

[T]he new rule will apply to this defendant, trials in which the jury selection commenced on or after the date of the Appellate Division opinion [which was affirmed in Gilmore ], and cases now on appeal in which the issue was preserved in the trial court and the record is adequate to raise the issue.

511 A.2d at 1169. Applying these instructions, the Appellate Division rejected Simmons' contention that the reconstructed trial record was insufficient to permit it to review his Gilmore claim. It held that Simmons' argument "must of necessity fail because we consider this to be attempting a retroactive application of Gilmore under the procedural history and circumstances of this case." ³ The Appellate Division's opinion yields three potential justifications for this conclusion: (1) since Simmons' direct appeal followed his applications for collateral review, it was not legitimately "on appeal" for purposes of applying Gilmore retroactively, (2) the Gilmore issue was not sufficiently "preserved in the trial court," and (3) the reconstructed record was not "adequate to raise the issue," and the resulting prejudice was appropriately assigned to Simmons.

Although its specific rationale was not plainly stated, the Appellate Division clearly rendered a decision based on state law grounds which was later affirmed by the state supreme court. Simmons had also raised a Batson claim in his direct appeal, stating in his brief that "the rule of Batson is applicable to the case at bar," but the Appellate Division did not address the Batson issue. It relied solely on state law authority and based its decision to reject Simmons' peremptory challenge claim on Gilmore. "[I]t is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts," Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977) (citations omitted), and we lack jurisdiction to overrule the Appellate Division's conclusion that Gilmore does not apply retroactively to Simmons' case. See Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935) ("where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, our jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judgment").

C.

Next, we consider whether the Appellate Division's dismissal of Simmons' Gilmore claim bars consideration of his Batson claim In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Court reiterated that it "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729, 111 S.Ct. at 2553-54. Here, the Appellate Division's judgment on Simmons' state Gilmore claim was clearly "independent" of his federal Batson claim. The court cited no federal case law and did not refer to the Fourteenth Amendment or Batson decision in concluding that Gilmore did not apply retroactively to Simmons' case. Moreover, the Gilmore court explicitly based its decision "on the New Jersey...