820 F.2d 832 (7th Cir. 1987), 84-2474, Teague v. Lane

Docket Nº:84-2474.
Citation:820 F.2d 832
Party Name:Frank TEAGUE, Petitioner-Appellant, v. Michael LANE, Director, Department of Corrections, and Michael O'Leary, Warden, Respondents-Appellees.
Case Date:May 11, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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820 F.2d 832 (7th Cir. 1987)

Frank TEAGUE, Petitioner-Appellant,

v.

Michael LANE, Director, Department of Corrections, and

Michael O'Leary, Warden, Respondents-Appellees.

No. 84-2474.

United States Court of Appeals, Seventh Circuit

May 11, 1987

Argued Oct. 23, 1986.

[*]

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Patricia Unsinn, Office of State Appellate Defender, State of Ill., Chicago, Ill., for petitioner-appellant.

Mark L. Rotert, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, CUMMINGS, WOOD, CUDAHY, POSNER, COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges.

The original panel decision in this case reversing the order of the district court that denied the appellant Frank Teague's petition for a writ of habeas corpus was vacated, United States ex rel. Teague v. Lane, 779 F.2d 1332 (7th Cir.1985), and the case set for rehearing en banc pursuant to Circuit Rule 16(e). 1 We now affirm the order of the district court denying Teague's petition for a writ of habeas corpus.

I

COFFEY, Circuit Judge.

Teague, a black man, was convicted after a jury trial in an Illinois court for attempted murder and armed robbery. 2 In the process of selecting the Teague jury, the prosecution in the exercise of its peremptory challenges excluded ten black jurors. In the exercise of the defendant's peremptory challenges, the only other black on the juror list was removed. The defendant initially challenged the State's use of its peremptory challenges after the State had exercised six of its peremptories and again after jury selection was completed claiming that the State's exclusion of all blacks from the jury deprived him of his right to "trial by a jury of his peers." The trial court rejected the defendant's argument that he was deprived of a "trial by his peers" stating that "the jury appears to be a fair jury" and the Illinois Court of Appeals affirmed the defendant's conviction explaining that no restriction could be placed on a prosecutor's exercise of peremptory challenges in the absence of a demonstration that blacks had been systematically excluded under the Swain v. Alabama test. People v. Teague, 108 Ill.App.3d 891, 64 Ill.Dec. 401, 439 N.E.2d 1066 (1st Dist.1982). The Illinois Supreme Court denied Teague's Petition for Leave to Appeal, 93 Ill.2d 547 (1983), and the United States Supreme Court denied certiorari. 464 U.S. 867, 104 S.Ct. 206, 78 L.Ed.2d 179 (1983). Teague then filed a petition for a writ of habeas corpus in the federal district court.

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The district court denied Teague's petition for a writ of habeas corpus explaining that Teague's claim that his constitutional rights were violated by the prosecution's use of its peremptories was "foreclosed by Swain and the Seventh Circuit's recent decisions in United States v. Clark [737 F.2d 679 (7th Cir.1984) ], and United States ex rel. Palmer v. DeRobertis, [738 F.2d 168 (7th Cir.1984) ]."

In Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court decided that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 3 The Batson decision expressly overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), but did not address the sixth amendment question concerning the right to a trial by an impartial jury. In Allen v. Hardy, --- U.S. ----, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the Supreme Court held that Batson was not to be applied "retroactively [to cases such as Teague's] on collateral review of convictions that became final before our opinion [in Batson ] was announced." 4 However, even if Batson were to be applied retroactively to Teague's case, it would not control this court's disposition of Teague's petition for habeas corpus, since Teague challenges his conviction on sixth amendment 5 grounds and does not raise an equal protection claim subject to the holdings in Batson and Allen. 6

II

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that "The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. 106 S.Ct. at 1719. The Batson decision

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adopted a new analysis for establishing whether the prosecution's use of its peremptory challenges had violated the Equal Protection Clause and "reject[ed] this [the Swain v. Alabama ] evidentiary formulation [for establishing Equal Protection violation] as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause." Id. Under Batson,

"a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, 430 U.S. at 494, 97 S.Ct. [1272] at 1280 [51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, 345 U.S. at 562, 73 S.Ct. at 892 [97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination."

Id. at 1722-23. The Swain court refused to adopt a rule that would allow a criminal defendant to establish an Equal Protection violation simply by demonstrating that in his particular case, the prosecution had used its peremptories to remove all blacks from the jury actually empanelled to try the defendant:

"In the light of the purpose of a peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case."

380 U.S. at 223, 85 S.Ct. at 837. Instead, Swain required that a defendant seeking to establish an Equal Protection violation must demonstrate that the prosecutor systematically used his peremptories to exclude Blacks or other suspect classes from petit juries in case after case, and not just that all Blacks were peremptorily removed from the jury in the particular defendant's case:

"We have decided that it is permissible to insulate from the inquiry the removal of Negroes of a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, a particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors and the jury commissioners and who survive challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance."

Id. (emphasis added).

Batson rejected this approach as a requirement for establishing an Equal Protection violation based on the prosecutor's use of

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peremptory challenges. The court explained that Swain: "Placed on defendants the crippling burden of proof" and thus "prosecutors peremptory challenges are now arguably immune of constitutional scrutiny." 106 S.Ct. at 1720-21 (footnote omitted). Accordingly, the court in Batson rejected the Swain court's "evidentiary formulation [for establishing that a prosecutor used its peremptories for a constitutionally impermissible purpose] as inconsistent with standards that have developed since Swain for assessing a prima facia case under the Equal Protection Clause." Id. at 1719.

The Batson decision makes clear that the court decided the case on equal protection grounds and declined to rule on Batson's claimed sixth amendment violation:

"We agree with the State that resolution of the petitioner's claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner's Sixth Amendment arguments."

Batson, 106 S.Ct. at 1716 n. 4. 7 Although in Batson a criminal defendant was allowed to establish a violation of the equal protection clause by alleging, as Teague has, that the prosecution exercised its peremptories solely on the basis of a prospective juror's race, the Supreme Court's...

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