Kelly v. Withrow

• Decision Date: 13 April 1993
• Docket Number: No. 1:89 CV 1204.,1:89 CV 1204.
• Citation: 822 F. Supp. 416
• Parties: Leo E. KELLY, Jr., Petitioner, v. Pamela WITHROW, et al., Respondents.
• Court: U.S. District Court — Western District of Michigan

822 F. Supp. 416

Leo E. KELLY, Jr., Petitioner, v. Pamela WITHROW, et al., Respondents.

No. 1:89 CV 1204.

United States District Court, W.D. Michigan, S.D.

April 13, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth M. Mogill, Carole M. Stanyar, Mogill, Posner & Cohen, Detroit, MI, for petitioner.

K. Davison Hunter, Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Habeas Corpus Div., Lansing, MI, for respondents.

AMENDED JUDGMENT

BENJAMIN F. GIBSON, Chief Judge.

The Court has reviewed the Report and Recommendation filed by the United States Magistrate in this action. The Court has also given new consideration and made a de novo determination of those portions to which specific objection has been made.

Pursuant to such review and determination, IT IS ORDERED that the Report and Recommendation of the Magistrate is approved and adopted as the opinion of the Court and this case is DISMISSED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

BRENNEMAN, United States Magistrate Judge.

Petitioner, a prisoner currently incarcerated with the Michigan Department of Corrections, has filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254.

Background

Following a lengthy jury trial in June, 1982, petitioner was found guilty of two counts of first degree murder and sentenced to concurrent life prison terms. The murders occurred when petitioner shot two fellow University of Michigan students with a shotgun, after throwing a fire bomb in their dormitory.

The Michigan Court of Appeals affirmed petitioner's conviction on December 17, 1985. People v. Kelly, 147 Mich.App. 806, 384 N.W.2d 49 (1985). The Michigan Supreme Court, however, remanded the case to the Court of Appeals for consideration of the United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On June 19, 1987, the Court of Appeals, in turn, remanded the case back to the trial court for Batson considerations.

The trial court heard arguments on petitioner's Batson claim on July 17, 1987, and issued an opinion on September 18, 1987, finding that while petitioner had established a prima facie case of purposeful discrimination in jury selection, the prosecution had successfully rebutted petitioner's case with racially neutral explanations for the exercise of peremptory challenges regarding black venire members. The Michigan Court of Appeals affirmed the trial court's Batson decision on July 14, 1988. Thereafter, the Michigan Supreme Court denied petitioner's application for leave to appeal on November 30, 1988.

The facts of the case are well established and provided by the Michigan Court of Appeals opinion, People v. Kelly, 147 Mich.App. 806, 384 N.W.2d 49 (1985). Petitioner raises the following claims in the instant application for writ of habeas corpus. All except Argument II have been properly exhausted in the state courts.

I. DURING JURY SELECTION, THE PROSECUTION ENGAGED IN A PATTERN OF PEREMPTORY CHALLENGES WHICH AMOUNTED TO PURPOSEFUL DISCRIMINATION AGAINST BLACK VENIREPERSONS IN VIOLATION OF THE RULE ESTABLISHED IN BATSON V KENTUCKY, 476 US 79, 106 SCT 1712, 90 LEd2d 69 (1986).

II. GIVEN THE UNIQUE CIRCUMSTANCE OF THIS RACIALLY SENSITIVE CASE, THE ADMISSION OF PHOTOGRAPHS SHOWING

PETITIONER'S BOOKS REGARDING THE CIVIL RIGHTS STRUGGLE OF BLACK PEOPLE AND MARTIAL ARTS AND OF A NOTE ABOUT THE CIVIL RIGHTS MOVEMENT WERE FUNDAMENTALLY UNFAIR AND A DENIAL OF DUE PROCESS.

III. PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW AND AN IMPARTIAL JURY WHERE, DESPITE MASSIVE PREJUDICIAL PRE TRIAL COURT DENIED PETITIONER'S MOTIONS FOR CHANGE OF VENUE.

IV. THE TRIAL COURT'S ORDER COMPELLING PETITIONER TO SUBMIT TO POLYGRAPH, SODIUM BREVITAL AND HYPNOTIC EXAMINATIONS OR FORFEIT HIS RIGHT TO RAISE AN INSANITY DEFENSE, AND THE SUBSEQUENT ADMISSION AT TRIAL OF PSYCHIATRIC TESTIMONY PREMISED ON THE RESULTS OF THOSE EXAMINATIONS WAS VIOLATIVE OF PETITIONER'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND WAS SO FUNDAMENTALLY UNFAIR SO AS TO DEPRIVE PETITIONER OF DUE PROCESS.

V. THE TRIAL COURT'S ERRONEOUS AND MISLEADING INSTRUCTIONS TO THE JURY AT THE BEGINNING OF TRIAL AS TO THE BURDEN OF PROOF FOR THE INSANITY DEFENSE AND FAILURE TIMELY TO CORRECT THE ERRONEOUS IMPRESSION MADE UPON THE JURORS, IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF ONTO PETITIONER IN VIOLATION OF DUE PROCESS OF LAW.

Discussion

In reviewing a state court judgment, a federal court does not act as a "super state supreme court." Martin v. Wainright, 428 F.2d 356, 357 (5th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157 (1970). In addition, the degree of error required to justify reversal in a habeas corpus action is greater than that required on direct appeal. Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Hicks v. Scurr, 671 F.2d 255 (8th Cir.1982). Such errors must be of constitutional proportion, Dupuie v. Egeler, 552 F.2d 704 (6th Cir.1977), and, taken as a whole and within the context of the entire record, have caused the substantial rights of the petitioner as secured by the Fourteenth Amendment to have been infringed. Jenkins v. Borden Kircher, 611 F.2d 162 (6th Cir.1979); Washington v. Watkins, 655 F.2d 1346 (5th Cir.) rehearing denied, 662 F.2d 1116 (1981). See also Payne v. Janasz, 711 F.2d 1305 (6th Cir.), cert. denied, 464 U.S. 1019, 104 S.Ct. 552, 78 L.Ed.2d 726 (1983). The court now turns to the issues in the case at bar.

I

In the instant case, voir dire lasted four days. Jurors stayed in a separate room and were voir dired individually. At the end of the jury selection, the prosecution had exercised all of its 15 peremptory challenges, including six it used against black venire members. No black persons were selected for the jury. Upon review, the trial court found no purposeful racial discrimination in the selection of the jurors by the prosecution.

Petitioner contends that the factual findings made by the state trial court regarding the racial composition of the jury venire do not merit the presumption of correctness mandated by 28 U.S.C. § 2254(d). Petitioner argues that by adopting the prosecution's explanations for exercising its peremptory challenges against black venire members rather than undertaking its own "juror-by-juror" findings, the trial court's findings are too ineffectual and insufficient to be entitled to the statutory presumption. Petitioner also maintains that the defense counsel should have been allowed to cross-examine the prosecution as to its explanations, and to call the petitioner to testify during the Batson hearing.

In reviewing findings of fact made by a trial court, the Supreme Court has held that 28 U.S.C. § 2254(d) "requires federal courts in habeas proceedings to accord a presumption of correctness to state court findings of fact." Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1303, 71 L.Ed.2d 480 (1982). The court noted that the statute explicitly provides that "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction ..., shall be presumed to be correct." Only when one of seven specified factors¹ is present or the federal court determines that the state court finding of fact is not fairly supported by the record may the presumption properly be viewed as inapplicable or rebutted. Id.

In Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1722-24, 90 L.Ed.2d 69 (1986), the Supreme Court held that purposeful racial discrimination by a prosecutor in the selection of a jury, by the use of peremptory challenge, violates a defendant's rights under the Equal Protection Clause. Under Batson, a defendant alleging discrimination must make a prima facie showing of purposeful discrimination in the selection of the jury. The defendant makes such a showing by presenting facts and relevant circumstances that raise an inference that the prosecution used its peremptory challenges in order to exclude venire members because of their race. United States v. Nichols, 937 F.2d 1257, 1262 (7th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992). In its Batson decision, the trial court noted that petitioner's appellate counsel submitted an affidavit containing an uncontroverted assertion that the six black venire members excused in the case constituted the entirety of black membership of the venire. Based upon such assertion, the trial court found that petitioner had made a prima facie showing of discriminatory purpose by the prosecution in the exercise of its peremptory challenges.

If the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. The explanation may not be based merely upon intuitive judgment, denial of discriminatory motive nor affirmance of good faith. Batson, supra, at 97-8, 106 S.Ct. at 1723-24. The trial judge must then determine whether the relevant circumstances raise an inference of purposeful discrimination. Id., at 98, 106 S.Ct. at 1724; United States v. McCoy, 848 F.2d 743, 745 (6th Cir.1988). Ultimately, it is the defendant who bears the burden of establishing a discriminatory animus on the part of the prosecution. Hernandez v. New York, ___ U.S. ___, ___-___, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991).

Batson further held that the trial court's decision on the question of discriminatory intent represents a finding of fact and is entitled to "great deference". Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21; Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). In Hernandez, the Supreme Court re-emphasized that deference to a trial court's factual findings on the issue of discriminatory intent makes particular sense because the finding will "largely turn on evaluation of credibility." Hernandez, supra, ___ U.S. at ___, 111 S.Ct. at 1869, quoting Batson, supra at 98 n. 21, 106 S.Ct. at...