941 F.2d 1449 (11th Cir. 1991), 90-8522, Horton v. Zant

Docket Nº:90-8522.
Citation:941 F.2d 1449
Party Name:Jimmy Lee HORTON, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.
Case Date:September 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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941 F.2d 1449 (11th Cir. 1991)

Jimmy Lee HORTON, Petitioner-Appellant,


Walter ZANT, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellee.

No. 90-8522.

United States Court of Appeals, Eleventh Circuit

September 3, 1991

Rehearing and Rehearing En Banc

Denied Oct. 31, 1991.

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[Copyrighted Material Omitted]

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Andrew L. Lipps, Swidler, Berlin, Chtd., Washington, D.C., Stephen B. Bright, Atlanta, Ga., for petitioner-appellant.

Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before JOHNSON, BIRCH and DUBINA, Circuit Judges.

JOHNSON, Circuit Judge:

The petitioner, Jimmy Lee Horton, under a sentence of death, appeals the district court's denial of his habeas petition. We reverse the district court's disposition of the case on three of the claims. In doing so, we note that each of the claims constitutes an independent basis for granting the writ.


A. Background Facts

On the evening of November 28, 1980, Jimmy Lee Horton and Pless Brown borrowed Hamp Davis' pickup truck in order to commit several burglaries. Early in the evening, Horton and Brown broke into a house and stole a black barrelled .22 caliber pistol and a television set. The pistol was unloaded. Horton and Brown brought the television set to Hamp Davis' house where Mrs. Davis helped them sell the set to one of her co-workers. The two men then left and went to Raintree Apartments where Horton and Brown broke into Ms. Sherrell

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Grant's apartment. They then proceeded to steal a silver-colored pistol and some furniture. In the course of loading the furniture onto the truck, they were discovered by Ms. Grant's boyfriend, Don Thompson. 1 Thompson was shot and killed. A ballistics expert determined that Thompson was shot with a copper coated CCI bullet fired from the black barrelled pistol.

Earlier that evening Thompson and Ms. Grant went to a friend's house for dinner and drinks. Thompson escorted Ms. Grant home, but before they entered her apartment, Ms. Grant noticed the door pried open. Thompson knocked on a neighbor's door and borrowed a pistol. Thompson then entered the apartment, looked around, and went out the back door towards the parking lot. Meanwhile, Ms. Grant stood in front of her door talking to her neighbor. Just then a short black man with an "Afro" haircut 2 came around the corner of the apartment complex from the direction of the parking lot. He saw Ms. Grant; he turned around and fled. Behind this man was a taller black man with shorter hair. 3 Ms. Grant told this man that he "wasn't going anywhere." This man, according to Ms. Grant, raised a black barrelled pistol and shot at her but missed. 4 Ms. Grant quickly ducked into the neighbor's apartment. While she was hiding in the apartment, she heard what she thought was two separate guns firing. 5

At the same time that Ms. Grant thought she heard the guns firing, Ms. Carol Baker was looking out her window and saw a gun firing from the passenger side of a truck in the parking lot. Ms. Baker was unable to identify either of the two men in the truck since the truck quickly drove away. Another resident, Mr. Robert Theil, waited until after the gunfire, then ventured outside and found Mr. Thompson's body.

In the ensuing days, the local police matched the description of the truck to Hamp Davis' truck. The police questioned Davis and he implicated Horton and Brown. The police then arrested Horton and Brown. Following the arrest, Horton's common law wife gave the police the black barrelled gun that was stolen in the burglary and used in the shooting of Thompson. A search of Horton's house pursuant to a warrant turned up Remington bullets similar to those fired at Ms. Grant, but no copper-coated CCI bullets. Horton confessed to taking part in the robbery, but claimed that Brown shot Thompson.

B. Procedural History

  1. Trial

    Horton and Brown were each charged with two counts of burglary and with one count of murder. They were tried separately. 6 At trial, Horton admitted to participating in the two burglaries and to shooting at Ms. Grant 7 but he claimed that Brown shot Thompson and later switched guns with him. The prosecution's case against Horton was largely circumstantial. 8 The prosecutor, Mr. Joseph Briley, emphasized to the jury that Ms. Grant saw Horton

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    shooting at her with the black barrelled gun, 9 that the gun was found in Horton's apartment, and that Horton's story was somewhat incredible. 10 The only direct evidence against Horton came from Hamp Davis. Davis testified that Horton told him that he shot Thompson because Thompson drew a gun on Horton and it was "either him or me." Davis also testified that Brown had told him that Horton shot Thompson. 11

    The jury convicted Horton of murder. The penalty phase of the trial was extremely short. The state introduced certified copies of Horton's prior convictions for armed robbery, burglary, theft, and escape. The defense called no witnesses and offered no evidence in mitigation. The jury recommended a sentence of death.

    Following the trial, Horton sought a new sentencing hearing on the basis of an affidavit by Arthur Fryer who stated that he heard Brown confess to being the one who shot Thompson. During an evidentiary hearing Fryer stated that he told no one about Brown's confession until after the trial, but then, on cross-examination, he admitted that he told Horton before the trial of Brown's alleged confession. Horton, nevertheless, claimed the evidence warranted a new sentencing hearing because the evidence was newly available since, at the time of Horton's trial, Fryer was a fugitive from justice. The trial court denied Horton's motion to grant a new sentencing hearing.

  2. Appeals and Collateral Appeals

    Horton's conviction and sentence of death was affirmed on appeal by the Georgia Supreme Court. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S.Ct. 837, 74 L.Ed.2d 1030 (1983). Horton then filed a petition for habeas corpus in state court in December of 1983. The trial court held an evidentiary hearing and then denied the writ. The Georgia Supreme Court summarily affirmed the trial court. The United States Supreme Court denied certiorari. Horton v. Georgia, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987).

    Horton then brought this federal habeas petition. Horton alleged 14 claims. The district court held an evidentiary hearing which focused on the Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), claim. On April 12, 1990, the district court rejected all 14 claims on the merits and then denied the petition. This appeal followed.


    A. The Swain v. Alabama Claim

    Horton claims that the prosecutor violated the Equal Protection Clause of the

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    14th Amendment by using the state's peremptory challenges in a racially discriminatory manner. Such a claim is governed by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). 12 Swain recognized that peremptory challenges were historically exercised in a secretive manner, and that they historically could be exercised for any reason, or for no reason at all. Swain, therefore, cloaked prosecutors with the presumption that they utilized their peremptory challenges in order "to obtain a fair and impartial jury." Id. at 222, 85 S.Ct. at 837. However, the Court held that this presumption can be rebutted by the defendant should he or she establish a prima facie case showing that the peremptory challenges were exercised in a racially discriminatory manner.

    The Court held that in order to establish a prima facie case, the defendant must come forward with "[s]uch proof [that] might support a reasonable inference that [blacks] are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny [blacks] the same right and opportunity to participate in the administration of justice enjoyed by the white population." Id. at 224, 85 S.Ct. at 838. The Court held that "the defendant must ... show the prosecutor's systematic use of peremptory challenges against [blacks] over a period of time." Id. at 227, 85 S.Ct. at 839 (emphasis added). The court suggested in dicta that the prima facie case may be established by proof that "the state has not seen fit to leave a single [black] on any jury in a criminal case." Id. at 224, 85 S.Ct. at 838. 13

    Our case law has, on several occasions, returned to the problem detailed in Swain. The threshold question that each of our cases has focused upon is what level of proof is sufficient to create the "reasonable inference" that a given prosecutor is using peremptory strikes in order to deny blacks the right to participate on juries. In Willis v. Zant, 720 F.2d 1212 (11th Cir.1983) (Willis I), this Court held that the defendant "is not required to show that the prosecutor always struck every black venireman offered to him ... but the facts must manifestly show an intent on the part of the prosecutor to disenfranchise blacks from traverse juries in criminal trials in his circuit." Id. at 1220 (emphasis in original). Our case law has noted that the defendant "bears a heavy burden" in making the showing. Easter v. Estelle, 609 F.2d 756 (5th Cir.1980). Because of this heavy burden, evidence that a prosecutor struck every black juror in one trial, Easter, 609 F.2d at 759, or in six trials held in the course of one week, United States v. Pearson, 448 F.2d 1207 (5th Cir.1971), has been held to be insufficient to demonstrate a prima facie case under Swain. Our Court has held that...

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