Bell v. Baker
| Decision Date | 27 March 1992 |
| Docket Number | No. 91-3378,91-3378 |
| Citation | 954 F.2d 400 |
| Parties | James H. BELL, Jr., Petitioner-Appellee, v. Dennis BAKER, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Harry R. Reinhart (argued & briefed), Columbus, Ohio, for James H. Bell, Jr.
Gerald E. Dailey (argued & briefed), Lee Fisher, Ohio Atty. Gen., Columbus, Ohio, for Dennis Baker.
Before KEITH, NELSON and SILER, Circuit Judges.
Petitioner-appellee was granted a writ of habeas corpus under 28 U.S.C. § 2254 by the district court. Respondent-appellant is apparently the Warden of the penal institution having custody of the petitioner. 1 For reasons set out herein, we reverse the ruling of the district court.
Petitioner, a black man, was convicted in Ohio for aggravated murder of a white man and was sentenced in 1984 to a term of imprisonment of life with no possibility of parole for twenty years. At trial, the venire was composed of three black persons and twenty-one white persons. Each side was entitled to four peremptory challenges. The prosecutor used his challenges to exclude all three blacks and one white. Defense counsel objected to the systematic exclusion of black jurors. The prosecutor did not explain why he made those challenges. However, as the trial occurred before the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court followed Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in overruling the objections by the defense.
Appeals were taken to the Ohio Court of Appeals and the Supreme Court of Ohio, raising, inter alia, the constitutional issue, under the Sixth and Fourteenth Amendments, that there was a systematic exclusion of black jurors from the petit jury. On October 16, 1985, the Court of Appeals denied the appeal on the merits. On January 22, 1986, the Supreme Court of Ohio dismissed the appeal for failure to state a substantial constitutional question.
On April 30, 1986, Batson was decided. The petition for a writ of habeas corpus was filed in the district court later in 1986. The resolution of the case was delayed, in part, to await the ruling in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). In that case, the Supreme Court held that the Sixth Amendment to the Constitution does not preclude the systematic exclusion of a particular group from a petit jury. Thus, the right under the Equal Protection Clause of the Fourteenth Amendment to the Constitution from Batson, that there cannot be a systematic exclusion of a particular race from the petit jury, was not extended to the right under the Sixth Amendment to trial by an impartial jury.
Subsequently, the district court upheld the report and recommendation by the magistrate that a writ of habeas corpus should issue. The basis for its decision was that the prosecution's systematic use of its peremptory challenges to exclude black jurors from the petit jury violated the petitioner's Sixth Amendment right to a jury drawn from a fair cross section of the community under Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated sub nom. Michigan v. Booker, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705, reinstated, 801 F.2d 871 (6th Cir.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). It held that when Holland overruled Booker, this established a new rule of law, and, therefore, like Batson, it was not retroactive in petitioner's case. Thus, as petitioner's case was not final by the time Booker was decided in 1985, then Booker mandated that there be no systematic exclusion of blacks on the petit jury as finally selected, under the Sixth Amendment to the Constitution.
It is obvious that as the petitioner's case became final on direct appeal before Batson was decided, the rule from Batson does not apply, as it is not retroactive. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam). What is ironic, however, is that if the writ is upheld, as both counsel at oral argument admitted, Batson would apply at the retrial and Booker probably would not, as it is no longer the law.
The key issue is whether Holland established a new rule of criminal procedure. If it did, then, unless it falls within an exception to the general rule, it is not applicable to those cases which became final before the new rule was announced. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334 (1989). Those exceptions listed in Teague are not applicable here. Teague involved a similar legal issue, although the case was final in 1983 and it originated in Illinois, which did not follow Booker or McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated and remanded, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705, on remand case dismissed by stipulation of the parties (1986).
When Holland was decided, it appeared to create a new rule of criminal procedure in the Sixth and Second Circuits, for they were following the decisions in Booker and McCray. However, other circuits had not recognized that the Sixth Amendment required a fair cross section of the community to be represented on a petit jury. See, e.g., United States v. Rodriquez-Cardenas, 866 F.2d 390, 393 (11th Cir.1989), cert. denied, 493 U.S. 1069, 110 S.Ct. 1110, 107 L.Ed.2d 1017 (1990); Teague v. Lane, 820 F.2d 832, 841 (7th Cir.1987) (en banc), aff'd, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); United States v. Salamone, 800 F.2d 1216, 1219 (3d Cir.1986); United States v. Thompson, 730 F.2d 82 (8th Cir.), cert. denied, 469 U.S. 1024, 105 S.Ct. 443, Nevertheless, Holland did not establish a new rule nationally, nor was it a new rule in the opinion of the Supreme Court. The majority opinion in Holland states that Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), disclaimed the application of the fair cross section rule to petit juries. See 493 U.S. at 482-483, 485-486, 110 S.Ct. at 808-809, 810. Thus, the decisions in McCray and Booker were not recognized by the Supreme Court, but were an anomaly of the law in its view.
83 L.Ed.2d 369 (1984); Weathersby v. Morris, 708 F.2d 1493, 1497 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984).
The petitioner urges that it is not "evenhanded justice" for courts to deny the retroactivity of Batson and yet require the retroactivity of Holland. This was a difficult decision for the district court, and it is difficult for this court, considering the precedent for a period of time in Booker. However, it is the decision of the Supreme Court that Holland did not establish a new rule of procedure. Moreover, any time the Court rules on the retroactivity of a decision, there is always some litigant who feels it is inequitable in his case. See Teague, 489 U.S. at 302-305, 109 S.Ct. at 1070-1072. One could argue the other side of the issue, that is, is it fair for the petitioner here to receive a new trial when defendants similarly situated from other states outside the Second and Sixth Circuits could not obtain new trials?
The answer to that question is in the negative, especially in view of the findings by the magistrate that the "conviction was amply supported by the evidence" and no constitutional error caused the conviction of an innocent person.
Therefore, the decision of the district court is REVERSED with directions to vacate the writ of habeas corpus.
I concur in the majority opinion. In view of the final paragraph of the dissent, however, I would like to add this: Nowhere in the majority opinion can I discern any intimation at all that the panel which decided Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), "engaged in a patently lawless procedural practice" or "did not follow their charge to uphold the principles of the Constitution." I do not believe that the Booker panel intended to do any such thing.
On the contrary, the Booker panel expressly recognized that "our authority as an intermediate court is limited," id. at 767--and for that reason, even though it disagreed with the Supreme Court's decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Booker panel held that the prosecutor's use of peremptory challenges to excuse prospective jurors on the basis of their race, "although egregious conduct, did not violate the Equal Protection Clause as interpreted in Swain." Booker, 775 F.2d at 767. These are obviously not the words of a lawless or unprincipled court.
At the time Booker was decided, there was no Supreme Court precedent expressly foreclosing the conclusion that the Sixth Amendment prohibits the exclusion of cognizable groups from the petit jury through peremptory challenges. The Booker panel thus felt free to conclude that the Sixth Amendment does prohibit such exclusion--and the panel presented about as able an argument in support of this view as one could imagine, given the circumstances to which the Supreme Court was subsequently to allude in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). This branch of the holding in Booker was no more the act of a renegade court than the first branch was.
It is indisputable, nonetheless, that the second branch of the holding in Booker cannot be reconciled with what, as we now know, the Supreme Court believes the Sixth Amendment has always said. As a panel of an intermediate court, we are no less bound by Holland than the Booker panel was bound by Swain.
Here are some of the things that Holland tells us about what the Supreme Court thinks the proper bounds of the Sixth Amendment have always been:
"A prohibition upon the exclusion of cognizable groups through...
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