Caudill v. Conover

• Decision Date: 02 February 2018
• Docket Number: No. 14-5418,14-5418
• Parties: Virginia S. CAUDILL, Petitioner–Appellant, v. Janet CONOVER, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

881 F.3d 454

Virginia S. CAUDILL, Petitioner–Appellant,

v.Janet CONOVER, Warden, Respondent–Appellee.

No. 14-5418

United States Court of Appeals, Sixth Circuit.

Argued: November 29, 2017

Decided and Filed: February 2, 2018

Rehearing En Banc Denied April 2, 2018^*

ARGUED: Dennis J. Burke, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for Appellant. Matthew R. Krygiel, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Dennis J. Burke, Euva Blandford, Krista A. Dolan, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for Appellant. Matthew R. Krygiel, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: MOORE, SUTTON, and KETHLEDGE, Circuit Judges.

SUTTON, J., delivered the opinion of the court in which KETHLEDGE, J., joined, and MOORE, J., joined in part. MOORE, J. (pp. 465–83), delivered a separate opinion concurring in part and dissenting in part.

SUTTON, Circuit Judge.

Virginia Caudill and Jonathon Goforth broke into Lonetta White's home and beat her to death with a hammer when she refused to give them money to buy drugs. After ransacking her home for valuables, they wrapped her body in a carpet and loaded it in the trunk of her own car. They drove the car to an empty field, doused it with gasoline, and set it on fire. An autopsy revealed that she died from massive head injuries

, including blows that caved in parts of her skull.

A Kentucky jury convicted Caudill and Goforth in a joint trial of murder, robbery, burglary, arson, and tampering with evidence. After a mitigation hearing, the same jury sentenced them to die for their crimes. The Kentucky Supreme Court affirmed Caudill's convictions and sentence and rejected her requests for collateral relief. Caudill v. Commonwealth , 120 S.W.3d 635 (Ky. 2003) ; Caudill v. Commonwealth , No. 2006-SC-000457, 2009 WL 1110398 (Ky. Apr. 23, 2009). Caudill filed a federal petition for a writ of habeas corpus, which the district court denied. Caudill v. Conover , No. 5:10-84, 2014 WL 349300 (E.D. Ky. Jan. 31, 2014).

We granted a certificate of appealability to consider two questions: (1) whether the state courts reasonably rejected her Batson claim, and (2) whether her lawyers provided ineffective assistance by choosing not to call additional witnesses during the penalty phase. Neither claim has merit, and accordingly we must affirm.

I.

Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), sets forth a three-step process for assessing whether a peremptory challenge violates the Equal Protection Clause of the Fourteenth Amendment. Step one: the defendant must make a prima facie showing of discrimination. Step two: the prosecutor must offer a nondiscriminatory reason for the strike. Step three: the trial court must "determine if the defendant has established purposeful discrimination." Id. at 96–98, 106 S.Ct. 1712.

Caudill's lawyer raised a Batson challenge toward the end of the state court's jury selection. Here is the key exchange:

[DEFENSE COUNSEL]: I guess we would have a motion evaluating, uh, I believe there were nine strikes for the Commonwealth. They struck eight males. I believe that, uh, there's uh—shows a clear bias against, uh, uh, men in this case, possibly because of the woman on trial here. And I just feel that, uh, it rises to the same level as a Batson issue—[PROSECUTOR]: Are you saying men are a protected class? Is that what you're saying?

[DEFENSE COUNSEL]: Yes.

[THE COURT]: White males?

[DEFENSE COUNSEL]: Well, I don't know if they're—

[PROSECUTOR]: That's news to the rest of us.

[DEFENSE COUNSEL]: Well, we would just—

[THE COURT]: Never had men. The only people excluded were white males.

[DEFENSE COUNSEL]: Look, well, we just for the record make that motion.

[THE COURT]: I understand.

DVD A-4 at 09:12:33–09:13:23.

In response, the prosecutor gave the following reasons for striking the eight potential jurors. Robert Feezor opposed the death penalty. Nicholas Edwards had only a grade school education and did not "underst[an]d what was going on." Shannon Patterson had relatives in prison and serious hesitations about the death penalty. James Franke seemed "uncomfortable" with the death penalty and came off as "a little strange." Robert Biene hated the police and the judicial system. Robert Keston did not like the death penalty and was "practically a blood brother" of Caudill's lawyer. Gary Lloyd said that he would impose the death penalty only in rare circumstances. And the prosecution doubted that they could persuade William Case of the defendants' guilt or persuade him to impose the death penalty. Id. at 09:13:23–09:16:54.

After listening to these explanations, the trial court found no discrimination afoot. "[I]f the appellate courts for whatever magical reason perceive white males to be a protected class, I think these are nondiscriminatory reasons that would allow them to be struck." Id. at 09:16:54–09:17:15. The defense neither objected to the substance of the court's ruling nor asked for an opportunity to show that the prosecutor's explanations did not add up or otherwise amounted to a smokescreen for discrimination.

On direct appeal, the Kentucky Supreme Court held that "[t]he trial judge found all of [the prosecutor's] reasons to be race-neutral and we are unable to conclude that his finding in that regard was clearly erroneous." Caudill , 120 S.W.3d at 657.

The parties agree that the Kentucky Supreme Court decided Caudill's Batson claim on the merits. And so do we. That means we may grant Caudill's petition only if the state court's rejection of this claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

In trying to meet this standard, Caudill focuses on the trial court's handling of Batson 's third step. At that stage, she points out, Batson requires courts to undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," 476 U.S. at 93, 106 S.Ct. 1712, and the trial court's explanation, she elaborates, was neither sensitive nor careful, as it took less than three seconds and gave defense counsel little, if any, chance to respond. Although the trial court did not use a model method for resolving the Batson claim, Caudill's argument nonetheless fails.

We need not decide whether the U.S. Supreme Court has "clearly established" that Batson applies in this setting. Either way, Caudill's claim fails because she makes too much of the "sensitive" inquiry language in Batson , at least in the context of a habeas claim. The Supreme Court has never directed trial courts to make detailed findings or to solicit the defense attorney's views before ruling on a Batson motion. Batson itself "decline[d] ... to formulate particular procedures to be followed" beyond the three-step framework. 476 U.S. at 99, 106 S.Ct. 1712. On reflection, that is not surprising. Some Batson claims will be stronger than others. And some claims thus will deserve more process or more consideration or more argument than others. The amount of such deliberation will invariably turn on the circumstances of each case. Id. at 97, 106 S.Ct. 1712. The more flexible a standard, as this one surely is, the more difficult it will be to show an unreasonable violation of it. Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).

The Kentucky Supreme Court did not unreasonably apply Batson here. Jury selection lasted several days. The state court judge was there the entire time. He had ample opportunity to observe the demeanor of the jurors and hear their answers. He listened to the prosecutor's questions during voir dire and watched the strikes. By the time he entertained Caudill's Batson challenge, he had plenty to go on in deciding how to respond. He also had the prosecutor's race-neutral explanations to consider. It thus is inaccurate, and unfair to the state judge, to say that he thought about the Batson claim for just "three seconds." Appellant's Br. 25. He had ample time to think about and to gauge this claim throughout this process. Yes, the state court would have done well (and would have done better) to explain more fully why the prosecutor's explanations convinced him that no discrimination of any sort was at play. But his ruling did not violate any clearly established law.

Caudill insists that the nature of some of the prosecutor's explanations made it impossible for the trial court to evaluate the prosecutor's credibility so quickly. She points out that the prosecutor struck Edwards because he had a "grade school education." Appellant's Br. 27. Because Edwards never discussed his education at voir dire , the only way for the trial judge to confirm that explanation was to look at Edwards' juror questionnaire. That he didn't do so, she says, suggests that he abdicated his duties under step three of the Batson inquiry.

But the prosecutor struck Edwards for another reason too: The potential juror did not "underst[an]d what was going on." The judge could have credited that explanation. And reasonably so: Edwards initially told the prosecutor that he could impose the death penalty. Then, when questioned by defense counsel, he claimed to be against it. Then, when the prosecutor on redirect noted his inconsistent answers, Edwards responded incoherently. After the prosecutor asked him to describe circumstances that would warrant the death penalty, Edwards responded: "Um, it means just like whatever the crime is, I mean, you know. Like if it's a—I don't know. I can't explain." R. 47-3 at 14. Through it all, the prosecutor and the judge at any rate were right: Caudill concedes that Edwards indeed had just a grade-school education. Oral Arg. Tr. 19:20–19:29.

Caudill adds that the prosecutor exaggerated in...