Cherry v. Abbott, 45882

• Decision Date: 22 September 1988
• Docket Number: No. 45882,45882
• Citation: 258 Ga. 517,371 S.E.2d 852
• Parties: CHERRY v. ABBOTT, Warden.
• Court: Georgia Supreme Court

Page 852

371 S.E.2d 852

258 Ga. 517

CHERRY v. ABBOTT, Warden.

No. 45882.

Supreme Court of Georgia.

Sept. 22, 1988.

James Cherry, Buford, pro se.

Michael J. Bowers, Atty. Gen., J. Michael Davis, Dennis R. Dunn, Asst. Attys. Gen., for Richard Abbott, Warden.

GREGORY, Justice.

Petitioner, a black male, filed a writ of habeas corpus contending the state had exercised its peremptory strikes to exclude all black jurors from the panel selected to try his case, and therefore his convictions were in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1987). Batson had not been decided at the time of petitioner's trial. ¹ Petitioner's trial counsel made no objections to the state's use of its peremptory strikes against all three black members of the panel. In his petition for habeas corpus, petitioner also alleged that trial counsel was ineffective in failing to object to the use of the state's peremptory strikes in this manner.

The habeas court found initially that trial counsel had not been ineffective in failing to object to the use of the state's peremptory strikes because there was no evidence to show the state exercised these strikes in a racially discriminatory manner. The habeas court also found that since petitioner could have raised this claim at trial under the principles enunciated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1964), he could not show that the "factual or legal basis for [the] claim was not reasonably available to counsel," Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986), such as would establish cause for the procedural default within the meaning of Black v. Hardin, 255 Ga. 239, 240, 336 S.E.2d 754 (1985). The habeas court denied relief to petitioner. We granted his application for probable cause to determine whether a legal basis for the Batson claim was reasonably available to petitioner's counsel at trial.

In Swain v. Alabama, supra, the Supreme Court held that a defendant could make out a prima facie case of racial discrimination by the state in exercise of its peremptory strikes by showing that the peremptory challenge system was "being perverted" in this manner. 280 U.S. at 224, 85 S.Ct. at 838. However, the Court held that in order to make out a prima facie case, the defendant must offer proof beyond the facts of his own case. Id., at 224-228, 85 S.Ct. at 838-40.

In Batson, supra, the Court pointed out that "since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case," citing Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976) and Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Batson v. Kentucky, 476 U.S. at 95, 106 S.Ct. at 1722. (Emphasis in original.) Batson clarified the evidentiary standards necessary to make out a prima facie...