Cochran v. Herring, 93-7028

• Citation: 43 F.3d 1404
• Decision Date: 10 January 1995
• Docket Number: No. 93-7028,93-7028
• Parties: James Willie COCHRAN, Petitioner-Appellee, Cross-Appellant, v. Tommy HERRING, Commissioner, Alabama Department of Corrections, Respondent-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1404

43 F.3d 1404

James Willie COCHRAN, Petitioner-Appellee, Cross-Appellant, v. Tommy HERRING, Commissioner, Alabama Department of

Corrections, Respondent-Appellant, Cross-Appellee.

No. 93-7028.

United States Court of Appeals, Eleventh Circuit.

Jan. 10, 1995.

J. Clayton Crenshaw, Deputy Atty. Gen., Office of the Atty. Gen., Capital Litigation Div., Montgomery, AL, for appellant.

Seamus C. Duffy, Drinker Biddle & Reath, Philadelphia, PA, Kenneth C. Frazier, Wayne, PA, for appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, Chief Judge, ANDERSON and COX, Circuit Judges.

COX, Circuit Judge:

INTRODUCTION

James Willie Cochran, an Alabama inmate, was convicted of murder after a trial by jury and sentenced to death. Cochran appealed his conviction and sentence. After exhausting his state remedies, Cochran filed a habeas petition in the United States District Court. The district court granted relief based on two claims: (1) that Cochran's counsel was ineffective at sentencing; and (2) that the prosecution used its peremptory strikes to exclude blacks from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State appeals, arguing that both claims are procedurally barred and lack merit. Cochran cross-appeals, contending that the district court erred in denying relief on his claims that the state trial court improperly disregarded mitigating evidence at sentencing and that the consideration of a prior conviction during the sentencing phase of his trial violates the Double Jeopardy Clause. Because we affirm the district court's grant of relief on the Batson claim, we find it unnecessary to address the other issues.

I. FACTS AND PROCEDURAL HISTORY

The State's evidence at trial was as follows. Cochran robbed an A & P Grocery Store in Jefferson County, Alabama. Stephen Jerome Ganey, the assistant manager of the store, followed Cochran out of the store. Cochran saw Ganey following him. While running away from the store, Cochran stopped several times and pointed his revolver at Ganey, causing Ganey to momentarily pause in his pursuit of Cochran. The police arrived soon thereafter and virtually surrounded the area around the A & P. Within twenty minutes a gunshot was heard. Although there were no eyewitnesses to the actual murder of Ganey, the police found Cochran within one-half mile of the A & P soon after they heard the gunshot. At the time Cochran was arrested, he was carrying nearly $250 with an A & P band wrapped around it, and he had just discarded a revolver. Ganey's body was later found under a trailer in a nearby mobile home park.

Cochran was tried in 1982 for the murder of Ganey. ¹ The venire panel for this trial consisted of forty-two potential jurors, nine of whom were black. The defendant in the case, Cochran, is black, while the victim, Ganey, was white. At the conclusion of voir dire and before the actual striking of jurors began, Cochran's counsel moved to restrict the State from arbitrarily striking blacks from the jury. The motion was denied; however, the court stated that it would be guided by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in determining whether the State was appropriately using its peremptory strikes. In selecting the jury for the 1982 trial, the prosecution used seven of its fourteen peremptory challenges to exclude seven of the nine black members of the venire panel. After the jury was selected Cochran's counsel did not object to the manner in which the State used its peremptory strikes. A jury of eleven whites and one black found Cochran guilty of murder, and he was sentenced to death. ²

Cochran appealed his 1982 conviction and sentence in state court. Cochran never raised the Batson claim on direct appeal; however, Batson was not decided until late in Cochran's appeal process. In 1984, the Court of Criminal Appeals affirmed Cochran's conviction. Cochran v. State, 500 So.2d 1161 (Ala.Crim.App.1984). However, in 1985, the Alabama Supreme Court remanded the case for resentencing. Cochran v. State, 500 So.2d 1179 (Ala.1985). The circuit court resentenced Cochran in February 1986. See Cochran v. State, 500 So.2d 1188, 1188 (Ala.Crim.App.1986). Soon thereafter, the Court of Criminal Appeals again reviewed the sentencing. Appellate counsel filed Cochran's brief with the Court of Criminal Appeals on April 22, 1986. Eight days later, on April 30, 1986, the Supreme Court decided Batson. The Court of Criminal Appeals affirmed Cochran's sentence in May 1986, id., and the Alabama Supreme Court affirmed that decision in November 1986. Ex parte Cochran, 500 So.2d 1064 (Ala.1986). The United States Supreme Court denied certiorari in Cochran's case on April 27, 1987. Cochran v. Alabama, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987).

In 1987, Cochran filed a petition for post-conviction relief under Ala.R.Crim.P.Temp. 20 ³ in Alabama state court, still without making a Batson claim. Cochran raised the Batson issue for the first time on February 1, 1988, when he filed an amendment to the State petition. The amendment to the petition alleges:

"Petitioner's rights were violated when the State struck all seven blacks from the venire, which acts and results in the petitioner being tried by an all white jury, in violation of Batson v. Kentucky--particularly when the Court overruled both an oral and a written motion specifically anticipating an all white jury and specifically requesting the Court to prevent the prosecution from striking without good reason black jurors." ⁴

The state circuit court ruled that the Batson claim was procedurally barred. However, the court also addressed the merits of the Batson claim, noting that the record did not contain any evidence of racial discrimination in the use of peremptory strikes. Specifically, the court stated: " 'The composition of the jury (black v. white) is not shown in the record. We are unable to discern how many blacks and whites were on the jury. The record does not raise an inference that the state was engaged in purposeful discrimination.' " ⁵

Cochran filed an objection to the trial court's findings on the Rule 20 motion, alleging that the trial court had not allowed him to present evidence on the Batson issue. Attached to the objection were copies of the jury list and the strike sheets which Cochran had obtained from the State. After the trial court overruled the objection, Cochran appealed. The Court of Criminal Appeals reviewed the jury list and strike sheets and concluded that "we cannot, with any degree of certainty, reach any conclusion as to the number of blacks on the venire, the number of blacks removed by peremptory challenge, or the number of blacks who actually served on the jury." Cochran v. State, 548 So.2d 1062, 1067 (Ala.Crim.App.), cert. denied, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989). The court held that Cochran was procedurally barred from raising the Batson claim in a Rule 20 motion because he had not raised it on direct appeal. Id. at 1067-68.

After the Supreme Court denied Cochran's petitions for writ of certiorari, Cochran v. Alabama, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989), Cochran filed a 28 U.S.C. Sec. 2254 petition in the United States District Court. At the evidentiary hearing, Cochran presented documentary evidence, consisting of the strike sheets used by the prosecutor at Cochran's trial, as well as the testimony of Cochran's prosecutor and other members of the district attorney's office. The district court found that the evidence tended to show that the district attorney's office maintained an informal policy of striking black jurors because of their race. The court further found that race was a determining factor in the striking of black jurors in Cochran's case. As the State offered no race-neutral reason for its peremptory strikes, the district court granted Cochran relief on the Batson claim. ⁶

II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES

We find it necessary to address only two issues on appeal. The first issue is whether Cochran's Batson claim is procedurally barred from review by the federal courts. The State contends that the Batson claim is procedurally barred because the last state court rendering a judgment in Cochran's case clearly and expressly stated that the claim was procedurally barred under Alabama law.

Cochran contends that the district court did not err in addressing the Batson claim. Cochran argues that the last state court to render judgment on the Batson claim primarily based its decision on federal law. Cochran claims that the state court plainly stated that the application of the alleged procedural default depended on the court's view that the claim lacked merit. Because the discussion of the procedural default was interwoven with federal law, Cochran contends that the procedural default was not an adequate and independent state ground for the decision which bars federal review of the Batson claim.

Moreover, Cochran contends that even if the last state court to render judgment on the Batson issue clearly and expressly stated that its judgment rested on a state procedural bar, the district court did not err in addressing the Batson claim because Alabama courts do not strictly and regularly apply procedural defaults in cases such as Cochran's.

The second issue is whether the district court erred in finding that the prosecution in Cochran's case exercised its peremptory challenges in a racially biased manner in violation of Batson v. Kentucky, 476 U.S. 79 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State contends that the district court clearly erred in finding a Batson violation on the facts in this case. Alabama argues that although the State used seven of its fourteen peremptory challenges to strike seven of the nine blacks on the venire, the statistical evidence alone does not establish a Batson violation. ...