Davidson v. Gengler

• Citation: 852 F. Supp. 782
• Decision Date: 04 May 1994
• Docket Number: No. 93-C-0776-C.,93-C-0776-C.
• Parties: Hugh DAVIDSON, Petitioner, v. June GENGLER, Superintendent, Thompson Correctional Center, Deerfield, Wisconsin, Respondent.
• Court: U.S. District Court — Western District of Wisconsin

852 F. Supp. 782

Hugh DAVIDSON, Petitioner, v. June GENGLER, Superintendent, Thompson Correctional Center, Deerfield, Wisconsin, Respondent.

No. 93-C-0776-C.

United States District Court, W.D. Wisconsin.

May 4, 1994.

Meredith J. Ross, Madison, WI, for Hugh Davidson.

Thomas J. Balistreri, Asst. Atty. Gen., Madison, WI, for June Gengler.

OPINION AND ORDER

CRABB, Chief Judge.

This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Thompson Correctional Center in Deerfield, Wisconsin, contends that his trial counsel provided him with ineffective assistance by failing to make an objection in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the prosecutor's use of a peremptory challenge to remove the single black potential juror.

Petitioner has exhausted his available state court remedies in accordance with 28 U.S.C. § 2254(b). In 1991, a Rock County Circuit Court judge held an evidentiary hearing on plaintiff's post-conviction motion and concluded that petitioner had not been denied effective assistance of counsel. With one judge dissenting, the Wisconsin Court of Appeals upheld the circuit court's decision, State v. Davidson, 166 Wis.2d 35, 479 N.W.2d 181 (Wis.App.1991) review denied, 482 N.W.2d 106 (1992).

I conclude that petitioner is not entitled to a writ of habeas corpus because he cannot demonstrate that he was prejudiced by his trial counsel's failure to make a Batson objection. In reaching this conclusion, I find that the correct application of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test for determining prejudice on an ineffective assistance claim is not whether the outcome of the trial would have been different, but to ask whether the results of jury selection process would have been different had a Batson objection been made. In this case, if a Batson objection had been made it would have been properly overruled. Therefore, I conclude that petitioner was not prejudiced by his counsel's conduct.

In an action brought under § 2254, the factual determinations of the state trial and appellate court are "presumed to be correct." 28 U.S.C. § 2254(d); Lewis v. Huch, 964 F.2d 670 (7th Cir.1992). From the decision of the Wisconsin Court of Appeals and the transcript of the Rock County court's post-conviction hearing, I find the following facts.

FACTS

On December 21, 1989, petitioner was found guilty by a twelve-person jury in the Circuit Court of Rock County of three counts of delivery of a controlled substance in violation of Wis.Stats. §§ 161.41(1)(c)1 and 161.48(2). The jury had been selected from a twenty-person venire; only one of the prospective jurors was black. The prosecutor used one of his peremptory challenges to eliminate the single black potential juror; defense counsel did not object to the challenge.

On January 10, 1991, a post-conviction hearing was held in the Rock County court to determine whether petitioner's trial counsel's failure to object to the striking of the black potential juror constituted ineffective assistance of counsel. At the hearing, petitioner's trial counsel testified that at the time of trial he had been unaware of the Batson decision and that if he had been, he would have objected to the strike. The court found that petitioner had made out a prima facia case under Batson, making it necessary for prosecutor would have to come forward with a non-discriminatory reason for the strike.

The prosecutor testified that he struck the black potential juror because he believed the potential juror shared the surname of a number of individuals in Beloit, Wisconsin, that had a history of criminal behavior. When asked about his familiarity with the black potential juror's surname and his reason for striking the black potential juror, the prosecutor testified,

my familiarity with the ____ name, and specifically in Beloit, is that it is a not so large family in terms of number of people involved in the family, but the ones I knew of as — probably as a result of my position as Assistant District Attorney here in Beloit, was that many ____s were involved criminally that were prosecuted by the Rock County District Attorneys Office.

Q: Is that a well-known name to the best of your knowledge, to prosecutors at least, in Rock County?

A: Certainly.

Q: Would you question the professional judgment of anybody who did not strike a ____, or someone who was related to one of the charged ____s?

A: Yes, I would question that.

Q: Why?

A: Well, first off, because ... in terms of the number of ____s that I am aware of, it seems that nearly all, or at least most of the ____s that I am aware of, have been involved in the criminal system to some extent.

The prosecutor testified that race did not play a part of his decision to strike the black potential juror.

In addition to the prosecutor's testimony, evidence was presented that the Beloit phone book listed 29 individuals with the same surname as the black potential juror; that 18 of those listed had criminal records; and that these 18 individuals had been charged with over 80 separate offenses in Rock County.

The prosecutor testified that he did not know whether the black potential juror was related to any of the individuals with the same surname and criminal records when he struck the juror because he did not ask the potential juror any questions about the relationship to the others of the same name. The prosecutor explained that he struck the black potential juror because he feared that the potential juror might have an "ax to grind" with the state if he were related to individuals who had been criminal defendants in Rock County. When the prosecutor was asked why he did not ask the black potential juror whether he would be biased against the state, the prosecutor testified,

Well, I guess my first reason is that I typically don't like to embarrass a juror, and I think that probably would have occurred if I had asked him. I suppose I could have went through the whole list of criminal convictions of people with the last name of ____, and it would look — it could be embarrassing to him on that first point.

The second point is, I want you to know and understand, as a prosecutor in Rock County and especially in Beloit, the name ____ is synonymous with criminal.

The Rock County circuit judge found that the Batson objection had been waived. He went on to find that if it had been made properly, the court would have found the prosecutor's reason for the strike satisfactory because it was a "neutral and clear and reasonably specific reason given for the strike." As for petitioner's ineffective assistance of counsel claim, the circuit court found that petitioner could not demonstrate that he had been prejudiced by his trial counsel's failure to object because there was no basis on which to conclude that the failure altered the outcome of the trial. Since the circuit court found no prejudice, it was unnecessary to decide whether counsel's performance was deficient.

On appeal, the Wisconsin Court of Appeals affirmed the circuit court's decision, recognizing that if petitioner's counsel had made a Batson objection, the circuit court would have overruled it. The court of appeals held that striking a juror because of his possible kinship to individuals with criminal records is a neutral and legitimate reason for exercising a peremptory challenge.

OPINION

Resolution of this petition requires an evaluation of the interplay between the standard for determining ineffective assistance of counsel established by Strickland and the United States Supreme Court's application of the equal protection clause to peremptory challenges. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the Court held that a prosecutor's use of peremptory challenges to eliminate potential jurors on the basis of race violated the defendant's defendant's right to equal protection under of the Fourteenth Amendment. Subsequently, the Court has expanded Batson's reach to the use of peremptory challenges by defense counsel and civil litigants and to situations where the defendant and the struck juror are of different races. Most recently, the Court extended the holding to peremptory challenges based on gender. Georgia v. McCollum, ___ U.S. ___, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (criminal defendants); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (civil litigants); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (defendant and potential juror of different races); J.E.B. v. Alabama ex rel. T.B., ___ U.S. ___, 114 S.Ct. 1419, 128 L.Ed.2d 89 (U.S.1994) (gender). This expansion has been grounded on the recognition that the harm caused by allowing the discriminatory use of peremptory challenges extends beyond the litigants in a particular case. Discriminatory challenges both infringe on the rights of potential jurors to fulfill their civic duty and threaten to undermine the public's confidence in the our system of justice. See, e.g., McCollum, ___ U.S. at ___-___, 112 S.Ct. at 2353-54.

Essential to any Batson challenge is a timely objection by defense counsel. Batson, 476 U.S. at 99-100, 106 S.Ct. at 1724-25; United States v. Chandler, 12 F.3d 1427, 1431 (7th Cir.1994). In fact, the Court of Appeals for the Seventh Circuit has held that without a timely objection from defense counsel, it is improper for a trial judge even to inquire into the reasons behind a prosecutor's use of a peremptory strike. Doe v. Burnham, 6 F.3d 476 (7th Cir.1993). If a party makes a timely Batson objection, the trial court must inquire into the basis for the peremptory challenge. The Batson inquiry follows the burden-shifting approach employed in civil rights cases,

First, the defendant must make a prima facia showing that the prosecutor has exercised a peremptory challenge on the basis of

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