Dillard v. Blackburn

• Decision Date: 15 January 1986
• Docket Number: No. 85-4166,85-4166
• Citation: 780 F.2d 509
• Parties: 20 Fed. R. Evid. Serv. 123 Billy R. DILLARD, Petitioner-Appellant, v. Frank BLACKBURN, Warden Louisiana State Penitentiary, et al., Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 509

780 F.2d 509

20 Fed. R. Evid. Serv. 123

Billy R. DILLARD, Petitioner-Appellant, v. Frank BLACKBURN, Warden Louisiana State Penitentiary, et al., Respondents-Appellees.

No. 85-4166

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1986.

Billy R. Dillard, pro se.

James D. Caldwell, Dist. Atty., Tallulah, La., George F. Fox, Jr., Lake Providence, La., for respondents-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Billy Dillard appeals the district court's dismissal of his pro se habeas petition under 28 U.S.C. Sec. 2254. He asserts as grounds for reversal the same two issues he presented to the district court in his habeas application. First, he claims that the state denied him equal protection of the law by systematically using its peremptory challenges to exclude all blacks from the jury. Second, he claims that the state denied him due process of law by introducing evidence of another crime he had committed against the same victim. In addition, this court, in issuing a certificate of probable cause to Dillard, requested the parties to address two additional issues in their appellate briefs. Consequently, Dillard also claims that the district court erred when it dismissed his petition without having the entire state court records before it and that the court again erred by dismissing his petition without giving him prior notice that a dismissal was possible. Because we find no merit to any of Dillard's claims, we affirm.

I.

Dillard was convicted by a Louisiana jury of murdering Anna Tatman and burning her home while she was inside. He was sentenced to death by electrocution. The Supreme Court of Louisiana affirmed Dillards' conviction but the United States Supreme Court struck down the state statute under which he had been sentenced, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and he was re-sentenced to life imprisonment.

Dillard then petitioned for a writ of habeas corpus, 28 U.S.C. Sec. 2254, claiming that the trial court had improperly allowed the state to exclude blacks from his trial jury by use of peremptory challenges, and that evidence of Dillard's earlier guilty plea to a different crime had been improperly admitted at the state proceeding. The parties agree that Dillard has exhausted his state remedies. The district court denied Dillard's petition, stating that Dillard had not shown that blacks had been systematically excluded from his petit jury by the state's use of its peremptory challenges, and that the evidence of the earlier crime was admissible against Dillard to show similarity of method of the two crimes.

On appeal Dillard again raises the two claims argued before the district court. In addition, this court has requested the parties to brief the questions whether the district court properly dismissed the petition without having before it the entire state court record and whether the district court was required to give Dillard notice that his suit faced possible dismissal. We address each of these issues in turn.

II.

Dillard, who is black, asserts that he was denied due process and equal protection of the law "when blacks were systematically excluded from serving on his petit jury." Tatman, the victim, was white. Dillard states that he was convicted by an all white jury in a community where the proportion of blacks in the population indicates that blacks should have been represented on his petit jury. He requests this court to remand to the district court for an evidentiary hearing on this issue.

Dillard makes two allegations in support of his claim. First, he asserts, without stating facts to establish the assertion, that because there existed a certain amount of racial unrest between whites and blacks in Tatman's community at the time she was murdered, the prosecutor "was bent on keeping blacks off" the jury and used his peremptory challenges to this end. Second, he cites the fact that the prosecutor in his trial had once before been accused of denying a defendant an impartial jury due to systematic exclusion of a large group of black people from the general and petit jury venires. Dillard admits that in the earlier case ¹ the bills of exception were overruled, but insists that the testimonial and statistical evidence derived in that proceeding would be of use to him here.

The applicable standard from the leading Supreme Court case, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), is that in order to pose the issue, a defendant must show the prosecutor's systematic use of peremptory challenges to exclude black jurors over a period of time. Swain, 380 U.S. at 227, 85 S.Ct. at 839. ² A black defendant, or any defendant who is part of an identifiable group subject to prejudice in the community, is not entitled to demand a proportionate representation of his race on the jury that tries him, or even to be tried by a jury that contains members of his race. Id., 380 U.S. at 203, 208, 85 S.Ct. at 826, 829. The purposeful consistent denial, however, of black participation in trial juries because of race is an impermissible violation of the Equal Protection Clause. Id., 380 U.S. at 204, 85 S.Ct. at 826. The burden of proof on this issue is on the defendant challenging the jury selection procedure. In order to require an examination of the prosecutor's use of peremptory challenges, Dillard must show that the prosecutor has used the challenges systematically to exclude blacks from trial juries over a period of time. Prejean v. Blackburn, 743 F.2d 1091, 1104 (5th Cir.1984); United States v. Durham, 587 F.2d 799, 801 (5th Cir.1979). This burden must be met by the petitioner in order to establish a constitutional claim.

It is therefore fatal to Dillard's claim on appeal that in the memorandum incorporated into his habeas petition to the district court, he conceded he was "unable to show a systematic exclusion of blacks by the State over a period of time through its use of peremptory challenges." His position on appeal is essentially the same. He contends that if given a hearing, he could show that black people were deliberately excluded, through the use of peremptory challenges, from the petit jury that tried him, and that the same prosecutor had been previously accused of the same conduct. This evidence does not satisfy the showing required by Swain because it does not show a systematic use of peremptory challenges against blacks over a period of time. Swain, 380 U.S. at 227, 85 S.Ct. at 839. Dillard's claim that blacks were excluded from his trial jury is not enough to state a constitutional claim. Thus, even if Dillard is able to establish each of the facts he asserts that his evidence will show, he cannot, as a matter of law, prevail on the tainted jury issue. We therefore affirm the district court's dismissal of this claim.

III.

Dillard's second contention on appeal is that his conviction ought to be set aside because the state trial court erroneously admitted evidence of his previous guilty plea to a crime against the same victim that he has now been convicted of killing. When a federal court reviews state court evidentiary rulings on a petition for habeas corpus, it may grant relief only if there has been an infraction that renders the entire trial fundamentally unfair. Banks v. McGougan, 717 F.2d 186, 190 (5th Cir.1983). The evidentiary ruling challenged here clearly does not rise to the level of a constitutional violation.

Approximately two years before Tatman's murder, Dillard pleaded guilty to the attempted burglary of Tatman's home. In both crimes, the same investigating police officer found that the same screen had been removed from the same window, the same window had been tampered with, and the telephone wires had been separated in the same manner. The state courts admitted the evidence of the earlier crime and guilty plea because the similarity of the two methods helped to identify the defendant as the perpetrator of the offense charged.

Both the Federal Rules of Evidence, Fed.R.Evid. 404(b), and Louisiana law, La.Rev.Stat.Ann. Secs. 15:445 and 15:446 (West 1981), allow evidence of other crimes to be admitted for the limited purposes of demonstrating a defendant's intent, common plan or system, or knowledge. Because the state court complied with Louisiana law in admitting the evidence for the limited purpose of showing similarity of method, we find no violation of Dillard's rights, and certainly no constitutional infraction of any kind in regard to this issue.

IV.

In granting Dillard's motion for certificate of probable cause, a judge of this court requested the parties to brief the issue whether the district court erred by dismissing Dillard's petition without having before it the entire state court record. Accordingly, Dillard states that he was denied a full and fair review of his claims because the district court had before it only those portions of the state court record that pertain to the two claims asserted in the writ application.

After Dillard filed his habeas petition, and after the state filed an answer supported by a memorandum brief, the federal magistrate, citing Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. Sec. 2254 (1982) (Habeas Corpus Rules), ordered the state to file "a certified copy of the state court record upon which petitioner's conviction and sentence are based and which are the bases for this writ application." Subsequently, the state communicated to the magistrate that the entire state court record in Dillard's case was so voluminous that duplication would be burdensome to the clerk of court and that it would cost "several thousands of dollars" to reproduce all of the material. The state offered instead to reproduce extracts of the state court record dealing with the two...