Floyd v. State

• Decision Date: 25 August 1989
• Docket Number: 3 Div. 118,3 Div. 942
• Citation: 571 So.2d 1221
• Parties: Tommy FLOYD v. STATE. ,
• Court: Alabama Court of Criminal Appeals

Page 1221

571 So.2d 1221

Tommy FLOYD v. STATE.

3 Div. 942, 3 Div. 118.

Court of Criminal Appeals of Alabama.

Aug. 25, 1989.

Rehearing Denied Nov. 17, 1989.

Christopher Knight, Mobile, and Charles Hollifield, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little and John Gibbs, Asst. Attys. Gen., for appellee.

TAYLOR, Presiding Judge.

This is an appeal from the denials of two petitions for post-conviction relief.

In 1983, Tommy Floyd was convicted of capital murder and was sentenced to death. That conviction and sentence were ultimately affirmed on appeal. Floyd v. State, 486 So.2d 1309 (Ala.Cr.App.1984), aff'd, 486 So.2d 1321 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987).

In 1987, Floyd filed a petition for post-conviction relief under Rule 20, A.R.Crim.P.Temp. ("the 1987 Rule 20 petition"). After an evidentiary hearing, the petition was denied. In 1988, Floyd filed another petition for post-conviction relief under Rule 20, which was also denied ("the 1988 Rule 20 petition"). The two appeals from the denials of these petitions were consolidated for purposes of writing an opinion.

I

Appellant first contends that his constitutional rights under either Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), were violated because the prosecution used its peremptory jury strikes in a racially discriminatory manner.

Our review of the history of this case reveals that Floyd was tried in January 1983. He was represented at trial by Attorney Wayne Collier. Following the selection of the jury, an in camera hearing was conducted, at which time defense counsel moved for a mistrial and asked that a new jury be impaneled on the grounds "that the pattern of strikes by the District Attorney was, in fact, a systematic exclusion of all blacks from the jury." Evidence was then presented that the State used its first 11 strikes to remove the 11 black members of the jury venire. Next, defense counsel questioned the district attorney as to his reasons for striking the black jurors. In response to defense counsel's questioning, the district attorney stated simply that he tried "to strike those who in my professional opinion I felt like would tend to acquit rather than convict." He went on to state that, "[i]f there had been one of the eleven which I struck, in my professional opinion, had I felt like they would tend to convict rather than to acquit, I would not have struck them regardless of race, color, creed or otherwise." Thereafter, defense counsel's mistrial motion was denied and the trial commenced.

Floyd was found guilty of capital murder by the jury. As part of his strategy to prevent Floyd from being sentenced to death, defense counsel elected to waive a punishment hearing before the jury. Nonetheless, appellant was sentenced to death by the trial judge.

Floyd appealed his conviction and sentence. On appeal, Floyd was represented by Attorney Mark Anderson. On March 24, 1984, Floyd's case was remanded to the circuit court with directions that a new sentencing hearing be held. Floyd, 486 So.2d at 1315. This Court affirmed Floyd's conviction and sentence on May 14, 1985. This Court's decision was affirmed by our Supreme Court on January 10, 1986. Ex parte Floyd, 486 So.2d 1321 (Ala.1986). At no time during this period had the issue of the systematic exclusion of blacks from appellant's jury been raised before this Court or our Supreme Court.

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided on April 30, 1986. In June 1986, the United States Supreme Court determined "that our decision in Batson should not be applied retroactively on collateral review of convictions that became final before our opinion was announced." Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986). In December 1986, our Supreme Court held that the rule of Batson v. Kentucky was to be given retroactive application. Ex parte Jackson, 516 So.2d 768, 770-772 (Ala.1986). The United States Supreme Court, likewise, determined in January 1987 that the rule of Batson v. Kentucky was to be applied retroactively to all cases, state or federal, pending on direct review, or not yet final. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). "By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712, n 6. On February 23, 1987, the United States Supreme Court denied certiorari in Floyd's case. In his petition to that Court for certiorari, Floyd, for the first time on appeal, raised the issue of systematic exclusion of blacks from his jury.

Floyd's 1987 Rule 20 petition contained six grounds for relief. One contended that his trial counsel was ineffective because of the way in which he objected to the State's use of its peremptory jury challenges. This ground further contended that his appellate counsel was ineffective for failing to raise this same issue at the appellate level. This indirect reference to what has since come to be known as the Batson issue was the only mention of this issue in Floyd's 1987 Rule 20 petition. However, in an amendment to that petition, Floyd, for the first time in a state court, contended that his constitutional rights had been violated by the State's use of its peremptory juror challenges to systematically exclude blacks from his jury. An evidentiary hearing on appellant's 1987 Rule 20 petition was conducted, and on March 21, 1988, the circuit judge entered a written order denying the petition. With regard to the Batson issue, the judge simply stated:

"Petitioner's fifth claim, contained in paragraph 2 of the amendment to the petition, concerning the prosecution's peremptory jury strikes, is precluded from review by Temporary Rule 20.2(a)(5) of the Alabama Rules of Criminal Procedure because it was raised at trial and could have been but was not raised on direct appeal."

Floyd's 1988 Rule 20 petition again raised the Batson issue. The circuit judge dismissed this petition because it found "that this petition is a successive one based on same or similar grounds as a Temporary Rule 20 petition [the 1987 Rule 20 petition] filed by this same petitioner which was heard and denied by this Court on March 21, 1988."

Appellant argues that the prosecution's actions entitle him to a new trial. The State, however, contends that because appellant failed to raise this issue on direct appeal to the appellate courts of this State, he is procedurally barred from pursuing this issue on collateral appeal. We agree.

This issue was recently addressed by this Court in Cochran v. State, 548 So.2d 1062 (Ala.1989). In Cochran, Judge Bowen, writing for the Court, held as follows:

"Under the circumstances present, [appellant] is procedurally barred from relief on his claim that the State actually used its peremptory challenges in a racially discriminatory manner in violation of Batson, supra. As we have observed, that issue could have been raised on direct appeal. 'A petitioner will not be given relief under ... [Rule 20] based upon any ground which could have been but was not raised on appeal.' Rule 20.2(a)(5), A.R.Cr.P.Temp. See also Bell v. State, 535 So.2d 210 (Ala.1988).

"Relying principally on Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), [appellant] argues that he is not procedurally barred from raising the Batson issue because the Batson argument was a 'novel' issue. Reed held:

" 'When a procedural default bars litigation of a constitutional claim in state court, a state prisoner may not obtain federal habeas corpus relief absent a showing of "cause and actual prejudice." '

" * * * *

" '[W]e hold that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.' Reed, 468 U.S. at 11, 16, 104 S.Ct. at 2908, 2910.

" '[C]ounsel's failure to raise a particular claim or claims on appeal is to be scrutinized under the cause and prejudice standard when that failure is treated as a procedural default by the state courts.' Murray v. Carrier, 477 U.S. 478 , 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986).

" 'Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial. To the contrary, cause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.' Carrier, 477 U.S. at , 106 S.Ct. at 2648.

"While the 'novelty' of an issue may constitute cause for the failure to raise that issue on appeal, the cause and prejudice test for excusing compliance with a State's contemporaneous-objection rule at trial, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and on appeal, Reed, supra, is a federal rule involving federal review on federal habeas corpus. Rule 20, A.R.Cr.P.Temp., contains no similar rule excusing the failure to raise an issue at trial or on appeal.

" 'A federal habeas corpus court will not address an issue if the petitioner may not pursue that issue in state court because of a procedural default unless he can overcome this impediment by showing cause for and actual prejudice from the default. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Alabama has contemporaneous objection rules that preclude appellate review of issues that could have been raised at trial. Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982); Moore v. State, 415 So.2d 1210 (Ala.Crim.A...