Ford v. Norris, 94-3469

• Decision Date: 21 November 1995
• Docket Number: No. 94-3469,94-3469
• Citation: 67 F.3d 162
• Parties: Clay Anthony FORD, Plaintiff-Appellee, v. Larry NORRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 162

67 F.3d 162

Clay Anthony FORD, Plaintiff-Appellee, v. Larry NORRIS, Defendant-Appellant.

No. 94-3469.

United States Court of Appeals Eighth Circuit.

Submitted April 10, 1995.

Decided Oct. 6, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 21, 1995.

Darnisa E. Johnson, Assistant Attorney General, Little Rock, Arkansas (Pamela Rumpz, on the brief), for appellant.

Timothy O. Dudley, Little Rock, Arkansas (Rickey Hicks and Brian Ratcliff, on the brief), for appellee.

Before MAGILL and HANSEN, Circuit Judges, and GOLDBERG, ^* Judge.

HANSEN, Circuit Judge.

The Director of the Arkansas Department of Corrections appeals from a district court ¹ order granting a writ of habeas corpus under 28 U.S.C. Sec. 2254 to Clay Anthony Ford, who was convicted of capital murder and sentenced to death. The district court set aside Ford's conviction because the prosecutor in Ford's case exercised peremptory strikes in a racially discriminatory fashion. Ford v. Lockhart, 861 F.Supp. 1447 (E.D.Ark.1994). We affirm.

I.

Ford, who is black, was charged with capital murder under Arkansas law for shooting a white Arkansas State Trooper. During jury selection, the trial court excused two black venirepersons for cause and the prosecutor used his peremptory challenges to strike all of the remaining five black venirepersons, three of whom would have been jurors and two of whom would have been alternates. Ford's counsel moved to quash the jury panel on the basis that the prosecution was exercising its peremptory challenges in an effort to systematically exclude black jurors. The trial court overruled the motion. An all-white jury later found Ford guilty of capital murder and sentenced him to death by electrocution.

On direct appeal, the Supreme Court of Arkansas affirmed Ford's conviction and death sentence and rejected, inter alia, Ford's claim that the prosecutor exercised his peremptory strikes in an effort to exclude black jurors. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, 6-7 (1982). The Supreme Court of the United States denied certiorari. Ford v. Arkansas, 459 U.S. 1022, 103 S.Ct. 389, 74 L.Ed.2d 519 (1982). Ford's subsequent petition and an amended petition for postconviction relief were denied by the Supreme Court of Arkansas in unpublished per curiam orders on December 20, 1982, and December 27, 1982.

On December 29, 1982, Ford filed this petition for a writ of habeas corpus. Ford subsequently filed an amended petition on January 27, 1983, and a second amended petition on May 1, 1989. One of the grounds Ford asserted for relief in his second amended petition was that he was denied his constitutional right to have a "Racially Unbiased, 'Representative Cross-Section of the Community' " sit as the trier of facts in his case because the prosecutor exercised peremptory strikes in a racially discriminatory fashion. (Appellant's App. at 141-42.) Ford alleged that "[b]lacks have been systematically excluded from jury panels in Chickasawba District of Mississippi County for the past ten years" and that the prosecutor in his case "has a history and practice of using his peremptory challenges to systematically exclude black persons from trial juries." (Id. at 142.) The district court granted Ford relief on this claim, holding that the record established the prosecutor's conduct violated Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Ford, 861 F.Supp. at 1468. The court vacated Ford's conviction and sentence and ordered Ford released unless the State commences proceedings to retry him within 120 days. Id. at 1470. ² The Director of the Arkansas Department of Corrections (State) appeals.

II.

A.

As an initial matter, the State contends that Ford's Swain claim is procedurally defaulted ³ and that we therefore may not address the merits of the claim unless Ford establishes cause and prejudice to overcome the default. The State never raised this issue in the district court or in its brief on appeal; however, prior to oral argument it submitted a citation and argument on this claim pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure and presented further argument on the issue during rebuttal at oral argument. The State contends that under Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), a state procedural default is a jurisdictional issue which may be raised at any time during litigation, and therefore the issue is properly before us.

The State relies on Sochor 's language that the Supreme Court lacks "jurisdiction to review a state court's resolution of an issue of federal law if the state court's decision rests on an adequate and independent state ground." Id. at 533, 112 S.Ct. at 2119. However, Sochor was a direct review case under 28 U.S.C. Sec. 1257. "In the context of direct review of a state court judgment [under Sec. 1257], the independent and adequate state ground doctrine is jurisdictional." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991) (emphasis added). In 28 U.S.C. Sec. 2254 habeas cases, however, the Supreme Court has not intimated that the existence of an independent and adequate state law ground presents a jurisdictional issue. To the contrary, in Coleman, the Court clearly states two exceptions which allow federal habeas review of claims barred by an independent and adequate state rule:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. This procedural default rule, with the above outlined exceptions, is grounded not upon principles of jurisdiction but upon "respect" for state procedural rules. Id. at 751, 111 S.Ct. at 2565. See also Miller v. Lockhart, 65 F.3d 676, 680 (8th Cir.1995) (rejecting argument that state procedural bars cannot be waived because they are jurisdictional); Doe v. United States, 51 F.3d 693, 698-99 (7th Cir.1995) ("procedural default is not a jurisdictional defect"), petition for cert. filed, (U.S. July 3, 1995) (No. 95-5095); Washington v. James, 996 F.2d 1442, 1447 (2d Cir.1993) ("A procedural default in state court is not a jurisdictional bar in federal court."), cert. denied, --- U.S. ----, 114 S.Ct. 895, 127 L.Ed.2d 87 (1994); Hardiman v. Reynolds, 971 F.2d 500, 503 (10th Cir.1992) ("In a Sec. 2254 habeas action, state procedural default is not a jurisdictional defense."). Thus, we find Sochor to be inapplicable and reject the State's contention that a state procedural default is a jurisdictional issue.

Given this conclusion, our result on this issue is governed by Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1124, 130 L.Ed.2d 1087 (1995). There we stated that the "State must raise procedural bar issues [in the district court], or they are waived." Id. See also Miller, at 680 (procedural default must be raised in district court or it is waived). "This approach is consistent with our general requirement that issues first be raised in the district court." Lawrence, 31 F.3d at 666. The State failed to raise procedural default in the district court, the issue is waived, and accordingly, we proceed to the merits of Ford's Swain claim.

B.

The State challenges the district court's conclusion that Ford has established a Swain violation. ⁴ In Swain, the Supreme Court held that "a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the equal protection clause." Swain, 380 U.S. at 203-04, 85 S.Ct. at 826. In order to make out a claim under Swain, the claimant must show that:

the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries....

Id. at 223, 85 S.Ct. at 837. Swain prohibits a prosecutor from using peremptory challenges to exclude blacks from the jury "for reasons wholly unrelated to the outcome of the particular case on trial." Id. at 224, 85 S.Ct. at 838. However, to establish a Swain violation, the claimant must offer proof that the prosecutor has excluded black jurors in a series of cases, id. at 223-28, 85 S.Ct. at 837-41; it is insufficient to offer evidence of the prosecutor's use of peremptory challenges at the claimant's trial alone. Id. at 221-22, 85 S.Ct. at 836-37.

The district court held that "Ford has established that the prosecutor has consistently and systematically excluded African-Americans from participating as jurors through the use of peremptory challenges." Ford, 861 F.Supp. at 1468. The parties in this case stipulated that the record from another habeas case that was pending before the district court, Miller v. Lockhart, 861 F.Supp. 1425 (E.D.Ark.1994), would be incorporated into the record here (and vice versa, i.e., the record from this case was incorporated into Miller ). The two cases involved the same prosecutor and both presented Swain issues. In reaching its conclusion in Ford's case, the district court extensively quoted from its findings in Miller, recounting the statistical evidence and affidavits from local attorneys in the record. Id. at 1466-68. The court found this to be convincing evidence that the prosecutor systematically excluded blacks from juries through use of the peremptory challenge. Ford, 861 F.Supp. at 1468. The State challenges this conclusion, contending that the record...