Harris v. Haeberlin

• Decision Date: 22 May 2008
• Docket Number: No. 05-5591.,05-5591.
• Citation: 526 F.3d 903
• Parties: Frederick Jesse HARRIS, Petitioner-Appellant, v. Glenn HAEBERLIN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.3d 903

Frederick Jesse HARRIS, Petitioner-Appellant, v. Glenn HAEBERLIN, Warden, Respondent-Appellee.

No. 05-5591.

United States Court of Appeals, Sixth Circuit.

Argued: November 1, 2007.

Decided and Filed: May 22, 2008.

ARGUED: David J. Debold, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellant. Samuel J. Floyd, Jr., Office Of The Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF: David J. Debold, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellant. Samuel J. Floyd, Jr., Office of the Attorney General, Frankfort, Kentucky, for Appellee.

Before: BATCHELDER, COLE, and GRIFFIN, Circuit Judges.

COLE, J., delivered the opinion of the court, in which GRIFFIN, J., joined. BATCHELDER, J. (pp. 914-21), delivered a separate dissenting opinion.

OPINION

R. GUY COLE, JR., Circuit Judge.

Petitioner-Appellant Frederick Harris, a Kentucky state prisoner, appeals the dismissal of his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, from the United States District Court for the Western District of Kentucky. Harris invokes the case of Batson v. Kentucky to challenge the prosecution's exercise of its peremptory strikes as race-based and therefore violative of the Equal Protection Clause of the United States Constitution. Upon conducting the requisite Batson analysis, the state trial court rejected Harris's claims.

After Harris's conviction but prior to his appeal to the Supreme Court of Kentucky, the defense team discovered that the courtroom cameras had turned on and captured a private conversation among the prosecutorial team as it was discussing the exercise of its peremptory challenges. Notwithstanding this newly acquired evidence, the Supreme Court of Kentucky affirmed Harris's conviction. Harris v. Kentucky, No.1998-SC-0414-MR (Ky. Feb. 24, 2000) (unpublished). In his petition for federal habeas corpus relief, the district court also found no violation of Batson.

On appeal, Harris now argues that the district court erred in its application of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") when it denied his petition for a writ of habeas corpus. Specifically, Harris asserts that, in upholding the Supreme Court of Kentucky's denial of his Batson challenges, the district court engaged in an unreasonable application of clearly established federal law and an unreasonable determination of the facts in light of the newly discovered videotape evidence. For the following reasons, we VACATE the district court's dismissal of Harris's Batson claim and REMAND to the district court for a renewed Batson hearing in light of the after-acquired videotape evidence.

I.

A. Factual Background

On March 13, 1998, a Kentucky jury found Harris guilty of kidnapping, three counts of robbery, and being a persistent felony offender. According to the trial testimony of Barbara Morris, one of Harris's companions, on July 20, 1997, Harris approached Morris while she was in a parking lot at a Kroger grocery store in Louisville, Kentucky. Brandishing a gun, Harris forced Morris into her own van and proceeded to drive the van out of the parking lot with the gun visible on his lap. Harris first drove the van to a wooded area in Indiana, where he searched through the contents of the vehicle and Morris's purse. Harris then drove the van to a nearby bank, where he tested Morris's automatic teller machine cards and attempted to withdraw money from her account. The attempt failed, however, because Morris could not remember the personal identification number required to access the account.

Harris proceeded to several retail stores and told Morris that she would not face any danger if she cooperated. The first store on their route was an H.H. Gregg electronics store in Clarksville, Indiana, where Harris purchased computer equipment and coerced Morris into writing a check to cover the costs. The pair then went to a nearby Office Max store, and Morris purchased more computer equipment on Harris's behalf. Their next destination was a Target store, where Morris wrote another check for the purchase of a television and other goods Harris selected. The two proceeded back to Kentucky and made additional purchases at another H.H. Gregg store. After departing the second H.H. Gregg, Harris drove the van to a Kinko's copy store to make copies of the receipts from his recent purchases and then to a White Castle franchise, where he bought forty dollars worth of fast food using Morris's credit card.

Their final destination was another Kroger store, where Harris tried to use Morris's credit card to buy over $800 in cigarettes. Upon hearing Harris's order, an employee at Kroger became suspicious and called the police to report potentially fraudulent credit card activity. The police arrived at Kroger and, after hearing Morris's account, arrested Harris. According to Morris, she remained with Harris over the entire nine-hour course of events and did not attempt to flee because Harris carried a gun with him at all times.

In contrast to Morris's account of the events, Harris claims that their interaction began at Morris's initiation. Specifically, Harris alleges that Morris approached him in the Kroger parking lot and asked for his assistance in opening her van because she was carrying a load of groceries in her arms. After helping her, Harris proceeded to a bus stop to wait for a friend, Donnell Flippins, when Morris pulled alongside the stop and offered to give him a ride. Harris agreed to receive a ride because he "figured she wanted more than just to do someone a favor." (JA 334.) Harris then asked Morris to drive him to Flippins's residence. Once they arrived there, Harris dispatched Morris to purchase cigarettes, and, in the meantime, explained to Flippins that the two of them would be unable to undertake their usual Sunday scams, consisting of writing fraudulent checks to stores in exchange for goods and then returning the goods to the stores later that day for cash. Harris testified to telling Flippins that "I met this young lady, Barbara, and we're going to spend some time together; she wants to spend some time with me." (Id.)

Once Morris returned with the cigarettes, Harris and Morris left for Harris's apartment so that the two of them could "spend some time together." (Id.) Since a co-tenant was using the apartment, Harris directed Morris to drive them to his alternate home, where the two discussed their respective pasts and criminal histories with each other. Upon hearing of Harris's criminal operations, Morris asked Harris if she could join his activities by offering her credit cards to buy goods that he could then sell to a "fence" for half the price. Pursuant to this arrangement, Harris accepted orders for various merchandise from his "fence" and used Morris's credit card with her consent on the shopping spree delineated above. According to Harris's version of the story, it was Morris's request for protection that led him to carry a gun throughout the entire shopping spree. Moreover, Harris claimed that Morris voluntarily participated in all the shopping exchanges.

B. Procedural History

Based on the facts recounted above, the Commonwealth of Kentucky indicted Harris for kidnapping, three counts of robbery, and being a persistent felony offender. During the jury selection process, the prosecution exercised four of its nine peremptory challenges to eliminate prospective African-American jurors from the jury pool. Harris objected to the prosecution's use of its challenges, claiming that the pattern of peremptory strikes established a prima facie showing of purposeful racial discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In response to the alleged Batson violations, the prosecutor proffered race-neutral justifications for the strikes. Specifically, the prosecution explained that it excused juror 160 because he fell asleep during voir dire; juror 49 because she had difficulty following questions asked of her, was joking with a neighboring juror who was subsequently struck for cause, and had a grandson who was convicted for his involvement in a shooting; and juror 47 because she was a paralegal at a local law firm and had previously served as a juror in a robbery case in which Harris had been acquitted. The trial judge agreed that juror 160 had slept through a portion of the voir dire and that juror 49 appeared to have trouble understanding some of the questions posed to her. Therefore, the judge made a finding that the prosecution had employed all its peremptory strikes in a race-neutral fashion and rejected Harris's Batson claim.

Subsequently, on March 13, 1998, the jury found Harris guilty on all counts, and Harris was then sentenced to 75 years in prison. The Commonwealth also indicted Harris for possession of a handgun by a persistent felon, and Harris entered a guilty plea to this charge prior to the jury's deliberation. The court accepted Harris's plea and sentenced him to three years for the felon-in-possession charge, to run concurrently with the 75-year sentence.

After trial and sentencing, Harris's counsel discovered that an in-court videotape system used to record court proceedings had reactivated during a recess when the chief prosecutor Dolan, the assistant prosecutor David Schuler, and the detective John Aubrey were engaged in a private discussion about how to exercise the last of their nine peremptory challenges. The discussion further made clear that the prosecutorial team had already decided how to allocate their previous eight peremptory strikes. The recorded conversation proceeded as follows:

DOLAN: Okay, this is who we got guys so far. We got 76, [name deleted]. That's the guy we at first liked, but who had been accused by his girlfriend. We've got 128, [name deleted], kind of hippy, with the beard and the hair, who sat behind [name deleted]. He was on the not guilty jury. We've got [name deleted], 82. She...