Horsley v. State, 1 Div. 625

• Citation: 527 So.2d 1355
• Decision Date: 12 April 1988
• Docket Number: 1 Div. 625
• Parties: Edward HORSLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1355

527 So.2d 1355

Edward HORSLEY v. STATE.

1 Div. 625.

Court of Criminal Appeals of Alabama.

April 12, 1988.

Rehearing Denied May 10, 1988.

Certiorari Denied July 15, 1988

Alabama Supreme Court 87-991.

Joe R. Whatley, Jr., of Falkenberry & Whatley, Birmingham, for appellant.

Don Siegelman, Atty. Gen. and John Gibbs, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

We affirm the judgment of the circuit court denying the petition for writ of error coram nobis.

In 1977, Edward Horsley was convicted for the capital offense involving a robbery and an intentional killing and was sentenced to death. That conviction and sentence were affirmed on appeal by the Alabama appellate courts. Horsley v. State, 374 So.2d 363 (Ala.Cr.App.1978), affirmed, Ex parte Horsley, 374 So.2d 375 (Ala.1979). The United States Supreme Court vacated the affirmance and remanded for further consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Horsley v. Alabama, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980). On remand, the Alabama Supreme Court remanded to this Court, Ex parte Horsley, 409 So.2d 1347 (Ala.Cr.App.1981), which then reversed on authority of Beck v. State, 396 So.2d 645 (Ala.1980). Horsley v. State, 409 So.2d 1347 (Ala.Cr.App.1981). Although the Alabama Supreme Court denied certiorari, the United States Supreme Court vacated the reversal and remanded the case on authority of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Alabama v. Horsley, 457 U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326 (1982). On remand, Horsley's conviction and sentence were affirmed. Horsley v. State, 476 So.2d 623 (Ala.Cr.App.1983), affirmed, Ex parte Horsley, 476 So.2d 626 (Ala.1985). The United States Supreme Court denied certiorari. Horsley v. Alabama, 475 U.S. 1031, 106 S.Ct. 1239, 89 L.Ed.2d 347 (1986).

In 1986, Horsley filed a petition for writ of error coram nobis. That petition was amended once before and once after the evidentiary hearing which was held. In 1987, the circuit court denied the petition. This appeal is from that denial. Four issues are presented.

I

Horsley claims that "the State committed blatant acts of race discrimination by striking all eight Black jurors from the venire," Appellant's brief at 7, and that his constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Jackson, 516 So.2d 768 (Ala.1986), were violated. At trial, there was no objection to the prosecution's peremptory jury strikes. This issue was not raised on appeal. The claim of racial discrimination in the selection was first advanced in any form in the coram nobis petition.

Horsley's direct appeal was final on February 24, 1986, when the United States Supreme Court declined to review his case. Horsley v. Alabama, 475 U.S. 1031, 106 S.Ct. 1239, 89 L.Ed.2d 347 (1986). Batson was decided April 30, 1986. Jackson was decided December 19, 1986. In Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the United States Supreme Court held that its decision in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was decided. That decision was followed by the Alabama Supreme Court in Ex parte Love, 507 So.2d 979 (Ala.1987). Both Batson and Jackson apply only to cases pending on direct review or not yet final. Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.), cert denied, Watkins v. Alabama, 447 U.S. ----, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). See also Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Ex parte Branch, 526 So.2d 609 (Ala.1987).

In Procter v. Butler, 831 F.2d 1251 (5th Cir.1987), a similar issue was addressed:

"Procter's second argument is that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) entitles him to an evidentiary hearing to determine whether the prosecution unconstitutionally used its peremptory challenges to exclude blacks from the jury at his trial. Under Batson, when the defendant produces evidence raising the inference of purposeful racial discrimination by the prosecutor in exercising peremptory strikes, the state must present a racially neutral explanation for its challenges. Id. 106 S.Ct. at 1723.

"Batson, however, does not apply to Procter's circumstances. Allen v. Hardy, U.S. , 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) unequivocally held that 'Batson should not be applied retroactively on collateral review of convictions that became final before our opinion was announced.' A conviction becomes final when 'the availability of appeal [has been] exhausted, and the time for petition for certiorari [has] elapsed.' Id. 106 S.Ct. at 2880 n. 1 (quoting Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 1734 n. 5, 14 L.Ed.2d 601 (1965)). Because Procter's conviction became final [in 1977] long before Batson was decided, Procter cannot make a constitutional claim that rests on Batson." Procter, 831 F.2d at 1254.

II

Horsley contends that his appointed counsel both at trial and on direct appeal were ineffective because they failed to object to the prosecution's use of its peremptory jury strikes and failed to raise the issue of racial discrimination in the selection of the jury either at trial or on appeal.

In denying the coram nobis petition, the circuit judge issued a very thorough and comprehensive written order. With regard to this particular allegation he found:

"Petitioner's final allegation of ineffective assistance, contained in his second amendment to the petition, was that trial counsel failed to challenge the prosecution's peremptory strikes as being exercised in a racially discriminatory manner. Petitioner's second amendment came after the evidentiary hearing but the parties have stipulated that trial counsel would have testified 'that they thought that Swain v. Alabama, 380 U.S. 202 [85 S.Ct. 824, 13 L.Ed.2d 759] (1965), precluded a successful challenge to the prosecution's peremptory strikes based on the strikes exercised in petitioner's case.'

"At the time of petitioner's trial, November, 1977, Swain v. Alabama controlled objections to prosecution peremptory strikes as being racially motivated. In order to prove racial discrimination in prosecution peremptory strikes under Swain v. Alabama, a defendant was required to establish that a prosecutor had systematically excluded, over time, all potential black jurors from service on petit juries. Id., at 223-224 . The fact that a prosecutor struck all black venire members in one case did not make out a claim under Swain v. Alabama. Counsel's performance at trial did not fall below prevailing professional norms due to their not making a challenge to the prosecution's peremptory strikes for which there was an insufficient basis in fact. At the time of trial, Swain v. Alabama had been the law for twelve years. Trial counsel were not required to anticipate that the law would change nine years later in order to render constitutionally effective representation.

"Additionally, petitioner has not met his burden of establishing a reasonable probability that, but for the absence of a challenge to the prosecution's peremptory strikes, the outcome of his trial would have been different. The United States Supreme Court's decision in Batson v. Kentucky, , 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which changed a defendant's burden in challenging prosecution peremptory strikes, is not retroactively applicable to petitioner's trial because his conviction was final before Batson was decided. Allen v. Hardy, , 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986); Ex parte Love, No. 85-909 (Ala. Feb. 20, 1987). Thus, even if trial counsel had challenged the prosecution's peremptory strikes based on the strikes at petitioner's trial, he would not have made out a claim for relief under the controlling law and would not have been entitled to relief."

* * *

* * *

"None of petitioner's allegations of ineffective assistance of counsel have merit. Petitioner was represented by able and conscientious counsel who defended him to the best of their ability. He was convicted and sentenced to death because of the great weight of evidence against him and not because of any action or inaction of trial counsel. Petitioner is not entitled to relief on this claim."

The substance of this issue was also addressed in Procter, supra, where the claim was made that trial counsel was ineffective for failing to make Batson objections.

"The standard governing constitutional claims for the ineffective assistance of counsel is that of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail, a defendant

" 'must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.'

"Id. 104 S.Ct. at 2064.

"The burden that Washington imposes on a defendant is severe. In evaluating whether an attorney's performance was deficient, courts should be highly deferential, respecting the 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' Id. at 2065. Further, in evaluating whether any errors prejudiced the defense, '[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.' Id. at 2067. Instead, the defendant must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the...