Jackson v. Herring

• Decision Date: 09 January 1995
• Docket Number: No. 91-7185,91-7185
• Citation: 42 F.3d 1350
• Parties: Patricia Ann Thomas JACKSON, Petitioner-Appellee, Cross-Appellant, v. Tommy HERRING, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1350

42 F.3d 1350

Patricia Ann Thomas JACKSON, Petitioner-Appellee, Cross-Appellant, v. Tommy HERRING, Respondent-Appellant, Cross-Appellee.

No. 91-7185.

United States Court of Appeals,

Eleventh Circuit.

Jan. 9, 1995.

Rodger K. Brannum, Deputy Atty. Gen., Andy S. Poole, Asst. Atty. Gen., Montgomery, AL, for appellant.

LaJuana S. Davis, Bryan A. Stevenson, Alabama Capital Representation Resource Center, Montgomery, AL, for appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Patricia Ann Thomas Jackson, an Alabama prison inmate, was convicted in 1981 of murdering a neighbor during an argument. She was sentenced to death. After exhausting direct appeals and collateral attacks, Jackson filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Alabama pursuant to 28 U.S.C. Sec. 2254 (1988), challenging her conviction and death sentence.

The district court granted habeas relief on the conviction and, alternatively, on the sentence. Jackson v. Thigpen, 752 F.Supp. 1551 (N.D.Ala.1990). The court held that the jury that convicted Jackson was unconstitutionally comprised because the prosecution used its peremptory challenges to exclude all blacks from service on her jury, in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Id. at 1554-55, 1562. The court further held that Jackson overcame her procedural default on this claim by showing that counsel was ineffective for failing to object at trial, and by showing prejudice from this error. The court also held that Jackson was entitled to guilt phase relief on the alternative independent ground of her counsels' ineffectiveness at trial for failure to object to the prosecutor's use of peremptory strikes. Id.

The court thus granted guilt phase habeas relief on both grounds. Id. at 1561-62. The court additionally granted relief on Jackson's claim that her counsel was constitutionally ineffective at sentencing phase for failing to present any mitigating evidence. Id. at 1562. Accordingly, the court ordered that Jackson's conviction and sentence be set aside. The State of Alabama appeals from the district court's grant of habeas corpus relief. Jackson cross-appeals the district court's denial of habeas corpus relief on alternate grounds involving other asserted constitutional violations at sentencing.

For the reasons that follow, we REVERSE the ruling of the district court as to Jackson's substantive claim under Swain, because Jackson has not overcome her procedural default; we REVERSE the ruling of the district court as to ineffective assistance of counsel at guilt phase, because this claim, too, is defaulted; we AFFIRM the ruling of the district court as to ineffective assistance of counsel at sentencing phase and we AFFIRM the district court's denial of relief as to the grounds raised on cross-appeal.

I.

The facts of Jackson's crime have been recounted by the decisions of the Alabama state courts, and require only brief summary. ¹ On February 28, 1981, in the early afternoon, Patricia Ann Thomas Jackson stabbed Bonnie Walker during or immediately after an argument. The confrontation apparently arose out of a dispute over liquor that Jackson wished to purchase from Walker. At first, Jackson yelled at and cursed Walker from the street in front of Walker's home. A shouting match ensued, and after a brief interruption in the argument, during which Jackson left and then returned, the confrontation resumed. Jackson testified at trial that Walker was at this time armed with a knife and threatening her; two witnesses at trial, however, testified that Walker was unarmed. After further argument, Jackson stabbed Walker in the chest. Jackson left the scene immediately, and Walker went inside her home.

Walker quickly reappeared, covered with blood and holding a knife, and yelled that Jackson had "cut" her. Her friends came to her aid and led her back into her home. Paramedics were called to the scene, but Walker's wound proved fatal. Jackson voluntarily surrendered to the police the next day. Because this case involves the discriminatory use of peremptory strikes, we note that Jackson is black, as was Walker.

A Tuscaloosa County grand jury charged Jackson by indictment with "murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime," based on her 1966 guilty plea to second-degree murder. In the present case, Jackson was represented at both trial and sentencing by two co-counsel, Ralph Burroughs and Joel Sogol. ² The attorneys have testified that Burroughs was to be responsible for conducting the trial and Sogol was to assist him and prepare for any appeal. During jury selection, the Tuscaloosa County prosecutor, Gerald Hudson, used his 22 peremptory strikes to exclude all twelve black people, along with ten white people, who were qualified for jury service. The defense did not object to these strikes. On December 16, 1981, the all-white jury returned a verdict of guilty on that charge. On the same day, the court held a separate sentencing phase hearing, so that the jury might recommend Jackson's punishment. ³ At this hearing, Jackson's trial counsel presented no mitigating evidence. The only evidence introduced was the stipulation that Jackson was 33 years old. The jury recommended that Jackson's punishment be set at death.

At two brief sentencing hearings held before the court over the next week, Jackson's counsel again declined the opportunity to present mitigating evidence. The trial court sentenced Jackson to death by electrocution.

Jackson raised three claims on direct appeal, none of which are raised herein. Her conviction was affirmed on direct appeal by the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Jackson v. State, 459 So.2d 963 (Ala.Crim.App.), aff'd, Ex Parte Jackson, 459 So.2d 969 (Ala.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985).

In April 1985, Jackson filed a petition in the trial court for writ of error coram nobis. One of her several arguments was that her trial counsels' failure to prepare for or present any evidence at the sentencing phase of her trial constituted ineffective assistance of counsel. ⁴ She did not argue that her counsel was ineffective for having failed to object to the prosecution's use of peremptories. After an evidentiary hearing at which both Sogol and Burroughs testified, the coram nobis court denied relief. The Alabama Court of Criminal Appeals affirmed. Jackson v. State, 501 So.2d 542, 550-51 (Ala.Crim.App.1986), review denied, No. 86-269 (Ala.1987).

Jackson filed this petition for a writ of habeas corpus in federal district court in 1987. For the first time, she alleged that the prosecutor in her case unconstitutionally and pursuant to a systematic practice used his peremptory challenges to exclude black citizens from her petit jury, in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and that her counsels' ineffectiveness in failing to object at trial constituted cause sufficient to overcome her procedural default on this claim and that she suffered prejudice due to her counsels' error. She also alleged for the first time that her counsels' ineffectiveness for failing to object to the prosecutor's use of peremptories constituted an independent ground requiring habeas corpus relief. Further, Jackson realleged that her counsel was constitutionally ineffective for having failed to investigate or present mitigating evidence at the sentencing phase of her trial. Pursuant to 28 U.S.C. Sec. 2254(a), the district court held an evidentiary hearing on both claims.

The district court found that Jackson had demonstrated that the prosecutor's use of peremptory strikes to consistently exclude blacks, including at Jackson's trial, violated Jackson's equal protection rights under Swain. 752 F.Supp. at 1554-55, 1562. As to this claim, the court further held that Jackson had overcome her procedural default on the Swain claim by demonstrating that her counsel was ineffective for having failed to object at trial, and by demonstrating prejudice arising from that error. Id. at 1559-60, 1562. The court also held that Jackson had alleged a valid, independent claim of ineffective assistance based on counsels' failure to object to the prosecution's use of peremptories; the court held that this claim was not procedurally barred, reasoning that Jackson had alleged other ineffective assistance grounds in state court, and "[a] federal habeas petitioner is not required to present in state court every basis for a claim that counsel is ineffective." Id. at 1560 n. 10 and 1561-62. The court alternatively held that Jackson's counsel was ineffective for failing to present mitigating evidence at sentencing. Id. at 1562. In accordance with these rulings, the district court granted habeas relief and ordered that Jackson's conviction and sentence be set aside without prejudice.

II.

Because Jackson's ineffective assistance of counsel claim was asserted not only as an independent basis of habeas relief but also as cause for failing to raise the underlying Swain claim at trial, we must address it before reaching the substantive Swain claim.

The district court held, with little discussion, that Jackson's independent claim that her counsel was ineffective for failing to raise a Swain objection at trial was not procedurally barred. The court appears to have grounded its holding on the conclusion that "petitioner raised the ineffective assistance claim in her coram nobis petition, albeit on other bases. A federal habeas petitioner is not required to present in state court every basis for a claim that counsel is ineffective." 752 F.Supp. at 1560 n. 10 (emphasis in original) (citing Brand v. Lewis, 784...