Jones v. Davis

• Decision Date: 15 January 1988
• Docket Number: No. 86-7145,86-7145
• Citation: 835 F.2d 835
• Parties: Reginald JONES, Petitioner-Appellant, v. J.O. DAVIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 835

835 F.2d 835

Reginald JONES, Petitioner-Appellant, v. J.O. DAVIS, Warden, Respondent-Appellee.

No. 86-7145.

United States Court of Appeals, Eleventh Circuit.

Jan. 15, 1988.

George Huddleston, Huddleston, Powell & Quinley, Daphne, Ala., for petitioner-appellant.

Charles A. Graddick, Atty. Gen., Mary Ellen Fike Forehand, Martha Gail Ingram, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT and ANDERSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

Reginald Jones appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of Alabama. For the reasons stated below, we reverse.

In September 1983, Jones, a black male, was indicted by a grand jury in Mobile County, Alabama for burglary in the third degree. During the selection of a jury for the trial of the case, the Assistant District Attorney of Mobile County, Alabama used seven of his nine peremptory strikes to excuse all blacks from the jury venire. Objecting to this tactic, Jones moved for a mistrial. The motion was denied, but the trial court granted Jones leave to proceed, at a subsequent evidentiary hearing, on this point. Jones was tried and convicted by an all-white jury. He was sentenced to life imprisonment in accordance with Alabama's habitual offender statute. ¹

Following the imposition of sentence, Jones filed a motion for a new trial alleging in part that the state's purposeful, deliberate and systematic use of its peremptory challenges to strike all blacks from his venire violated his constitutional rights. An evidentiary hearing was held during which seven local criminal defense attorneys testified in support of the motion. Each expressed a belief that it was the practice of the district attorney's office to exclude blacks from the jury service. The Assistant District Attorney who prosecuted the case also testified, denying the existence of any such pattern or policy of exclusion and justifying the use of his peremptory strikes in Jones' case by stating that "I didn't like the looks of those seven people and that's why I struck them." The trial court denied the motion for a new trial.

Jones appealed his conviction to the Alabama Court of Criminal Appeals, alleging as one ground for reversal that the trial court erred in denying the motion for a new trial based on the state's use of its peremptory challenges. The conviction was affirmed without opinion, rehearing was denied and on October 19, 1984, the Supreme Court of Alabama denied Jones' petition for a writ of certiorari.

Having exhausted his state remedies, Jones then filed the present petition for habeas corpus in the United States District Court for the Southern District of Alabama, pursuant to 28 U.S.C. Sec. 2254 (1976), alleging that his "conviction violates the constitution or laws of the United States ... [because] [m]embers of the black minority were excluded by means of the prosecuting attorney using seven of his nine strikes to excuse all seven of the prospective black jurors." (Habeas Corpus Complaint, filed June 21, 1985, p 10(a)(1)). Adopting the recommendation of the magistrate, the district court denied Jones' petition. This appeal followed. ²

In denying Jones' petition for habeas corpus relief, the district court relied exclusively on the Supreme Court's opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Swain was a black defendant convicted by an all-white jury of the rape of a white female. Relying on the Fourteenth Amendment's Equal Protection Clause, Swain challenged the prosecutor's use of peremptory strikes to exclude all black people from the petit jury. The Supreme Court refused to allow a challenge to the exclusion of blacks from a jury in any particular case, and stated that equal protection concerns would only be implicated if a pattern of systematic exclusion could be established.

Although widely criticized, ³ Swain remained the final word on peremptory challenges until the Supreme Court's recent decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court held that a defendant could establish a prima facie case of an equal protection violation solely on the basis of proof regarding the prosecutor's action in his/her trial. According to the Court, a prima facie case is established if the defendant proves (1) that she/he is a member of a cognizable racial group; (2) that the prosecutor used peremptory strikes to remove members of the defendant's race from the venire; and (3) that an inference may be found that the venirepersons were removed because of race.

The Supreme Court rendered its decision in Batson on April 20, 1986, approximately two months after the district court denied Jones' petition for habeas corpus relief and a little more than a year after the expiration of the time for filing a petition for a writ of certiorari to the United States Supreme Court. ⁴ On appeal, Jones seeks a retroactive application of Batson. This remedy, however, is clearly barred by the Supreme Court's subsequent opinion in Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). In Allen, the Court held that Batson is not to be applied retroactively on collateral review of convictions which have become "final" prior to the announcement of the Batson decision. The Court defined "final" as meaning " 'where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in' Batson." Allen, 478 U.S. at ---- n. 1, 106 S.Ct. at 2880, n. 1. Clearly, Jones' conviction became final prior to the court's announcement of Batson. Any reliance on Batson is, therefore, without merit. Instead, Jones' claim must be reviewed under the standard articulated in Swain. ⁵

Swain established that the "presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court." 380 U.S. at 222, 85 S.Ct. at 837. This presumption cannot be rebutted by the allegation that in the particular case at hand the prosecutor struck all the blacks on the venire or even that he struck all the blacks on a venire because they were black. Rather, the presumption in favor of the prosecutor may be rebutted, according to Swain, by showing a systematic striking of blacks from the jury venire in "case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be." 380 U.S. at 223, 85 S.Ct. at 837. Such a showing, the Swain Court reasoned, could be sufficient to establish a "prima facie case" that the prosecutor was using the peremptory system "to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population," id at 224, 85 S.Ct. at 838, in violation of the Fourteenth Amendment.

In Willis v. Zant, 720 F.2d 1212, 1220 (11th Cir.1983), we set forth the method by which a petitioner may make out a prima facie case under the Swain standard and thus overcome the presumption that the prosecutor acted within the confines of the Fourteenth Amendment equal protection clause.

At his evidentiary hearing, petitioner must prove on specific facts ¹⁸ that [the prosecutor] had a systematic and intentional practice of excluding blacks from traverse juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in petitioner's trial. The exclusion must have occurred 'in case after case, whatever the circumstances, whatever the crime and whoever the defendant may be.' Swain, 380 U.S. at 223 . Petitioner is not required to show that the prosecutor always struck every black venireman offered to him, [United States v. Pearson, 448 F.2d 1207, 1217 (5th Cir.1971) ], but the facts must manifestly show an intent on the part of the prosecutor to disenfranchise blacks from traverse juries in criminal trials in his circuit, "to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population." Swain, 380 U.S. at 224 . The prosecutor's use of peremptory challenges in only a few trials is clearly insufficient to state a prima facie case [footnote omitted], as would be a pattern of exclusion which occurred for only a few weeks. In short, petitioner must marshal enough historical proof to overcome the presumption of propriety in which Swain clothes peremptory challenges, and thereby show [the prosecutor's] intent to discriminate invidiously.

18. This proof could be direct evidence such as testimony, or indirect evidence such as statistical proof. Mere allegations are insufficient. (citations omitted).

720 F.2d at 1220 (emphasis in original).

We believe that Jones has met this initial burden. At his evidentiary hearing in state court, Jones presented the testimony of six criminal attorneys practicing in Mobile whose experience spanned two and one-half years to fourteen years. All of them testified to having observed a pattern and practice on the part of the district attorney's office to use their peremptory challenges systematically to strike blacks from the jury venire. In support of their observations of the practice or pattern, almost all of them testified about specific cases in which they had observed the prosecutor systematically using his peremptory challenges to eliminate black venirepersons, often even before the prosecutor had questioned them. Each of the attorneys testified that the behavior by the prosecutor had been so obvious to them that they had all made their objections a part of the record in some of the cases they had tried.

Robert Clark, who had practiced law in Mobile for fourteen years, recalled many specific examples of the prosecutor...