Koo v. McBride

• Decision Date: 03 September 1997
• Docket Number: No. 96-2271,96-2271
• Citation: 124 F.3d 869
• Parties: Young Soo KOO, Petitioner-Appellant, v. Daniel R. McBRIDE, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 869

124 F.3d 869

Young Soo KOO, Petitioner-Appellant, v. Daniel R. McBRIDE, Superintendent, Respondent-Appellee.

No. 96-2271.

United States Court of Appeals Seventh Circuit.

Argued April 15, 1997.

Decided Sept. 3, 1997.

Young Soo Koo, Westville Correctional Facility, Westville, IN, pro se.

Robert L. Collins (argued), Jeffrey A. Modisett, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Jason Turner (argued), Barry Levenstam, Jerold S. Solovy, Jenner & Block, Chicago, IL, for Amicus Curiae.

Before POSNER, Chief Judge, and BAUER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

In 1992, Young Soo Koo was convicted of rape ¹ and was sentenced to twenty years in prison. After exhausting his state court remedies, on November 13, 1995, Dr. Koo filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The district court denied his habeas petition but granted a certificate of probable cause. On remand from this court, the district court granted a certificate of appealability on one of the three issues Dr. Koo had raised in his habeas petition. For the reasons set forth in the opinion below, we affirm the district court's denial of Dr. Koo's petition for writ of habeas corpus.

I BACKGROUND

On July 31, 1992, in Lake County Superior Court, a jury convicted Dr. Young Soo Koo, a family practice physician, of the rape of a patient during her appointment with him to review her recent x-rays. ² His defense at trial was that the victim had hallucinated the event because of her use/abuse of valium and codeine. To rebut that position, the prosecution presented the testimony of two witnesses who described sexual misconduct by the defendant that was similar to that charged by the victim. The state trial court permitted this testimony, after conducting a hearing outside the presence of the jury; however, it cautioned the jury, prior to the testimony and during final instructions, that the evidence was allowed only to weigh the credibility of the victim's statements. Dr. Koo was convicted of the charge of rape and was sentenced to the maximum term of 20 years in prison. His conviction was affirmed on appeal. See Koo v. State, 640 N.E.2d 95 (Ind.Ct.App.1994). The Supreme Court of Indiana denied review.

Dr. Koo then sought habeas relief in federal court under 28 U.S.C. § 2254. In his petition for writ of habeas corpus, Dr. Koo raised due process challenges to the gender-biased jury selection process and to the admission of certain "prior bad acts evidence" in the state trial. He also claimed that the 20-year sentence imposed on him constituted cruel and unusual punishment. The district court reviewed each issue and denied the petition.

II DISCUSSION

A. Governing Statute

When this case was argued, the circuit had decided in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), that the amendments made by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") to the federal habeas statutes, specifically to chapter 153 of Title 28, applied to cases pending on the date of enactment. We therefore asked that the amicus in this case brief and argue whether the grant of a limited certificate of appealability by the district court constrained the scope of our appellate review under the statute. While this case has been under submission, the Supreme Court of the United States reversed this court's determination in Lindh. The Court instead held that the "statute reveals Congress' intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment." Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).

The petitioner filed his petition for a writ of habeas corpus on November 13, 1995, significantly before the effective date of the new legislation, April 24, 1996. This case is therefore governed by the law that was in force prior to the statutory amendments. We therefore have no occasion to reach the issue addressed by the amicus. ³

Prior to the new legislation, this circuit, and indeed the other circuits that had addressed the issue, had determined that the appellate jurisdiction of a court of appeals is not cabined by an attempt on the part of the district court to limit the scope of the appeal through the issuance of a certificate of probable cause limited to the particular issue. See Smith v. Chrans, 836 F.2d 1076 (7th Cir.1988) (per curiam) (holding that a district court's limitation on a certificate of probable cause has no legal effect on the scope of the appeal and discussing authorities in other circuits). Because we must apply this law in this case, we shall address not only the issue mentioned by the district court in the certificate but also the other matters raised by the appellant in his brief before this court. With respect to each, we apply the pre-AEDPA standards of review.

B. Discriminatory Jury Selection

1.

The first issue raised by Dr. Koo is whether the state trial court's decision to reinstate two female jurors who were struck by the petitioner constituted a due process violation under the Fourteenth Amendment pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court found that a discriminatory pattern existed and that the peremptory challenges of two female venirepersons had been made with discriminatory intent. Reviewing the trial court's denial of the peremptory challenges, the state appellate court agreed that Dr. Koo's reasons for challenging the prospective female jurors were not facially neutral and concluded that no error had occurred. The state appellate court also found no error in the trial court's remedy. It rejected Dr. Koo's claim that "the trial court should have either reinstated all of the improperly struck jurors, or declared a mistrial, discharged the entire panel, and chosen a panel free from any taint." 640 N.E.2d at 100. The state appeals court then held: "Clearly the remedy which a particular trial court employs upon a finding of purposeful discrimination is a matter left to the court's discretion." Id. The district court reviewing Dr. Koo's habeas petition was asked to consider only the state trial court's remedy. It noted that the state court had reinstated both the two female jurors struck by the petitioner and also the one male juror struck by the prosecution. Acknowledging that in Batson the Supreme Court accorded discretion to trial court judges in remedying Batson situations when they arose, the district court concluded that the state court's remedy was neither an abuse of discretion nor a violation of petitioner's due process rights.

2.

We follow the pre-AEDPA standard for reviewing Dr. Koo's contention that gender-based peremptory challenges violated the rule of Batson. "Prior to the amendment, federal courts disregarded state courts' legal conclusions and reached independent judgments on the issues presented them," McCain v. Gramley, 96 F.3d 288, 289 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1320, 137 L.Ed.2d 482 (1997), but gave deference to the state courts' findings of fact, Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982) (per curiam). See 28 U.S.C. § 2254(d) (pre-AEDPA). We note first that the state trial court found that both sides had demonstrated discriminatory intent to exclude venirepersons. As a remedy for the Batson violation, the trial court reinstated the three who had been peremptorily excused on the basis of gender, two female jurors struck by the petitioner and one male juror struck by the prosecution. Dr. Koo does not challenge the findings of the state or federal courts that discriminatory peremptory challenges were made. Instead, he asserts that the state court's remedy was flawed and that it should have discharged the entire jury panel and selected a new panel.

Discriminatory peremptory challenges to eliminate potential jurors have been held to violate the constitutional right to equal protection. When the discriminatory jury selection is based on race, Batson forbids it; when it is based on gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), which broadened the rule in Batson, forbids it. In this case, Dr. Koo challenges only the remedy. In fashioning a remedy for any constitutional violation, a court ought to take as its touchstone the basic proposition that the nature of the remedy must be determined by the nature and the scope of the constitutional violation. See Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). It is also necessary to take into account the practicalities of the situation. In this regard, we are guided by the Supreme Court's statement in Batson concerning a trial court's choice of remedy for discriminatory use of peremptory challenges. The Court wrote:

In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case ... for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case, or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.

Batson, 476 U.S. at 99 n. 24, 106 S.Ct. at 1725 n. 24 (citations omitted). Through this discussion, the Supreme Court has made it clear that the fashioning of a remedy is a matter upon which state courts are to be accorded significant latitude. The state court of appeals, far more familiar than we with the customs of the Indiana trial bench in selecting a jury, thought that the trial court had acted within its discretion in fashioning the remedy it did. We are not inclined, on the basis of our independent examination of the trial record, to say...