McCain v. Gramley

• Decision Date: 20 September 1996
• Docket Number: No. 95-1066,95-1066
• Citation: 96 F.3d 288
• Parties: Joe McCAIN, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 288

96 F.3d 288

Joe McCAIN, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center,

Respondent-Appellee.

No. 95-1066.

United States Court of Appeals, Seventh Circuit.

Argued June 3, 1996.

Decided Sept. 20, 1996.

Andrew C. Porter (argued), Jay Williams, Schiff, Hardin & Waite, Chicago, IL, for Petitioner-Appellant.

Kathy Shepard, Catherine Glenn (argued), Office of the Attorney General, Criminal Appeals Division, Springfield, IL, for Respondent-Appellee.

Before CUMMINGS, RIPPLE and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

Petitioner Joe McCain is a black male who was convicted of murdering three police officers. He filed an application for a writ of habeas corpus alleging that the State of Illinois wrongfully used a peremptory challenge to exclude a black venireperson from his jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. The district court denied McCain's application on the ground that he had failed to prove that the peremptory challenge was racially motivated. We affirm.

I.

We begin by noting the standard under which we must review McCain's habeas application. On April 24, 1996, the President signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. Section 104 of that law amended 28 U.S.C. § 2254, the law under which McCain seeks federal relief. Prior to the amendment, federal courts disregarded state courts' legal conclusions and reached independent judgments on the issues presented to them. Section 104(2) of the 1996 Act added a new section ¹ that dictates how federal courts are to treat the legal determinations of state courts:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

McCain directly appealed his conviction to the Appellate Court of Illinois, Fifth District. One of the issues on appeal was the Batson claim asserted here. The court affirmed McCain's conviction, holding, inter alia, that he had failed to prove that the prosecutor had struck any venireperson with a racial motive, and thus that he had failed to prove a constitutional violation. People v. McCain, 139 Ill.2d 601, 159 Ill.Dec. 113, 575 N.E.2d 920. The Illinois Supreme Court denied McCain's petition for leave to appeal on June 5, 1991 (No. 71595). Thus our task is to determine whether the appellate court's conclusion on the Batson claim was either (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "based on an unreasonable determination of the facts in light of the evidence presented." 110 Stat. 1219. ² If the conclusion was neither, then McCain's habeas application must be denied.

II.

Allegations of racially-based peremptory challenges are evaluated under a three-step framework. Batson, 476 U.S. at 96, 106 S.Ct. at 1722-23. First, a defendant must establish a prima facie case of purposeful discrimination in the jury selection (Step 1). To meet this requirement, he must show that (a) he is a member of a cognizable racial group; (b) the prosecutor exercised peremptory challenges to remove members of that racial group from the venire panel; and (c) all the relevant circumstances raise an inference that the prosecutor exercised the challenges on account of race. Id. Relevant circumstances may include a pattern of strikes against members of the racial group, as well as the types of questions the prosecutor asks in his voir dire examination. Id. at 97, 106 S.Ct. at 1723. In addition, the defendant may rely on the fact that peremptory challenges "constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " Id. at 96, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892-93, 97 L.Ed. 1244). Once the defendant establishes a prima facie case, the burden shifts to the State to come forward with a race-neutral explanation for challenging the jurors in question (Step 2). The explanation need not rise to the level justifying the use of a challenge for cause, but must be more than the mere assertion of a nondiscriminatory motive. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. If this requirement is met, the court must then decide whether the strike opponent has proved purposeful discrimination (Step 3). Id. at 98, 106 S.Ct. at 1723-24.

During the jury selection process at McCain's trial, the Illinois prosecutor used a peremptory challenge to strike Louis Brooks, a black male venire member. McCain's counsel, Mr. Younge, objected to this challenge as a Batson violation. The following discussion took place between the court and counsel regarding McCain's allegation:

Mr. Younge: Yes, your Honor, ... we believe that [striking Brooks was done] to diminish the amount of blacks on the jury.

The Court: Mr. Mansfield, what do you believe Batson requires at this point?

Mr. Mansfield: Judge, I'm not altogether that familiar with Batson and at what stage the State is required to respond [but] I don't think that Mr. Younge's showing so far is sufficient. I would point out in way of argument that there are three victims in this case, Captain Delaney is white, Mark Koelker is white, Joe Bates, however, is a young black male. I would also point out as I see the jury selected right now, we have nine men, three women, of which two of those members are black men. I struck [a second black venireperson] because he's obviously in my mind leaning one way or the other at this point. He could very well be leaning toward the State, on the other hand, he could be leaning toward the defendant. I think he's a juror that has some bias built in right now. I just don't know which way he's leaning. As to Mr. Brooks, he's marginally employed. At least that's my reading of the court's printout, and it's troubling in some sense that he answered none of the questions. He knows no one, he's never been the victim of a crime, he's never been charged, and perhaps its reverse logic, but that troubles me in a sense. It shouldn't be this way. But, I find it hard to believe that anyone who lives in East St. Louis has not been the victim of a crime.

The Court: I believe that if the issue under Batson is raised that there is a systematic discriminatory exclusion of minorities, then the Court is to inquire the basis for the challenges. I do note that with regard to Michael Foster, one of the blacks that was challenged, ... he responded that he may have some bias or prejudice, but in following up on questions, he said "I can't forget what happened when he was assaulted, [but] I'll try to be fair," and I had him questioned as to whether or not that either State or defense might challenge for cause. No such challenge was made, and I did not believe that his answers were such that it was necessary for the Court to on its own challenge, but I don't find that the State was doing anything improper in exercising its challenge, because I also questioned ... where his bias or prejudice might lay.

With regard to Louis Brooks, ... he didn't respond to any questions, [but] nor did LaSalle Johnson or Roland Falconer who were accepted by both defendant and the State. And those last two mentioned individuals are black. I note also that in some cases, both State and defense accepted some people who answered no questions and the State exercised peremptory challenges. I don't find that there is systematic exclusions of blacks on what's been presented at this time.

As previously noted, the trial court found no Batson violation and the Appellate Court of Illinois affirmed. That court determined that it was unclear whether the trial court had found that McCain failed to establish a prima facie case of discrimination, or that he had done so but the prosecution had successfully rebutted it. Thus it examined the record to determine whether the trial judge could have reasonably found that McCain had established a prima facie case of discrimination, for if not, there was no reason to assess the sufficiency of the State's explanation. The court concluded that in light of the overall circumstances of the jury selection process and the trial, McCain had failed to establish such a prima facie case.

The circumstances of the selection process were as follows. The total venire panel consisted of twenty-four whites, six blacks, one Asian, and five individuals whose races are unknown. Four whites and one black were successfully challenged for cause. The prosecutor then used peremptory challenges against three whites and two blacks. McCain's sole argument for a prima facie case is that the number of strikes used on blacks (two strikes out of five total, or forty percent) represents a much higher proportion than that of blacks on the total venire (six blacks out of thirty-six total, or 16.66 percent). Therefore, he argues, the strike against Brooks was racially motivated. We find McCain's argument unpersuasive.

There is no legal principle that each party must use its peremptory strikes only in a manner that is proportionally equivalent to the racial consistency of the total venire panel. The only constitutional requirement is that parties not base their strikes upon racial characteristics. There is no question that in determining whether one party has improperly struck venirepersons based upon race, a pattern of strikes is relevant. See Batson, 476 U.S. at 97, 106 S.Ct....