Mitchell v. Rees

• Decision Date: 12 August 1997
• Docket Number: 95-6397,Nos. 95-6232,s. 95-6232
• Citation: 114 F.3d 571
• Parties: Joe Clark MITCHELL, Petitioner-Appellee, Cross-Appellant, v. John REES, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 571

114 F.3d 571

Joe Clark MITCHELL, Petitioner-Appellee, Cross-Appellant, v. John REES, Respondent-Appellant, Cross-Appellee.

Nos. 95-6232, 95-6397.

United States Court of Appeals Sixth Circuit.

Argued Sept. 18, 1996.

Decided May 29, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Aug.

12, 1997. ^*

Thomas W. Watson, Asst. F.P. Defender (argued and briefed), Federal Public Defender's Office, Nashville, TN, for Appellee.

Michael J. Fahey, II (argued and briefed), Office of the Attorney General, Civil Litigation & State Services Division, Nashville, TN, Christina S. Shevalier (briefed), Office of the Attorney General, Criminal Justice Division, Nashville, TN, for Appellant.

Before: KEITH, SILER, and BATCHELDER, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined. KEITH, J. (pp. 579-83), delivered a separate dissenting opinion.

OPINION

BATCHELDER, Circuit Judge.

Joe Clark Mitchell filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Middle District of Tennessee. The district court granted the petition and issued the writ. Respondent-Warden John Rees appeals, and the petitioner cross appeals.

I. BACKGROUND

A. STATE COURT PROCEEDINGS

Petitioner was indicted in 1982 by a Maury County, Tennessee, grand jury on charges of aggravated sexual battery, arson, first-degree burglary, and two counts each of aggravated assault, armed robbery, and aggravated kidnapping, and in 1983, in a second indictment, on two charges of aggravated rape, all arising out of the same incident. His trial took place in September 1986. ¹ The trial court dismissed the aggravated-sexual-battery charge, and the jury convicted Mitchell on the remaining charges. In affirming the conviction, the Tennessee Court of Criminal Appeals rejected all but one of Mitchell's contentions that the evidence was insufficient to support his conviction. Because the evidence did not support the second aggravated-rape conviction, the court reduced that conviction to simple rape and reduced the sentence accordingly. State v. Mitchell, No. 87-152-III, 1988 WL 32362, at * 1, * 4 (Tenn.Crim.App. April 7, 1988), permission to appeal denied, (Tenn. June 27, 1988). The petitioner's

convictions arose out of a single crime spree during which two women, one quite elderly, were terrorized for several hours. One of the victims testified that as she was leaving her friend's house, a man started towards her across the lawn. He hit her several times with a large stick, and he was armed with a gun and a hunting knife. He forced both women into the house, used duct tape to tape their ankles, arms, mouths, and eyes. He stole their jewelry and ransacked the house. He used a knife to cut the clothes off the testifying witness and raped her. Then he set fire to the house. He carried both women to a car, drove around for several hours, stopping at one point to rape the witness one more time. He eventually abandoned the car and the women, and they were able to free themselves and walk for help....

[A] witness ... testified that the defendant had discussed robbing Mrs. Chapman, one of the victims, on two previous occasions. The conversations took place about two months prior to offenses in this case.

Id. at * 1-2.

In December 1988, Mitchell filed pro se a petition for post-conviction relief in the Circuit Court of Maury County, Tennessee, under the Post-Conviction Procedure Act, TENN.CODE ANN. §§ 40-30-101 to 40-30-124 (1990) (repealed 1995). ² The petition included several claims of ineffective assistance of trial and appellate counsel, ³ including a claim that counsel had failed to challenge the make-up of the jury pool in Maury County, which, according to Mitchell, unconstitutionally excluded blacks. The circuit court held an evidentiary hearing, at which Mitchell was represented by counsel, on all of the claims raised in the petition. Although Mitchell had not raised at trial, on direct appeal or in his post-conviction petition any claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), ⁴ or any claim that his trial and direct-appeal attorney had been ineffective for not raising Batson, ⁵ the circuit court permitted Mitchell's counsel to introduce evidence relative to the Batson claim during the evidentiary hearing. At the conclusion of the hearing, the circuit court ruled from the bench that the petition should be dismissed, holding that none of Mitchell's claims had any merit. The circuit court did not specifically address the Batson issue.

Mitchell appealed to the Tennessee Court of Criminal Appeals, reiterating his ineffective-assistance claims and, in addition, explicitly raising both a Batson claim and a claim of ineffective assistance of counsel for failure to raise the Batson issue. The state appellate court affirmed. On the ineffective-assistance claims, the court stated:

The trial judge found from the evidence introduced at the hearing on this case, that trial counsel was competent.

The only evidence was the testimony of the appellant and the trial attorney who represented him in the convicting trial.

We can readily see why the trial judge ruled counsel was competent. The testimony shows trial counsel was well prepared in this case and gave sound advice to the appellant. The appellant's testimony reflects diminished credibility on his part. The record supports the finding of the trial judge on the question of competency.

Mitchell, 1991 WL 1351, at * 1. The appellate court explicitly addressed the Batson issue and made the following findings of fact:

The appellant testified there were blacks among the venire summoned as prospective jurors for his trial. He further testified the district attorney general used peremptory challenges to remove those called for his case. He further testified no black juror sat on his case.

Trial counsel testified there were blacks in the venire. He was less definite on whether blacks were on this particular panel. The attorney testified he probably told this appellant, as testified to by the appellant, that the state was excusing the black jurors.

The record does not show how many peremptory challenges were used by the state or whether the district attorney general exercised peremptory challenges to excuse those who were not a member of the minority class involved in this complaint; nor does the record show whether there were other black persons left in the venire who might have been called to serve in this case.

We conclude the lack of evidence on the Batson issue does not justify this Court upsetting the judgment entered in the original cases.

Id.

B. FEDERAL COURT PROCEEDINGS

In April 1993, Mitchell filed his § 2254 petition in the federal district court, which in August 1993 dismissed all but one of the claims. Two of the claims which the district court promptly dismissed alleged that Mitchell had ineffective assistance of counsel vis--vis Batson and other issues, and that there was insufficient evidence to convict him. The sole claim that the district court did not dismiss was the Batson claim itself (not the related ineffective-assistance claim) as stated in the federal habeas petition. The district court referred that claim to a magistrate judge for an evidentiary hearing, citing 28 U.S.C. § 636(b) and HABEAS CORPUS RULE 8(b)(1).

The magistrate judge held the hearing and recommended that the habeas petition be denied. The district court rejected that recommendation and granted the petition, ordering the warden to release Mitchell within 90 days unless the state began a retrial within that time. The state timely appealed the granting of the petition, and Mitchell cross-appealed, challenging the district court's earlier order dismissing his claims of ineffective assistance of counsel and insufficiency of the evidence. In September 1995, the court granted the warden's motion to stay pending appeal.

II. DISCUSSION

The state asserts that the district court erred in ordering an evidentiary hearing on the Batson claim, because the state court made relevant findings that should have been presumed correct. Claiming that the petitioner has asserted none of the factors enumerated in 28 U.S.C. § 2254(d) that would permit the district court to disregard the state court's findings, the respondent urges us to hold that the state court's findings were correct.

The petitioner asserts that the respondent did not object to the magistrate judge's report and recommendation, and did not raise in the district court the issue of whether petitioner was entitled to an evidentiary hearing; consequently, petitioner maintains that respondent is precluded from objecting to the hearing now. In support of this assertion, the petitioner cites Thomas v. Arn, 474 U.S. 140, 144-48, 106 S.Ct. 466, 469-72, 88 L.Ed.2d 435 (1985) (upholding the rule of United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981), that a party, by not objecting in the district court to the magistrate judge's report and recommendation, waives a right to appeal to this court); petitioner, however, provides no case law that applies the Walters rule in the circumstances peculiar to this case.

We conclude that the district court erred in ordering an evidentiary hearing on petitioner's Batson claim and in granting the petition for the writ. We further hold that the state is not precluded from raising on appeal its objection to the district court's having held that evidentiary hearing.

We begin with the application of 28 U.S.C. § 2254(d), ⁶ which establishes a presumption of correctness for factual determinations made by the state courts whose judgments are challenged by the federal habeas petitioner. ⁷ The Supreme Court, in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), held that § 2254(d) mandated that the presumption of correctness be applied by the habeas court to a finding of the state appellate court th...