Morrison v. Jones, Civil Action No. 90-D-1103-N.

• Decision Date: 26 July 1996
• Docket Number: Civil Action No. 90-D-1103-N.
• Citation: 952 F.Supp. 729
• Parties: Jesse Lee MORRISON, Petitioner, v. Ron JONES, Commissioner of Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Alabama

952 F.Supp. 729

Jesse Lee MORRISON, Petitioner, v. Ron JONES, Commissioner of Alabama Department of Corrections, Respondent.

Civil Action No. 90-D-1103-N.

United States District Court, M.D. Alabama, Northern Division.

July 26, 1996.

Bryan A. Stevenson, Michael P. O'Connor, Alabama Capital Representation Resource Center, Montgomery, AL, for plaintiff.

Jack W. Willis, Office of the Attorney General, Alabama State House, Montgomery, AL, for Ronald E. Jones, Commissioner of the Alabama Department of Corrections.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is the petitioner's motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to "Alter or Amend the Judgment ..." entered on January 19, 1995. Also before the court is the "Motion for Order Granting Petitioner's Writ of Habeas Corpus," filed January 22, 1996. In support of both motions, the petitioner contends that, under the recent decision issued by the Court of Appeals for the Eleventh Circuit in Cochran v. Herring, 43 F.3d 1404 (11th Cir.1995), modified, 61 F.3d 20 (1995) (per curiam), and cert. denied, ___ U.S. ___, 116 S.Ct. 776, 133 L.Ed.2d 728 (1996), he is entitled to habeas corpus relief on his claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the following reasons, the court agrees and finds that the petitioner is entitled to a new trial on his Batson claim.

BACKGROUND

This is a death penalty case. Petitioner Jesse Lee Morrison was convicted of murder in the Circuit Court of Barbour County, Alabama, and sentenced to death. The procedural history and facts are set forth in Morrison v. Thigpen, Civ.A. No. 90-D-1103-N, 1995 WL 914616 (M.D.Ala. Jan. 19, 1995) (DeMent, J.), and need not be repeated here. The court, however, will set forth the facts pertinent to the petitioner's Batson claim.

Prior to the petitioner's second trial,¹ counsel for the petitioner challenged the prosecutor's practice of excluding black venire members through peremptory strikes and filed a pretrial motion to "Enjoin the Prosecutor from Utilizing His Peremptory Challenges to Systematically Exclude Blacks from the Jury Panel." Defense counsel argued that the prosecutor's practice of excluding black venire members through peremptory strikes violated the petitioner's rights guaranteed under the Fourteenth Amendment to the United States Constitution. The circuit court denied this motion, apparently relying on the then-existing legal standard under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

The venire panel for the petitioner's second trial included twenty-one black individuals. The petitioner in this case is black, while the victim was white. In selecting the jury on September 7, 1983, the prosecutor used the first twenty of twenty-one peremptory strikes to exclude black venire members from the jury.² Defense counsel did not object to the purportedly racially-biased use of peremptory strikes at the petitioner's trial. One black person served on the jury.

The petitioner's second trial began on September 27, 1983. The jury found the petitioner guilty of murder the next day. A sentencing hearing was held on September 28, 1983, and the jury voted for the imposition of the death penalty. On January 12, 1984, the circuit court formally sentenced the petitioner to death by electrocution. On appeal of the judgment of conviction, the Alabama Court of Criminal Appeals affirmed, Morrison v. State, 500 So.2d 36 (Ala.Cr.App. 1985), as did the Supreme Court of Alabama in Ex parte Morrison, 500 So.2d 57 (Ala. 1986). The Supreme Court of the United States denied the petitioner's petition for writ of certiorari on April 6, 1987. Morrison v. Alabama, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987).

After exhausting his state remedies, the petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama. In a memorandum opinion and order entered January 19, 1995, this court found that the petitioner's claim regarding the prosecutor's alleged racial use of peremptory jury strikes was procedurally defaulted based upon the Alabama Court of Criminal Appeals' finding that the petitioner failed to present this issue at trial or on direct appeal. Morrison, Civ.A. No. 90-D-1103-N, at 14. The court reasoned as follows:

The state court is authoritative as to the issue of compliance with state procedural rules and federal courts are expected to defer to the procedural rules of the state whose laws gave rise to the proceedings at issue: "[W]here a state court correctly applies a procedural default principle of state law, Sykes³ requires the federal law to abide by the state court decision." Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.1990) (citing Meagher v. Dugger, 861 F.2d 1242 (11th Cir.1988)). The last state court rendering judgment in this case expressly attributed its affirmance on these issues to [the petitioner's] procedural default ... [in not raising said issues].

Id. at 14 (brackets added).

Nine days before this court entered its memorandum opinion and order denying the writ of habeas corpus, the Court of Appeals for the Eleventh Circuit issued its decision in Cochran. Based in part upon the authority of Cochran, the petitioner filed a Rule 59(e) motion to alter or amend the judgment entered on January 19, 1995. This court reserved ruling on the motion until the Supreme Court of the United States ruled on the petition for certiorari in Cochran. On January 16, 1996, the Supreme Court denied certiorari in Cochran, after which the petitioner filed a motion requesting the court to enter an order granting habeas corpus relief. In light of Cochran, the court has re-examined its findings regarding the petitioner's Batson claim and finds that the petitioner is entitled to relief on this ground.⁴

DISCUSSION

The first issue is whether the Batson claim is procedurally barred from federal review. Based upon the authority of Cochran, the court's answer is "no." As explained in Cochran,

A federal court may not reach a federal question on collateral review of a state conviction if the state court's opinion "contains a `plain statement' that [its] decision rests upon adequate and independent state grounds."

. . . . .

In order for a state procedural bar to foreclose a federal court from reviewing a federal claim in a § 2254 proceeding, not only must the last state court rendering a judgment in the case comply with the "plain statement" rule, but also the procedural bar must be firmly established and a regularly followed state practice. When a state's "procedural default rule has been only sporadically invoked, the procedural default no longer bars consideration of the issue in federal court."

43 F.3d at 1408 (internal citations omitted).

Cochran was convicted of murder after a trial by jury and sentenced to death. Id. at 1406. The Alabama Court of Criminal Appeals held that Cochran's Batson claim was procedurally defaulted because he had failed to raise it on direct appeal. Id. at 1407. The Supreme Court of the United States thereafter denied Cochran's petition for writ of certiorari. Id. After exhausting state remedies, Cochran sought federal habeas relief and asserted that his rights under Batson were violated because the prosecution used seven of fourteen peremptory strikes to exclude seven of nine blacks on the venire panel. Id. at 1407. The material facts in Cochran are as follows:

The case was tried pre-Batson, but the Batson issue was preserved because Cochran asserted a Swain objection; Cochran did not challenge the selection of the jury while the case was on direct review; Batson was decided after Cochran's conviction was affirmed, but while his sentence was still being reviewed by the Court of Criminal Appeals; and the Batson claim was asserted for the first time in a state post-conviction proceeding.

Id. at 1409.

On habeas review, the Eleventh Circuit analyzed the procedural bar issue by determining whether Alabama courts have consistently barred Batson claims in cases similar to Cochran's. The Eleventh Circuit reviewed Floyd v. State, 571 So.2d 1221 (Ala. Cr.App.1989), and State v. Tarver, 629 So.2d 14 (Ala.Cr.App.1993). Id. at 1409. In these cases, the Alabama Court of Criminal Appeals held that Tarver's claim was procedurally barred but not Floyd's. Id. at 1409. The Eleventh Circuit noted that, in reaching contrary decisions, the Alabama Court of Criminal Appeals found determinative the fact that Floyd but not Tarver had raised a Swain objection at the trial level, thus, preserving the Batson issue. Id.

After examining these cases, the Eleventh Circuit held that, in cases similar to the one before it, Alabama courts have not consistently barred Batson claims where Batson was decided during the direct appeal but the defendant did not raise the issue until a post-conviction proceeding. Id. The Eleventh Circuit further stated that Cochran's case was more similar to Floyd than Tarver, because Cochran had raised a Swain objection to the selection of the jury immediately after voir dire.⁵ Id.

Here, the court finds that in every material and relevant respect, the petitioner's case is in the identical posture as Cochran. Both Cochran and the petitioner were tried pre-Batson. The Supreme Court of the United States issued the Batson decision on April 30, 1986, while the appeal of the petitioner's judgment of conviction and death sentence was pending before the Supreme Court of Alabama. Cochran's case also was on direct appeal when the Batson decision came down. Like Cochran, the petitioner here arguably did not adequately challenge the selection of the jury on direct appeal but raised a Swain objection at the trial level.⁶

The respondent does not seriously challenge the applicability of Cochran to the instant case. Rather, the respondent contends that the Eleventh Circuit's decision in Cochran is "in error" and...