Nevius v. Sumner

• Decision Date: 22 July 1988
• Docket Number: No. 86-2878,86-2878
• Citation: 852 F.2d 463
• Parties: Thomas NEVIUS, Petitioner-Appellant, v. George SUMNER, Director of Department of Prisons, and Brian McKay, Attorney General of the State of Nevada, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 463

852 F.2d 463

Thomas NEVIUS, Petitioner-Appellant, v. George SUMNER, Director of Department of Prisons, and Brian McKay, Attorney General of the State of Nevada Respondents-Appellees.

No. 86-2878.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 17, 1987.

Decided July 22, 1988.

John J. Graves, Jr., Graves, Leavitt & Koch, Cal J. Potter, III, Lovell, Bilbray & Potter, Las Vegas, Nev., for petitioner-appellant.

Brian Randall Hutchins, Atty. General's Office, Nevada, Carson City, Nev., for respondents-appellees.

Appeal from the United States District Court for the District of Nevada.

Before CANBY, and BOOCHEVER, Circuit Judges, and TAKASUGI, ^* District Judge.

CANBY, Circuit Judge:

Thomas Nevius appeals the district court's denial of his petition for a writ of habeas corpus. Nevius contends that (1) the prosecutor's improper exercise of his peremptory challenges against minority veniremen deprived Nevius of a representative petit jury in violation of the sixth and fourteenth amendments; (2) the district court improperly denied Nevius' request for an evidentiary hearing; (3) prosecutorial misconduct during closing arguments to the jury constituted reversible error; and (4) the indictment was defective in alleging first degree murder.

BACKGROUND

The evidence accepted by the jury established that, on July 12, 1980, Nevius and three other men entered the Las Vegas apartment of David and Rochelle Kinnamon with the intent to steal money and jewelry. While two men ransacked the kitchen and living room, Nevius and another man dragged Rochelle Kinnamon into the bedroom where they attempted to assault her sexually while holding her at gunpoint. When David Kinnamon returned home unexpectedly, the four men fled through the bedroom window. As Mr. Kinnamon entered the bedroom, Nevius turned and fired four shots. Mr. Kinnamon was killed almost instantly by gunshot wounds to the head.

Nevius, who is black, was charged with first degree murder. During jury selection, the prosecution exercised seven peremptory challenges, excluding from the jury panel all four blacks (including one alternate juror) and both Hispanics. At trial Nevius admitted involvement in the crime, but claimed that he was not the one who fired the revolver. The jury found Nevius guilty of murder, burglary and sexual assault with the use of a deadly weapon. The same jury sentenced Nevius to death. The Nevada Supreme Court affirmed the conviction and sentence. Nevius' petition for post-conviction relief was denied by the state trial court. The Nevada Supreme Court affirmed. Nevius subsequently sought federal habeas corpus relief in district court. The district court denied his petition. This appeal followed.

STANDARD OF REVIEW

We review de novo the district court's denial of a habeas corpus petition. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985). Because the petition was rejected without an evidentiary hearing, we must make a two part inquiry. First, we must determine whether Nevius has alleged facts which, if proven, would entitle him to relief. If Nevius did allege such facts, then we must determine whether an evidentiary hearing is necessary to establish the truth of his allegations. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir.1987).

DISCUSSION

1. The Prosecutor's Peremptory Challenges

Nevius alleges that the prosecutor improperly exercised his peremptory challenges to exclude black and Hispanic veniremen from the petit jury. Nevius contends that prosecutorial statements made at trial and during oral argument before the Nevada Supreme Court show that the peremptory challenges were improperly exercised. In addition, Nevius renews an argument, first raised in the district court, that certain post-trial statements made by the prosecutor to defense counsel prove that the state exercised its peremptory challenges for improper, prejudicial reasons. ¹ Nevius argues that the prosecutor's improper exercise of peremptory challenges violated his sixth amendment right to a fair and impartial jury and his fourteenth amendment right to equal protection.

A. Sixth Amendment Claims

The sixth amendment requires that jury panels be drawn from a source fairly representative of the community. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975). However, the fair cross section requirement applies only to the larger venire pool and not to the petit jury: "Defendants are not entitled to a jury of any particular composition." Id. at 538, 95 S.Ct. at 702. Indeed, the Supreme Court has expressly rejected a claim similar to Nevius': "We remain convinced that an extension of the fair cross section requirement to petit juries would be unworkable and unsound, and we decline ... to adopt such an extension." Lockhart v. McCree, 476 U.S. 162, 174, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986). Nevius' sixth amendment claim therefore must fail because he does not allege discrimination in the selection of the venire.

B. Fourteenth Amendment Claims

"[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court held that a defendant could establish a prima facie case of racial discrimination by showing that the prosecutor used peremptory challenges to strike members of the defendant's race from his petit jury, under circumstances sufficient to raise an inference that the jurors were rejected on account of their race. Id. at 96-97, 106 S.Ct. at 1722-23. The Supreme Court subsequently held, however, that the Batson rule, permitting a defendant to prove discrimination from evidence derived from his trial alone, is not retroactive. It is therefore unavailable to petitioners such as Nevius, whose conviction had become final and no longer subject to direct appellate review by the time Batson was decided. See Allen v. Hardy, 478 U.S. 255, 260-61, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986).

Nevius' fourteenth amendment claim must therefore be decided under the pre-Batson rule set forth in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain, the Supreme Court rejected an equal protection claim based on a prosecutor's having peremptorily stricken all six blacks from a petit jury panel. While recognizing that systematic exclusion of blacks from petit juries would violate the fourteenth amendment, the Court held that the nature of the peremptory challenge militated against a constitutional right to examine the prosecutor's motives for exercising his peremptory challenges in any given case.

The presumption in any particular case must be that the prosecution is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

380 U.S. at 222, 85 S.Ct. at 837. Swain suggested, therefore, that to succeed on equal protection grounds a defendant would have to show that the purposes of the peremptory challenge were being perverted by a systematic striking of blacks from petit juries in case after case, "for reasons wholly unrelated to the outcome of the particular case on trial." Id. at 223, 85 S.Ct. at 837; see Batson, 476 U.S. at 91-92, 106 S.Ct. at 1719-20. It is undisputed that Nevius made no such showing in this case.

This court placed a gloss on the Swain rule, however, in Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). There, as here, we were presented with a case in which the prosecutor had voluntarily placed on the record his reasons for exercising his peremptory challenges against members of the defendant's race. We held that Swain did not preclude us from examining the prosecutor's reasons.

The prosecutor's motives have been voluntarily put on the record and the prosecutor can no longer be cloaked by the presumption of correctness. Our reading of Swain, convinces us that in such circumstances a court need not blind itself to the obvious and the court may review the prosecutor's motives to determine whether "the purposes of the peremptory challenge are being perverted," by excluding an identifiable group "from juries for reasons wholly unrelated to the outcome of the particular case on trial."

708 F.2d at 1496 (citations omitted) (quoting Swain, 380 U.S. at 229, 85 S.Ct. at 840). Nevius contends that the application of Weathersby to the facts of his case requires that we reverse. We disagree.

At Nevius' trial, the prosecutor stated for the record his reasons for rejecting each of the four black jurors. They were: (1) One juror was an unemployed maid with a tenth grade education; she did not remember any of the names read to her from the indictment. She was afraid to sit on the jury. The key problem, according to the prosecutor, was that in response to questions of counsel she said at one point that she could not be impartial, but could not say why. (2) A second juror was a college student in Criminal Justice. He was very hesitant on the death penalty, which caused the prosecutor to strike him. (3) A third juror was a probation officer, which the prosecutor regarded as favorable, but the juror knew and worked with Nevius' father in Golden Gloves. (4) The fourth juror (an alternate) was stricken, according to the prosecutor, because the defense seemed to want him so much; the juror stated that his family had all been in and out of jail.

Nevius contends that...