Pitts v. Cook

• Decision Date: 21 February 1991
• Docket Number: No. 90-7171,90-7171
• Citation: 923 F.2d 1568
• Parties: Albert PITTS, Petitioner-Appellant, v. James COOK, Warden and The Attorney General of the State of Alabama Mr. Don Siegelman, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1568

923 F.2d 1568

Albert PITTS, Petitioner-Appellant, v. James COOK, Warden and The Attorney General of the State of Alabama Mr. Don Siegelman, Respondents-Appellees.

No. 90-7171.

United States Court of Appeals Eleventh Circuit.

Feb. 21, 1991.

David R. Boyd, Patricia A. Hamilton, Balch & Bingham, Montgomery, Ala., for petitioner-appellant.

Mary Elizabeth Culberson, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

In this appeal from the district court's denial of his habeas petition, Albert Pitts challenges his state court conviction on Batson and ineffective assistance of counsel grounds. We agree with the district court that petitioner's Batson claim was procedurally defaulted and that petitioner fails to show the cause and actual prejudice necessary to avoid the procedural default bar. ¹ We also agree that Pitts' ineffective assistance of counsel claim is meritless. The district court's denial of Pitts' petition is therefore affirmed.

I.

Albert Pitts, a black man, was convicted in 1985 of theft of property worth ninety dollars. The prosecution's case and resulting conviction were based almost entirely on identification testimony of two white witnesses.

The jury venire consisted of fifty-three people, including eighteen blacks. One black man was struck for cause because of his relationship to Pitts. The prosecutor then used all twenty of its peremptory strikes, striking sixteen black and four white people. Pitts' counsel made no objection to the prosecution's use of its peremptory strikes. The resulting jury was composed of eleven whites and one black.

Pitts appealed his conviction. In April 1986, during the pendency of petitioner's appeal, the Supreme Court announced its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (prosecutor's use of peremptories to exclude blacks from jury in single case may demonstrate equal protection violation). The Alabama Court of Criminal Appeals affirmed Pitts' conviction without a written opinion in July 1986. 497 So.2d 859. A petition for rehearing was filed and denied, as was a petition for certiorari to the Alabama Supreme Court. Neither petition mentioned Batson.

Pitts then filed a pro se petition for writ of federal habeas corpus, raising the Batson issue for the first time. ² The district court appointed counsel to represent petitioner; and habeas counsel added the claim of trial counsel's ineffective assistance.

After an evidentiary hearing, the magistrate recommended that the writ be granted based on Batson. The magistrate concluded that, because Batson significantly altered prior law, petitioner's failure to object contemporaneously to the jury selection process did not constitute a procedural default. He further ruled for petitioner on the merits of the Batson claim, concluding that the state had failed to state neutral reasons for the peremptory strikes. The prosecutor from Pitts' original trial for theft testified at the evidentiary hearing on the Batson claim; but, approximately four years after that trial, he could not recall the reasons for his strikes.

The district court rejected the magistrate's recommendation, holding that petitioner's claim was procedurally defaulted and that no cause existed to excuse the default. Petitioner's ineffective assistance of counsel claim was rejected on the merits, and the petition was dismissed.

II.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that the equal protection clause forbids purposeful exclusion of potential jurors solely on account of their race or on the assumption that members of their race will be unable to consider the case impartially. Id. at 89, 106 S.Ct. at 1719. The Court also said that a defendant may establish a prima facie case of such purposeful discrimination based solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's own trial. Id. at 96, 106 S.Ct. at 1723.

The first part of the Batson holding was a reaffirmation of principles over a century old. See, e.g., Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (state's purposeful racial discrimination in jury selection violates equal protection clause); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) (state denies black defendant equal protection of laws when it tries him before jury from which members of his race have been purposefully excluded). But the second part--establishing not what equal protection forbids, but how that forbidden conduct may be proved--was new, changing the rule of Swain that required proof of a pattern of repeated strikes of blacks over a number of cases before purposeful racial discrimination on the part of the state could be inferred. See Batson, 476 U.S. at 92-93, 106 S.Ct. at 1720-21.

Petitioner Pitts is a black man, and several blacks were struck from his jury by the prosecution. In this habeas petition, therefore, Pitts wishes to challenge the constitutionality of his jury based on Batson. ³

Under Alabama's contemporaneous objection rule, however, review on appeal is limited to matters on which rulings were invoked in the trial court. See, e.g., Cochran v. State, 548 So.2d 1062 (Ala.Crim.App.1989). At petitioner's trial, neither petitioner nor his attorney objected, either to the makeup of the jury in general or to the exercise of peremptory strikes in particular. Thus, petitioner's failure to contemporaneously object would have barred consideration of his Batson claim on direct review (or otherwise) in the state courts. ⁴

When a defendant is barred from raising a federal constitutional claim in the state courts because of his failure to follow the state's procedural rules, he is also barred from raising the claim in his federal habeas petition absent a showing of cause for, and actual prejudice from, the procedural default. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). So, Pitts' unraised Batson claim cannot be considered in the federal courts unless he is able to show cause and actual prejudice. ⁵

III.

To show cause sufficient to excuse a procedural default, a petitioner ordinarily must establish that some objective factor external to the defense impeded his counsel's efforts to raise the claim. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). One objective, external factor the Court has held sufficient is novelty: the legal basis for the constitutional claim was not reasonably available to petitioner's counsel. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). Constitutionally ineffective assistance of counsel may also establish cause. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645.

Petitioner Pitts utilizes these alternatives to argue that the state cannot "have it both ways." According to Pitts, either Batson was so novel that a pre-Batson failure to raise a Batson -type objection should be excused for "cause"; or it was not so novel--in which case a pre-Batson failure to raise a Batson -type objection should constitute ineffective assistance of counsel. While this argument has initial appeal, it in fact presents a false dichotomy. The state can "have it both ways," because the standard for "cause" to excuse a procedural default differs from the standard for objective unreasonableness of counsel. See Pelmer v. White, 877 F.2d 1518, 1521-23 (11th Cir.1989) (theory underlying unraised objection to jury instruction not so novel as to excuse procedural default, but also not so established that failure to raise objection constituted ineffective assistance of counsel); see also Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982) (existence of tools to construct constitutional claim--and thus lack of novelty sufficient to constitute cause for procedural default--does not mean every astute, much less competent, counsel would have raised the claim).

The novelty of a claim will constitute cause sufficient (when joined with actual prejudice) to excuse procedural default if the legal basis for the claim was "not reasonably available to counsel," Reed, 468 U.S. at 16, 104 S.Ct. at 2910, or if petitioner's counsel "lacked the tools to construct" the constitutional claim, Engle, 456 U.S. at 133, 102 S.Ct. at 1574. When the Engle Court wrote in 1982, the contours--and even the existence--of the novelty-as-cause principle were far from clear. Yet Engle contains helpful language: "Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default." Id. at 134, 102 S.Ct. at 1575.

Neither the Supreme Court nor the Eleventh Circuit has addressed whether a Batson claim before April 1986 was sufficiently novel to constitute cause for failing to object contemporaneously to the prosecution's use of its peremptory challenges. The Fifth Circuit has addressed the question, however, and has held that a Batson -type objection or claim was reasonably available--and thus not sufficiently novel--in 1985. See Jones v. Butler, 864 F.2d 348 (5th Cir.1988). We agree.

From the post-Reed case law, we can glean a mode of analysis reflecting the language in Engle quoted above--an analysis focusing on whether others were recognizing and raising the same or similar claims in the period preceding or concurrent with the petitioner's failure to raise his claim. ⁶ Cf. Smith v. Murray, 477 U.S. 527, 536-37, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986); Pelmer v. White, 877 F.2d 1518, 1522-23 (11th Cir.1989) (...