Shaw v. Dwyear
| Decision Date | 24 March 2008 |
| Docket Number | No. 4:04-CV-1345 CAS.,4:04-CV-1345 CAS. |
| Parties | Phillip SHAW, Petitioner, v. Chuck DWYER, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
Alicia A. D'Addario, Bryan Stevenson, Robert A. Singagliese, Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner.
Stephen D. Hawke, Assistant Attorney General, Michael J. Spillane, Attorney General of Missouri, Jefferson City, MO, for Respondent.
This matter is before the Court on state prisoner Phillip Shaw's petition for writ of habeas corpus made pursuant to 28 U.S.C. § 2254. This case was referred to United States Magistrate Judge David D. Noce for report and recommendation on all dispositive matters and for final disposition on all non-dispositive matters, pursuant to 28 U.S.C. § 636(b).
On January 8, 2007, Judge Noce filed a Report and Recommendation of United States Magistrate Judge which ordered and recommended that Shaw's petition for writ of habeas corpus be denied. Petitioner filed timely objections to the Report and Recommendation,1 and Respondent filed a response to the objections
The Court has carefully reviewed petitioner's objections and the entire record of this matter. Following de novo review of the habeas petition and the record, the Court does not concur in the recommendation of the Magistrate Judge. For the following reasons, the Court will grant petitioner Shaw's petition for writ of habeas corpus.
The petitioner, Phillip Shaw, is before the Court seeking habeas corpus relief from his state-court sentence. Petitioner, who was only 14 years old at the time of the crime, was charged as an adult with one' count of murder in the first degree (Count I), one count of robbery in the first degree (Count III), and two counts of armed criminal action (Counts II and IV, relating to the murder and robbery charges, respectively). Petitioner was tried with an older co-defendant, Rodney Smith, who was 20 years old at the time of the crime. Following a joint trial, a jury convicted both the petitioner and his codefendant on Counts I and II and acquitted on Counts III and IV. Petitioner was sentenced to life imprisonment without the possibility of parole or probation on Count I, with a consecutive term of life on Count II. See Legal File, Ex. 5 at 73-75.
At trial, petitioner's counsel, who was a Missouri public defender, challenged the prosecution's use of a peremptory strike to exclude a venireperson from the jury panel based on her race and gender.2 The trial judge overruled the objection, and the following colloquy occurred:
DEFENSE COUNSEL: Next one,
Judge, is [D.M.], a black female, page 6, number 2.
Trial Transcript, Ex. 2 at 481-82 (emphasis added).
Following trial, petitioner's counsel filed a motion for new trial. Petitioner's counsel objected, citing to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the prosecution's peremptory strike of the above-mentioned venireperson based on race. Counsel did not, however, specifically include an objection based on gender, nor did she cite to J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). See Legal File, Ex. 5 at 69. The motion for new trial was summarily denied without a written opinion. Id. at 72.
Petitioner was appointed new counsel, who was also from the Missouri Public Defenders Office, for his direct appeal. In his direct appeal, petitioner's appellate counsel explicitly objected to the prosecution's exclusion of venirepersons based on gender. Citing to J.E.B., petitioner's counsel pointed out that the prosecution's proffered reason for venireperson D.M.'s exclusion was not gender-neutral, but in fact, was based on the gender stereotype that women are more sympathetic—the very stereotype that was admonished in J.E.B. Appellant's Statement, Brief and Argument, Ex. 7 at 24-25, 28-30. In denying the appeal, the Missouri Court of Appeals found petitioner had failed to preserve his "gender Batson" challenge for appellate review. "To preserve a Batson challenge, a timely and specific objection must be made at trial, the alleged error must be asserted in a motion for new trial, and the matter must be adequately raised in the briefs on appeal." State v. Shaui, 14 S.W.3d 77, 83 (Mo.Ct.App.2000). The Court of Appeals found that while petitioner's trial counsel had objected to the prosecution's strike of venireperson D.M. in petitioner's motion for new trial, she had only objected to the strike based on race, and not on gender. Id. The court held "a generic reference to Batson, without more, is insufficient to preserve a claim of error based upon a gender-motivated peremptory strike." Id. at 84, 106 S.Ct. 1712. Accordingly, the court found the claim was not preserved for appellate review. The Missouri Court of Appeals also denied the appeal on plain error review. Id. at 84-85, 106 S.Ct. 1712.3
Petitioner filed, pursuant to Missouri Supreme Court Rule 29.15, for post-conviction relief. In his Rule 29.15 motion, petitioner argued his trial counsel was ineffective for failing to include in the motion for a new trial his claim that the prosecution excluded at least one venireperson from the jury panel based on her gender. See Legal File, Ex. 12 at 8-21. Petitioner argued he was prejudiced because but for his trial counsel's omission, his conviction would have been reversed on appeal and he would have been granted a new trial. Id. at 21-22. An evidentiary hearing was held on the motion for post-conviction relief. The trial court denied the post-conviction motion, finding the claim to be noncognizable under Rule 29.15. Id. at 81.
Petitioner appealed the denial of his motion for post-conviction relief. In his appellate brief, petitioner remonstrated that due to his trial counsel's failure to include the gender-based Batson claim in his motion for new trial, the issue was unpreserved for appellate review, and "had [trial counsel] correctly noted the trial court's error [petitioner] would, like his co-defendant in the joint trial, have been granted a new, fair trial after the appeal." See Legal File, Ex. 14 at 12, 18, 20. On March 16, 2004, the Missouri Court of Appeals affirmed the trial court, and found petitioner had suffered no constitutional prejudice as a result of his counsel's failure to include the gender claim in the motion for new trial. The Court of Appeals wrote:
Movant has not shown that he suffered Strickland prejudice from his counsel's actions. Movant's postconviction motion did not plead any facts showing prejudice. It was merely contained the conclusory allegation that "[b]ut for counsel's lapse, the outcome of the Movant's appeal would have been different and Movant would have been granted a remand for a new trial." Because Movant did not allege facts that he was prejudiced by his trial counsel's conduct, his claim is ineligible for post-conviction relief and the motion court did not clearly err in denying his motion without an evidentiary hearing. Point denied. See Ex. 16 at 6.
Petitioner's co-defendant's counsel did allege in his motion for new trial that venireperson D.M. had been unlawfully excluded from the panel on account of her gender. Petitioner's co-defendant's motion for new trial was denied and his counsel raised the issue on direct appeal. The Missouri Court of Appeals reversed the judgment on appeal and granted Rodney Smith a new trial. The court found that the reasons given by the prosecutor for striking venireperson D.M. were not gender-neutral and, in fact, established that D.M. was struck because of her gender, which "violated Batson's prohibition against gender discriminatory peremptory challenges." State v. Smith, 5 S.W.3d 595, 598 (Mo.Ct.App.1999).4
Petitioner raises two grounds for relief in his § 2254 petitioner for writ of habeas corpus:
1. The trial court judge erred in denying petitioner's Batson...
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