Tarver v. Hopper, 97-6998
| Decision Date | 11 March 1999 |
| Docket Number | No. 97-6998,97-6998 |
| Citation | 169 F.3d 710 |
| Parties | 12 Fla. L. Weekly Fed. C 597 Robert Lee TARVER, Jr., Petitioner-Appellant, v. Joe S. HOPPER, Commissioner, Alabama Department of Corrections, Bill Pryor, The Attorney General of the State of Alabama, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Gregory L. Benik, McGovern, Noel & Benik, Providence, RI, for Petitioner-Appellant.
J. Clayton Crenshaw, Asst. Attorney General, Montgomery, AL, for Respondents-Appellees.
Appeal from the United States District Court for the Middle District of Alabama.
Before TJOFLAT, EDMONDSON and COX, Circuit Judges.
Robert Lee Tarver, Jr., using 28 U.S.C. § 2254, challenges his death sentence. We affirm the district court's denial of relief.
Tarver, in 1985, was convicted of murdering Hugh Kite, the owner of Kite's Store. The State proved at trial that Tarver shot Kite three times behind the store and stole Kite's wallet. See Tarver v. State, 500 So.2d 1232, 1235-36, 1239-41 (Ala.Crim.App.1986).
The district court found that, in preparation for Tarver's trial, Tarver's lawyers "made a deliberate strategic decision to concentrate on preparing for the guilt phase of the Petitioner's trial based on his assessment of the likelihood of an acquittal [and] that the trial counsel dedicated substantial time to interviewing numerous community members and relatives of the Petitioner, not only in an attempt to discover evidence of the Petitioner's innocence, but also in an attempt to prepare for the sentencing phase." The district court added "that there was substantial overlap in the trial counsel's preparation for the guilt and sentencing phases of the trial."
The parties continue to dispute whether, at the time of Tarver's trial, the prosecution had an agreement with Tarver's associate, Richardson, for favorable treatment in return for Richardson's testimony. The state courts and the district court rejected Tarver's claim(s) based on this alleged agreement.
The jury found Tarver guilty and recommended life without parole. The Alabama trial court judge overrode the jury's recommendation and sentenced Tarver to death.
In 1986, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). About a month after the Supreme Court decided Batson, the Alabama Court of Criminal Appeals affirmed Tarver's sentence and conviction on direct appeal. Tarver's petition for rehearing was denied, and the Alabama Supreme Court denied relief. Four days after the Alabama Supreme Court denied Tarver's petition for rehearing, the United States Supreme Court decided Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), making Batson retroactive to all cases on direct appeal when Batson was decided.
Later, Tarver sought state collateral relief under Temporary Rule 20 (now, Rule 32) of the Alabama Rules of Criminal Procedure and raised, for the first time, a Batson claim. After taking testimony, the Rule 20 judge rejected this claim and others, but he set aside Tarver's death sentence, ruling that Tarver's counsel was ineffective during the penalty phase. The Court of Criminal Appeals remanded the case to the trial court for written findings of fact and conclusions of law. The trial court then said that, but for the procedural bar to the Batson claim, he also would find a Batson violation in Tarver's trial. The trial court repeated its decision on the ineffectiveness of Tarver's counsel. The Alabama Court of Criminal Appeals reversed the ineffectiveness decision, however, and ordered the trial court to reinstate the death penalty. The Alabama Supreme Court and the United States Supreme Court later denied discretionary review.
In 1995, Tarver filed a petition for writ of habeas corpus in federal district court. The case was referred to a Magistrate Judge. The Magistrate recommended denying Tarver's petition, and the District Judge agreed.
On appeal, Tarver advances his Batson claim, raises ineffective assistance of counsel claims, and argues that the prosecution breached its duty under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). We will address each of Tarver's claims separately, giving facts found by state trial and appellate courts a presumption of correctness, as required by 28 U.S.C. § 2254(d). See Mills v. Singletary, 161 F.3d 1273, 1277 n. 1 (11th Cir.1998).
We review de novo Tarver's claim that his Batson claim is not procedurally defaulted. See Tower v. Phillips, 7 F.3d 206, 210 (11th Cir.1993). Tarver makes two arguments why we should hear his Batson claim. First, he says the federalism and comity concerns embodied by our respect for state procedural default rules do not apply in this context because Alabama courts could review Tarver's claim for plain error and because Alabama's Rule 20 courts had an opportunity to review Tarver's Batson claim.
"[T]he mere existence of a 'plain error' rule does not preclude a finding of procedural default," however. Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir.1988). Likewise, state post-conviction proceedings do not preclude a finding of procedural default. Tarver's argument would allow federal review of procedurally defaulted claims in every state with state post-conviction proceedings. This result is clearly against our precedent and practice. See Sims v. Singletary, 155 F.3d 1297, 1311 (11th Cir.1998) ().
Second, Tarver says we should decide his Batson claim because Alabama has not consistently applied the procedural default rule on Batson claims. He relies on our statement in Cochran v. Herring, 43 F.3d 1404, 1409 (11th Cir.1995): "Alabama courts have not consistently applied a procedural bar to Batson claims in cases like Cochran's." We think, however, that "cases like Cochran's" are cases where the defendant (like Cochran) made a Swain objection at trial. 1 Cochran distinguished Tarver, 629 So.2d at 18-19, on this ground. See Cochran, 43 F.3d at 1409. The Cochran court's later statement that Tarver "suggest[s]" that the Alabama procedural default rule is applied inconsistently cannot sustain the weight Tarver places upon it, in the light of the panel's explicit statement that "Alabama courts have not consistently applied a procedural bar to Batson claims asserted in state collateral petitions where the defendant had raised a Swain objection at trial." Id. More important, the Cochran court was not faced with a case where no Swain objection was made at trial; and, therefore, they could make no binding decision about such a case. See New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1500 (11th Cir.1993) (Edmondson, J., concurring), cited with approval in Combs v. Plantation Patterns, 106 F.3d 1519, 1533 (11th Cir.1997).
We cannot say that Alabama courts have been inconsistent in applying the procedural default rule to cases, like Tarver's, that is, where no Swain objection was made at trial. Tarver cites to no case (and we can find none) in which an Alabama court ignored the procedural bar and decided a Batson claim when no Swain objection was made at trial. 2 Batson claims not raised at trial have been procedurally defaulted. See, e.g., Ross v. State, 581 So.2d 495, 496 (Ala.1991) (citing cases); Bonner v. State, 564 So.2d 99, 99 (Ala.Crim.App.1990).
We also reject Tarver's argument that his case is like Morrison v. Jones, 952 F.Supp. 729 (M.D.Ala.1996), and Floyd v. State, 571 So.2d 1234 (Ala.1990). The petitioners in Morrison and Floyd both raised Swain objections at trial, dropped the claim on appeal, but got a review on the merits of their Batson claim. Tarver argues, according to Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), that the appellate defaults in Morrison and Floyd are indistinguishable from his default "at the trial level." But Alabama can pick its own procedural rules and has done so here. For some reason (like the chance for trial courts to cure errors in the first instance) Alabama has chosen to allow Swain claims defaulted on appeal, but not those defaulted at trial, to proceed to collateral review on the merits if the case was on direct appeal when Batson was decided. Smith does not command--as Tarver says it does command--that Alabama treat its trial and appellate defaults the same. Smith requires that we treat trial and appellate defaults equally, if Alabama does so. We cannot require Alabama to treat trial and appellate defaults the same when Alabama has not chosen to do so. 3
We review Tarver's ineffective assistance of counsel claims de novo. See Holsomback v. White, 133 F.3d 1382, 1385 (11th Cir.1998).
Tarver argues that his trial counsel was constitutionally ineffective for failing to raise a Batson-type objection at trial. We have said, however, that a lawyer who failed to make a Batson challenge before Batson did not provide ineffective assistance of counsel. See Pitts, 923 F.2d at 1574; see also Poole v. United States, 832 F.2d 561, 565 (11th Cir.1987).
Tarver says three facts distinguish his case from Pitts and Poole, but we disagree. First, Tarver says his trial counsel knew of "the systematic use by the prosecutor of [per]emptories to exclude blacks from the jury." Our examination of the record, however, shows that Tarver's trial counsel never said that blacks were struck "routinely" because of their race alone. During state collateral proceedings, Tarver's trial counsel's testimony was that "on occasion," when he had been a prosecutor, he had struck black veniremembers based on race alone. 4
Second, Tarver says his trial counsel could give no tactical reason for his failure to object to the discriminatory use of peremptory challenges. This argument misses the point: to be effective,...
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