United States v. Lighty, Civil No. PJM 12-3065

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Docket NumberCivil No. PJM 11-3563,Civil No. PJM 12-3065,Crim. No. PJM 03-0457-1,Crim. No. PJM 03-0457-3
Decision Date12 August 2016

KENNETH JAMAL LIGHTY Petitioner-Defendant.

JAMES EVERETT FLOOD, III Petitioner-Defendant.

Civil No. PJM 12-3065
Crim. No. PJM 03-0457-1
Civil No.
PJM 11-3563
Crim. No. PJM 03-0457-3


August 12, 2016


Kenneth Jamal Lighty and James Everett Flood, III ("Petitioners") have filed separate Motions to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, but in a joint Amended Motion to Vacate are allied as to one claim--viz. they assert that they should be granted relief on the ground the Government used its peremptory strikes at trial in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 171, 290 L.Ed.2d 69 (1986) and J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994). Am. Mot. Vacate, ECF No. 451. For the reasons that follow, the Court will DENY the Amended Motion to Vacate as to Petitioners' claims brought pursuant to Batson-J.E.B, reserving for a later time

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consideration of the other grounds for relief raised in Petitioners' respective Section 2255 Motions.1

I. Procedural Background

A federal grand jury indicted Lighty and Flood (along with co-defendant Lorenzo Wilson) on five counts of criminal activity: kidnapping, aiding and abetting; conspiracy to kidnap, aiding and abetting; and three counts of use of a handgun during a crime of violence, aiding and abetting. The Government filed a notice of intent to seek the death penalty with respect to Lighty only. In the guilt phase of that trial, Lighty and Flood were tried together, and a petit jury found them both guilty on all counts.

At the close of penalty phase in Lighty's case, which began a few weeks later after its finding of guilt, the jury returned a verdict of death.

The Court thereafter sentenced Lighty to death on the conviction of kidnapping resulting in death, to life imprisonment on the conviction of conspiracy to kidnap, and to three consecutive sentences totaling 55 years on the three firearms convictions. See Judgment and Order, Mar. 10, 2006, ECF No. 248; Judgment and Commitment Order, Mar. 10, 2006, ECF No. 249. Flood received life imprisonment and consecutive sentences of ten years, twenty-five years, twenty-five years, and five years on the same respective counts. See Judgment and Commitment Order, Jan. 13, 2006, ECF No. 234.

The Fourth Circuit affirmed the convictions and sentences of both Petitioners on appeal, see United States v. Lighty, 616 F.3d 321 (4th Cir. 2010), and the U.S. Supreme Court denied the petitions of both for writs of certiorari. See Lighty v. United States, 132 S. Ct. 451 (2011); Flood v. United States, 131 S. Ct. 846 (2010).

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In their original Motions to Vacate, Set Aside, or Correct Sentence and for New Trial Pursuant to 28 U.S.C. § 2255, ECF Nos. 434 and 396, Lighty and Flood allege, among other things, that the Government used its peremptory strikes at trial in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 171, 290 L.Ed.2d 69 (1986) and J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994). Lighty makes his Batson-J.E.B. claim as a denial of his "rights to due process, a fair trial, a fair and impartial jury and to be free from cruel and unusual punishment," and of his equal protection rights, as well as through two collateral ineffective assistance of counsel claims involving both trial and appellate counsel. Flood raises his claim collaterally, as one of ineffective assistance of counsel based on his trial counsel's failure to raise the Batson-J.E.B. challenge.

Because both Motions raise Batson-J.E.B. claims, the Court determined that it would consider the claims together, separately from Lighty's and Flood's other Section 2255 claims. See Letter Order, October 23, 2012, ECF No. 436. As a lead-in to their Motions, the Court granted Lighty's Consent Motion for Access to Juror Strike Lists, ECF No. 446, as a result of which counsel for both Petitioners and the Government had an opportunity to review those lists in a conference room of the Court. After counsel reviewed the Strike Lists, they submitted a joint proposed schedule for further briefing, which the Court approved. In its Scheduling Order, ECF No. 449, the Court permitted Lighty to file an Amended Motion to Vacate and a Motion for Discovery as to the Batson-J.E.B. Claims, and permitted Flood to join in the Motion for Discovery.

The Court's briefing schedule indicated that the issue of discovery with respect to the Batson-J.E.B. claims would be briefed and decided first. Accordingly, on December 20, 2012, Lighty and Flood filed a Joint Motion for Discovery Regarding the Allegations of Impermissible

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Discrimination in Jury Selection. ECF No. 453. On the same day, Lighty filed an Amended Motion to Vacate, ECF No. 451, and Flood filed his own Motion to Amend, seeking to adopt as his own Lighty's Amended Motion to Vacate. ECF No. 455. The Court granted Flood's Motion to Amend on May 30, 2013. ECF No. 476.

Thereafter, the Court held a hearing on the Joint Motion for Discovery and ordered supplemental briefing. Lighty and Flood filed a supplemental brief; the Government filed none. The Court then held a second hearing on the Joint Motion, and took the matter under advisement. Following the second hearing, Lighty and Flood submitted yet another brief, ECF No. 501; again the Government filed none.

On October 30, 2014, the Court issued a Memorandum Opinion and Order denying the Joint Motion for Discovery. Memo. Op. and Order, ECF Nos. 508, 509. The Court noted that a habeas petitioner may be granted discovery if good cause is shown: i.e., if the petitioner makes specific allegations that give reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief. See Memo. Op. at 6, ECF No. 508 (citing Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S. Ct. 1793, 138 L.Ed.2d 97 (1997)). The Court reasoned that whether a petitioner has shown good cause necessarily involves to a considerable extent an inquiry into the merits of the claim, and proceeded to analyze whether Petitioners in this case had procedurally defaulted on their claims. The Court concluded that Petitioners had procedurally defaulted as to any direct Batson-J.E.B. claim because they had failed to raise it at trial or on appeal. The Court recognized, however, that the Batson-J.E.B. claim could still be raised as an ineffective assistance of counsel claim not subject to procedural default, and that a successful claim for ineffective assistance of counsel could establish "cause" to overcome the procedural default. See id. at 10.

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While the Court reserved deciding whether the performance of Petitioners' counsel, at trial or on appeal, fell below an objective standard of reasonableness, nevertheless, upon preliminary review for purposes of the Joint Motion for Discovery, the Court concluded that it did not. See id. at 11. The Court determined that Petitioners' proffered evidence fell short of demonstrating ineffective assistance of counsel such that—even if facts were further developed in discovery—Petitioners would still not be entitled to relief. In particular, the Court concluded that Petitioners' juror strike statistics, juror-to-juror comparisons, and allegations of a history of discriminatory strikes by the same prosecutors in one other case in this Court failed to satisfy the requirement of "specific allegations" justifying entitlement to relief. See id. at 13-16. The Court, however, allowed that it would undertake a more detailed review of the record when it addressed the merits of Petitioners' Batson-J.E.B. claim, and granted the parties leave to submit further briefing on the issue.

The parties consented to a briefing schedule, and on December 15, 2014 Petitioners filed a Memorandum of Points and Authorities summarizing evidence and argument contained in their voluminous prior briefing. Pet'rs' Br., ECF No. 513. On March 11, 2015, the Government advised the Court that it did not intend to file a response to the Petitioners' latest briefing, and would instead rely upon its previous responses in the case. ECF No. 520.

II. Procedural Posture

The Court begins by considering the procedural posture of the Batson-J.E.B. claims, which Petitioners argue arise in two forms: (A) a Batson-J.E.B. claim that is procedurally defaulted, as to which Petitioners seek to establish cause to set aside the default by showing that counsel was ineffective for failing to make the Batson-J.E.B. challenge, and (B) an ineffective

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assistance of counsel claim on the merits, based on counsel's failure to make the Batson-J.E.B. challenge. See Pet'rs' Br. at 4 & n.3, ECF No. 513.

Accordingly, under either approach, the Court must determine whether Petitioners' counsel rendered constitutionally ineffective assistance by failing to challenge the Government's peremptory strikes under Batson-J.E.B.

A. Procedurally Defaulted Batson-J.E.B. Claim

Petitioners' claim in this regard is that the Government unconstitutionally exercised its peremptory challenges against female venire persons on the basis of their gender and their race. See Am. Mot. Vacate at 7, ECF No. 451; Pet'rs' Br. at 2-3, ECF No. 513.

As the Court noted in its opinion dated October 30, 2014, the Batson-J.E.B. claim was not raised at trial or on direct appeal, and is therefore procedurally defaulted. A claim which could have been but was not made on a petitioner's direct appeal may not be raised in a Section 2255 petition unless there is demonstrable cause for the petitioner's failure to raise the claim at an earlier time, and unless actual prejudice is shown to have resulted from the alleged error. See Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 621-22, 118 S....

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