Walton v. Caspari, 89-1487

• Decision Date: 06 December 1990
• Docket Number: No. 89-1487,89-1487
• Citation: 916 F.2d 1352
• Parties: David E. WALTON, Appellee, v. Paul CASPARI, and William L. Webster, * Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1352

916 F.2d 1352

David E. WALTON, Appellee, v. Paul CASPARI, and William L. Webster, ^* Appellants No. 89-1487.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 14, 1990.

Decided Oct. 16, 1990.

Rehearing and Rehearing En Banc

Denied Dec. 6, 1990.

Patrick King, Asst. Atty. Gen., Jefferson City, Mo., for appellants.

Howard B. Eisenberg, Carbondale, Ill., for appellee.

Before McMILLIAN and FAGG, Circuit Judges, and STROM, ^** District Judge.

McMILLIAN, Circuit Judge.

The State of Missouri appeals from a final order entered in the United States District Court ¹ for the Eastern District of Missouri conditionally granting David E. Walton's petition for a writ of habeas corpus. Walton v. Trickey, No. 87-1510-C(2) (E.D.Mo. Mar. 6, 1989) (order). For reversal, the state argues that the district court erred in (1) finding that Walton had not committed procedural default, (2) applying retroactively Garrett v. Morris, 815 F.2d 509 (8th Cir.) (Garrett ), cert. denied, 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987), and (3) making factual findings on disputed issues of fact without a hearing. For the reasons discussed below, we affirm the order of the district court.

I.

In 1984 Walton, who is African-American, was charged with first degree robbery, first degree tampering, and armed criminal action in the Circuit Court of St. Louis, Missouri. During the course of jury selection, the prosecutor used all 14 peremptory challenges to exclude 14 of the 15 African-American venirepersons. Walton moved for a mistrial and a new trial based on the prosecutor's discriminatory use of peremptory challenges to exclude the African-American venirepersons. Although he was not required to do so, the prosecutor volunteered the reasons he struck the African-American venirepersons. The state trial court denied Walton's motion. Walton and co-defendant Sidney Hamilton (also African-American) were convicted on all counts by an all-white jury. ² Walton was sentenced as an habitual offender to 15 years on the robbery count, 10 years on the tampering count, and 5 years on the armed criminal action count. ³

On direct appeal, Walton contended that the prosecutor's exercise of peremptory challenges violated his sixth amendment right to a jury selected from a fair cross-section of the community. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). ⁴ The Missouri Court of Appeals affirmed the conviction, holding that Walton had not sustained his burden under State v. Hurley, 680 S.W.2d 209 (Mo.Ct.App.1984), and Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Swain ), of showing systematic exclusion in violation of the equal protection clause. State v. Walton, 703 S.W.2d 540, 542 (Mo.Ct.App.1985) (Walton ). The Missouri Supreme Court denied Walton's motion to transfer on February 18, 1986. On April 30, 1986, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 95-96, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986) (Batson ), which partially overruled Swain by holding that an equal protection violation could be established based on the prosecutor's discriminatory exercise of peremptory challenges in a single case. Walton subsequently filed a motion to recall mandate based on Batson, but the motion was summarily denied.

Walton filed the instant petition for a writ of habeas corpus in federal district court on August 17, 1987, alleging that the prosecutor's exercise of peremptory challenges to exclude African-American venirepersons violated his sixth amendment right to an impartial jury and his fourteenth amendment right to equal protection of the laws. The district court referred the matter to a magistrate ⁵ pursuant to 28 U.S.C. Sec. 636(b). On December 18, 1987, the magistrate concluded that Walton had exhausted his state remedies, but had failed to show systematic exclusion as required by Swain, and that there was no sixth amendment exception to the equal protection analysis of Swain. Walton v. Trickey, No. 87-1510-C(2) (Dec. 18, 1987) (report and recommendation). On April 13, 1988, the district court adopted the magistrate's findings on the exhaustion and sixth amendment issues, but remanded the fourteenth amendment equal protection claim for further consideration in light of this court's decision in Garrett. On November 10, 1988, the magistrate concluded that because Garrett did not establish a "new rule" but was merely a logical extension of Swain, Garrett should be applied retroactively to Walton's conviction. Slip op. at 7-9 (Nov. 10, 1988) (report and recommendation following remand) (hereinafter report). The magistrate found that Walton had established a violation of his equal protection rights under Garrett, 815 F.2d at 513, which held that Swain's presumption of lawfulness in the exercise of peremptory challenges does not apply when prosecutors offer reasons for their use of peremptory challenges on the record. Report at 14-15. The magistrate recommended that Walton's petition be conditionally granted and that he be released from custody unless the state began proceedings to retry him and correct the constitutional violation within a reasonable time after the final order of the district court. On March 6, 1989, the district court adopted the magistrate's recommendation and conditionally granted the writ. This timely appeal followed.

II.

A. Procedural Default and Exhaustion

The state first argues that the district court should not have reviewed Walton's equal protection claim because Walton failed to fairly present the issue to the state courts on direct appeal. The state argues that consideration of the claim is barred by the procedural default rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and that Walton has not shown cause and prejudice necessary to excuse the default. The state contends that Walton expressly disavowed reliance on equal protection when he presented his direct appeal to the Missouri Court of Appeals and that Walton's motion to recall the mandate was not the proper procedural vehicle in which to raise the equal protection issue after Batson was decided. Walton admits that he framed his challenge to the prosecutor's exclusion of the African-American venirepersons in sixth amendment terms on his direct state appeal, but he argues that the Missouri Court of Appeals in fact decided his appeal on equal protection as well as sixth amendment fair cross-section grounds. Walton emphasizes that the Missouri Court of Appeals cited equal protection precedent in rejecting his appeal, and he argues that this establishes that the court actually considered and rejected his claim on equal protection as well as sixth amendment grounds. Walton further argues that he satisfied the exhaustion requirement by expressly raising the equal protection claim in his motion to recall the mandate. Walton alternatively argues that exhaustion was not necessary because it would have been futile. See, e.g., Moore v. Wyrick, 668 F.2d 1007, 1009 (8th Cir.1982) (exhaustion either because no other presently available state remedies or substance of federal claims fairly presented to state courts).

Exhaustion of available state remedies is a prerequisite to seeking habeas relief. See 28 U.S.C. Sec. 2254(b); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971). We must determine whether Walton provided "the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his [equal protection] constitutional claim." Anderson v. Harless, 459 U.S. at 6, 103 S.Ct. at 277 (quoting Picard v. Connor, 404 U.S. at 276-77, 92 S.Ct. at 512-13). In the present case, the district court found that Walton had exhausted state remedies by raising the sixth amendment claim in his direct appeal and the equal protection claim in his motion to recall the mandate. Walton v. Trickey, No. 87-1510-C(2), slip op. at 2 (Apr. 13, 1988) (order). We cannot conclude this was error.

Before the Missouri Court of Appeals, Walton admitted that challenges of the prosecutor's exercise of peremptory challenges in a single case "have been rejected under an equal protection analysis that requires a record of county-wide discrimination to be developed over a period of year[s]." Brief for Appellant at 20 (citing Swain and State v. Baker, 524 S.W.2d 122 (Mo.1975) (banc) (Baker )), State v. Walton, 703 S.W.2d 540 (Mo.Ct.App.1985). Walton's citation of Swain and Baker may have been sufficient in and of itself to provide the state courts with a fair opportunity to apply controlling legal principles to his equal protection claim. See Graham v. Solem, 728 F.2d 1533, 1535 (8th Cir.) (banc) ("[c]itation to a provision of the federal constitution or a case addressing the constitutional basis of the claim, or a discernible reference to a federal constitutional right is all that is normally required" to satisfy the 28 U.S.C. Sec. 2254 exhaustion requirement), cert. denied, 469 U.S. 842, 105 S.Ct. 148, 83 L.Ed.2d 86 (1984); Morrow v. Wyrick, 646 F.2d 1229, 1232 (8th Cir.) (court considers fact that state cited two of the landmark Supreme Court cases on the confrontation clause in state court as evidence that the state "was able to identify the substance of petitioner's points of error"), cert. denied, 454 U.S. 899, 102 S.Ct. 401, 70 L.Ed.2d 216 (1981).

Even assuming that Walton expressly disavowed reliance on the equal protection component of his claim and instead cast it in purely sixth amendment terms, the record demonstrates that the Missouri Court of Appeals actually considered and rejected Walton's claim on both fourteenth amendment equal protection and sixth amendment fair cross-section grounds. The Missouri Court of Appeals rejected Walton's claim...