Wilkerson v. Whitley

Decision Date12 August 1994
Docket NumberNo. 92-3319,92-3319
Citation28 F.3d 498
PartiesRobert WILKERSON, Petitioner-Appellant, v. John P. WHITLEY, Warden, Louisiana State Penitentiary, and Richard P. Ieyoub, Attorney General, State of Louisiana, Respondents-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Christopher A. Aberle (court-appointed), Metairie, LA, for appellant.

Jesse L. Means, Jr., Asst. Dist. Atty., St. Francisville, LA, for appellee.

Dorothy A. Pendergast, Terry M. Boudreaux, Asst. Dist. Attys., Jefferson Parish, Gretna, LA, Ellis Paul Adams, Jr., Exec. Dir., Attys. Assoc., Baton Rouge, LA, for amicus-La Dist. Atty's Assoc.

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

Before POLITZ, Chief Judge, and KING, * GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Wilkerson was convicted of second-degree murder and sentenced to life imprisonment in 1975. Prior to the conviction's becoming final, the United States Supreme Court declared Louisiana's jury selection system unconstitutional but declined to apply the ruling retroactively.

Fourteen years later, after significant revision of retroactivity jurisprudence by the Court, Wilkerson unsuccessfully sought post-conviction relief, claiming, inter alia, that he was indicted by a grand jury that unconstitutionally excluded women. Wilkerson then brought a habeas corpus action in federal district court, which also denied relief. Concluding that we may apply retroactively neither the Supreme Court's rule declaring unconstitutional Louisiana's system of exempting women from jury venires nor modern retroactivity rules themselves, we affirm.

I.

Wilkerson and his codefendant, Grady Brewer, currently inmates at the Louisiana State Penitentiary, were indicted in September 1973 for second-degree murder. They moved to quash the indictment on the ground that the grand jury venire contained no women, and consequently none served on the grand jury that indicted them. 1 The court denied their motion, and a jury found them guilty. On their initial appeal, the Louisiana Supreme Court affirmed Brewer's conviction and sentence but reversed as to Wilkerson and remanded for a new trial. State v. Brewer, 301 So.2d 630 (La.1974) (finding no error in the indictment but deciding that trial court committed reversible error in shackling Wilkerson and taping his mouth shut during trial).

Wilkerson's second trial (on the same indictment) began on January 15, 1975. The same attorney represented him in both trials. Again he was convicted, and he appealed.

The Louisiana Supreme Court affirmed and did not revisit the previously-denied motion to quash the grand jury venire. State v. Wilkerson, 326 So.2d 353 (La.1976). In the meantime, the United States Supreme Court had decided Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding that the state constitutional provision, insofar as it permitted women to be exempted from petit jury venires, violated the Sixth and Fourteenth Amendments, and Daniel v. Louisiana, 420 U.S. 31, 32, 95 S.Ct. 704, 705, 42 L.Ed.2d 790 (1975), holding that Taylor would not be applied retroactively to "convictions obtained by juries empaneled prior to the date of [Taylor ]." In February 1989, Wilkerson filed an application for post-conviction relief in the state trial court, raising five issues, one of which was that he was denied his Sixth and Fourteenth Amendment rights because of the exemption of women from jury service. The trial court denied post-conviction relief in March 1989, and the Louisiana Supreme Court denied writs two months later. Wilkerson v. Smith, 580 So.2d 370 (La.1991). Wilkerson then sought habeas relief in federal district court, which adopted the magistrate judge's recommendation that relief be denied.

A panel of this court, bound by circuit precedent in Leichman v. Secretary, La. Dep't of Corrections, 939 F.2d 315 (5th Cir.1991) (per curiam), reversed and remanded with instructions to grant habeas relief. Wilkerson v. Whitley, 16 F.3d 64 (5th Cir.1994). That opinion was vacated by the en banc vote on the panel's recommendation that Leichman be reconsidered. Id. at 68.

II.
A.

Wilkerson argues that he should receive the benefit of Taylor because the decision was announced before his conviction became final. The panel assumed that a decision declaring unconstitutional Louisiana's petit jury selection system would also apply to grand juries. Id. at 65 ("Wilkerson was indicted by a grand jury that unconstitutionally excluded women...."). We do not find it necessary to decide whether this assumption is valid, as we resolve this case by applying Daniel, as we explain infra. Nonetheless, we explore the assumption to show that there is a colorable argument that a holding regarding the exclusion of women from grand juries would constitute a new rule.

If our decision here would be the first time a court had declared Louisiana's former grand jury system unconstitutional, arguably we would be declaring a new rule. If so, Wilkerson could not take advantage of it, as his direct appeal long ago became final. 2 Thus, the question is whether a conclusion regarding grand juries departs significantly from the conclusion regarding petit juries so as to be considered a new rule.

1.

The Taylor Court limited its holding to petit jury selection and did not announce a rule about the exclusion of women from grand juries. 3 The Supreme Court case addressing the exclusion of women from grand juries, Edwards v. Healy, 421 U.S. 772, 95 S.Ct. 2410, 44 L.Ed.2d 571 (1975), merely remanded to the district court to determine whether the matter had become moot because Louisiana had changed its jury selection rule. Although the Court has addressed racial discrimination in grand jury selection, see Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), it has never explicitly declared unconstitutional the exemption of women from grand jury pools.

In Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), the Court raised the issue but set aside the conviction on other grounds. The Court passed on another opportunity to address the issue of under-representation of women on grand juries in Ford v. Kentucky, 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325 (1984) (denying certiorari). 4

2.

"[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301, 109 S.Ct. at 1070. Taylor declared unconstitutional Louisiana's petit jury selection system. The relevant inquiry is whether that rule controls the issue of grand juries selected under the same system. If the conclusion is "susceptible to debate among reasonable minds," the latter decision is a new rule, even if "controlled" or "governed" by the earlier decision. Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990); see also Stringer v. Black, --- U.S. ----, ---- - ----, 112 S.Ct. 1130, 1140-41, 117 L.Ed.2d 367 (1992) (Souter, J., dissenting). The test is whether the result is "dictated" by existing precedent. Teague, 489 U.S. at 301, 109 S.Ct. at 1070.

3.

The right to trial by jury finds its constitutional bases in article III, Sec. 2, cl. 3, of the Constitution ("The Trial of all Crimes ... shall be by Jury....") and the Sixth Amendment ("In all criminal prosecutions, the accused shall enjoy the right to a ... trial[ ] by an impartial jury...."). The Founding Fathers obviously considered the right to a jury trial of paramount importance; Hamilton called this right "the very palladium of free government." THE FEDERALIST No. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Letter from Richard Henry Lee to Edmund Randolph (Oct. 16, 1787) (describing trial by jury as "this great security of human rights"). Colonial revolutionaries listed in the Declaration of Independence the deprivation of the right as a grievance against England. And, as Joseph Story noted in the Commentaries on the Constitution,

[Trial by jury] was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude....

... "A celebrated French writer, who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected, that Rome, Sparta, and Carthage, at the time, when their liberties were lost, were strangers to the trial by jury."

3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION, Secs. 1773-1774 (1833) (quoting Justice Blackstone).

The right to indictment by a grand jury finds its constitutional basis in the Fifth Amendment ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on ... indictment of a Grand Jury...."). In contrast to the right to trial by jury, the right to grand jury indictment received little attention at the Constitutional Convention. The provision does not prevent states from instituting prosecutions without an indictment, 5 and the Supreme Court has concluded that neither the Grand Jury Clause of the Fifth Amendment nor the Due Process Clause of the Fourteenth Amendment requires the state to afford the accused the right to grand jury review before trial. Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 120-21, 28 L.Ed. 232 (1884).

By the end of the nineteenth century, many states had abandoned the grand jury system and amended their constitutions to allow the initiation of prosecution by information. Currently, only twenty-three states require indictment by grand jury, four of which require an indictment only in cases punishable by life imprisonment or death. 1 SARA S. BEALE & WILLIAM C. BRYSON, GRAND JURY LAW & PRACTICE Sec. 2.04 ...

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