CALLIE V. S. GRANADE, District Judge.
Petitioner, Victor Stephens, (hereinafter referred to as "Petitioner" or "Stephens") initiated this action on April 9, 2001, by filing a Petition for Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254. The petitioner challenges a 1987 state court judgment of conviction for two counts of capital murder entered in the Fourth Circuit Court, Hale County, Alabama, for which he was sentenced to death by electrocution. (Doc. 1, p. 6). This matter is before the court on the petitioner's motion for partial summary judgment (Doc. 37), the respondent Michael Haley's (hereinafter referred to as "Respondent" or "Haley") response (Doc. 49), the petitioner's reply (Doc. 53), and petitioner's supplemental brief. (Doc. 68). Upon consideration of all matters presented, and for the reasons stated below, this court finds that the petitioner's motion for partial summary judgment is due to be
Upon extensive review of the record, the court finds that the underlying facts were succinctly stated by the Court of Criminal Appeals of Alabama in Stephens v. State, 580 So.2d 11 (Ala.Crim.App.1990):
The defendant was tried by a jury composed of 7 white jurors and 5 black jurors following the prosecution's use of 21 of its 23 peremptory challenges to strike black prospective jurors. Id. at 15. After the striking process, Stephens' trial counsel reminded the court that it had previously filed a motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and that the motion was ripe. (Tr. 386).
Based on the evidence outlined above, the jury convicted the defendant on December 17, 1987, of two counts of violating Ala.Code § 13A-5-40, "murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant." Ala.Code § 13A-5-40(a)(2) (West 2002). (Tr. 853.). The guilty verdict was returned at approximately 6:00 p.m. on the night of December 17, 1987. (Tr. 856.). The court reconvened at 7:00 p.m. that night for the sentencing phase of the trial. Ibid. After hearing testimony, the jury deliberated and thereafter pronounced a recommendation that the defendant be sentenced to life without parole. The vote, however, was eight in favor of the death penalty and four in favor of life imprisonment. (Tr. 903.). The trial court explained that the recommendation was inconsistent with the jury charge; life imprisonment could only be recommended if at least seven jurors voted for the life sentence. (Tr. 904.). Defense counsel moved for a mistrial, arguing that the verdict was inconsistent with the instructions, that the penalty phase instructions were erroneous, and that the jury had revealed its numerical division before returning a unanimous verdict. The motion was denied. (Tr. 905.). The jury returned at 11:00 p.m., and the court inquired whether further deliberations would be fruitful and whether the court should reconvene on the following day. The jury returned to the jury room and reported a verdict at 11:15 p.m. (Tr. 906.). On both murder counts, the jury recommended life without parole; in each case, the vote was seven for life imprisonment to five in favor of the death penalty. Ibid.
Some nineteen months later, on July 24, 1989, the court convened for sentencing. (Tr. 908.). The State asked the court to override the jury's advisory verdict of life without parole. The court agreed, finding beyond a reasonable doubt as aggravating circumstances (1) that the murders were committed in the course of robbery, and (2) that the defendant had previously been convicted of a felony involving use or threat of violence to the person.
The petitioner pursued a direct appeal to the Alabama Court of Criminal Appeals. In his direct appeal, Stephens asserted a Batson claim arguing that the prosecutor's race-neutral reasons were not valid and that the prosecutor's voir dire was inadequate. (Doc. 18, Tab R-26, pp. 21-23). The Alabama Court of Criminal Appeals affirmed petitioner's conviction in an opinion issued August 3, 1990. Stephens v. State, 580 So.2d 11 (Ala.Crim.App. 1990). In its opinion, the court examined the prosecutor's race-neutral reasons and found that the "tenets of Batson ... have been minimally satisfied" and that under a clearly erroneous standard of review, found that "as a whole, the prosecutor provided sufficiently race-neutral reasons for the exercise of those challenges." Id. at 18-20. The Alabama Supreme Court thereafter affirmed the conviction in a two-sentence per curiam opinion issued March 15, 1991, and denied rehearing on April 11, 1991. Stephens v. State, 580 So.2d 26 (Ala. 1991). With new appellate counsel, petitioner sought review by the Supreme Court of the United States. The Supreme Court denied certiorari on October 7, 1991. Stephens v. Alabama, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991).
The petitioner filed an Alabama Criminal Procedure Rule 32 petition for post-conviction relief with the Circuit Court of Hale County, Alabama, on April 9, 1993. The petitioner again raised a Batson claim, specifically arguing that he "was deprived of a fair trial by an impartial jury through the prosecutor's racially discriminatory use of peremptory challenges." (Doc. 18, Vol. 15, Tab 47, pp. 23-25). After a hearing, the court denied the petition on February 19, 1998.
Petitioner appealed the denial of the Rule 32 petition to the Alabama Court of Criminal Appeals on July 17, 1998. (Doc. 18, Vol. 17, Tab 49). The Court of Criminal Appeals affirmed the decision of the Circuit Court on July 9, 1999. Stephens v. State, 778 So.2d 869 (table) (Ala.Cr.App. 1999). First, the court agreed with the Rule 32 trial court that the petitioner's Batson claim was procedurally defaulted. (Doc. 18, Vol. 17, Tab 53, p. 4). Second, the court ruled that the evidence presented by Stephens at the Rule 32 evidentiary hearing—"notes on the prosecutor's strike sheets; evidence that the prosecutor used inaccurate, unverified, and off-the-record information to strike blacks; and the pattern of the State's strikes"—could not be considered "newly discovered evidence" for two reasons. First, "he failed to include it in his petition or supplemental petition to the trial court" and "[t]his court will not consider an argument that is raised for the first time on appeal" since "its review is limited to evidence and arguments considered by the trial court." Second, "he failed to show that the evidence could not be obtained through due diligence", one of five requirements which must be established before a state post-conviction court can consider "newly discovered evidence." (Doc. 18, Vol. 17, Tab 53, p. 4); see Ala.R.Crim.P. 32.1(e)(1).
Following the decision of the Court of Criminal Appeals, the petitioner filed a petition for certiorari with the Alabama Supreme Court. The Supreme Court denied certiorari on April 14, 2000, without rationale. Ex parte Stephens, 787 So.2d 722 (table)(Ala.2000).
The petitioner filed a 28 U.S.C. § 2254 federal habeas petition in the federal district court for the Southern District of Alabama on April 9, 2001. (Doc. 1.). The case was transferred to the undersigned on February 8, 2002. On January 10, 2003, the petitioner filed a motion for partial summary judgment arguing that the "undisputed evidence shows that the State discriminated against blacks when selecting the jury for Victor Stephen's [sic] trial" and "[t]his discrimination violates Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and thus entitles Victor Stephens to a writ of habeas corpus." (Doc. 37, p. 1). On August 25, 2004, the respondent filed a response (Doc. 49), and on September 29, 2004, the petitioner filed a reply. (Doc. 53).
The petitioner filed a second Alabama Criminal Procedure Rule 32 petition for post-conviction relief with the Circuit Court of Hale County, Alabama, on October 25, 2004. In this petition, he raised the claim that execution by lethal injection violates the Eighth and Fourteenth Amendments of the United States Constitution. (Doc. 54-1, pp. 1-10). On November 19, 2004, without a hearing, the court dismissed the petition. (Doc. 57-2). After the parties were notified of the dismissal, a petition for writ of mandamus was filed with the Alabama Circuit Court of Criminal Appeals, and that court directed the Circuit Court to set aside the order dated November 19, 2004, and to enter a new order. Ex parte Stephens, 907 So.2d 1094 (Ala.Crim.App.2005). On June 7, 2005, the Circuit Court entered another order and again dismissed Stephens' second Rule 32 petition without a hearing. Stephens, thereafter, appealed to the Alabama Court of Criminal Appeals (See Docs. 57 & 58), and the Court of Criminal Appeals affirmed the Circuit Court in an unpublished opinion. (Doc. 59-1). On October 26, 2006, the Supreme Court of Alabama denied Stephens' petition for a writ of certiorari and entered a Certificate of Judgment. (Doc. 61-1), and on May 12, 2008,
On May 29, 2008, the petitioner filed a motion for leave to file a supplemental Batson brief asserting that "[d]uring the stay of this action for Stephens to exhaust in state court his claims based on Alabama's method of performing lethal injection, the United States Supreme Court reversed two denials of habeas corpus petitions: Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008); Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)." (Doc. 66, p. 1). On June 2, 2008, this court granted petitioner's motion (Doc. 67), and the petitioner thereafter filed his supplemental brief. (Doc. 68).
Section 2254(a) of Title 28 of the United States Code provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" upon a showing that his custody is in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-1219. "Under AEDPA the role of the federal court[ ] is strictly limited." This court no longer has "plenary authority to grant habeas relief" but rather this court's "authority to grant relief is now conditioned on giving deference to the states." Jones v. Walker, 496 F.3d 1216, 1226 (11th Cir.2007). Specifically, § 2254(d) provides in relevant part:
28 U.S.C. § 2254(d).
The United States Supreme Court has stated that this court must first determine whether the AEDPA is satisfied, and only then, may this court review the petitioner's constitutional claims "without the deference the AEDPA otherwise requires." Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 2858-2859, 168 L.Ed.2d 662 (2007); see also Jones, 496 F.3d at 1228.
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
In applying this test, the Supreme Court has instructed that, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is "clearly established" if Supreme Court precedent at the time "would have compelled a particular result in the case." Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir. 1998) overruled on other grounds by Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001).
In the second step, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because "`the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or if `the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405-406, 120 S.Ct. 1495). The Supreme Court later clarified that "[a]voiding these pitfalls does not require citation of our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002). "If the State court decision is found in either respect to be contrary, the district court must independently consider the merits of the petitioner's claim." Williams v. McNeil, slip op., 2010 WL 144986, at *5 (N.D.Fla. Jan. 7, 2010).
If, on the other hand, this court first concludes that the state court applied the correct Supreme Court precedent and, second, finds that the facts of the Supreme Court cases and the petitioner's case are materially distinguishable, this court must go to the third step and determine whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. See 28 U.S.C. § 2254(d)(1). The standard for an unreasonable application inquiry is "whether the state court's application of clearly established
An objectively unreasonable application of federal law occurs when the state court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001). It is important to note that "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); see also Williams, 529 U.S. at 412, 120 S.Ct. 1495 ("an unreasonable application of federal law is different from an incorrect or erroneous application of federal law.").
Besides obtaining relief under (d)(1), a petitioner may also receive federal habeas relief from a claim adjudicated on the merits in state court where that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). In regards to this subsection, the Supreme Court has provided that "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding." Miller-El v. Cockrell ("Miller-El I"), 537 U.S. 322, 348, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003).
When performing a review under § 2254(d), a federal court presumes the state court's factual findings to be sound unless the petitioner rebuts the "presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Miller-El I, 537 U.S. at 340, 123 S.Ct. 1029 (explaining that a federal court can disagree with a state court's factual finding and, when guided by the AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence"); Jones, 496 F.3d at 1226-1227 (11th Cir.2007)(holding that § 2254(d)(2)'s "unreasonable determination" standard "must be met by clear and convincing evidence," and concluding that the standard was satisfied where prisoner showed "clearly and convincingly" that the state court's decision "contain[ed] an `unreasonable determination' of fact.").
As stated above, only if this court finds that the petitioner satisfied the AEDPA and § 2254(d), does this court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 127 S.Ct. at 2858-2859; Jones, 496 F.3d at 1228. In this independent review, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
In his motion for partial summary judgment, the petitioner presents
As stated above, Stephens, a black male, was tried by a jury composed of 7 white jurors and 5 black jurors following the prosecutor's use of 21 of its 23 peremptory challenges to eliminate black potential jurors. The petitioner's counsel objected to the composition of his client's jury based on the prosecutor's alleged discriminatory use of his peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Ex parte Branch, 526 So.2d 609 (Ala.1987). Finding that Stephens' counsel had established a prima facie case of racial discrimination, the trial court required the prosecution to state the reasons for its strikes, and the following reasons were given:
The defense counsel challenged the prosecutor's reasons for several of his strikes, but the trial court ultimately "found that Stephens' Batson motion was not well-taken, and overruled the motion."
On direct appeal to the Court of Criminal Appeals, Stephens argued that the prosecutor's race-neutral reasons were not valid and that the prosecutor's voir dire was inadequate. (Doc. 18, Vol. 7, Tab 26, pp. 21-23). Specifically, Stephens argued that "[t]he justification for the State's strikes ranges from the ridiculous (chewing gum [ ]), to the sublime (wearing sunglasses []). However in all instances where the State indicated that it might have some information that was gained by investigation prior to voir dire, the State never tried to investigate this information in any manner during voir dire." (Id., p. 21). The court affirmed petitioner's conviction in an opinion issued August 3, 1990. Stephens v. State, 580 So.2d 11 (Ala.Crim. App.1990). In its opinion, the court examined the prosecutor's race-neutral reasons and found that the "tenets of Batson ... have been minimally satisfied" and, under a clearly erroneous standard of review, found that "as a whole, the prosecutor provided sufficiently race-neutral reasons for the exercise of those challenges." Id. at 17-20. In regards to three of the black potential jurors—Ms. Spence, Ms. S. Harris, and Ms. Lewis—the court maintained that "[c]onnection with or founded suspicion of criminal activity can also constitute a sufficiently race—neutral reason for the exercise of a peremptory challenge" and "[t]his connection with or suspicion of criminal activity includes not only the juror in question, but also relatives and close friends of the juror." Id. at 19(citations omitted).
The Alabama Supreme Court thereafter affirmed the conviction in a two-sentence per curiam opinion issued March 15, 1991, and denied rehearing on April 11, 1991. Stephens v. State, 580 So.2d 26 (Ala. 1991). With new appellate counsel, petitioner sought review by the Supreme Court of the United States. The Supreme Court denied certiorari on October 7, 1991. Stephens v. Alabama, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991).
In his motion for partial summary judgment, the petitioner argues that "the decision of the State courts resulted in a decision that was contrary to, or involved an unreasonable application of, Batson..." (Doc. 37, p. 2). "The evaluation of a prosecutor's race-neutral explanations under Batson is a `pure issue of fact ... peculiarly within a trial judge's province.'" McGahee v. Ala. Dept. of Corrections, 560 F.3d 1252, 1255 (11th Cir.2009) (quoting McNair v. Campbell, 416 F.3d 1291, 1310 (11th Cir.2005)). Hence, "a Batson claim at habeas is often analyzed under AEDPA § 2254(d)(2), and is only granted `if it was unreasonable to credit the prosecutor's
In applying the test under § 2254(d)(1), the Supreme Court has instructed that the first step on any issue raised in a federal habeas petition, upon which there has been an adjudication on the merits in a formal state court proceeding, is that the federal court should first ascertain the "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166. As stated above, the law is "clearly established" if Supreme Court precedent at the time "would have compelled a particular result in the case." Neelley, 138 F.3d at 923.
The governing legal principle at the time of the direct appeal was Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court held it was unconstitutional for the prosecution to challenge potential jurors based solely on their race or on the assumption that because of their race, they should be unable to consider the case impartially. 476 U.S. at 89, 106 S.Ct. at 1719. A defendant may raise the necessary inference of "purposeful discrimination in selection of the petit jury" based "solely on evidence concerning the prosecutor's exercise of peremptory challenges" during the trial. Id. at 96, 106 S.Ct. at 1723.
Once the defendant makes a prima facie showing, the burden shifts to the State to explain, in clear and reasonably specific terms, the legitimate race-neutral reasons for striking the jurors in question. Batson, 476 U.S. at 97, 98 n. 20, 106 S.Ct. at 1723 & 1724 n. 20.
Finally, the court must determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. "The reasons stated by the prosecutor provide the only reasons on which the prosecutor's credibility is to be judged." Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir.2009)(citing United States v. Houston, 456 F.3d 1328, 1335 (11th Cir.2006)). "The credibility of the prosecution's explanation is to be evaluated considering the `totality of the relevant facts,' including whether members of a race were disproportionately
This court must next determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because "`the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405-406, 120 S.Ct. 1495). The record indicates that the trial court and the appellate court found that Stephens established a prima facie case of discriminatory jury selection. The prosecutor was then asked by the trial court to provide his race-neutral reasons for striking the black jurors. When the prosecutor provided his reasons, the trial court provided Stephens' counsel with an opportunity to cross the State, which he refused, after which the trial court found that "the [Batson] motion [was] not well-taken and overrule[d] the motion." (Tr. 401). On direct appeal, the appellate court analyzed each reason given by the prosecutor under Batson and state law as it stood at that time and concluded that each use of the peremptory challenges to remove the black prospective jurors was proper. Therefore, this court finds that the state courts' adjudications on direct appeal were not contrary to clearly established Supreme Court case law since the state courts applied Batson and there were no Supreme Court cases at that time which were factually materially indistinguishable.
Since the state court applied the correct Supreme Court precedent and the facts of Supreme Court cases and the petitioner's case are not materially indistinguishable, this court must go to the third step and determine whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. See 28 U.S.C. § 2254(d)(1). The standard for an unreasonable application inquiry is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. 1495. As stated above, whether a state court's decision was an unreasonable application of legal principle "must be assessed in light of the record the court had before it." Holland, 542 U.S. at 652, 124 S.Ct. at 2737-2738.
This court finds that the appellate court's decision was an objectively unreasonable application of clear federal law because the appellate court did not extend the principles of the third step of Batson to the facts and arguments at hand. Here,
In its adjudication, upon determining that Stephens had established a prima facie case of discrimination, the Alabama Court of Criminal Appeals analyzed each of the State's explanations for striking the black potential jurors and found that each reason was a legally acceptable race-neutral reason for exercising a peremptory strike. Stephens v. State, 580 So.2d at 18-20. The court ultimately found that "[w]hile this Court has concern about several of the reasons articulated by the prosecutor for the exercise of his peremptory jury challenges, we find that, as a whole, the prosecutor provided sufficiently race-neutral reasons for the exercise of those challenges." The court then concluded that it did not "find the trial court's ruling" to be "clearly erroneous" thus "no reversal is warranted." Id., p. 20-21.
The court did not, however, address a crucial argument raised by Stephens in his brief. Stephens maintained in his brief that "the State expressed it had information about several of the black jurors that was gained by investigation prior to voir dire" but "the State never tried to investigate this information in any manner during voir dire." In fact, Stephens argued that "[t]he prosecutor, in this instant case, had the right of almost unlimited voir dire (within reason) to either confirm or deny his suspicions" but that "he never chose to
For example, the State proffered its race-neutral reason for striking Ms. S. Harris by stating that "[t]he information reported was that she had kinspeople who had been in criminal trouble and though we had otherwise felt that she was all right, that information caused us to remove her." (Tr. 394-395). This reason was contradicted by Ms. S. Harris' response in group voir dire.
Furthermore, like Ms. S. Harris, a similar situation arose in regards to another black potential juror, Ms. Lewis. The state proffered its race-neutral reason for striking Ms. Lewis by stating
This reason was again called into issue during group voir dire,
In sum, because the Alabama Court of Criminal Appeals omitted the above highly relevant fact from its Batson analysis, the court did not undertake a review of "all relevant circumstances" as required by the third step of Batson. Therefore, this court holds that the decision was an unreasonable application of clearly established federal law as determined by the Supreme Court.
Since this court has determined that the state court decision on direct appeal was an unreasonable application of clearly established federal law, this court is "unconstrained by § 2254's deference and must undertake a de novo review of the record." McGahee, 560 F.3d at 1266. Therefore, this court now reviews the record below to determine if there was a Batson violation by the State.
As outlined above, district courts employ a three-step procedure for resolving Batson objections. United States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir.2001). First, the objecting party must make a prima facie showing that the objected-to peremptory challenge was based on race. There is no question that Stephens has established a prima facie case of racial discrimination. The defendant is black, which is a cognizable racial group, and the State used the first 21 of its 23 peremptory strikes to remove black potential jurors, a use of strikes which constitutes "a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination." Batson, 476 U.S. at 97, 106 S.Ct. 1712. Second, the State is required to provide specific explanations for all its peremptory challenges, a task which the State has done in the present case. (Tr. 388-396). Third, Batson requires this court to review "the State's proffer of specific explanations after the trial to see whether its explanations overcome the very strong prima facie case of discrimination." In this analysis, this court shall "review `all relevant circumstances.'" McGahee, 560 F.3d at 1267 (quoting Miller-El II, 545 U.S. at 251-252, 125 S.Ct. 2317) ("[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it."). The objecting party may carry its burden by showing that the striking party's race-neutral reason is mere pretext for discrimination. See Miller-El II, 545 U.S. at 247-249, 125 S.Ct. 2317 (analyzing for pretext the prosecution's reasons for striking a prospective juror).
"[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination."
In determining purposeful discrimination, the Supreme Court has initially considered statistical evidence when considering whether the prosecution used its peremptory strikes in a discriminatory manner. See Miller-El I, 537 U.S. at 342, 123 S.Ct. 1029; Miller-El II, 545 U.S. at 240-241, 125 S.Ct. 2317. In Miller-El I, prosecutors used 10 of their 14 peremptory strikes against black venire members, thereby excluding 91 percent of the eligible black venire members. Miller-El I, 537 U.S. at 342, 123 S.Ct. 1029. The Court concluded that "[h]appenstance is unlikely to produce this disparity." Id. In the instant case, before the parties began the peremptory strike process, the remaining venire consisted of 26 black and 38 white potential jurors. (Tr. 401). The State used 21 of its 23 total peremptory strikes against these remaining black venire members. As a result, the State used its peremptory strikes to exclude 81 percent of remaining eligible black venire members. This court finds that this fact is unlikely to be the product of happenstance and is, at the least, indicative of discriminatory intent. However, this court needs not rely entirely on these bare statistics since the other evidence concerning the State's explanations for striking the black potential jurors contains such a clear indication that race was, in fact, a basis for their strikes.
While Stephens has challenged many of the specific explanations in his appeal to this court, this court needs not decide whether every peremptory strike of a black potential juror in this case was racially motivated. As the Court of Appeals for the Eleventh Circuit has stated, "under Batson, the striking of one black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown." United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986); see also Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008) ("Because we find that the trial court committed clear error in overruling petitioner's Batson objection with respect to [one juror], we have no need to consider petitioner's claim regarding [a second juror]."). This court focuses, therefore, on one strike in particular in which Stephens claims the prosecution explicitly relied on racial reasons. Because this court finds that the State's explanations for striking Ms. S. Harris contain such a clear indication that race was, in fact, a basis for their strikes, this court harbors no doubt in holding that the State violated Stephens' equal protection rights as defined by Batson.
The State used its twenty-first peremptory strike on Ms. S. Harris. The State proffered its race-neutral reason for striking Ms. S. Harris by stating that "[t]he information reported was that she had kinspeople who had been in criminal trouble and though we had otherwise felt that she was all right, that information caused us to remove her." (Tr. 394-395). At the time the State proffered this reason, there was no evidentiary basis for such "information." In voir dire, Mr. Greene asked the potential jurors "if you had any of the following experiences: have you personally,... a member of your immediate family... or a close personal friend, ever been charged with a criminal offense other than traffic offenses?" Ms. S. Harris did not respond to that question. (Tr. 154-155).
Ms. S. Harris' testimony at the Rule 32 hearing on July 18, 1997, further suggests that the State's race-neutral reason is a pretext for discrimination. At that hearing, Ms. S. Harris was asked on direct examination "[i]f someone said that S[ ] Harris `has kinspeople who had been in criminal trouble,' was that true in December of 1987?" Ms. S. Harris replied, "No." (HR 34-35).
Additionally, before Ms. S. Harris was struck, the State had two regular strikes (its twenty-first and twenty-second strike) and one alternate strike (its twenty-third strike). At that time, three white potential jurors remained in the venire with on-the-record information of familial criminal involvement.
Lastly, the State's own notes indicate that its reason for striking Ms. S. Harris was a pretext for discrimination. Before and during trial, each of the four attorneys working for the State had multi-page lists of typed juror names. With each name, the list provided blanks for addresses, work, spouse, and spouse's work and also provided check lists for date of birth, race,
In sum, the State's explanation for striking Ms. S. Harris is by itself unconvincing and suffices for the determination that there was a Batson error. See Snyder, 552 U.S. at 478, 128 S.Ct. 1203. However, the case for discrimination goes beyond Ms. S. Harris and includes broader patterns of practice during the jury selection. First, the State used information that was not in the trial record to strike 6 other black potential jurors with alleged familial criminal history besides Ms. S. Harris despite the fact this information was contradicted by those jurors' voir dire responses. Furthermore, like with Ms. S. Harris, the State did not ask any of these jurors to clarify the contradiction between their off-the-record information and their responses in group voir dire.
Second, the deposition of Mr. Greene and his personal strike sheet reveal a pretext of discrimination in the State's strikes of black potential jurors. Mr. Greene was the State's Batson spokesperson who proffered the State's purported reasons for striking all 21 black potential jurors. (Tr. 387-401). As stated above, each of the four attorneys working for the State had multi-page "strike sheets" that contained a typed list of the all the potential jurors names and also provided space for each attorney to make notes. Mr. Greene recognized his own handwriting and identified in a deposition his personal strike sheet which was Exhibit 14 of the deposition. (Vol. 13, Greene Dep., p. 32 & 41). On that strike sheet, Mr. Greene marked an "S" next to the name of 13 of the total 21 black potential jurors which the State ultimately struck. (See end of Vol. 13 and beginning of Vol. 14). When asked in his deposition what the "S" mark meant, he responded "that's somebody that I don't think much of." (Vol. 13, Greene Dep., pp. 37-38). Mr. Greene did not write an "S" next to any white potential juror names.
In reviewing "all relevant circumstances" in this record, this court finds that it "blinks reality" to deny that the State struck Ms. S. Harris, and perhaps several other of the black potential jurors, because they were African-American. Miller-El II, 545 U.S. at 266, 125 S.Ct. at 2340. The record in this case compels a finding that the State's use of a peremptory strike in this case to dismiss Ms. S. Harris constituted intentional discrimination and violated Stephens' rights under the Equal Protection Clause and the clearly established law as determined by the Supreme Court in Batson.
After due consideration of all matters presented and for the reasons set forth herein, it is
As a result, it is further
Unlike the situation in Clisby, the petition is not before this court at this time, but rather the petitioner has filed a motion for partial summary judgment. The Supreme Court has stated that "Habeas Corpus Rule 11, permits application of the Federal Rules of Civil Procedure in habeas cases to the extent that [the civil rules] are not inconsistent with any statutory provisions or [the habeas] rules." Mayle v. Felix, 545 U.S. 644, 654, 125 S.Ct. 2562, 2569, 162 L.Ed.2d 582 (2005)(internal quotations and citations omitted). Thus, "[a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000).
If this court were to extend Clisby to a petitioner's motion for summary judgment, this court would have to deny the petitioner's motion automatically, an action which would bar all motions for summary judgment in the future by any petitioner. On the other hand, in habeas cases, the Court of Appeals for the Eleventh Circuit has routinely affirmed district courts who granted summary judgment for the State. See e.g., Wainwright v. Secretary, Dept. of Corrections, 537 F.3d 1282 (11th Cir.2007); Summers v. Singletary, 119 F.3d 917 (11th Cir.1997); Waldrop v. Jones, 77 F.3d 1308 (11th Cir.1996). To allow the State to file a motion for summary judgment but not allow the petitioner to file such a motion is too broad an application of Clisby.
As a result, this court finds that Clisby's instruction to district courts to resolve all claims does not extend to a petitioner's motion for partial summary judgment. See Wilson v. Beard, 589 F.3d 651, 655 (3d Cir.2009)(affirming a district court which granted partial summary judgment for petitioner on one claim); Judge v. Beard, 611 F.Supp.2d 415, 419-420 (E.D.Pa.2009)(granting petitioner's motion for partial summary judgment for one claim); Pierce v. Quarterman, 2008 WL 4445064, at *3-4 (S.D.Tex.2008)(granting partial summary judgment for the petitioner); Rickman v. Dutton, 854 F.Supp. 1305, 1308-1309 (M.D.Tenn.1994)(granting petitioner's motion for partial summary judgment).
