James H. Bell, Jr. v. Dennis Baker

accident, it is was involved pay to her under obligated obviously not policies.

the other court is of the district judgment

The

AFFIRMED. briefed), (argued

Harry R. Reinhart & Ohio, Bell, Columbus, for James H. Jr. Jr., Petitioner-Appellee, BELL, H. James briefed), Dailey (argued Lee E. & Gerald Gen., Columbus, Ohio, Fisher, Atty. Ohio BAKER, Respondent-Appellant. Dennis Baker. for Dennis No. 91-3378. SILER, KEITH, NELSON and Before Appeals, United States Court Judges. Circuit Sixth Circuit. SILER, Judge. Argued 1991. Nov. Petitioner-appellee granted a was Decided Jan. 1992. under 28 U.S.C. § Rehearing En Banc Rehearing and Respondent-appellant court. the district penal Denied March apparently the Warden of the institu- having custody petitioner.1 For

tion herein, rul- reasons set out we reverse the ing district court.

I. Petitioner, man, convicted in a black was aggravated for murder of white Ohio sentenced in 1984 to a term man and was possibility imprisonment of life with no trial, twenty years. At parole composed per- of three venire persons. twenty-one white Each sons and peremptory chal- side was entitled to four lenges. prosecutor used his exclude all three blacks and one white. objected systematic Defense counsel prosecutor jurors. of black explain why he made those chal- did not lenges. as the trial occurred be- Kentucky, fore the decision Batson (1986), v. Ala- the court followed Swain bama, objec- overruling by the defense.

tions respondent, respondent Terry was substituted as a original Warden L. tion how Baker 1. The respondent party attorneys as a Morris. He was succeeded have all named him as a but the Anthony Brigano by J. order of the Warden herein. below not men- district court. The record does

401 of under the Appeals were taken to the Ohio Court Sixth Amendment to the Consti- Ohio, tution. Appeals and the Court of issue, alia,

raising, the constitutional inter II. Amend- under the Sixth and Fourteenth ments, systematic exclu- that there was a petitioner’s It is obvious that as the case jurors petit jury. sion of black from appeal became final on direct before Bat- 1'6, 1985, Appeals On October decided, son was the rule from Batson appeal on the merits. On Janu- denied apply, does not as it is not retroactive. See 22, 1986, ary Ohio 255, Allen v. Hardy, 478 U.S. 106 S.Ct. to state a appeal dismissed the for failure 2878, curiam). 92 L.Ed.2d (per 199 question. substantial constitutional ironic, however, What is is that if the writ upheld, argument as both counsel at oral 30, 1986, April was decided. On Batson admitted, apply Batson would at the retrial petition corpus for a writ of habeas not, probably and Booker as it is no was filed the district court later longer the law. delayed, in The resolution of the case was part, ruling await the Holland v. key issue is whether Holland estab- Illinois, 474, 803, 493 110 U.S. 107 lished a rule procedure. new of criminal If (1990). case, L.Ed.2d 905 In that the Su- did, then, it excep- unless it falls within an preme Court held that the Sixth Amend- rule, general tion to the applicable it is not preclude ment to the Constitution does not to those cases which became final before systematic particular of a the new rule announced. Teague was Thus, group petit jury. right from a Lane, 288, 310, 1060, 489 U.S. 109 S.Ct. Equal under the Protection Clause of the 1074, (1989). excep- 103 L.Ed.2d 334 Those Fourteenth Amendment to the Constitution tions listed in Teague applicable are not Batson, sys- from that there cannot be a Teague legal here. involved a similar is- particular tematic exclusion of a race from sue, although the case was final 1983 petit jury, was not extended to the originated and it which did not right under the Sixth Amendment to trial follow Booker or 750 impartial jury. F.2d 1113 vacated and re- manded, 1001, 3289, 478 U.S. 106 S.Ct. 92 Subsequently, upheld the district court 705, L.Ed.2d on remand case dismissed report and recommendation stipulation parties magistrate that a should issue. The basis for its decision III. prosecution’s systematic use decided, peremptory challenges of its appeared exclude When Holland was it jurors petit jury procedure from the violated the to create a rule new of criminal petitioner’s right Circuits, they Sixth Amendment to a in the Sixth and Second jury following drawn from a fair cross section of the were the decisions Booker and community under McCray. Booker v. 775 F.2d other circuits had not (6th Cir.1985), 762 nom. vacated sub Mich that the Sixth Amendment re igan 1001, quired 478 U.S. 106 S.Ct. a fair cross section of communi 3289, 705, reinstated, See, ty represented petit jury. to be on a (6th Cir.1986), denied, 871 e.g., Rodriquez-Carde cert. United States v. 1046, 910, (1987). nas, (11th Cir.1989), 107 S.Ct. F.2d 393 866 cert. denied, It held that when Holland overruled Book 107 er, law, and, (1990); this established a new rule of 820 therefore, Batson, (7th Cir.1987)(en banc), like it aff'd, was not retroac F.2d 841 petitioner’s petition tive case. as 103 L.Ed.2d Salamone, er’s case not final the time Booker United States v. (3d Cir.1986); was decided then Booker mandat United (8th Cir.), systematic Thompson, ed that there be no exclusion of States v. selected, denied, finally blacks on the as cert. NELSON, Judge, DAVID A. Weathersby v. Mor concurring. 1493, 1497(9th

ris, 708 F.2d opinion. In view I concur dissent, paragraph of the how- the final Nevertheless, not establish did ever, add Nowhere I would like to this: rule nationally, nor was it a new any a new rule inti- majority opinion can discern the Supreme Court. opinion of the in the panel that the which decided mation at all that states opinion Booker McCree, 476 U.S. patently procedural Lockhart “engaged in a lawless Duren v. 1758, L.Ed.2d charge their or “did not follow practice” Missouri, principles of the Constitution.” uphold the Taylor and v. Louisi- panel that not believe the Booker I do ana, any thing. to do such intended (1975), application of the the disclaimed contrary, panel ex- the the Booker On petit juries. rule to See cross section fair authority recognized that “our as pressly 482-483, 485-486, 110 S.Ct. at 493 U.S. at limited,” court is id. an intermediate 808-809, the decisions reason, though it that even 767—and for not and Booker were deci- disagreed Supreme with the Court, but were an anoma- Supreme the Alabama, sion Swain in its view. ly of the law the Book- urges that it is not “even petitioner prosecutor’s use of panel held that the er deny the re- justice” for courts to handed prospec- to excuse peremptory yet require and troactivity of Batson race, “al- on the of their jurors tive basis a diffi retroactivity This was of Holland. conduct, though egregious did not violate court, and it is for the district cult decision interpreted as Equal Protection Clause court, considering the difficult for this at 767. Swain.” period of time in Booker. precedent for a obviously not the words of a These are Supreme it is the decision of unprincipled or court. lawless did not establish a new that Holland Court decided, there the time Booker was At Moreover, any time the procedure. rule of expressly Supreme precedent was no Court retroactivity of a deci rules on the Court foreclosing the conclusion sion, litigant always some who there is cog- prohibits the exclusion of Teag inequitable it is his case. See feels jury through groups from the nizable 302-305, ue, 109 S.Ct. at 1070- 489 U.S. at challenges. panel The Booker peremptory argue could the other side 1072. One felt free to conclude that the Sixth thus issue, is, petitioner is it fair for the prohibit such exclusion— Amendment does defendants to receive a new trial when here panel presented about as able and similarly from other states outside situated support this view as one argument could not and Sixth Circuits the Second given imagine, the circumstances could trials? obtain new subsequent- Court was which question to that The answer ly to allude Holland findings especially in view of the negative, “conviction was magistrate that the holding of the in Booker was This branch by the evidence” and no amply supported renegade court than more the act of a no error caused conviction was. the first branch person. of an innocent nonetheless, indisputable, It is holding in second branch CONCLUSION what, as now cannot be reconciled with we know, Therefore, believes the of the district the decision always has said. As directions to va- Sixth Amendment court is REVERSED with court, we are no corpus. panel of an intermediate the writ of habeas cate less Holland than the Booker cripple bound device of the perempto- ry challenge. panel bound Swain. things

Here are some of the that Hol- only Since the Sixth Amendment land tells us about what claim, equal not the protection claim, thinks the bounds of the issue, question is at before us is not always Sixth Amendment have been: whether the defendant has been unlaw- prohibition upon “A the exclusion of fully against discriminated ... or wheth- cognizable through groups jurors er the excluded have been unlaw- challenges has no basis in conceivable fully against discriminated ... but the text of the Sixth is with- whether the defendant has been denied decisions, support prior out in our right the by to ‘trial ... impartial would undermine rather than further the jury.’ The earnestness of this Court’s guarantee impartial constitutional of an justice commitment to racial is not to be jury- willingness expand measured to ^[******] constitutional provisions designed for purposes other beyond their proper say that the Sixth Amendment [T]o Illinois, bounds.” Holland v. deprives ability the State of the ‘stack to 474, 478-488, 803, 806-811, say the deck’ its favor is not that to (citations passim and foot- not, may each side once a is fair hand omitted, note emphasis in original). dealt, use to elim- challenges having told us inate prospective jurors belonging to that represents “the only plau it groups unduly believes favor would reading sible of the text of the Sixth Any theory the other side. of the Sixth Amendment,” (2) reading that a such as leading Amendment to that is im- result adopted that in the second branch of Book plausible. The tradition of peremptory er “has no conceivable basis the of text prosecution for the both and Amendment,” (3) the Sixth that the latter already the accused was venerable at the reading is “without support in the [Su of time Blackstone ... was reflected a preme prior decisions,” (4) that it Court’s] federal statute enacted the same Con- cannot be reconciled with our “unbroken gress proposed that Rights the Bill of peremptory challenges, tradition” of and opinion by ... in an Jus- (5) that a reading “would such undermine Story part tice to be law common guarantee impartial of an of United States ... and endured has jury,” simply it is to inconceivable me that through two centuries in all thought Court could have it phrase States.... The constitutional establishing “a new rule of criminal ‘impartial jury’ surely must its con- procedure” Holland, take thereby making it tent from this unbroken tradition. second branch to applied ****** be in cases such as the one now language before us. The is today only The rule we announce is not direct, “clear, unequivocal,” see Book only plausible reading of the text of er, 767, quoting F.2d but think it we F.2d best furthers the Amendment’s central my and in it any possibility view rules out purpose Although as well. constitu- saying of our represents that Holland a guarantee only tional runs to the individ- agree “new rule.” Whether we with Hol State, goal ual not to the it not, I land or think are obliged we expresses impartiality with re- follow its rationale. spect to contestants: both neither the KEITH, Judge, DAMON J. nor the defendant State should be fa- dissenting. goal, us, vored. This it seems to positively petit jury be obstructed question A lay of fundamental fairness requirement cross-section ... at the appeal. which root of this Because I find ap- Bell’s state court when correctly this Circuit answered court the district that exhausted. peals were granted properly question and petitioner-appellee, which of the law on This was the state (“Petitioner Bell” or Bell, Jr. H. James citing petition federal habeas Bell filed his “Bell”), I must dissent. vio- and Fourteenth both Sixth The Unit- prosecutor.

lations the state correctly concluded Magistrate ed States I. prin- proceed under the Bell could not man, Bell, was convict- Petitioner a black However, Magistrate ciples of Batson. to a jury and sentenced by an all white ed proceed under petition could found that his pos- imprisonment without term of life in Booker v. Jabe. precedent this Court’s twenty years. The sibility parole for Magistrate’s adopted the The district court perempto- four three of his prosecutor used report and recommendation. potential exclude all of the ry challenges to subsequently has venire. When de- jurors from the black in Holland v. overruled Booker challenged this objected and counsel fense 803,107 L.Ed.2d 905 discriminatory apparent appeal is whether to this Central explana- offered no jurors, prosecutor retroac apply can now this Court court then action. The trial tion for his rules of crimi tively. “New constitutional principles objection under the overruled applicable to procedure nal will not be Alabama, in 380 U.S. Swain v. enunciated have final before those cases which become (1965). 824, 202, 13 L.Ed.2d 759 85 S.Ct. rules are announced.” the new by defense chal- Subsequent appeals 310, 1060, 288, 109 S.Ct. 489 U.S. under prosecutor’s action both lenging the 1074, Given this Amendments and Fourteenth Sixth majority “retroactivity,” the principle of system of in the state court Ohio. failed principal issue for our correctly framed the Holland estab consideration: “whether Alabama, 380 U.S. In Swain procedure.” a new rule of criminal lished the United 13 L.Ed.2d 759 virtually Supreme adopted a States Court II. prosecu- presumption irrebuttable chal- exercising his tion is by hears cases impartial jury. lenges to a fair and obtain nei- 28 U.S.C. 1254. While of certiorari. § at 837. The Court 85 S.Ct. Id. controlling fully measuring the ther nor equal protection apply refused discretion, the Court considers solely prosecutor’s actions on clause to a taking among its reasons for cases “[w]hen of one case. Id. When Su- the basis appeals court of has ren- the United States finally overhauled this stan- preme Court dered a decision conflict with deci- Kentucky, 476 U.S. in Batson v. dard ap- of another United States court sion (1986) (filed 1712, 90 L.Ed.2d 69 Sup.Ct.R. matter.” 10.- peals the same 30, 1986), Bell’s conviction had be- April 1(a). supports This the thesis that Su- Bell not Petitioner could come final. until cir- preme Court often waits several himself of Fourteenth avail disagreed re- cuits have exhausted or with the now Batson protection under gard to an issue of constitutional law be- standard. ap- addressing it on the merits in an fore practice most assured- propriate case. This Bell’s conviction was Before Petitioner underlay ruling in Holland ly the Court’s final, however, this Court decided Booker v. Illinois. (6th Cir.1986). Book- 775 F.2d 762 discussed circuits that had several er held that propriety of the split as to the guarantee impartial jury, the issue of a trial dis- application to race during the Sixth Amendment’s prohibited racial discrimination process disputed jury selection process. It is not crimination selection denied certiorari controlling precedent when the was the Michigan Michigan v. dure had the state of manifested itself within the appeal. Booker, Accordingly, courts of cannot majority see how the can (1987).1 conclude In “anomaly” Booker was an or that a “new procedure” criminal ] Amend rule[ held that the Sixth Second Circuit had not been declared required that a fair cross section of ment Court Holland. represented on a community be prohibited race discrimina jury and thus majority Yet the dissolves this writ and during tion the selection of the venire. The effectively permits the state to applica- bar Circuits, however, did Eighth and Ninth not tion Kentucky of Batson v. because recognize prohibition, such a and the Su Teague retroactivity principle in the first preme Court denied the writs of certiorari instance, simultaneously apply the Su- appeals in each of those as it did Booker. preme Court’s rule of violation Thompson, 730 F.2d See United States v. principle. of the same The state is not able (8th Cir.), denied, petitioner’s cert. to rebut evidence of racial dis- perempto- 83 L.Ed.2d 369 crimination in the exercise of the Morris, (9th ry challenges, but the Weathersby v. now re- denied, wards its Cir.1983), unconstitutional action dis- cert. missing this case. Such a result is funda- Following mentally unfair and flies the face of pronouncement in our affirmative reason. That Petitioner Bell would be able Third, circuits Seventh Eleventh apply if Kentucky Batson v. he were mandate in the Sixth found no such granted a new trial is not the issue. His ¶. See, e.g., Amendment. United States guilt or innocence is immaterial and not for Rodriquez-Cardenas, prosecution us to decide. The committed injustice that warrants our correction. Accordingly, the district court’s order Lane, (7th Teague v. 841 granting the writ of habeas should Cir.1987) banc), (en grounds, on other aff'd have been sustained. Moreover, majority intimates that Salamone, 334 United States v. engaged patently this Circuit has law- (3d Cir.1986). Only 1219 procedural practice years less for the four then did the Court confront the that we followed Booker. If the Amendment issue in Sixth Holland. precedent clearly “disclaimed Holland, In made its application of the fair cross section rule to pronouncement that the first authoritative petit juries” and mandated that conclusion to the United States Holland, effectively say- this preclude system- does not Constitution ing that authors of and its group exclusion of one racial from a atic progeny charge up- did not follow their Holland, 493 at petit jury. See principles hold the of the Constitution. Be- high court noted that 110 S.Ct. at 807. say my cause I cannot Brethren en- that claims of this char- Batson established gaged practice, in this unconstitutional auspices are of the Four- acter within foregoing analysis is mandated teenth Amendment and refused to extend principles must DIS- Amendment’s mandate of a trial the Sixth SENT. impartial jury right. to cover that See 479-84, 110 S.Ct. at 806-809. id. v. Illinois overruled Booker be- proce-

cause no clear constitutional rule of 1. Booker was vacated the United States Su- This Court reconsidered its deci judgment preme Court and remanded for reconsideration sion and then reinstated Mr. light Kentucky, of Batson v. Booker. See Booker v. L.Ed.2d and Allen v. Hardy, L.Ed.2d

Case Details

Case Name: James H. Bell, Jr. v. Dennis Baker

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 27, 1992

Citation: 954 F.2d 400

Docket Number: 91-3378

Court Abbreviation: 6th Cir.