Joe Clark Mitchell v. John Rees, Cross-Appellee

$90,000 profit year in fiscal Kerns with a provided and Kerns has this court with argument replace that it was able to

no account, we infer that 1994 Kerns faced higher any far than prospect of losses previous years. it losses had suffered Furthermore, pay- Kerns’s ratios of accounts long capitalization, term debt

able already troubling which were report, summarized the Dun & Bradstreet significantly in increased 1993 and 1994. We believe that these facts establish that Kerns considerable, substantial, suffered status;

change in its financial doubt dispelled this score is the uncontradicted analysis industry norms the accountant Wallace, William who averred these changes were sufficient cause within the beauty products industry the termi- of a nation distribution contract. Merritt Cf. Assocs., Therefore, at 773.4 N.Y.S.2d was not in breach when it Wella terminated contract its with Kerns.5

Ill AF- the district court is FIRMED. MITCHELL,

Joe Clark Petitioner- Appellee, Cross-Appellant, REES, Respondent-Appellant, John

Cross-Appellee. Nos. 95-6397. Appeals, United States Court Sixth Circuit. Argued Sept. May Decided 4. Because the clause in the termination contract 5. We do not address Kerns’s claim for tortious relations, disjunctive, was written in the the substantial interference with business because its change justifies appeal specified only in Kerns's financial status alone notice of the award of termination, summary judgment and we need not Wel- consider on the contract argue la's contention that Kerns had also suffered a because Kerns did the tort claim on change appeal. substantial in its sales volume. Watson, F.P. Asst. Defender

Thomas W. briefed), Federal Public Defend- (argued and Nashville, TN, Office, Appellee. er’s briefed), Fahey, (argued II Michael J. General, Litiga- Attorney Civil Office Division, Nashville, Services tion & State (briefed), TN, S. Shevalier Office Christina General, Attorney Divi- Criminal Justice Nashville, TN, sion, Appellant. KEITH, SILER, and Before: BATCHELDER, Judges. Circuit BATCHELDER, J., opinion delivered the SILER, J., joined. in which KEITH, 579-83), separate (pp. J. delivered dissenting opinion.

OPINION

BATCHELDER, Judge. Circuit Mitchell filed a for writ Clark

Joe corpus 2254 in under 28 U.S.C. of habeas for the Mid- the United States District Court The district court dle District of Tennessee. petition and issued the writ. granted the appeals, and Respondent-Warden John Rees appeals. cross

I. BACKGROUND Proceedings A. State indicted in 1982 a Mau- Petitioner was Tennessee, jury ry County, grand arson, battery, charges aggravated sexual first-degree burglary, and two counts each assault, robbery, ag- armed aggravated in a sec- gravated kidnapping, and indictment, charges aggravat- on two ond arising out of the same incident. rape, ed all place September 1986.1 His trial took Tennessee, eventually Mitchell and returned to delay and trial was between indictments 1. The strategy adopted the trial part trial counsel fact that Mitchell fled attributable in to the long possible in the years fought postponing the trial for as jurisdiction and for some two alleged elderly victims hope of his that the more record that after he was extradition. The reflects rape aggravated- point ons the witness one more dismissed the The trial court sexual-battery charge, eventually and the convict- time. He abandoned the car charges. remaining women, they Mitchell on the and the ed were able to free conviction, Tennessee affirming the help____ themselves walk for rejected all but Court of Criminal witness ... testified that [A] the defen- the evi- of Mitchell's contentions one robbing dant Chap- had discussed Mrs. support his convic- insufficient to dence was man, victims, previous one on two did not tion. Because the evidence place occasions. The took conversations conviction, aggravated-rape the second prior about two months in offenses rape simple conviction to court reduced that case. accordingly. the sentence State and reduced Id. at *1-2. Mitchell, 87-152-III, 32362, No. 1988 WL v. 1988, pro December Mitchell filed se a 7, 1988), *1, (Tenn.Crim.App. April *4 petition post-conviction (Tenn. relief the Cir denied, 27, appeal permission to June Tennessee, Maury County, cuit un 1988). petitioner’s The Act, der the Post-Conviction Procedure single out of a crime convictions arose §§ 40-30-101 to 40-30-124 Ann. Tenn.Code women, quite spree during which two one 1995).2 (repealed petition The includ elderly, hours. were terrorized for several ed several claims of ineffective assistance of that as she was One of the victims testified counsel,3 appellate including trial and a claim house, leaving a man started her friend’s challenge that counsel had failed to hit her across the lawn. He her towards make-up jury pool Maury County, of the stick, large and he times with a several which, Mitchell, according to unconstitution hunting gun and a knife. was armed with ally blacks. circuit court excluded held house, both women into the used He forced evidentiary hearing, an ankles, arms, at which Mitchell was tape tape duct their counsel, represented by on all of the mouths, claims eyes. jewelry He stole their petition. Although raised in the Mitchell had He used a knife and ransacked the house. trial, appeal not raised at on direct or testifying cut clothes off the witness petition any post-conviction claim under Bat raped he set fire to the her. Then 79, 1712, car, Kentucky, both women to a son U.S. house. He carried hours, (1986),4 any stopping at 90 L.Ed.2d 69 claim that his drove around for several testimony against Wainwright, 795-97, him would on v. 372 U.S. would die and her 792, strategy overruling was successful. thus be eliminated. This 1252, Brady, Betts (1942). 86 L.Ed. 1595 Post-Conviction Proce- 2. Tennessee has new Act, Tenn.Code §§ to 40-30- dure 40-30-201 Ann. “Equal Protection 4.Batson reaffirms post-convic- (Supp.1996), applies to which guarantees the defendant that the State Clause any petitions May filed after race will not exclude members of his from reopen petitions filed after that date to motions race,” venire on account of before that date. concluded Tenn.Code Ann. added) (emphasis (citing Notes). Strauder (Compiler’s § 40-30-201 Petitioner does Otto) 303, 305, (10 Virginia, any application v. West not contend that the new act has (1879)), Equal 25 L.Ed. 664 and holds that the here. prohibits prosecutor Protection Clause solely challenging "potential jurors on account of prosecutions, criminal the accused shall In all race ...” Id. at 106 S.Ct. at 1718. their trial, by enjoy speedy public to a venire, composition addresses the of the Strauder impartial jury the State and district wherein composition addresses the while Batson committed, have been which dis- the crime shall may jury. that a defendant Batson established previously trict shall have been law, ascertained by rely challenge peremptory the use of strikes of the nature and cause and to be informed alone, case a test that is easier on facts in his accusation; to be confronted challenger v. Ala than the test of Swain him; for bama, against compulsory pro- to have witnesses favor; obtaining in his and to cess for witnesses (1965). S.Ct. at See 476 U.S. at have the Assistance of Counsel for his defense. 1720-21. Supreme Court has amend. VI. The Const. prosecutorial Although applied Batson itself held that the Fourteenth Amendment makes the potential jurors as the applicable of the same race Sixth Amendment to the states. Gide strikes attorney readily why direct-appeal judge had been in- We can see the trial trial and Batson,5 raising competent. for not the circuit ruled counsel was The testi- effective mony pre- shows trial counsel was well permitted Mitchell’s counsel to intro- pared gave relative to the Batson claim this case and sound advice to duce evidence evidentiary hearing. appellant. appellant’s testimony during At the con- credibility part. hearing, circuit court ruled reflects diminished on his clusion of the supports The record of the trial from the should be bench dismissed, holding judge question competency. that none of Mitchell’s claims had merit. The circuit court did Mitchell, appellate 1991 WL at *1. The specifically the Batson issue. address explicitly addressed the Batson issue appealed to the Mitchell Tennessee Court following findings and made the of fact: Appeals, reiterating his ineffec- Criminal appellant The testified there were blacks addition, and, explic- tive-assistance claims among prospec- the venire summoned as itly claim raising both Batson and claim jurors for his trial. tive He further testi- of ineffective assistance counsel failure attorney general per- fied the district used appel- to raise Batson issue. The state the emptory challenges to those called remove late court affirmed. On the ineffective-assis- for his ease. He no further testified black claims, tance the court stated: juror on his sat case. judge found The trial from the evidence case, hearing at the on introduced this Trial counsel testified there were blacks competent. counsel was trial in the venire. He less definite on was only testimony particular was The evidence the whether blacks were on this attorney appellant panel. attorney probably the and the trial who testified represented convicting appellant, him in the told this as testified to the trial. defendant, post-conviction petition 106 S.Ct. at criminal Mitchell’s contained case, (setting prima prosecutor impermissibly the for Bat- forth no claim that the had facie 1); Step McCoy, peremptory challenges jurors son States v. United used to strike black (6th Cir.1988) (same), However, subsequent opin- jury. tepid from the over the state’s inquiry potential objection, permitted ions is whether a hold that the the state circuit court both race, juror regard- petitioner testify was excluded because of his the and his trial counsel to hearing post-conviction petition less of whether he was of the same race as the the the on Ohio, prosecution defendant. See Powers v. 415, 499 U.S. had stricken blacks from the the 1364, 1373, State, jury, Mitchell v. No. 01-C-01-9007-CC- (1991). opinions apply princi- (Tenn.Crim.App. Other the Batson 1991 WL at *1 11, 1991), denied, (Tenn. ple permission appeal in the context of strikes the criminal Jan. to defendant, McCollum, 42, 59, 15, 1991). Georgia April petitioner did not seek to 2348, 2359, (1992), present any other evidence on this issue. The litigants, strikes Edmonson v. Leesville civil did contend that Mitchell’s trial and di- Co., Concrete 2080, rect-appeal attorney failing was ineffective for challenge 114 L.Ed.2d strikes based alleged the exclusion of felons from Alabama, on sex. J.E.B. v. jury pool grand "the the which trial 1419, 1421, 1430, selected,” i.e., venire, (2) jury challenge (1994). alleged jury pool exclusion from "the [from] repre- which the trial was selected” of a fair proportion 5. Under the Post-Conviction Procedure Act in sentation of blacks in black post-convic- population Maury County, challenge, effect when Mitchell filed his state dire, petition, supra during alleged prejudices at 572 see n. voir racial contentions, any ground jurors. transcript is entitled to a on Of these relief three except post-petition hearing peti- those have been either waived or reveals that the first, previously § determined. 40-30- waived tioner and the court held that Tenn.Code Ann ground "absolutely 111. "A for relief is 'waived' if the the second and third have no merit.” However, petitioner knowingly understandingly failed None of these is a Batson claim. present any proceeding argument it for determination in state conceded at before us oral that it default, i.e., competent jurisdiction procedural before a court of in which never raised issue of ground presented." could have been the state never contended that the Tenn. 40-30-112(b)(1). claim, "There is rebut- waived his Batson and the state does not Code Ann. brief, ground argue position table that a for relief in its and therefore proceeding raised in such which was held whether this claim was waived under Tennessee (b)(2). was waived." Id. law is not before us. excusing eieney appellant, September 1995, that the state was of the evidence. jurors. granted black the court the warden’s motion to stay pending appeal. many not show how The record does challenges peremptory were used attorney gen-

state or whether the district II. DISCUSSION challenges peremptory eral exercised The state asserts that those who were not a member of district court excuse ordering erred in minority com- class involved this the Batson plaint; nor does the record show whether because the state court persons there were other black left the made relevant that should have been might presumed have been called to serve Claiming venire who correct. peti- in this case. tioner has asserted none of the factors enu- merated in 28 U.S.C. that would

We conclude the lack of evidence on the permit the district court disregard Batson issue does findings, respondent state court’s urges upsetting entered in the us to hold that the state court’s original cases. correct.

Id. petitioner The respondent asserts that the Proceedings Federal B. object did not magistrate judge’s to the re 1993, § April In Mitchell filed his 2254 recommendation, port and and did not raise court, petition in the federal district which in in the district court the issue of whether August 1993 dismissed all but one of the was entitled to an claims. Two of the claims which the district hearing; consequently, petitioner maintains promptly alleged dismissed that Mitch- respondent that precluded objecting from ell had ineffective assistance of counsel vis— hearing to the now. In of this asser issues, vis Batson and that other there Arn, tion, cites Thomas v. the 474 was insufficient evidence to convict him. The 140, 144--48, U.S. 88 sole claim that the district court did not (1985) (upholding L.Ed.2d 435 the rule of (not dismiss was the Batson claim itself the Walters, United v. 947, States 949- claim) related ineffective-assistance as stated (6th Cir.1981), party, by object 50 that a not in petition. the federal habeas The district magistrate in the to district court the magistrate court referred that claim to a recommendation, judge’s report and waives a judge evidentiary hearing, citing for an court); appeal petitioner, to this Corpus 636(b) § U.S.C. and Habeas Rule however, provides applies no case law that 8(b)(1). Walters rule pecu the in the circumstances magistrate judge held the liar to this case. that recommended the habeas be We conclude that the district court erred rejected denied. The district court that rec- ordering evidentiary hearing an peti- on granted petition, ommendation and or- tioner’s Batson claim and in granting dering the warden to release Mitchell within petition for the writ. We further that hold days began unless the state a retrial precluded raising the state is not timely appealed within that time. The state objection appeal its to the district court’s granting petition, and Mitchell having evidentiary hearing. held that cross-appealed, challenging the district dismissing begin court’s earlier order application claims We of 28 U.S.C. 2254(d),6 § ineffective assistance of counsel and presumption insuffi- which establishes a 2254(d) provides: proceeding applicant § 6. 28 U.S.C. tion in a to which the for agent any proceeding the writ and the State or an officer or instituted in a Federal by application parties, by court corpus by person an for a writ of habeas thereof were evidenced a written custody pursuant to the finding, opinion, written or other reliable and indicia, of a State a determination adequate presumed shall be written issue, after a on the merits of a factual correct, applicant be unless shall establish by competent jurisdic- made a State court of explained, is that requirement, factual determinations this the Court for of correctness reviewing grant applica- “[n]o court by judgments whose the state courts corpus guess for habeas should be left peti- challenged by the federal habeas are granting as- the habeas court’s reasons Court, Sumner tioner.7 notwithstanding provisions relief Mata, 2254(d).” footnote, Id. And in a the Court 2254(d) that man- held “the explained further 1966 amendments correctness dated embodied in were intended by the court to applied habeas “ Congress limitations on the exercise of appellate court ‘the facts of the state jurisdiction. As we held [federal court] adequately support case’ present did Mottley, R. Nashville Louisville & Co. respondent’s claim.” Id. at at S.Ct. 53 L.Ed. 126 lay The Court went on down the 768.8 reaffirmed, repeatedly and have since in its that “a habeas court should include rule duty ‘it is to it that [C]ourt to see reasoning opinion granting the writ jurisdiction which is [district court] any of it to first which led conclude by statute, limited defined and is not exceed- reasoning or the present, factors were seven Id. at n. at 770.9 ed.’” it to conclude which led us, fairly supported appellate was ‘not record.’” the case before presented 771. The Id. reason reviewed evidence determination, such it shall otherwise or fairly support appear, respondent admit— shall rest to estab- burden shall upon applicant (1) that of the factual merits convincing dispute lish evidence the factual hearing; the State court resolved in determination the State court was errone- factfinding procedure employed ous. the State was not to afford court adequate by hearing; a full fair judgment granting 7. After the the was (3) the were that material facts not ade- § U.S.C. Nei- entered, 28 was amended. hearing; at the State court developed quately (4) has of the ther of the raised the issue parties jurisdiction that the court lacked of State case, of the amended statute in this applicability subject the the matter or over person and we not address that issue. do proceeding; in State court the applicant (5) indigent the was that an applicant Sumner, the Court held that the habeas the State in consti- court, his deprivation ("Respondent” in Court the right, tutional failed to to counsel appoint Proceedings) "hearing” had received the re- proceeding; the State court him in represent (6) 2254(d), though § the 28 U.S.C. even quired by full, that the did not receive a applicant determinations the been hearing by fair, and State court adequate after review of the trial proceeding; court appeals or (7) was “Both the and the that otherwise denied record. respondent applicant due in the State of law State before the court. process pro- formally Respon- ceeding; given dent an was to be heard opportunity (8) or unless that of the record of the part his claim received consideration even plenary proceeding State court in which determi- though raise it court.” he failed to before the trial issue was made, nation such factual perti- Sumner, U.S. at at 768. 101 S.Ct. a nent to determination sufficiency us, case before habeas petitioner the evidence such a factual deter- to support to, did, evidence relative present permitted mination, is for here- provided produced hearing Batson to his claim at the evidentiary inafter, and the Federal court on a consider- though proceeding, even post-conviction ation of of the record such as whole part had failed to such claim in his plead post- concludes that such factual determination is court, without conviction trial petition. the record: not fairly by supported Batson mentioning ruled claim in particular, hearing in And in an evidentiary proceed- meritless, that claims were but all petitioner's ing in the Federal when due proof the court of criminal reviewed all of appeals made, factual determination has been un- such including findings, and made evidence, specific one more of less existence of the circum- finding the lack of evidence on paragraphs set forth in stances respectively Batson claim did not justify setting aside (1) (7), inclusive, numbered shown conviction. or is admitted otherwise applicant, appears, the court or unless concludes respondent, reason, 9. For contention here this paragraph petitioner's to the num- pursuant provisions (8) object has waived its the state bered the record in State court proceeding, whole, is without merit. considered as a does not evidentiary post-conviction 2254(d)(3), § on the ed on course of the basis of “that petition, made of fact both as to adequately material facts were developed not show and it what the record did what did hearing.” at the State court claim, regard show in to the Batson and held properly Once district court has that “the lack of evidence on the Batson may determined dispense it upsetting in issue does this Court of correctness mandated original entered in the cases.” 2254(d), § the court has some discretion in appellate finding Like determining evidentiary whether to hold an Sumner, pre- is entitled to the Thomas, hearing. See Lonchar v. 517 U.S. sumption of correctness mandated -,-, 1293, 1300, 134 116 S.Ct. 2254(d) § unless one of the enumerated ex- (1996) (citing Corpus 8(a); Rule Habeas ceptions in applies. that section The district Sain, 293, 318, Townsend v. court, however, gave any neither deference (1963); Keeney to that nor made reference at all 1, 11-12, Tamayo-Reyes, 504 U.S. 2254(d). Rather, spite explicit of its (1992)); 118 L.Ed.2d 318 see acknowledgment that “The Tennessee Court Livesay, also Sims v. of Criminal found that there was (1992) Townsend, (quoting 372 U.S. at insufficient evidence in the record to rule 759). However, peti habeas claim,” upon this the district court ordered tioner who developed has not the record in magistrate judge conduct an eviden- state court is entitled to an hear tiary hearing stating that “This ing only if he shows “cause for his failure cannot, however, ignore the facts develop proceed facts state-court suggest prosecu- this record which ings prejudice resulting and actual from that may improperly.” have acted failure” or “that a fundamental miscar 2254(d) express Because limi is an riage justice would result from failure to jurisdiction, tation on the district court’s evidentiary hearing.” hold a federal Keeney, authority district court is without to hold an (citing S.Ct. at 1720 evidentiary hearing on a matter on which the Zant, McCleskey v. state court has made unless one of (1991); Murray v. applies. the factors contained in It Carrier, error, therefore, for the district court to 2649, (1986)), overruling L.Ed.2d 397 dispense of correctness Scott, part; Townsend in Mann v. 41 F.3d 2254(d) embodied in and to order an evi (5th Cir.1994) 968, (holding that the ha dentiary hearing providing without a written petitioner proof beas bears the burden of on “reasoning statement of the which led it points (citing Keeney, 11-12, both any conclude that of the first seven factors denied, 1720)), 112 S.Ct. at cert. 514 U.S. present, reasoning or the which led it to 1117, (1995). 1977, 115 S.Ct. 131 L.Ed.2d 865 fairly conclude that the state was ‘not Therefore, a ” district abuses its discre supported by the record.’ Id. at by ordering tion such a without first S.Ct. at 771. We are satisfied that the dis requiring petitioner requisite to make the trict court proceeded could not have showing.10 2254(d)(8), since, basis of fully as we more below, explain appellate writ, the state court’s its answer to finding that there explicitly was insufficient evidence of the state claimed that “fairly Batson violation is supported” by courts had made regard of fact with the record of proceedings. the state court It petitioner the Batson claim and that had is, however, implicit in showing any the district court rec made no factor under proceed- ord that the presump- and the court that would overcome the 1993) (citation omitted); A district court abuses its discretion when it see also Christian standard, “applies Co., wrong legal misapplies Brewing Brewing Schmidt Co. v. G. Heileman omitted), standard, Cir.) (citations legal (6th clearly correct or relies on erro 753 F.2d dismissed, Technology Safety neous of fact.” First rt. 105 S.Ct. ce (6th Sys., (1985). Depinet, Inc. v. Cir. discriminatory purpose. exam- These findings. As the of those of correctness 8-9, clear, merely at illustrative. ples are Keeney Court 1719, petitioner had the burden at Here, 96-97, at 1722-23. at Id. Bat- record on his developing the factual however, simply does not contain the record claim court. The Tennessee in state son circumstances,” or “all relevant evidence of accurately sum- of Criminal circumstances,” “totality either of the relative to Mitch- all of the evidence marized jurisdiction petitioner’s or in particular in the presented violation of a Batson ell's claim pointed particular As the state court case. post-conviction pro- hearing in the during the many out, per- is no evidence of how there conclude, did, that as that court ceeding. We emptory challenges were exercised failed to sustain that burden.11 challenges any peremptory or whether prevailed in state In order to have by the state to excuse non- were exercised violation, of a Batson his claim court on evidence, jurors. minority Without required first to establish petitioner was have determined wheth- state court could not purposeful discrimination prima facie case of challenges were exercised peremptory er the Batson, jury. in the selection There is no evi- “pattern” in a of strikes. 93-94, prima facie at 1721. The prosecu- in that relative to the dence record showing may made a defendant’s case during voir questions and statements tor’s totality gives of the relevant facts “that the examination, remained or whether there dire discriminatory pur rise to an inference jurors in any black the venire who other Davis, Washington (citing pose.” Id. petition- might called to sit on the have been 2047-49, review of that record reveals er’s case. Our (1976)). And such a de L.Ed.2d 597 while systematic there is no evidence of may showing through evi fendant make jurors in criminal pattern excluding black jurors systematic of black dence of exclusion jurisdiction, particular cases in the juries particular juris on from service jury practices of relative to other evidence 94-95, diction, 106 S.Ct. at id. jurisdiction that would raise selection in the showing by relying solely may also make inference of discrimination. Id. at to the selection of the on the facts relative the trial court 106 S.Ct. at 1722-23. When jury case. Id. at 106 S.Ct. at in his own nothing petition- before it more than the er’s evidence that no blacks sat deciding [petitioner] has whether peremptory chal- and that the state exercised requisite showing, made the the trial court jury, from the lenges to strike blacks consider all relevant circumstances. should “all circum- court could not consider relevant example, “pattern” against For strikes stances.” jurors particular included in the ve- black Because, of criminal as the state court might give to an nire rise inference concluded, correctly insuf appeals there was Similarly, prosecutor’s the discrimination. in the record to ficient evidence contained questions during and statements voir dire or, challenge, that court support a Batson as exercising in his chal- examination and it, put upsetting .. (cid:127) the lenges may support or an inference “to refute dissent, justify setting petition- expressed aside view in the we Batson violation to 11. Unlike the prejudice requirement and think that the cause of fact entitled to er's conviction is a safeguarding principles the of essential to the of just as the state deference under " Isaac, See, e.g., Engle comity and federalism. that ‘the facts in the court’s in Sumner support respon- present adequately case' did not (1982). The dissent fails rec- Sumner, entitled to deference. dent's claim” was develop ognize petitioner's the failure to that only at 768. It is proceedings state court the material facts the wholly disregarding procedural the record before necessary support his constitutional claims is us, shifting the state court of criminal and procedural that can be excused the default developing appeals adequately burden of only upon showing of federal habeas court behalf, petitioner’s that record on Similarly, prejudice. the dissent fails cause analysis that an under dissent is able to conclude holding recognize the state court's that Keeney is "inutile.” of a record contained insufficient evidence Mitchell, case,” granted solely original in the basis the evidence entered *1, inadequately hearing at was adduced ordered the dis- at record WL court, and, explained, trict as challenge in the we have developed such hearing erroneously. was court was ordered court as well. The district federal determine, using a cause- required to thus Finally, we find no error in the district standard, petitioner and-prejudice whether petitioner’s court’s dismissal of claims inef- evidentiary hearing to an on this was entitled fective assistance counsel13 and insuffi- 12, 112 Keeney, claim. S.Ct. U.S. ciency of the evidence. The district court petitioner found had failed to estab- any statutory pre- lish basis to overcome the appropriate forum The state court is the sumption of correctness attaches to the for resolution of factual issues first fact; state court’s that those find- instance, creating incentives for the record; ings supported by and that factfinding deferral of to later federal- on those facts the claims were meritless. only proceedings degrade can efficiency judicial proceed- accuracy and with, fully

ings. This is consistent III. CONCLUSION to, requirement gives meaning of ex- Accordingly, grant- we VACATE the order haustion____ af- Just as the State must ing petition corpus, for the writ of habeas petitioner ford the a full and fair evidentiary VACATE the order for the hear- claim, on his federal so must the ing, and REMAND this matter to the district opportunity a full and fair afford the State proceedings court for further consistent with and resolve the claim on the to address this order. merits____ A different rule could mean petitioner would not be ex- that a habeas KEITH, Judge, dissenting. Circuit object negligent failure to to the cused for evidence, Majority Opinion I must dissent from the prosecution’s introduction of the very panel I am that a neg- because disturbed would be excused for but nonetheless would, upon a this Court based less-than one ligent to introduce evidence of failure page opinion by the Tennessee Court of support a constitutional claim. his own to Appeals, disregard of a Criminal (citations 9-10, 112 at 1719-20 Id. at judge district court that Mitchell’s constitu- omitted). Therefore, the district court erred Majority rights tional were violated. The ordering evidentiary hearing an without that the district court committed re- states requiring petitioner to establish either evidentiary ordering error an versible prejudice cause and for his failure to ade- hearing on Mitchell’s Batson quately develop the material facts in the Citing granting petition for the writ. proceedings, state court that not hold- Mata, opinion in Court’s Sumner evidentiary hearing would result in a miscarriage justice.12 fundamental justification holding, for its sum, granting Majority district court district court erred in maintains that held an petition for the writ. The should not have stated, miscarriage except holding Briefly We from this the claim of a fundamental of counsel for failure to ineffective assistance justice occurs when the submits new ap- direct raise Batson claim at trial or on showing that a constitutional violation evidence peal. that If were able to demonstrate probably resulted in a conviction of one who has Keeney under to an he was entitled Delo, actually E.g., Schlup v. 513 is innocent. then on his Batson and if he were 867-68, 298, 326-30, 851, 130 U.S. 115 S.Ct. (an able to demonstrate that that claim had merit Collins, (1995); v. 808 Herrera appeal), we reach in this then issue which do not L.Ed.2d 203 113 S.Ct. 122 might prevail on this related also be able to 333, 339-42, (1993); Sawyer Whitley, v. claim. We therefore hold ineffective assistance 2514, 2518-20, 269 112 S.Ct. 120 L.Ed.2d dismissing of the district court that 494, (1992); McCleskey, vacated, U.S. at 111 S.Ct. at 499 and the matter is remanded this claim is 1470; 495-96, Murray, proceedings 106 S.Ct. at to the district court for further opinion. inconsistent with this 2649-50. 580 “findings specific (holding that state court the state court has on which

on a matter correct”); Majority’s presumptively re- fact findings. Because the historical are (9th Wood, 1459, legal is basis and F.3d 1465 opinion without Chacon v. 36 suit-driven concept Cir.1994) mockery judicial (stating ultimate state makes a that “the fairness, I dissent. fundamental determination of the effectiveness guilty of a counsel or of the voluntariness Mata, Supreme Court It is true that review____ subject plea to deferential is not a establishes held that 28 U.S.C. Rather, findings on it is the state court’s over factual determina cloak of correctness presumed questions fact that are of historical judgements by courts whose tions made state 2254(d)”); correct under Steele v. to be peti challenged by federal habeas being are (10th 1518, n. 2 Young, 11 F.3d 1520 & Mata, 544-49, 101 tioners. U.S. Cir.1993) findings ... of historical (“Explicit jurisdic a 2254 serves as at 767-70. Section by appellate courts facts the state trial and authority of federal courts tional limit on correct.”); Sharpe, v. presumed are McBride jurisdiction competent courts of where state (11th Cir.1994) (“Of course, 962, 971 25 F.3d findings being that are have made statutory ap- presumption of correctness petitioner. 28 challenged a habeas U.S.C. 2254(d). However, plies only findings to of historical fact made also held in Court — Keohane, U.S.-,-, determina- not to mixed Thompson v. (1995) fact.”). 464, 457, L.Ed.2d 383 tions of law and only presumption of correctness is Circuit, unpublished this Even albeit state courts have made find applicable when only opinions, recognized heretofore only findings ings, then state entitled to a questions of historical fact are also, Wainwright v. historical fact. See presumption of In Rhode v. correctness. Goode, 378, 163645, *1, *3, Grayson, 1994 this Cir- WL (intimating stated, matter-of-factly, “[general- cuit finding characterized as a that if a cannot be basic, ly, finding fact made historical presump finding of historical fact then the presumed trial court be cor- should apply); does not Patton v. tion of correctness unless a habeas shows error.” rect 1025, 2885, Yount, 1036, Also, Parke, in Staton v. 1993 WL (indicating that 81 L.Ed.2d 847 *1, *2, conclusory this Court stated findings pre fact of historical are entitled Kentucky Supreme statement of the correctness). sumption The Circuits holding that evidence available uniformly have addressed this issue have presented no reasonable basis to case only held that historical of state requested by the instruction the defendant presumption to a of cor courts are entitled finding fact entitled was not a of historical Morton, Berryman rectness. 100 F.3d presumption of correctness. This Court (3d Cir.1996); McAleese v. “[ujnlike of historical stated (3d Mazurkiewicz, Cir.1993); 1 F.3d fact, is entitled to a [which (4th Nuth, Hunt v. 57 F.3d Cir. correctness,] presumptive- is not 1995) (stating that of his “[determinations ly panel’s holding in that case correct.” The presump torical facts the state court are Majority’s patently at con- odds with the correct”); Collins, tively Edmond v. 8 F.3d Admittedly, opin- in this case. these clusion Cir.1993) (5th (maintaining that given precedential ions are not the same applies ... “presumption of correctness and, though published opinions, value as our underlying historical facts ... state’s ulti [a] published no caselaw from this Cir- there is law”); Camp, Milone v. mate conclusion directly precedent point, cuit there is Cir.1994) (“State (7th 698-99 Court and our sister Circuits presumed of historical fact are simply ignored. that cannot be questions correct ... but of law or — Keohane, U.S.-, Thompson questions of fact lack that mixed law and novo.”) (in presumption and are reviewed de omitted); con- Supreme Court held that a state court’s quotation Haley v.

ternal marks (8th Cir.1991) custody” Armontrout, “in that a defendant was not 924 F.2d 740 clusion by Appeals of for the Ninth fact entitled to the Court Circuit finding of historical not a was considerably findings at-- Id. are at odds with the presumption of correctness. a —, The Court defined Appeal.” at 466-67. made the California Court of (cid:127) — basic, findings 543,101 findings fact as of historical Id. at S.Ct. at 767. The Court noted hap- “what that reconstruct primary, issues the California Court found “that at---, 464- 116 S.Ct. at pened.” Id. photographs were available for cross-exami- that the state then held trial[;] Court purposes nation at the ... that there custody finding that the defendant was showing no of influence the investi- [was] fact, rather a but is not such an historical offieersf;] gation had an witnesses question of fact and law. Id. Similar- mixed crime; adequate opportunity to view the 1095, panel at a ly, Berryman, 100 F.3d descriptions at that their are accurate.” Id. that “a state court’s held the Third Circuit upon 101 S.Ct. at 766. Based those rendered effective as- conclusion that counsel findings, factual which determined historical finding binding fact on” is not a sistance happened,” “what the California Court con- is not “[effectiveness courts because federal cluded that there was no error on the admis- (internal quota- fact.” question a of historical sion of the identification evidence because omitted). Chacon, Also, in tion marks the “circumstances ... indicate the inherent refused to F.3d at the Ninth Circuit procedure.” fairness of the Id. at findings pre- court’s with cloak state S.Ct. at 766. “was sumption where there of correctness Appeal Given that the California Court of to which ... no relevant state findings, specificity of made factual and the McBride, However, in was due.” deference findings, why those it is understandable Circuit held that 25 F.3d at the Eleventh Supreme pre Court determined fact-finding procedure the state court’s overturning cluded a federal court of correctness be- entitled to they findings those unless fell into one of the specific historical the state court made cause categorical exceptions enumerated in the issues raised findings as to each of Appeal, Court of which Unlike California defendant. findings specific made factual and then con case, the Tennessee Court the instant was no error in the admis cluded there any findings of fact Appeals did not make identification, the Court of Crimi sion of the if one were to torture the whatsoever. Even did not make Appeals nal of Tennessee -conclusory Tennessee Court support its conclusion that fact, it cannot statement into a on the Batson issue “the lack evidence seriously contended that that court made upsetting ... does not best, At finding of historical fact. original cases.” Mitchell entered question of law is a mixed court’s statement * (Tenn. Tennessee, 1351, 1 1991WL State of fact, pre- is not entitled to the which 1991). Jan.11, Crim.App. Consequently, the Majority’s la- sumption of correctness. disingenuously, Majority erroneously, and opinion is not rehabilitated its mentable “finding” is entitled to states that Supreme reliance on the Court’s decision correctness. presumption of Mata, respect- Supreme Mata. peti- faced with a habeas A federal court findings of state court ed the factual attempt protect dual and some- tion must it concluded that because hand, competing values. On the one times specific findings that were historical pay principles heed to the Court must There, a defendant entitled to deference. See, Mata, e.g., comity and federalism. challenged pretrial photographic identifi- 770; at Ven- S.Ct. employed in his case on the cation method (2d Meachum, tura v. basis that his Fourteenth Amendment Cir.1992). Thus, given courts must be state process was violated. Id. due upon prisoners’ opportunity pass at 766. The Court reversed claims, and once state courts Circuit, constitutional pre- the Ninth which had found findings, those made factual impermissi- have process trial identification to be in federal ble, given preclusive effect “findings made must be grounds However, magistrate prosecu- agreed value that that the there is another courts. good challeng- a tor did not have reason courts faced protected federal must be juror, African American but disa- petition. The federal courts a habeas with magistrate’s conclusion that greed with rights guardians principal are the prosecutor’s reasons were race-neutral. the United States Consti guaranteed under prosecutor district court noted that the California, v. Chapman tution. challenged pro- at first stated (1967); 21, 87 S.Ct. juror spective Black because there was Ed., v. Bd. States see also United of “something way He about the she looked.” Cir.1993) (J. (7th Cudahy dissenting) 668, 676 later stated that “she did not look like the courts have a cen (stating “the federal right Eventually, one for this case.” he set- enforcing guaran constitutional tral role in juror’s age striking her from tled governments”); and local against state tees jury pool. The district court concluded Choper, Jesse H. Judicial Review and reasons, prosecutor’s on the basis 60-128 Process National Political testimony, worthy “not belief.” his were role of federal courts (stating the essential prosecutor court further noted —and the liberties). protection of individual One oth- admitted-—that there were at least seven methods the federal courts em primary jurors jurors er were same —who —-White rights the writ those is ploy to enforce juror age or older than the Black that was has corpus, which habeas struck. The district court remarked against convictions as “a bulwark described prosecutor ques- not did ask individual Engle fairness.’” that violate ‘fundamental juror, identify tions of the Black nor did he Isaac, 456 objective “any upon criteria which to base his (1982) (quoting 1570, 71 L.Ed.2d 783 Wainw that ... to follow [she] conclusion was unable Sykes, right elderly appear- the evidence because of her (1977)). Unfortu sum, is factor that dis- ance.” there one nately, in their rush to overturn the district tinguished juror the Black for the rest Mitchell’s constitutional court’s pool: race. her violated, Majority dis rights had been light of the fact that the state court did protector its role as the tressingly abdicates any findings, findings of not make much less guarantees embodied our Constitu fact, properly historical the district court tion. evidentiary hearing on Mitch- conducted Majority’s agree with the decision I would Thus, Majority’s ell's Batson claim. safeguard upon the need to were it based analysis prejudice cause and is inutile. The federalism, comity principles of or the Majority argues that because the state court importance protecting integrity nothing peti- it more than the “had before fact-finding processes. I would under- state tioner’s evidence that no Blacks sat on Majority’s opinion it had deter- stand peremptory and that the state exercised court’s of fact mined that the district jury,” challenges to strike blacks from the I clearly erroneous. But cannot concur correctly concluded that there was dagger cloak and manner which this a insufficient evidence Batson depriving Mitchell of his constitu- Court is challenge. Majority What the fails to realize procedures tional to be tried is that the correctness vel non of the state free of racial bias. opinion primary in this issue magistrate and the district Both the appeal. The issue is whether hearings and made who conducted presumed should court’s determination fact, agreed that Mitchell was able judge- historical a correct. Section states that prima a facie case of race dis- presumed establish of a state court is to be ment Additionally, the only crimination under Batson. “a on the merits of correct after prosecutor magistrate indicated that the who issue.” If the Court of Criminal not articulate that it conducted Mitchell’s trial could of Tennessee did believe issue, enough it good challenging prospective reason for evidence on the Batson had only on that issue to juror. to hold African American The district through was convicted Mitchell assure that tainted un-

processes America, that were UNITED STATES racism. of institutional constitutional exercise Plaintiff-Appellee, length amazed help I but be at the cannot Majority deny will travel to which the hand, On the one a fair trial. Mitchell (96-1441) Enrique GODINEZ and Juvenal Majority agrees with Tennessee Court (96-1501), Defendants- Godinez Appeals, which held that the record Criminal Appellants. developed inadequately hand, claim. On other

Mitchell’s Batson 96-1441, 96-1501. Nos. Tamayo-Reyes, Keeney citing 1719-20, Appeals, United States Court of 318, (1992), proposition for the Sixth Circuit. resoluting fora appropriate are the courts Majority against disputes, the ruled Argued May the state “a fair giving for not Mitchell June Decided opportunity to address and resolve and full merits____” The fact is the claim on the given opportunity court was the state claim, pass upon the merits Mitchell’s so. and it declined to do Because of Mitch-

court declined to review merits it was ell’s the district felt that protect con- judicially obligated to Mitchell’s rights. The district court should stitutional reversed, commended, judicial for its duty its vigilance by performing in conduct- hearing in a search the truth. See Mitchell, Rose v. (stating L.Ed.2d 739 court has that “a claim that the discriminated given brings of race case the basis judicial system integrity direct into question” providing particularly compelling justification corpus habeas for federal re-

view); Lynn Johnson, The see also Sheri

Color Truth: Race and Assessment of Credibility, Race & 1 Mich. J. L. may (arguing that the Constitution require to hold federal courts

hearings fact-finding proce- when state provide adequate to a full and

dures are not hearing). fair Majority has stretched to the Because requirement point incredulity the fact, findings of state courts make historical thereby its responsibility and has abdicated guarantor of primary as the constitutional judicial travesty. rights, from this I dissent

Case Details

Case Name: Joe Clark Mitchell v. John Rees, Cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 12, 1997

Citation: 114 F.3d 571

Docket Number: 95-6232, 95-6397

Court Abbreviation: 6th Cir.