Glеn Charles McGINNIS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
No. 98-20375.
United States Court of Appeals, Fifth Circuit.
July 20, 1999.
184 F.3d 446
Gena Blount Bunn, Assistant Attorney General, Austin, TX, for Respondent-Appellee.
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Petitioner Glen Charles McGinnis appeals the district court‘s dismissal of his petition for habeas relief under
I
A jury in Montgomery County, Texas, found McGinnis guilty of capital murder while committing a robbery. At the punishment phase, the jury found that McGinnis acted deliberately, that he was a continuing threat to society, and that there were not sufficient mitigating circumstances to warrant a sentence of life imprisonment. Accordingly, the state trial court imposed a sentence of death. The Texas Court of Criminal Appeals upheld McGinnis‘s conviction and sentence on direct appeal, and the United States Supreme Court denied McGinnis a writ of certiorari.
McGinnis then filed a petition for a writ of habeas corpus in Texas state court. The trial court issued findings of fact and conclusions of law, recommending that McGinnis‘s habeas corpus petition be denied. The Texas Court of Criminal Appeals denied McGinnis‘s petition based on the trial court‘s findings. Finally, McGinnis filed a petition for a writ of habeas corpus under
McGinnis requested a certificate of appealability (“COA“) from the district court. The district court granted McGinnis a COA on two issues: (1) whether the state trial court‘s excusal of three African-American venirepersons violated the Sixth and Fourteenth Amendmеnts to the United States Constitution, and (2) whether the state trial court denied McGinnis due process under the Fourteenth Amendment by excluding certain evidence from the punishment phase of his trial.
II
We review summary judgment rulings de novo, applying the same standard applied by the district court. See Alton v. Texas A & M Univ., 168 F.3d 196, 199 (5th Cir.1999). Summary judgment is appropriate where the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled tо judgment as a matter of law.”
III
McGinnis argues that the state trial court‘s decision tо excuse three African-Americans from the venire was unconstitutional. According to McGinnis, these excusals violated the “fair cross section” requirement of the Sixth Amendment, the
Of the 102 individuals who reported for jury duty in McGinnis‘s case, three were African-American. Texas law provides that after thе venire has been sworn, the trial court shall “hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror‘s service.”
A
McGinnis first argues that the state court‘s excusal of all three African-American venirepersons violated the Sixth Amendment.1 The Sixth Amendment requires that juries in criminal trials must be “drawn from a fair сross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). Accordingly, “venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Duren v. Missouri, 439 U.S. 357, 363-64, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). To establish a prima facie Sixth Amendment violation, McGinnis must show,
(1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.
As to the first requirement of the prima facie case, African-Americans are unquestionably a “distinctive group in the community” for Sixth Amendment purposes. See United States v. Royal, 174 F.3d 1, 6 (1st Cir.1999); United States v. Rioux, 97 F.3d 648, 654 (2d Cir.1996). As to the second requirement, McGinnis presents statistics on the proportion of African-Americans on jury venires relative to the wholе community.3 However, we need not decide whether these statistics are sufficient to satisfy the second requirement, because McGinnis‘s evidence plainly fails to satisfy the third requirement. McGinnis fails to show that the state court‘s excusal of the three African-Americans
According to the Supreme Court, a process systematically excludes a group if the underrepresentation of that group is “inherent in the particular jury-selection process utilized.” Duren, 439 U.S. at 366, 99 S.Ct. at 669; Timmel v. Phillips, 799 F.2d 1083, 1086–87 (5th Cir.1986). McGinnis presents insufficient evidence that underrepresentation of African-Americans is “inherent” in the excusal process under article 35.03. The only evidence McGinnis presents concerning the effect of article 35.03 involves his own venire.4 McGinnis asserts that the state court excused only sixteen out of the thirty non-African-American venirepersons who sought excusal under article 35.03, whereas the court excused all three African-American venirepersons.5 Based on these figures, he contends that the trial court excused 100% of the African-American venirepersons seeking excusal, but excused only 53.3% of the non-Africаn-American venirepersons seeking excusal.
These statistics alone are insufficient to raise a genuine issue that the Texas excusal provision inherently causes African-Americans to be underrepresented. We have held that “[o]ne incidence of a jury venire being disproportionate is not evidence of a ‘systematic’ exclusion.” Timmel, 799 F.2d at 1087. Therefore, “a one-time examplе of underrepresentation of a distinctive group wholly fails to meet the systematic exclusion element in Duren.” Id.; see also United States v. DeFries, 129 F.3d 1293, 1301 (D.C.Cir.1997); Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989).6 McGinnis fails to present
B
McGinnis also contends that the excusal of three African-American venirepersons violated the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause protects a criminal defendant against “purposeful racial discrimination” in the selection of his venire. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). “As in any equal protection case, the burden is, of course, on the [criminal] defendant who alleges discriminatory selection ... to prove the existence of purposeful discrimination.” Id. at 93, 106 S.Ct. at 1721 (quotation marks omitted).
Although we have found no precedent involving an Equal Protection challenge to an excusal provision such as the one at issue in this case, we are guided by Supreme Court precedent in other areas of jury and venire selection. See id. at 96-97, 106 S.Ct. at 1723 (peremptory challenges); Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) (grand jury selection). To make out a prima facie case of purposeful discrimination, the criminal defendant must show that the group excluded from jury participation is “а cognizable racial group,” and that the “relevant circumstances raise an inference” of purposeful discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. “In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.” Id. at 96-97, 106 S.Ct. at 1723. A criminal defendant may make out a prima facie case of discriminatory purpose by showing “substantial underrepresentation” of a cognizable group. Castaneda, 430 U.S. at 495, 97 S.Ct. at 1280. In addition, “a selection procеdure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” Id. at 494, 97 S.Ct. at 1280.
McGinnis has failed to raise an inference that the trial judge excused the three African-American venirepersons because of purposeful racial discrimination. As discussed above, the statistical evidence presented by McGinnis is insufficient to demonstrate that the judge disproportionately excluded African-Americans. Furthermore, the excusal provision is facially neutral as to race, and McGinnis presents no evidence that the judge treated the African-American venirepersons differently from the non-African-American venirepersons. For example, McGinnis cites no evidence that the judge accepted weaker exсuses from African-Americans than he did from non-African-Americans. In short, nothing in the record suggests that racial bias motivated the excusal of the three venirepersons.
C
McGinnis also argues that the trial court‘s excusal of three African-Americans from the venire violated the Due Process Clause of the Fourteenth Amendment. He cites Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), in which the Supreme Court reversed the denial of a writ of habeas corpus, because the petitioner alleged that the jury-selection procedures systematically excluded Afriсan-Americans. Three justices reasoned that such systematic exclusion violated the Due Process Clause. See id. at 501, 92 S.Ct. at 2168 (opinion of Marshall, J.); see also United States v. Cronn, 717 F.2d 164, 167 (5th Cir.1983) (reading Justice Marshall‘s opinion as resting on due process grounds).
In Peters, Justice Marshall addressed solely “whether a State may subject a defendant to indictment and trial by grand and petit juries that are plainly illegal in their composition.” Peters, 407 U.S. at 501, 92 S.Ct. at 2168. To Justice Marshall, it was clear that the systematic exclusion of African-Americans alleged in Peters violated the Equal Protection Clause and the Sixth Amendment. See id. at 498-500, 92 S.Ct. at 2166-67. The only issue was whether the criminal defendant, who was white, had standing to challenge the exclusion of African-Americans from the grand and petit juries. See id. at 500 n. 10, 92 S.Ct. at 2167 n. 10. Justice Marshall concluded:
[W]e hold that, whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the grоund that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law. This certainly is true in this case, where the claim is that [African-Americans] were systematically excluded from jury service.
Thus Justice Marshall‘s Peters opinion allows a criminal defendant to challenge the racial composition of his grand or petit jury under the Due Process Clause, only when the arbitrary or systemаtic exclusion of a particular racial group renders the jury “plainly illegal in [its] composition.” Id. at 501, 92 S.Ct. at 2168. In Peters, Justice Marshall accepted as given that the facts alleged by the petitioner violated the Equal Protection Clause and the Sixth Amendment. In the present case, however, McGinnis cannot show that the excusal of the three African-American jurors rendered the jury that convicted him “plаinly illegal.” As discussed above, McGinnis has not demonstrated the systematic exclusion of a distinctive group, as is required for a Sixth Amendment violation, nor has he demonstrated purposeful racial discrimination, as is required for an Equal Protection violation. Accordingly, McGinnis fails to provide a basis for his Due Process claim. The district court did not err in granting summary judgment as to this claim.
IV
Finally, McGinnis argues that the trial cоurt‘s decision to exclude certain testimony of an expert psychologist violated the Due Process Clause of the Fourteenth Amendment.
The trial court excluded as hearsay any testimony about McGinnis‘s specific statements during the interviеw. McGinnis does not dispute that such testimony is hearsay under Texas law. Rather, McGinnis contends that under Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), excluding such testimony violates the Due Process Clause. In Green, the Supreme Court held:
Regardless of whether the proffered testimony comes within Georgia‘s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, and substantial reasons existed to assume its reliability.... In these unique circumstances, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
Id. at 97, 99 S.Ct. at 2151-52 (quotation marks and citations omitted). The circumstances in Green were unique indeed. At his punishment phase, Green sought to introduce testimony that another individual had admitted to the murdеr. The witness planned to testify that the other individual confessed to killing the victim, “shooting her twice after ordering [Green] to run an errand.” See id. at 96, 99 S.Ct. at 2151.
Our court has limited Green to its facts. See Edwards v. Scroggy, 849 F.2d 204, 212 (5th Cir.1988). In Edwards, we upheld a trial court‘s decision to exclude from the punishment phase mitigating testimony concerning statements made by the defendant. There, a priest testified about his meeting with the defendant. The court allowed the priest to testify about his opinion of the dеfendant based on that meeting. See id. at 212. The priest testified that the defendant was gentle, soft spoken, and exhibited no hostility. See id. However, the trial court excluded as hearsay any testimony about direct statements made by the defendant during that meeting. See id. We upheld the trial court‘s evidentiary ruling, writing that “unlike Green, the State of Mississippi‘s application of its hearsay rule to exclude the evidencе proffered in this case was not unnecessarily limiting, nor did it operate to render [the] trial fundamentally unfair.” Id.
Likewise, excluding Dr. Quijano‘s hearsay testimony about McGinnis‘s direct statements was not unnecessarily limiting. Dr. Quijano was permitted to testify about his opinion of McGinnis‘s state of mind during and after the crime. Excluding McGinnis‘s statements to Dr. Quijano did not render McGinnis‘s trial fundamentally unfair. Accordingly, we find that the district court did not err in granting summаry judgment as to McGinnis‘s Due Process claim under Green. The state court‘s exclusion of hearsay evidence did not violate clearly established federal law.
V
For these reasons, we AFFIRM the district court‘s denial of habeas corpus relief under