Timothy Lanier ALLEN, Petitioner-Appellant, v. R.C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
No. 02-5.
United States Court of Appeals, Fourth Circuit.
Argued: June 4, 2003. Decided: April 28, 2004.
366 F.3d 319
Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, and SHEDD, Circuit Judges.
OPINION ON REHEARING EN BANC
PER CURIAM, announcing the judgment of the court:
Timothy Lanier Allen was convicted of first-degree murder in a North Carolina court and sentenced to death. Following exhaustion of his rights of review in the North Carolina courts, Allen filed a petition for a writ of habeas corpus in the district court. The district court denied all
On appeal, Allen contends (1) that the short-form indictment used by the State was unconstitutional; (2) that the prosecution withheld, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), jail records that indicated Allen was receiving daily doses of anti-withdrawal medication; (3) that the error in the jury verdict form and jury instructions during the sentencing phase of Allen‘s trial, which the North Carolina Supreme Court had found to be error but harmless error under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 10 L.Ed.2d 369 (1990), was in fact not harmless error; and (4) that Allen made a prima facie showing that his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (prohibiting the prosecution from using peremptory challenges in a racially discriminatory matter), were violated during jury selection in his State trial and that a Batson hearing should be held. Having heard this appeal en banc, the court decides as follows on each of these issues:
For the reasons given in Parts I-IV of the opinion written for the court by Judge Gregory, the court denies a certificate of appealability with respect to Allen‘s first claim and dismisses that claim, and the court affirms the district court with respect to the second claim. Chief Judge Wilkins and Judges Wilkinson, Niemeyer, Williams, Michael, Motz, Traxler, King, and Shedd join in Parts I-IV. Judge Luttig wrote a separate opinion concurring in the judgment on these two claims.
For the reasons given in Part V of the opinion written for the court by Judge Niemeyer, the court affirms the district court on Allen‘s Batson claim. Chief Judge Wilkins and Judges Wilkinson, Williams, Traxler, and Shedd join in Part
With respect to Allen‘s claim under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the court concludes that the district court erred in rejecting the claim. In State v. Allen, 331 N.C. 746, 417 S.E.2d 227 (1992), the North Carolina Supreme Court held that the North Carolina trial court‘s instructions on unanimity given to the jury during the sentencing phase was “error pursuant to McKoy” but that the error was “harmless beyond a reasonable doubt.” Id. at 228. The court holds that the North Carolina Supreme Court‘s conclusion that the McKoy error was harmless beyond a reasonable doubt resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, see
GREGORY, Circuit Judge, writing for the court in Parts I through IV:
I
Timothy Lanier Allen, an African American, was tried and convicted of first-degree murder for killing Raymond E. Worley, a Caucasian North Carolina State Highway Patrol officer. At trial, the State used eleven of thirteen peremptory challenges against otherwise qualified African American members of the venire. Seven African Americans were seated on the jury, one of whom was later removed for cause during the trial. Allen‘s fate was finally decided by a jury of six African Americans and six Caucasians.
At sentencing, the jury was instructed, in part, that they should “unanimously” find from the evidence whether one or more mitigating circumstances were present. The jury unanimously found the existence of three mitigating circumstances, but concluded that these mitigating circumstances were insufficient to outweigh the aggravating circumstances, and therefore recommended the imposition of a death sentence. After reading the verdict, the court polled each juror. The court reread the jury instructions requiring unanimity, and subsequently asked each juror if the jury‘s answers were “still your answers” and if each juror “still assent[ed] thereto.” The jurors affirmed their recommendation of the death sentence, which the court imposed.
Allen then filed a habeas petition and a motion under
II
We review a district court‘s decision to grant or deny habeas relief de novo. Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir.2002); Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999). On a claim for which the district court has not already granted a certificate of appealability, we must first determine whether “the applicant has made a substantial showing of the denial of a constitutional right.”
III
In this appeal, Allen first asserts that the short-form indictment failed to allege
A short-form indictment alleging elements of common law murder is sufficient to inform the defendant of the charge against him, and thus satisfies the requirements of the Sixth Amendment and the Due Process Clause. See, e.g., Hartman v. Lee, 283 F.3d 190, 192 (4th Cir.2002) (considering a challenge to a short-form indictment that is materially indistinguishable from that used in Allen‘s case). Because the short-form indictment does not raise a substantial constitutional question upon which reasonable jurists could disagree, we deny a certificate of appealability and dismiss this claim.
IV
Next, Allen asserts that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by concealing jail records indicating that he was given substantial daily doses of anti-withdrawal medication during the week following the crime.* Because the district court has issued a certificate of appealability, we proceed directly to the merits of Allen‘s claim.
In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. “[M]ateriality under Brady means that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.‘” Fullwood v. Lee, 290 F.3d 663, 687 (4th Cir.2002) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
In Allen‘s case, the jail records are not material to a Brady challenge because Allen testified at trial that he was neither under the influence of illegal drugs nor experiencing withdrawal at the time of the murder. Thus, even if Allen had received anti-withdrawal medication, his own testimony nullifies what, if any, probative value the jail records would have as to guilt or punishment. Moreover, even if the records were material, Allen would not be entitled to relief under Brady if “the
NIEMEYER, Circuit Judge, writing for the court in this Part V:
V
Allen also contends that the State‘s use of peremptory challenges during jury selection was tainted with racial bias, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that he is entitled to have his conviction and sentence vacated unless the State proffers race-neutral explanations for its conduct during jury selection almost twenty years ago. Allen is an African-American, and Trooper Worley, whom he was convicted of murdering, was white.
During jury selection, 65 venirepersons were called for consideration as potential jurors, of which 24 were African-Americans. The State exercised 13 peremptory challenges in selecting the trial jury panel and two alternates, leaving unused three challenges available to it. During the process, the State accepted 7 African-Americans and exercised peremptory challenges against 11 African-Americans. The jury as empaneled consisted of seven African-Americans and five whites, and the two alternates were white. Later during the trial when one of the African-Americans on the jury was excused, the court replaced her with the first alternate so that
The record of the trial indicates that the jury-selection process was careful, deliberate and rational, and all of the questioning by the attorneys and the rulings by the court focused on the appropriate criteria for picking a fair and impartial jury. The process began by seating 12 venirepersons in the jury box on November 4, 1985, and having the lawyers question those jurors as a group and individually. The original panel, selected at random, consisted of five African-Americans and seven whites. As each juror was excused either for cause or as the result of a peremptory challenge, another venireperson was placed in that juror‘s seat. For the next six to seven court days, the jurors were questioned, replaced, and new jurors questioned. At the end of the process, the jury panel consisted of seven African-Americans and five whites. There is no evidence in the approximately 1,000 pages of transcript covering jury selection that suggests any race-based questions, motives, or conduct. And no suggestion was made by either party during or after jury selection that the other was striking jurors based on race. At the end of jury selection, the court repeatedly asked counsel if the process was appropriate and whether there were any problems: “Before we impanel the jury I wanted to make certain after conferring with all lawyers that there was nothing that needed to be brought to my attention or if there was any problem that existed.” Counsel for Allen stated, “We know of nothing, Your Honor, except I would say this ...,” and counsel then raised an objection about the prosecution‘s placement of evidence on the table. After that was addressed, the court again asked counsel, “Is there anything that needs to go on the record before the jury is impan-
Allen made no objection during the entire week-long jury selection process that the State discriminated against African-Americans in exercising peremptory challenges, and he evidently saw no reason to undertake to make out a prima facie showing of discrimination that would have permitted the State “to come forward with a neutral explanation for challenging black jurors” and the court to remedy any problem. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Even though the Batson case had not yet been decided by the Supreme Court, it was pending in that Court, and the State asserts that the parties were aware of that fact.
For the first time on direct appeal, however, Allen contended that the State‘s exercise of peremptory challenges against nine of eleven African-American jurors denied him equal protection. Noting an absence of any explanation in the record for the State‘s use of its peremptory challenges, Allen made a statistical argument to the North Carolina Supreme Court as follows:
In this case, 65 prospective jurors were examined, including the examination of alternates: 37 whites, 24 blacks, 1 Indian, and three whose race is unknown. Of these, 14 were selected and 51 were excused: 22 by the Court for cause; 16 by the defendant peremptorily; and 13 by the prosecution peremptorily. Of the 13 jurors excused by the State, all but two were black. The final panel consisted of seven black and five white jurors, with two white alternates. During trial, the trial court removed the black juror in seat number 10 (Mrs. Johnson) and replaced her with the first alternate.
Allen asserted that these statistics and the voir dire of the jury created a prima facie
The State argued to the North Carolina Supreme Court that Allen knew of the Batson argument during trial and did not make any objection. The State claimed that by raising the issue two years later for the first time on appeal, Allen was “sandbagging” the State, depriving it of the fresh recollections of its jury selection strategy that would have accompanied a contemporaneous objection by Allen:
The defendant contends that he is entitled to raise this issue on appeal even though he failed to object at trial. If there ever was a case of “sandbagging,” this is it. If you do not object to the peremptory excusing of jurors until two years later, then only the cold record is available for the use of the peremptory challenges. The District Attorney has no opportunity to explain why he did not like any of the jurors he excused. The District Attorney probably does not keep notes of why he excused particular jurors, so if a hearing was held, he would have no knowledge of a particular juror since he has tried hundreds of cases since that time.
Additionally, the State argued that the statistics did not make out a prima facie case. It pointed out that “[o]f the 15 black veniremen tendered to the State, it accepted 7, or 47%“; that the jury as selected consisted of 58% African-Americans; and that at that time the population of Halifax County, from which the jury was drawn, was 48% African-American. The State also made an effort to reconstruct the reasons for its exercise of the peremptory challenges against African-Americans, noting that one important consideration given was whether any potential juror had a son because such a juror would empathize with Allen and his mother. The record of voir dire supports the State‘s assertion. The
The North Carolina Supreme Court rejected the Batson challenge based on the facts that (1) “the State accepted seven of the seventeen black veniremen tendered” and (2) “the majority of the jury which tried the defendant was black.” State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 862 (1988). The court concluded that in the circumstances where the State “accepted seven or forty-one percent” of the African-American members of the venire, an “inference” of racial motivation did not arise, and the defendant failed to make a prima facie case that the State‘s peremptory challenges were racially motivated. Id. Allen did not appeal this ruling to the United States Supreme Court in his petition for a writ of certiorari.
In his petition for a writ of habeas corpus filed in this case, Allen again raised the Batson issue, proffering only statistical evidence. After examining the record and the North Carolina Supreme Court‘s disposition of the Batson claim based on the record, the district court concluded:
Examining this claim based upon the clearly established federal law existing in 1988, this court finds that the North Carolina Supreme Court‘s adjudication of this claim is neither contrary to nor an unreasonable application of Batson. Batson did not establish a mathematical formula to be applied but rather instructed that the trial courts were to consider “all relevant circumstances”
surrounding the jury selection process. [Citation omitted]. Allen has failed to establish that the North Carolina Supreme Court‘s adjudication of this claim was contrary to, or involved an unreasonable application of, Batson.
On this record, we affirm. First, we conclude that Allen did not adequately preserve his Batson objection. In July 1985, Allen filed a motion to increase the number of peremptory challenges available to him on five grounds, one of which was that the prosecutor had in the past assertedly exhibited a “propensity toward excluding blacks from trial juries by use of his peremptory challenges.” Just prior to the beginning of jury selection on November 4, 1985, the trial court denied Allen‘s motion. After the jury selection process resulted in a jury that was 58% African-American, Allen did not renew his anticipatory Batson objection. Were these the only facts before us, Allen‘s case would be meaningfully indistinguishable from Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), where the Supreme Court held that a pretrial motion relating to the State‘s use of peremptory challenges was sufficient to raise a Batson objection. In this case, however, the trial judge began jury selection by denying Allen‘s motion that was based, in part, on concern for the prosecutor‘s anticipated use of peremptory challenges and concluded jury selection by twice inviting Allen to voice any concerns with the actual jury selection process. The judge stated, “Before we impanel the jury I wanted to make certain after conferring with all lawyers that there was nothing that needed to be brought to my attention or if there was any problem that existed.” After Allen‘s counsel voiced an objection to the courtroom placement of certain evidence, the judge again asked, “Is there anything that needs to go on the record before the jury
In reaching this conclusion, it is important to clarify that Allen‘s Batson claim was not procedurally defaulted under any North Carolina or federal law. Rather, he is denied any remedy on this claim because he expressly relinquished his right to a remedy at trial by, in effect, consenting to be tried by the jury as constituted. He cannot rescind that consent now.
But even if Allen had preserved his objection, the burden of establishing a prima facie case under Batson falls on the defendant, see Batson, 476 U.S. at 96-97, 106 S.Ct. 1712, and based on the record in this case, we conclude that Allen never carried that burden. We therefore agree with the district court‘s conclusion that the North Carolina Supreme Court‘s decision to reject Allen‘s Batson claim raised for the first time on appeal was not an “unreasonable application” of Batson. See
Of course, the standard that Allen must now meet is not whether the North Carolina Supreme Court was right. That issue was available to him on direct review to the Supreme Court. The standard on collateral review of a State decision challenged through federal habeas corpus requires that the federal court deny the writ
[A]n unreasonable application of federal law is different from an incorrect application of federal law.... Congress specifically used the word “unreasonable,” and not a term like “erroneous” or “incorrect.” Under
§ 2254(d)(1) ‘s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
In Batson, the Supreme Court articulated the “evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State‘s use of peremptory challenges to exclude members of his race from the petit jury.” 476 U.S. at 82, 106 S.Ct. 1712. To carry his burden, a defendant must show (1) that “he is a member of a cognizable racial group“; (2) that the “prosecutor has exercised peremptory challenges to remove from the venire members of the defendant‘s race“; and (3) that “these facts and any other relevant circumstances raise an inference that the prosecutor used [the peremptory challenges] to exclude the veniremen from the petit jury on account of their race.” Id. at 96, 106 S.Ct. 1712; see also Keel v. French, 162 F.3d 263, 271 (4th Cir.1998), cert. denied, 527 U.S. 1011, 119
In this case, the only facts that Allen identified to support an inference of purposeful discrimination were raw statistics about the racial make-up of the venire and those excluded from the jury through peremptory challenges. He has presented no other circumstantial facts that “raise an inference” that the State was discriminating against African-Americans in exercising its peremptory challenges. Indeed, the State has pointed out that its voir dire of the venire was the same for African-Americans as it was for whites, and it points out that the circumstances revealed by answers to its voir dire as to each juror justified its exercise of peremptory challenges on racially neutral grounds.
Moreover, the only “pattern” that we can discern from the raw statistics that Allen has produced suggests that the State did not exercise its peremptory challenges on the basis of race. We know, for instance, that with respect to Seat 1, Seat 4, and Seat 8, on which the State exercised a majority of its peremptory challenges to African-Americans, the State ultimately accepted an African-American to sit on the jury in each of those seats. Indeed, with respect to Seat 10, after the State exercised a peremptory challenge against a white and after Allen exercised peremptory challenges against two whites, the State accepted the first African-American slotted for that seat. When the first person seated in Seat 7 was an African-American, the State accepted the juror. On Seat 2, after a white was challenged for cause, the State accepted the replacement African-American. On Seat 6, when the State
The dissenting opinion faults the North Carolina Supreme Court for considering the statistical make-up of the impaneled jury in determining whether a Batson violation occurred and for failing to consider any of Allen‘s evidence of discrimination. Post at 357-358. It asserts that the North Carolina Supreme Court “should have focused on those members of the venire who were excluded from the jury.” Id. at 358. It then reiterates Allen‘s statistical argument and concludes that “Allen‘s evidence of discrimination is compelling.” Id. To support this conclusion, the dissenters recite Allen‘s evidence in its entirety:
Out of 66 prospective jurors on the venire, 38 (57.5%) were Caucasian, 24 (36.3%) were African American, and 4(6%) were of another race. (J.A. at 57.) The prosecution used 84.6% of its peremptory challenges to exclude African Americans from the jury, even though African Americans only represented 36.3% of the venire presented.
Id.
The use of these raw statistics, however, is both selective and uninformative. For example, the statistics as used do not account for the fact that the State exercised its peremptory challenges in a selective manner that reshaped the original panel seated, which had five African-Americans, into a jury of seven African-Americans. As already noted, most of the State‘s peremptory challenges were exercised on the selection of jurors to fill three seats, and the State ultimately accepted an African-American in each of those seats. We suggest that selective statistics just as well demonstrate the opposite inference. For example, the percentage of African-Americans accepted by the State and seated on the jury—58% (7 of 12)—exceeded the percentage of African-Americans on the venire—37% (24 of 65)—and exceeded the percentage of African-Americans in the county—48%.
Though statistics are not utterly bereft of analytical value, they are, at best, manipulable and untrustworthy absent a holistic view of the circumstances to which they apply. The statistics relied upon by Allen, and upon which the dissenters command a “focus,” do not tell the whole story or even an accurate story in this case. As we have already described in greater detail, the majority of the State‘s peremptory challenges against African-American venirepersons were exercised with respect to seats for which the State ultimately accepted an African-American juror. And
Perhaps out of concern that the statistical evidence proves nothing, the dissenting opinion engages in its own factfinding, comparing the circumstances of venireperson Jacqueline Davis, an African-American, with those of venireperson Mildred Thorne, who was white. Davis was peremptorily stricken by the State and Thorne was not. The dissent concludes that because both Davis and Thorne knew defense counsel and both seemed to respond similarly to questions about the death penalty, there was nothing to justify the State‘s treating them differently for purposes of exercising peremptory challenges. This comparison led the dissenters to conclude that the “decision to keep Juror Thorne is particularly suspect when compared to the prosecutor‘s decision to strike Juror Davis.” Post at 358 n. 3. The dissenting opinion then dresses up this “suspicion” into a factual “finding that the prosecution struck some jurors on the basis of race.” Id.
As a preliminary matter, we note that the comparison of these two particular jurors was not urged by the litigants but was initiated by the dissenters on the cold record. In fact, the dissenting opinion‘s comparison derogates from Allen‘s strenuous argument in his reply brief that “this Court cannot evaluate” the State‘s reasons for dismissing jurors “on a cold record,” and that any attempt to do so would be “speculation.” Indeed, an examination of the comparison suggests that only speculation supports the dissenting opinion‘s conclusions. First, it must be recognized that the State‘s reasons for exercising peremp-
The dissenting opinion‘s comparison of two jurors, totally out of context and without the data necessary to make an informed comparison, amounts only to speculation and implicitly confirms that, without the aid of such speculation, Allen has not otherwise presented evidence sufficient to raise an inference of race-based discrimination. Without any evidence of improper statements or questions, the statistical evidence considered more fully can hardly be found to evidence a pattern of the State exercising peremptory challenges to eliminate African-Americans from the jury.
In sum, while we need not resolve whether the North Carolina Supreme Court “got it right” in concluding that Allen failed to make a prima facie showing, there can be little doubt that its application of the Batson principles cannot be found to be an unreasonable one on this
WILLIAM W. WILKINS, Chief Judge, concurring:
I concur in Parts I through V of the opinion written by Judge Niemeyer and Judge Gregory. I also concur in Judge Gregory‘s plurality opinion stating that Allen is entitled to habeas relief based on the unconstitutional unanimity instruction given to the jury at his sentencing hearing. I write separately to add an additional comment regarding the prejudicial effect of this instruction.
As described in Judge Gregory‘s plurality opinion, the jury—operating under the constraints of this improper instruction—accepted three of the mitigating circumstances submitted to it (because all 12 jurors agreed) but rejected seven others (because at least one juror did not agree). One of the mitigating circumstances that the jury did not unanimously accept was the statutory “catch-all,” which allows the jury to consider any “circumstance or circumstances arising from the evidence which you, the jury, deem to have mitigating value,” id. at 101; see
The evidence here showed that Allen had a close relationship with some members of his family, including the eldest of his three sons. A reasonable juror could have concluded that Allen should be spared from the death penalty so that his children would not lose their father. Un-
I recognize that the record includes evidence that might have offset any sympathy the jury felt for Allen and his family, including evidence that Allen‘s victim had a wife and two children of his own. On the other hand, given the broad discretion that jurors have when voting for a life or death sentence, at least one juror could have concluded that taking a father from Allen‘s children would only compound the great tragedy inflicted on Trooper Worley‘s children. Cf.
It is not for us to decide which of these views is more sound, nor do I suggest that I would have concluded that a life sentence was appropriate. Our role is only to assess the likelihood that, in the absence of the unconstitutional instruction, at least one juror would have found as a mitigating factor that Allen deserved mercy and would have concluded that this factor, combined with others supported by the evidence, outweighed the aggravating circumstances established by the prosecution.* Based on my experiences as a trial
Judge Motz has requested that she be shown as joining in this opinion.
TRAXLER, Circuit Judge, concurring in part and concurring in the judgment:
I concur in Parts I through IV of the opinion authored by Judge Gregory and Part V of the opinion authored by Judge Niemeyer. I also concur in the judgment on the McKoy issue. Because I have come to view the McKoy issue somewhat differently from my colleagues, however, I write separately to express my views regarding how McKoy, Chapman, and Brecht intersect in the circumstances of this case.
I.
In the early morning hours of May 14, 1985, North Carolina Highway Patrolman Raymond Worley radioed his dispatcher that he was stopping two vans with Maryland license tags. After receiving no further communication, the dispatcher sent officers to search for Worley. Worley‘s patrol car was found on the side of the
Later that afternoon, Allen confessed to the murder. According to Allen, he, Alex, Worrell and Mack Greene left Washington, D.C. on May 11 in a stolen black van. They traveled to North Carolina, where they broke into a store and stole beer, cigarettes and the .22 and .38 caliber pistols. Allen kept the .38 pistol and gave the .22 pistol to Worrell. The men then stole a white van from a car lot. Allen and Alex got into the white van and followed Worrell and Greene in the black van, intending to return to Washington. While en route, Worley pulled over the two vans. After
After the jury convicted Allen of the first-degree murder charge and stolen property charges, a capital sentencing hearing was held pursuant to
At the time Allen was sentenced, the North Carolina Supreme Court had upheld this requirement of unanimity for mitigating circumstances. See State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 157 (1983). During the pendency of his direct appeal, however, the United States Supreme Court overruled Kirkley and struck down the unanimity requirement because it “violated the principle in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), that a sentencer may not be precluded from giving effect to all mitigating evidence.” McKoy v. North Carolina, 494 U.S. 433, 438, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (quoting Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). “Relevant mitigating evidence,” the Court held, “is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” Id. at 440, 110 S.Ct. 1227 (internal quotation marks omitted). Two weeks after the Supreme Court‘s decision in McKoy was handed down, the Supreme Court granted Allen‘s petition for writ of certiorari and remanded his case to the North Carolina Supreme Court for further consideration in light of McKoy. See Allen v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990).
On remand, the state conceded McKoy error in the charge in Allen‘s case, but argued that the error was “harmless beyond a reasonable doubt” based upon the post-sentencing jury poll, and the North Carolina Supreme Court agreed. See State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The United States Supreme Court denied certiorari, with three justices voting to grant the petition for writ of certiorari and reverse the judgment. See Allen v. North Carolina, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993). Allen‘s subsequent motion for appropriate relief, see
When McKoy was decided by the Supreme Court, the North Carolina court, faced with the task of dealing with a number of death sentences imposed under the erroneous instruction, was initially presented with the question of whether the error was susceptible to harmless error analysis. Although ultimately concluding that ”McKoy errors are subject to harmless error analysis,” the court recognized that “it would be a rare case in which a
This Court, in the McKoy error cases, has not inquired as to how individual jurors might have balanced the aggravating and mitigating evidence to resolve the harmlessness issue. On this issue, our only inquiry has been whether the evidence is such that one or more jurors could reasonably have found a statutory mitigating circumstance to exist. Where we have concluded there is such evidence, unless there is in the record something, such as a [post-verdict] poll, by which we can determine that the mitigating circumstance was unanimously rejected, we have consistently held McKoy error to be not harmless and the defendant entitled to a new capital sentencing proceeding. We have not thought it our function, in resolving the harmlessness issue, to surmise how one or more jurors might weigh the aggravating and mitigating evidence, which is capsulized in the form of individually submitted “circumstances.” This func-
tion, we continue to believe, is solely for the trial jurors who hear the evidence and are properly instructed on the law.
State v. Lloyd, 329 N.C. 662, 407 S.E.2d 218, 221-22 (1991) (“Lloyd II“) (internal citations omitted) (emphasis added).1
In the more than thirty capital cases to reach the North Carolina Supreme Court since McKoy, the court has found the unanimity instruction to have been a harmless error in a total of five cases (including Allen). In two cases, the court found (as it did in Allen) that the specific questions asked of the individual jurors during the polling revealed that the jurors had unanimously rejected the unfound submitted circumstances. See State v. Price, 331 N.C. 620, 418 S.E.2d 169, 173 (1992), vacated on other grounds by Price v. North Carolina, 506 U.S. 1043, 113 S.Ct. 955, 122 L.Ed.2d 113 (1993); State v. Laws, 328 N.C. 550, 402 S.E.2d 573, 575-77 (1991). In one case, the court found that the error was harmless because the jury actually found the existence of all proposed mitigating circumstances submitted, but nonetheless imposed the death penalty. See State v. Roper, 328 N.C. 337, 402 S.E.2d 600, 619 (1991). And, in the single remaining case, the court found the error harmless because the defendant presented no mitigating evidence during the sentencing phase of his trial and the only mitigating circumstance submitted was the “catch-all” cir-
II.
It is against the backdrop of this pertinent North Carolina law that I can now review the McKoy error under
A.
The McKoy error is undisputed. Thus, the initial question before us is the same as that before the North Carolina Supreme Court: Was the McKoy error harmless beyond a reasonable doubt? See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).2 But, because that question was adjudicated on the merits by the state court, we may only review that adjudication under the deferential provisions of
B.
With no barrier to the grant of habeas relief presented by
In recognition of the strong principles of comity and respect for state court judgments, Brecht directs that we not grant habeas relief to a defendant unless “[the error] had a substantial and injurious effect or influence on the jury‘s verdict,” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), or we are “in ‘grave doubt’ as to the harmlessness of [the] error.” Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002) (quoting O‘Neal v. McAninch, 513 U.S. 432, 438, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)); see also Boyd v. French, 147 F.3d 319, 327 (4th Cir.1998); Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir.1996) (en banc). We “do[] not ask whether the evidence of guilt was sufficient, whether the jury would have reached the same conclusion if the error had not occurred, or whether the jury reached the correct result based on the evidence presented.” Boyd, 147 F.3d at 327.
In order for an error to have a substantial and injurious effect or influence, it must have affected the verdict. Because juries have a limited number of responses to give in a criminal trial—guilty, innocent, or cannot decide—an error is harmless when the error did not substantially sway or substantially influence the response.
Thus, if the evidence is not merely sufficient, but so powerful, overwhelming, or cumulative that the error simply could not reasonably be said to have substantially swayed the jury‘s judgment, then the error is not harmful. On the other hand, if the federal court is in grave doubt about whether the trial error had a substantial and injurious effect or influence on the verdict and therefore finds itself in virtual equipoise about the issue, the error is not harmless. Cooper, 103 F.3d at 370 (citations and internal quotation marks omitted). Also, the inquiry is no longer one of who bears the burden of establishing harmlessness or error. Rather, it is “conceptually clearer for the judge to ask directly, ‘Do I, the judge, think that the error substantially influenced the jury‘s decision?’ than for the judge to try to put the same question in terms of proof burdens (e.g., ‘Do I believe the party has borne its burden of showing... ?‘).” O‘Neal, 513 U.S. at 436-37, 115 S.Ct. 992. “Grave doubt” exists when, in
Having reviewed the record in this case within the confines of this standard, I am compelled to join the vote to grant conditional habeas relief to Allen.
First, although I cannot say with certainty that the unanimity instruction had a substantial and injurious effect or influence on the verdict of death, the nature of the error in this case unquestionably leaves me in grave doubt as to whether it was in fact harmless. According to Allen‘s confession, Allen walked up to the driver‘s side window and shot Worley as he reached over to open the passenger door to his police car and Allen fled the scene with the others. Officer Worley likely lost consciousness within one minute and died within four minutes. During the sentencing phase of the trial, the state presented no additional facts in support of the two aggravating factors submitted, and we know that the jury unanimously found the existence of the only two aggravating circumstances submitted to it for consideration—that Allen shot Patrolman Worley while Worley was engaged in his official duties in order to avoid being arrested for crimes that he committed with his cohorts during their trip from Washington to North Carolina.
Allen, however, presented the testimony of himself, his mother, his girlfriend, and his ex-wife in mitigation. With regard to Allen‘s background, Allen‘s mother testified that, from an early age, Allen witnessed frequent arguments between his parents, culminating in his need for medi-
The second category of mitigating evidence pertained to Allen‘s status as a father. Allen is the father of three sons. That is uncontroverted. As noted above, he married his first wife when he was 17 years old after she became pregnant with his first son, Timothy Jr. They divorced three years later, when Allen was 20 years old, but it appears uncontroverted that Allen maintained a very close and ongoing relationship with Timothy Jr. after the divorce. Allen, his mother and his father also maintained an ongoing relationship with Allen‘s first wife. Indeed, Allen‘s first wife and their son Timothy Jr. were present at the sentencing hearing and
As a result of the erroneous “unanimity” instruction given at the conclusion of the sentencing hearing, we know that the jury unanimously found three mitigating circumstances: (1) that Allen had no history of the use of a deadly weapon; (2) that Allen expressed remorse for the death of Trooper Worley; and (3) that Allen completed his high school education by obtaining his general equivalency degree while imprisoned. We also know that the jury did not unanimously find the existence of the seven additional mitigating circumstances that the trial court submitted for consideration: (1) that Allen had no significant history of prior criminal activity; (2) that Allen‘s age at the time of the offense (30 years old) was a mitigating factor; (3) that Allen was reared in a single-parent home; (4) that Allen is the father of three sons; (5) that Allen remained employed during the times he was not incarcerated; (6) that Allen was a supporting parent of at least one of his children; or (7) the “catch-all” question of whether any single other circumstance arising from the evidence existed that the jury thought had mitigating value. But, we do not know whether any juror or jurors (fewer than twelve) found that any of these seven potentially mitigating circumstances existed or, if they did, whether the juror or jurors would have weighed the additional mitigator or mitigators against the two aggravating circumstances and voted against
Having reviewed the entire record and, in particular the evidence supporting the mitigating circumstances which were not unanimously found by the jury, I cannot conclude with “fair assurance,” O‘Neal, 513 U.S. at 437, 115 S.Ct. 992, that no “juror‘s sentencing decision would have been substantially influenced” by any of the mitigating factors not unanimously found by the jury, see Boyd, 147 F.3d at 328. And because, after reviewing the record and the evidence presented in mitigation and aggravation, I am in “virtual equipoise as to the harmlessness of the [McKoy] error,” O‘Neal, 513 U.S. at 434, 115 S.Ct. 992, I am directed by Supreme Court precedent to “treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or influence in determining the jury‘s verdict‘).” Id.
Second, I note that, while the Brecht analysis is not defined by opinions of the North Carolina Supreme Court, I believe habeas relief would be inappropriate under Brecht for an additional reason, more unique to this case. Brecht recognizes that “federal habeas courts play an important role in protecting the constitutional rights of state criminal defendants,” but also reminds us that this “role is circumscribed and secondary to that of state courts.” Boyd, 147 F.3d at 327.
In this case, the North Carolina Supreme Court found the McKoy error to be harmless (and thus one of the “rare cases” in which the defendant does not get a new sentencing hearing) because the jury poll revealed that the jury unanimously rejected the unfound mitigating circumstances, a decision which we have now rejected as being a unreasonable application of the
In conclusion, although I might have found none of the additional mitigating factors and voted to render the same verdict as did the improperly instructed jury, I would respect North Carolina’s view that it is not the court’s “function, in resolving the harmlessness issue, to surmise how one or more jurors might weigh the aggravating and mitigating evidence. . . . This function . . . is solely for the trial jurors who hear the evidence and are properly instructed on the law.” Lloyd, 407 S.E.2d at 222. And even though we would not be bound by North Carolina’s interpretation of how Chapman’s “harmless beyond a reasonable doubt” standard is to apply to a constitutional error reviewed under Brecht, the same principles of comity and respect for the state courts which underscore Brecht would render it improper for us to uphold North Carolina’s death sentence on this basis. In any event, the evidence submitted in support of the unfound mitigating factors is not insignificant nor incredible in my view, nor apparently in the view of the North Carolina trial court which admitted the evidence and submitted the mitigators (some over objection by the state) as being supported by the evidence. For all these reasons, I am in grave doubt as to the harmlessness of the trial error (and in no doubt as to the prejudice Allen would have suffered if this court had denied habeas relief following a reweighing process).
III.
For the foregoing reasons, I agree that the state court’s adjudication of Allen’s McKoy claim was unreasonable and that Allen is entitled to a conditional writ of habeas corpus because I am in grave doubt as to whether the McKoy error was harm-
Judge Shedd has requested that he be shown as joining in this opinion.
GREGORY, Circuit Judge, concurring in the judgment on the McKoy issue:
During the sentencing phase of Allen’s trial, the judge instructed the jury that it must unanimously find the existence of any mitigating circumstance before considering that circumstance in determining whether Allen should be sentenced to life imprisonment or death. This was the same instruction that the Supreme Court found unconstitutional in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). In McKoy, the Court held this jury instruction unconstitutional because the “unanimity requirement . . . prevent[s] the sentencer from considering all mitigating evidence.” 494 U.S. at 435. Thus, on direct review in this case, the Supreme Court vacated Allen’s sentence and remanded the case to the North Carolina Supreme Court in light of McKoy. Allen v. North Carolina, 494 U.S. 1021, 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990).
On remand, the North Carolina Supreme Court held that the unanimity instruction was indeed unconstitutional under McKoy. State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The court nonetheless affirmed Allen’s death sentence finding the error “harmless beyond a reasonable doubt” based solely on the jurors’ responses to a post-verdict poll. Id. at 228.
Allen then filed this motion for habeas relief, challenging the North Carolina Supreme Court’s finding that the concededly unconstitutional instruction constituted harmless error. The district court, although eventually rejecting Allen’s claim, granted a certificate of appealability with respect to this issue. Thus, the district court recognized that Allen had made a substantial showing of the denial of a constitutional right. See Slack, 529 U.S. at 483, 120 S.Ct. 1595. Because Allen has made this showing, we, the plurality, proceed directly to the merits of his claim.
As noted above, we may grant Allen habeas relief only if his claim meets the criteria for relief as detailed in
In this case, Allen is not entitled to relief on his jury instruction claim under the “contrary to” clause. The state court properly identified the governing law—both the holding in McKoy that North Carolina law imposing a unanimity requirement on mitigating circumstances is unconstitutional, and the proper harmless error standard.1 Moreover, Allen does not contend the state court unreasonably applied the governing law with respect to McKoy itself. After all, the state court held that the unanimity instruction employed in Allen’s sentencing proceeding was unconstitutional. Allen does contend, however, that he is entitled to relief under the “unreasonable application” clause because the state court unreasonably applied the harmless error standard, as articulated in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to the facts of his case.
The North Carolina Supreme Court found the McKoy error to be “harmless beyond a reasonable doubt” based solely on the results of a post-verdict poll of the jury. Allen, 417 S.E.2d at 228. The court recounted:
The clerk then polled the jurors by stating to each of them each mitigating circumstance and whether it was found or not. The clerk asked each juror whether these were the answers to “your issues,” whether these were still the answers to the issues and whether he or she still assented thereto. Each juror answered in the affirmative.
It appears from this poll that the jury was unanimous as to each of the mitigating circumstances which the jury failed to find.
Id. (emphasis added). Thus, on the basis of each juror’s responses to a routine post-verdict jury poll,
In doing so, the North Carolina Supreme Court placed inordinate reliance on a poll that was never designed to, nor did it, cure the McKoy error. Rather, as is evident from even a cursory review of its substance, the poll merely confirmed that each juror followed the trial court’s unconstitutional instruction in sentencing Allen to death.
When the clerk polled each juror, she read the entire verdict form, which not only specifically asked, “Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?“; but also stated,
The clerk’s questions imply that jurors were not being asked for their individual votes on the mitigating circumstances, but rather, that they were being asked if they still assented to the jury’s collective decisions. This is a vital distinction. A juror might recognize that he would have found the existence of a mitigating circumstance had he been permitted to consider the question on his own. However, he would also recognize that the jury did not unanimously find the existence of that circumstance, and so he would be compelled to “still assent” to the jury’s collective decision not to consider that circumstance, regardless of how he individually voted on the matter.
As the Supreme Court has explained, the unanimity requirement is unconstitutional because it “allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a sentence less than death.” McKoy, 494 U.S. at 439 (internal quotation marks omitted). “Moreover, even if all 12 jurors agree that there are some mitigating circumstances, . . . [a unanimity requirement] prevents them from giving effect to evidence supporting any of those circumstances in their deliberations . . . unless they unanimously find the existence of the same circumstance.” Id. The damage done by imposing a unanimity requirement is that it prevents a juror who found the existence of a mitigating circumstance from fully participating in the jury’s deliberations as to death. The requirement bars him or her from bringing his or her appreciation of that mitigating circumstance to bear on the jury’s collective sentencing decision.
It is at this critical stage—where we must attempt to understand the effects of the unanimity requirement on the jury’s internal deliberations—that the post-verdict poll fails to provide any meaningful insight. The poll did not, and could not, shed light on the critical issue of whether any individual juror voted for a given mitigating factor. In short, the post-verdict poll reveals nothing about the individual votes by the jurors on the seven mitigating circumstances that the jury did not unanimously find. As Justice Blackmun observed, such a poll “tells us nothing about how the juror would have voted—either on a particular mitigating circumstance or on the ultimate life-or-death question—had he been instructed that he could give effect to all the mitigating evidence, as the Constitution requires.” Price v. North Carolina, 512 U.S. 1249, 1251, 114 S.Ct. 2777, 129 L.Ed.2d 888 (1994) (Blackmun, J., concurring in the grant of certiorari).
Therefore, we find that in determining that this post-verdict poll rendered the McKoy error harmless, the North Carolina Supreme Court’s application of
Although the jury poll was the sole basis for the state court’s (unreasonable) determination that the McKoy error was harmless, and it was also the only argument raised by the government on appeal to support this (unreasonable) determination, we may affirm on any ground supported by the record, even if it has not been raised by the parties. See In re A.H. Robins Co., 880 F.2d 709, 748 (4th Cir.1989), abrogated on other grounds by Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). It is therefore appropriate for us to engage in the additional analysis mandated by Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
Under Brecht, a habeas petitioner is still not entitled to relief, despite having satisfied AEDPA criteria, unless the state court’s unreasonable application of federal law had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 637.4 The Brecht
standard, adopted from and first explicated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), requires a greater showing of prejudice than Chapman, Brecht, 507 U.S. at 637, but a lesser showing than the “reasonable probability” standard. Kyles v. Whitley, 514 U.S. 419, 435-36, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Under the Brecht standard, the inquiry cannot be merely whether sufficient evidence “support[s] the result,” or whether the jurors were “right in their judgment, regardless of the error or its effect upon the verdict,” Kotteakos, 328 U.S. at 764-65; rather the proper inquiry must focus on whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 631-39. If a court “cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos, 328 U.S. at 765.
Neither Brecht nor Kotteakos was a capital case, and thus they only addressed the question of the defendant’s guilt or innocence, not the question of whether the defendant should be executed. Accordingly, we recognize that the Brecht-Kotteakos standard must be somewhat modified when applied in circumstances like those at issue here—the sentencing phase of a capital case. In this context, that standard requires a reviewing court to determine whether it can say “with fair assurance” that an error did not “substantially sway[]” the response of the jury to the question put before it, i.e., should the defendant receive the death penalty. Kotteakos, 328 U.S. at 765. Moreover, in this context a reviewing court must undertake the Brecht analysis mindful of the Supreme Court’s recognition that an appellate court faces certain difficulties when “determining sentencing questions in the first instance.” See Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); accord Caldwell v. Mississippi, 472 U.S. 320, 330, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
With these principles in mind, we turn to the application of the standard required by Brecht and Kotteakos to the facts at hand. We note at the outset that the jury poll at issue in this case was so woefully inadequate, for all the reasons outlined above, that it alone clearly did not render the McKoy error harmless even under the Brecht standard. We next examine whether, based on a more robust review of the record evidence beyond the jury poll, the McKoy error had a “substantial and injurious effect or influence” on the jury’s sentencing recommendation in Allen’s case. In particular, we ask whether we can conclude, with “fair assurance,” that had the jurors been permitted to independently assess the additional mitigating evidence presented at Allen’s sentencing proceeding, and weigh that evidence, along with the mitigating factors unanimously found, against the aggravating circumstances, they would nevertheless have voted for the death penalty. We cannot.
In this case, the trial judge found sufficient evidence to submit two aggravating factors and ten mitigating factors to the jury.5 The jurors unanimously found the
existence of two aggravating factors: (1) murder committed for the purpose of avoiding a lawful arrest and (2) murder of a law enforcement officer while engaged in the performance of his official duties. They also unanimously found three mitigating factors to be present: (1) Allen had no history of crimes involving deadly weapons, (2) he expressed remorse for the victim’s death, and (3) he earned a GED. However, because of the unconstitutional McKoy instruction, each juror was deprived of the ability to individually weigh the other seven mitigating factors.
North Carolina statutory law requires jurors to determine: (1) whether any sufficient aggravating circumstances exist; (2) whether any sufficient mitigators exist; and (3) after weighing these considerations, whether the defendant should be sentenced to life imprisonment or death.
So we proceed, as we must, under the North Carolina statutory scheme, and in doing so further recognize that a North Carolina court may not impose death if a single juror votes in favor of life imprisonment. Indeed, “[i]f the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment . . . .”
In addition to the mitigating factors unanimously found by the jury (that Allen earned a GED degree, had no history of crimes involving deadly weapons, and expressed remorse for the victim’s death) the defense offered evidence of seven other mitigating factors: (1) Allen’s age, (2) his lack of significant criminal history, (3) his rearing in a single-parent home, (4) his parenting of three children, (5) his history of gainful employment, (6) his status as a supporting parent to a child, and (7) a catch-all category for other circumstances that the jury deemed to have mitigating value.
During Allen’s sentencing proceeding, substantial evidence was presented to support several of these additional mitigating factors. However, we do not believe that
But of course that is not the situation here. Allen offered evidence that from the time he was a young boy he was raised in a single-parent home, and although he had more frequent contact with his father later in life, he only saw his father three or four times a year until he entered sixth grade. Further, Allen remained employed when he was not incarcerated, a fact that the dissent does not contest. And, in addition to the indisputable fact that Allen fathered three children, there was abundant evidence that he maintained an ongoing, supportive relationship with his eldest child, Timothy Jr. Indeed, Timothy Jr. was present at his father’s sentencing hearing, at which his mother, Allen’s long divorced ex-wife, unequivocally testified that Allen had a “very good” relationship with their son.
Furthermore, the jury heard a good deal of additional testimony that could qualify as another “circumstance . . . deem[ed] to have mitigating value.”
Given this evidence, we cannot say “with fair assurance” that no reasonable juror could have found these circumstances to have mitigating value. Nor can we conclude that precluding the jurors from individually weighing these last five mitigating factors plus the three unanimously found mitigators against the two aggravating circumstances did not “substantially sway[]” their decision to recommend that Allen be executed. Kotteakos, 328 U.S. at 765. Rather, there is a sufficient likelihood that at least one juror, after hearing this evidence and properly weighing all eight colorable mitigating factors against the two aggravating factors, would have been persuaded to spare Allen’s life. This is not to suggest that Allen did not commit a horrible crime, nor that jurors would not properly consider the aggravating circumstances—murder of a law enforcement officer performing his duties for
As the Supreme Court recognized in Mills v. Maryland, 486 U.S. 367, 374, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), even if all twelve jurors agreed that some of the non-unanimous mitigating circumstances were present, and further agreed that those mitigating circumstances (combined with the unanimously found mitigators) outweighed the aggravating factors, if the jurors disagreed as to the particular mitigating circumstances because of the unconstitutional instruction, they would never be permitted to “engage in the [proper] weighing process or any deliberation on the appropriateness of the death penalty.” Id. Indeed, even if eleven jurors agreed that five non-unanimous mitigating factors were present, under the unconstitutional jury instruction they could have found no additional mitigating circumstances. Id. Thus, instead of those eleven jurors weighing eight mitigating circumstances against the two aggravating factors, they were only permitted to weigh the three mitigating circumstances on which they were unanimous. Recognizing that all aggravating and mitigating factors do not warrant the same weight, and that jury deliberations are an inexact science at best, this means that a possible fifty-five additional votes (eleven jurors times five factors) could have been cast in favor of mitigation. Any one of these fifty-five possible votes could, in turn, have formed the basis for a decision against the imposition of the death penalty. When the substantial evidence presented is evaluated in light of the broad discretion conferred on jurors in capital sentencing proceedings, we find ourselves unable to say, as we must to uphold a sentence of death, that none of the jurors would have been persuaded to vote for life imprisonment instead.7 After all, it only takes one hold-out juror to prevent the imposition of the death penalty, and in this case, we cannot say with
Judges Luttig and Williams, of course, reach a contrary conclusion. In the view of Judge Williams, the effect of the mitigating factors unlawfully kept from individual consideration by the jurors is so minimal that she can conclude, with “fair assurance,” that the judgment was not substantially swayed by the error. Post at 354. We respectfully disagree with Judge Williams’ conclusion. Her approach does not appear to adequately acknowledge the possible cumulative impact of the additional mitigating factors. Even if a juror might not have found that each of those additional factors independently outweighed the aggravators, a reasonable juror well could have concluded to the contrary when considering those factors collectively, and in addition to the three unanimously found mitigators. A reasonable juror could have determined, when the additional evidence as to Allen’s difficult childhood, his ongoing emotional support of his son, and his employment are considered along with Allen’s genuine remorse for the murder, his achievement while incarcerated, and his lack of history of crime involving deadly weapons, that those mitigating factors out-weighed the two aggravating circumstances. Cf. Caldwell, 472 U.S. at 330, 105 S.Ct. 2633 (“Whatever intangibles a jury might consider in its sentencing deliberation, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed [those] compassionate or mitigating factors stemming from the diverse frailties of humankind.’“) (citation omitted).
A reviewing court’s proper role in determining an error’s harmlessness entails an individualized inquiry of the sort in which we have engaged here. The inquiry before us is “not [whether these laymen] were right in their judgment, regardless of the error or its effect upon the verdict” but “rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Kotteakos, 328 U.S. at 764. Long ago the Supreme Court cautioned that in assessing whether an error is harmless, an appellate judge is to determine jurors’ “reactions not by [the judge’s] own, but with allowance for how others might react and not be regarded generally as acting without reason.” Id. (emphasis added). Thus, the Court directed: “The crucial thing is the impact of the thing done wrong, on the minds of other men, not on one’s own, in the total setting.” Id.
Our assessment of the harmlessness of an error is particularly significant in this case because of the character of the proceedings at issue—a sentencing hearing held to determine whether a man lives or dies. In reviewing for harmless error, the Supreme Court has told us that a court is to consider “the character of the proceeding, what is at stake upon its outcome, and the relation of the error asserted to casting the balance for decision on the case as a whole.” Kotteakos, 328 U.S. at 762. This does not mean that we apply a different harmless error standard in capital cases, but we must apply the standard with the utmost care, see Caldwell, 472 U.S. at 329, 105 S.Ct. 2633 (“[U]nder the Eighth Amendment the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital
Having conscientiously applied the Supreme Court’s directives, we cannot say with fair assurance that the totality of the mitigation evidence weighed against the two aggravating factors would not have swayed at least one juror to spare Allen’s life. Thus, we hold that the McKoy error had a “substantial and injurious effect or influence in determining the jury’s verdict” warranting habeas relief under Brecht. At a minimum, the likelihood that a properly-instructed jury would not have voted to unanimously impose the death penalty is sufficiently great to raise “grave doubt” as to whether the McKoy error was harmless. See O‘Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (holding that when “grave doubt” exists in a habeas case, “[w]e conclude that the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a ‘substantial and injurious effect or influence in determining the jury’s verdict’)“)). Because the Brecht standard does not require even a reasonable probability that the error in question affected the outcome of the proceeding, see Kyles, 514 U.S. at 436, 115 S.Ct. 1555, we find a “substantial and injurious effect” as well. Therefore, we join the judgment on the McKoy issue and hold that Allen is entitled to habeas relief under Brecht.8
During the sentencing phase of trial, the State trial court submitted a form to the jury which, together with the trial court‘s instructions, instructed the jury that it could find or reject mitigating circumstances only by a unanimous vote. Of ten mitigating circumstances submitted to the jury, the jury found unanimously that three existed and seven did not. The jury then found unanimously that these mitigating circumstances were “insufficient to outweigh the aggravating circumstance or circumstances” and that the aggravating circumstances, considered in light of the mitigating circumstances, were “sufficiently substantial” to call for the imposition of the death penalty.
The United States Supreme Court granted a writ of certiorari and, in light of its decision in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), vacated the State court judgment and remanded the case to the North Carolina Supreme Court for reconsideration in light of McKoy. Allen v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990).
The North Carolina Supreme Court reconsidered the trial record and found that the jury form and instructions had indeed violated the principles of McKoy but that, in light of a jury poll that had been conducted by the trial court, the error was “harmless beyond a reasonable doubt.” State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The United States Supreme Court denied Allen‘s petition for a writ of certiorari to review the North Carolina Supreme Court‘s decision on reconsideration. Allen v. North Carolina, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993).
Allen raised the McKoy issue again in the district court on a petition for writ of habeas corpus, and the district court concluded that the North Carolina Supreme Court‘s decision was not an unreasonable
In McKoy, the Supreme Court applied its decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), to hold that the requirement in North Carolina that a jury find mitigating evidence by a unanimous verdict violates the U.S. Constitution “by preventing [each juror as] sentencer from considering all mitigating evidence.” 494 U.S. at 435. If a unanimous verdict on mitigating evidence were required, then only one juror could foreclose others’ consideration of mitigating evidence, thus denying each juror the possibility of considering the mitigating evidence in casting a vote for the death penalty. Id. at 443. The Court explained that “[t]he unanimity requirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a sentence less than death.” Id. at 439 (internal quotation marks and citations omitted). In sum, the Court concluded that “each juror must be allowed to consider all mitigating evidence in deciding . . . whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death.” Id. at 443 (emphasis added).
Applying McKoy to the circumstances in this case, the North Carolina Supreme Court concluded that the verdict form and the instructions given in connection with it violated the principles of McKoy and therefore constituted trial error. But the error, it found, had no effect on the trial because the trial court conducted a poll of the jurors which revealed that the individual jurors’ votes were “unanimous as to each of the mitigating circumstances which the jury failed to find.” Allen, 417 S.E.2d at 228. The court held that the error, therefore, “was harmless beyond a reasonable doubt.” Id.
Because I conclude that the North Carolina Supreme Court‘s decision was not an unreasonable application of clearly established federal law as determined by the Supreme Court, I agree with the district court that the writ of habeas corpus must not be granted with respect to the McKoy error. See
Because the North Carolina Supreme Court correctly identified the relevant Supreme Court standards, compare Allen, 417 S.E.2d at 228, with Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the only question we must answer in applying
A detailed examination of North Carolina‘s application of the Chapman standard shows that it was not unreasonable. Under the process followed by the State trial court, the individual vote of each juror can be determined on the record with respect to each mitigating circumstance. Because the individual jurors’ votes on the mitigating circumstances were unanimous, the unconstitutional possibilities that could have resulted from a McKoy error never happened in this case. If the trial court had relied only on the verdict form returned by the jury, I would agree that we could not determine whether or not the McKoy error had tainted the verdict because we could not determine whether one juror or a few jurors had frustrated the finding of mitigation by other individual jurors so that the others could not consider their finding of mitigating evidence in voting on the death penal-
After the jury returned its verdict and the clerk read it in open court, the trial judge conducted a poll instructing the jury as follows:
Members of the jury, at this time I am going to ask that Madam Clerk, when she is ready, poll each of you. This is the same procedure that we used on Monday. You will be asked individually as to your answers to the issues and as to the recommendation.
(Emphasis added). Each individual juror was then polled on the verdict form, including the answers to each of the mitigating circumstances, and asked, “Are these the answers to your issues” and “And do you still assent thereto?” (Emphasis added). In each case, the juror said “yes.” Then each individual juror was asked whether the recommendation of the death penalty was “still your recommendation” (emphasis added) and whether the individual juror “still assent[ed] thereto.” Again, in each case, the juror responded that this was his or her individual recommendation. Because each juror individually indicated that the vote on the ten mitigating factors was also his or her individual vote, the verdict on the mitigating factors was in fact unanimous, and the McKoy error did not deny any juror the opportunity to consider his or her individual finding of a mitigating circumstance.
Accordingly, I would conclude that the decision of the North Carolina Supreme Court finding the McKoy error harmless was not an unreasonable application of Chapman. The court clearly understood the holding in McKoy, and it determined whether any individual juror‘s views on mitigating evidence were suppressed by the unanimity requirement, concluding that no individual juror‘s view on a mitigating circumstance was over-voted.
I am authorized to say that Judge Wilkinson concurs in this opinion dissenting from the judgment on the McKoy issue.
LUTTIG, Circuit Judge, concurring in the judgment and dissenting:
I do not join in any portion of the court‘s opinion. I do, however, agree with the conclusions reached by the court in Parts III, IV, and V of its opinion. For reasons that I will offer expeditiously (subject only to any time needed by my colleagues to prepare response), I dissent from the court‘s judgment on the McKoy issue.
This case was first argued before a panel of the court on September 25, 2002. The panel issued its decision and opinion on February 5, 2003, and a corrected opinion on February 14, 2003. Because more than 120 days had elapsed between the filing of the petitioner‘s reply brief on September 3, 2002, and the date that the panel issued its decision and opinion, the panel was in violation of the time limitations set forth in
We issued our order directing en banc consideration of the case on March 24, 2003, and the case was argued before the court en banc on June 4, 2003, almost a year ago.
Under the time limitations established by federal statute,
* In 1996, the Judicial Council of the Fourth Circuit adopted the time limitations set forth in section 2266 for decision of habeas petitions, in all capital cases, regardless of
In my judgment, for reasons internal to the court, the opinion writing process is not likely to conclude in the immediately foreseeable future. However, it is clear at this time that the members of the court have come to rest on the disposition of the case.
Because the court has been in violation of the statutory time limitations governing the decision of this case for over eight months already, there is in my judgment no final set of opinions immediately forthcoming, and the members of the court have come to rest on the final disposition of the case, I believe that the only responsible course is for the court to issue those opinions that are final at this time, which opinions represent the court‘s decision in the case, and for any further separate opinions, including my own dissent, to be filed in due course following announcement of the court‘s judgment and decision. This is the course adopted by the court today, and, given the circumstances, it is a course of which I approve.
In order to expedite and facilitate the completion of the opinions for the court in this case, the State of North Carolina should promptly decide whether to move the court for reconsideration of today‘s decision and, if it chooses to seek reconsideration, file the appropriate papers, after which the petitioner may file responsive papers. If the state chooses not to move the court for reconsideration, it is my understanding that the majority judgment and opinion issued today, together with the separate opinions filed, will become the final judgment and set of opinions in the
whether the state from which the capital case originates has opted-in or not. See Judicial Council Order No. 113 (4th Cir. Oct. 3, 1996); see also Truesdale v. Moore, 142 F.3d 749, 758 (4th Cir.1998) (“Order No. 113 imposes on district courts and the circuit court a timetable for deciding petitions brought under
Contrary to Judge Gregory‘s assertion, it is not the case that we only violate the time limitations of Order No. 113 if the Circuit Executive has inquired into our delay and found it unjustified. An inquiry by the Circuit Executive, which Order No. 113 “author-ize[s],” or even a determination after a contempt proceeding brought by the Judicial Council itself that we have no valid reason for violating these time limitations, for which
WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
I concur in Parts I, II, III, IV, and V of the court‘s opinion. I write separately to dissent from the court‘s judgment on the McKoy issue. To obtain habeas relief based on trial error, a habeas petitioner must establish that “the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” * Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). I respectfully disagree with the majority‘s conclusion that the error in this case warrants habeas relief. Given the jury’s finding of two specific aggravating factors related to Allen’s brutal and terrible murder of Trooper Worley, the mitigating circumstances that the faulty jury instruction prevented the jury from considering, and the three mitigating circumstances that the jury unanimously found to exist but unanimously found insufficient to outweigh the aggravating factors, I believe that one can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error,” Kotteakos, 328 U.S. at 765, and thus that the error did not have a “substantial and injurious effect or influence in determining the jury’s verdict,” Brecht, 507 U.S. at 637. Accordingly, I respectfully dissent from the court‘s judgment on the McKoy issue.
GREGORY, Circuit Judge, dissenting from the court‘s opinion given in Part V:
In this Part, I write in dissent from the court’s opinion in Part V.
Allen contends that his Sixth and Fourteenth Amendment rights were violated under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court granted Allen a certificate of appealability on this issue. Thus, Allen has already made “a substantial showing of the denial of a constitutional right.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Accordingly, we can proceed to the substance of Allen’s claim.
Allen contends that the prosecution violated his constitutional rights by using eleven of thirteen (84.6%) peremptory challenges against otherwise qualified African American members of the venire, while the venire consisted of only 24 (36.3%) African Americans. Allen filed a pretrial motion on July 19, 1985, requesting additional peremptory challenges for the defense because the prosecutor had a “propensity toward excluding blacks from trial juries by use of his peremptory challenges.” (S.J.A. at 2.) The trial court denied this motion and proceeded with trial. Upon Allen’s conviction and sentencing, Allen brought a direct appeal to the North Carolina Supreme Court, which the court dismissed. For the reasons articulated below, I would hold that the North Carolina Supreme Court’s Batson analysis is con-
* I note that Judge Gregory properly recognizes that the same Brecht/Kotteakos harmless error standard applies to both capital and non-capital proceedings. See ante at 348-349; see also Rouse v. Lee, 339 F.3d 238, 254 (4th Cir.2003) (en banc) (“[A]ny distinctions between the procedures required in capital and noncapital cases are primarily relevant to trial .... (internal quotation marks omitted)), cert. denied 124 S.Ct. 1605 (2004); cf. Satterwhite v. Texas, 486 U.S. 249, 256-58, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (holding that the same Chapman harmless error standard applies on direct review of both capital and noncapital cases).
A
Before considering Allen‘s Batson claim on the merits, however, I first address whether defense counsel has adequately preserved a Batson objection. Allen‘s trial took place pre-Batson, when the governing law on racial discrimination in jury selection was Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).1 Under Swain, a defendant was required to “show the prosecutor‘s systematic use of peremptory challenges” to strike African American jurors “over a period of time.” Id. at 227. Allen‘s attorneys attempted to meet this burden by filing a pretrial motion focusing on the State‘s history of excluding African American jurors. Because Swain asked a trial court to consider the government‘s use of strikes “over time” rather than in the specific case before the court, Allen‘s motion was denied before the prosecution had used a single peremptory challenge, and Allen never raised the objection again. Thus, the issue before this Court is whether a pretrial motion alleging that the prosecution has shown a propensity toward excluding African American jurors is sufficient to preserve a Batson claim on appeal.
The Supreme Court considered this question in Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). In Ford, an African American defendant, James A. Ford, filed a pretrial “Motion to Restrict Racial Use of Peremptory Challenges,” alleging that the prosecutor had “over a long period of time” excluded black persons from juries. . . .” Id. at 413-14. Although the defendant failed to cite any legal authority, the Supreme Court interpreted his motion as effectively raising an objection under Swain. Id. at 418. The Court explained, “[w]e think petitioner must be treated as having raised such a claim, although he certainly failed to do it with the clarity that appropriate citations would have promoted.” Id. Following the trial court‘s denial of this motion, “the prosecution exercised 9 of its 10 peremptory challenges to strike black prospective jurors, leaving 1 black venire member on the jury.” Id. at 415. Ford did not object to the use of peremptories as to any of these individual jurors. Rather, he waited and raised the Swain issue for a second time in a post-conviction motion for a new trial. Id. at 416.
The Supreme Court ruled that Ford‘s initial, pretrial motion was sufficient to preserve the Batson issue on appeal. Writing for a unanimous Court, Justice Souter stated:
Both Swain and Batson recognized that a purposeful exclusion of members of the defendant‘s race from the jury selected to try him would work a denial of equal protection. . . . Because Batson did not change the nature of the violation recognized in Swain, but merely the quantum of proof necessary to substantiate a particular claim, it follows that a defendant alleging a violation of equal protection of the law under Swain necessarily states an equal protection violation subject to proof under the Batson standard of circumstantial evidence as well.
Following Ford, several of our sister circuits have elaborated on when a defen-
In each of these cases wherein the Batson claim was waived, the court relied on a defendant’s failure to make any challenge—either under Batson or Swain. The focus in each case was on whether the trial court had been afforded at least some minimal opportunity to address the constitutional objection, regardless of the form of that objection.
Consistent with this reasoning, the Eleventh Circuit has specifically held: “In cases . . . where the trial took place pre-Batson, a properly made Swain claim made in a pretrial motion is treated as a timely made Batson objection for the purpose of preserving the Batson issue for appeal.” Cochran v. Herring, 43 F.3d 1404, 1409 n. 7 (11th Cir.1995). In Cochran, just as in the present case, the defendant, “before the actual striking of jurors began,” filed a Swain motion based on the prosecution’s history of systematically striking African American jurors. Id. at 1406. The trial court denied the motion, and defense counsel never raised the issue again, even though the prosecution eventually struck “seven of the nine black members of the venire panel.” Id. Despite Cochran’s failure to object to the use of peremptory challenges as to any specific juror, the Eleventh Circuit held that the pretrial Swain motion on its own was sufficient to preserve the Batson issue. Id. at 1409-10. See also Wright v. Hopper, 169 F.3d 695, 708-09 (11th Cir.1999) (holding that defendant was barred from bringing a Batson claim because he failed to raise such a claim at “trial, or on direct appeal, or in his state coram nobis proceeding“).
Allen, like the defendants in Ford and Cochran, presented the trial court with a pretrial motion arguing that “the Prosecutor has shown a propensity toward excluding blacks from trial juries by use of his premptory [sic] challenges in cases wherein the Defendant is a black person, and the Defendant expects that the Prosecutor will follow that practice in this case.” (S.J.A. at 2.) With this language, Allen effectively raised an objection under Swain. See Ford, 498 U.S. at 418.
If the objection is raised during jury selection, the error is remediable in any one of a number of ways. Challenges found to be abusive might be disallowed; if this is not feasible . . . additional jurors might be called to the venire and additional challenges granted to the defendant; or in cases where those remedies are insufficient, the jury selection might begin anew with a fresh panel. If, on the other hand, a Batson objection may be raised after the jury has been sworn and trial has begun, there can be no remedy short of aborting the trial.
McCrory, 82 F.3d at 1247 (emphasis added) (internal citations omitted). In short, the focus is not on whether a defendant requested a particular kind of relief, but rather, whether he provided the trial court with an opportunity to correct the constitutional violation before the jury was empaneled. In this case, Allen’s pretrial mo-tion achieved this result, and therefore it is sufficient to preserve Allen’s Batson claim.2
In sum, consistent with the Supreme Court and each circuit to have considered the question, I would find that Allen’s Swain motion is a sufficient contemporaneous objection to preserve the Batson issue for this habeas petition. Thus, I now turn to the substance of Allen’s Batson claim.
B
In conducting a Batson hearing, a court must first determine whether a defendant can show that: (1) the defendant is a member of a cognizable racial group; (2) the prosecutor used the challenges to remove members of the defendant’s race from the venire; and (3) other facts and circumstances surrounding the proceeding raise an inference that the prosecutor discriminated in his or her use of peremptory challenges. Batson, 476 U.S. at 96-97; Keel v. French, 162 F.3d 263, 271 (4th Cir.1998). “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” Batson, 476 U.S. at 97.
Without considering any of Allen’s evidence of discrimination, the North Carolina Supreme Court denied Allen’s Batson
As contained in the record, Allen‘s evidence of discrimination is compelling. Out of 66 prospective jurors on the venire, 38 (57.5%) were Caucasian, 24 (36.3%) were African American, and 4(6%) were of another race. (J.A. at 57.) The prosecution used 84.6% of its peremptory challenges to exclude African Americans from the jury, even though African Americans only represented 36.3% of the venire presented.3
This Court has previously recognized that a prima facie case of a Batson violation can be affirmatively made solely by looking to the statistical evidence of who was peremptorily struck by the prosecution. In Howard v. Moore, 131 F.3d 399, 407 (4th Cir.1997) (en banc), we held that a “prosecutor‘s striking of six out of the seven black prospective jurors constituted a prima facie case of discrimination. Judge Williams, writing for the en banc court, logically concluded that strong statistical evidence—without more—is enough to establish a prima facie case of
Despite the evidence that race was a factor in the prosecution‘s use of peremptory challenges, the government insists that no Batson violation exists because the jury was 58% African American.5 (Br. of Appellee, at 23). In addition, the government emphasizes that, in leaving seven African Americans on the jury, “the State did not use all of its peremptory challenges.” (Br. of Appellee, at 22). At most, however, this evidence only shows that race may not have been a determinative factor every time an African American juror was called to the jury box. It is indisputable that a racially biased use of a peremptory challenge against even a single potential juror violates Batson. Therefore, a court is not relieved of its duty to consider all of the relevant evidence simply because some African Americans were seated on the jury, or because Batson was observed some of the time.
Allen is entitled to habeas relief because the North Carolina Supreme Court flatly refused to consider all of the facts and circumstances of discrimination that Allen proffered; instead, it summarily concluded that “the defendant has not made a prima facie showing of racially motivated peremptory challenges when the State accepted seven of the seventeen black veniremen tendered and the majority of the jury which tried the defendant was black.” Allen, 372 S.E.2d at 862. The court‘s reasoning, in its entirety, was as follows:
In this case the jury before which the defendant was tried consisted of seven black persons and five white persons. Of the seventeen black veniremen tendered to the State (including alternates), it accepted seven or forty-one percent. In State v. Abbott, 320 N.C. 475, 358 S.E.2d 365 (1987), we held that the defendant did not make a prima facie case of racially motivated peremptory challenges when the State peremptorily challenged three of five black veniremen tendered to it. In State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (N.C.1986), we held an inference that racially motivated peremptory challenges did not arise when the State peremptorily challenged six of the twelve black jurors tendered. In that case the State peremptorily challenged five white jurors. We hold pursuant to Abbott and Belton that the defen-
dant has not made a prima facie showing of racially motivated peremptory challenges when the State accepted seven of the seventeen black veniremen tendered and the majority of the jury which tried the defendant was black.
Id. In relying on the ratio of African American jurors seated to African American jurors tendered, the North Carolina Supreme Court has turned the Batson analysis on its head. Indeed, the Batson Court held that ” [a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.” 476 U.S. at 95 (quoting Arlington Heights v. Metro. Hous. Dep‘t Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)).
The Court further outlined the precedential underpinnings of this rule, which stretch back to the nineteenth century case of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). The Batson Court explained:
In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized . . . that a defendant has no right to a “petit jury composed in whole or in part of persons of his own race.”
. . . But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.
476 U.S. at 85 (internal citation omitted). The Court observed that discrimination in jury selection reached beyond the defendant on trial, and noted that “by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror” as well. Id. at 87 (citing Strauder, 100 U.S. at 308). For these reasons, the Court concluded that “the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” Id. at 99 (emphasis added).
In fact, courts, including this court, interpreting Batson around the time of the North Carolina Supreme Court‘s decision in the instant case (1988) emphasized Batson‘s focus on the excluded juror. See, e.g., Joe, 928 F.2d at 103 (“The district court erred in ruling that a Batson violation did not occur since members of the defendants’ racial group were seated on the jury.“); United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989) (“As Lane correctly points out, striking only one black prospective juror for a discriminatory reason violates a black defendant‘s equal protection rights, even when other black jurors are seated and even when valid reasons are articulated for challenges to other black prospective jurors.“); Chisolm v. State, 529 So.2d 635, 637 (Miss.1988) (“Among the few clues Batson gives [regarding] how we are to enforce the new claim it announces, we are directed to concentrate on the juror excluded, not those accepted. . . .“); Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir.1986) (quoting Arlington passage from Batson and stating that “nothing in Batson compels the district court‘s conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race“).
Under the rule proposed by the state court in Allen‘s case, however, the State could discriminate against some African American jurors (three out of five, for example), as long as others made it through the jury selection process unchallenged. Hypothetically, given this reasoning, Allen‘s Batson challenge would have failed even if the State had used all of its strikes against African Americans because
An additional problem with the North Carolina test is that evidence of who is seated on a jury is less probative than evidence of who is struck. A prosecutor only has a limited ability to control who is eventually seated on the jury. The defendant‘s use of strikes, the court‘s rulings on motions for cause, and the role of chance in who is pulled from the venire, all greatly affect the final composition of the jury. In light of these factors, a prosecutor seeking to exclude jurors on the basis of race can only do so much. As a result, the best and most direct evidence in a Batson challenge is evidence of whom the government chose to strike, because that is something over which the prosecutor has complete and undiluted control.
The North Carolina Supreme Court effectively acknowledged that it erred in applying Batson to Allen’s case, when, in a later ruling, the court recognized that “the acceptance rate of minorities by the State is relevant to our inquiry, but it is not dispositive.” State v. Smith, 328 N.C. 99, 400 S.E.2d 712, 724 (1991) (emphasis added). The Smith court explained:
When a district attorney uses all his peremptories, discriminatorily or not, he will be forced to accept replacement jurors regardless of their race. Under such facts the acceptance rate would have little to do with the district attorney‘s actual intent to discriminate. Further, the presence of an intent to discriminate may be proved by a number of factors or circumstances, not just the acceptance rate of black jurors.
Id. Similarly, this Court has ruled, “Although the [trial] court was entitled to consider the fact that the final jury included black citizens, it was not entitled to allow the presence or absence of other black jurors to resolve the question of whether [the civil defense attorney] was motivated by race in the exercise of this particular strike.” Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995).
Because of Batson‘s focus on a “single invidiously discriminatory governmental act,” 476 U.S. at 95, this Court has held that a “district court erred in ruling that a Batson violation did not occur since members of the defendants’ racial group were seated on the jury.” Joe, 928 F.2d at 103. Writing for the majority, Judge Wilkins astutely observed, “while the fact that black jurors were seated is entitled to substantial consideration, it is not dispositive of this issue and does not preclude a finding that defendants established a prima facie violation of Batson.” Id. Along the same lines, we have previously held that “the racial composition of the actual petit jury is not dispositive of a Batson challenge. . . .” United States v. Grandison, 885 F.2d 143, 147 (4th Cir.1989) (Wilkinson, J., writing for the majority). That is, we have unequivocally ruled that an allegation of a Batson violation cannot be rebutted solely by relying on who was eventually seated on the jury.
Yet in approving of the North Carolina Supreme Court‘s Batson analysis, the majority curiously departs from Batson and its progeny and also appears to contravene the Supreme Court‘s most recent equal protection jurisprudence, which rests largely upon the concept of racial balancing and proportionality. See e.g., Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (majority and dissenting opinions discuss the ineffectiveness and unconstitutionality of racial balancing and proportional racial representation).
The majority devotes much “attention to numbers” by placing undue emphasis on the number of African American jurors before which Allen was tried as justification for foreclosing Allen‘s Batson challenge. Contra id. at 2343 (” [S]ome atten-
The North Carolina Supreme Court rejected the Batson challenge based on the facts that (1) “the State accepted seven of the seventeen black veniremen tendered” and (2) “the majority of the jury which tried the defendant was black.” The court concluded that in the circumstances where the State “accepted seven or forty-one percent” of the African-American members of the venire, an “inference” of racial motivation did not arise, and the defendant failed to make a prima facie case that the State‘s peremptory challenges were racially motivated.
Ante at 327 (citations omitted). Speciously, the majority characterizes as “selective” my use of Allen‘s proffered statistics demonstrating the prosecution‘s overwhelming and disproportionate use of its peremptory strikes to remove African American jurors. Yet, in response, the majority posits that those statistics support the “opposite inference.” Ante at 330.
First, I note that if the proffered statistics “support” competing inferences, a prima facie case exists, and thus merits further fact finding, contrary to the majority‘s conclusion that no prima facie case exists. See Ante at 329. Second, I take issue with the majority‘s conclusion that no inference of discrimination arose under these facts because “the percentage of African-Americans accepted by the State and seated on the jury—58% (7 of 12)—exceeded the percentage of African-Americans on the venire—37% (24 of 65)—and exceeded the percentage of African-Americans in the county—48%.” Ante at 330. Such a conclusion suggests that because roughly half of the petit jury was black, the exclusion of even one juror for racially prejudiced reasons is constitutional. This would create a “quota” system whereby a jury comprised of a fixed number of minorities, could never violate the Equal Protection Clause. Under such a system, no equal protection challenge could succeed against a jury where the racial makeup thereof is proportionate to or greater than the racial makeup of the county in which it sits. Relying upon a voir dire process that produces a jury that consists of a specified number of jurors of a particular race—roughly half, for example—is no doubt the “functional equivalent of a quota.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317-18, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The Supreme Court has clearly held that quotas and race-balancing are inappropriate and unacceptable in the equal protection context. Bakke, 438 U.S. at 317-18; see also Grutter, 123 S.Ct. at 2371 (Kennedy, J., dissenting).
The majority goes even further by concluding that no harm was done because “[i]n accepting these African-American jurors, the State left unused peremptory challenges that were available to it.” Ante at 329.6 I suppose that because only a few African American venire members were excluded while others remained, the Defendant and those selected have no cause to complain? It seems that the majority counsels us to ignore the harm worked upon all members of society (minority and non-minority alike) by the exclusion of even one juror on the basis of race, so long as a racial balance is achieved in the pro-
By ignoring evidence that establishes a prima facie case of discrimination, and by relying solely on evidence that, standing alone, cannot possibly be dispositive, the North Carolina Supreme Court has applied a test that brazenly disregards the Supreme Court‘s ruling in Batson. I would therefore remand the case to the district court so that it may, in its discretion, hold a hearing on petitioner‘s Batson claim (and if warranted by that hearing, order a new trial) or return the case to the state trial court on a conditional writ of habeas corpus so that the state court can conduct its own inquiry. See Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir.1998); see also Howell v. Barker, 904 F.2d 889, 896 (4th Cir.1990) (granting writ conditioned on failure of state to retry defendant by date set by district court).
For these reasons, I respectfully dissent from the court‘s opinion in Part V.
Notes
A case in which there was little or no mitigating evidence proffered, or in which the jury found the existence of all proposed mitigating circumstances but nonetheless imposed the death penalty, could be a candidate for successful argument that a McKoy error was harmless, but we save decision on this point until such a case arises.
McKoy II, 394 S.E.2d at 433 n. 4. The prosecution‘s case before this court, of course, is not nearly as strong as these two hypotheticals suggest it should be in order to support a finding of harmlessness. And, given that North Carolina courts have not given a unanimity instruction for over a decade, such a “rare case” is not likely to arise anytime in the future; indeed, McKoy errors in general should be a remnant of the past.
I note that the Third Circuit has recently considered a case in which, unlike the case at hand, no adequate contemporaneous objection preserved the Batson challenge. See Riley v. Taylor, 277 F.3d 261, 274 (3d Cir.2001) (en banc). However, the Third Circuit reasoned that since “the last state court to be presented with a particular federal claim reache[d] the merits, it remove[d] any bar to federal-court review that might otherwise have been available.” Riley, 277 F.3d at 274 (quoting Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). In Riley, the court considered the claim of a defendant who failed to raise either a Swain or a Batson objection at trial. Id. The Delaware Supreme Court, however, reviewed Riley’s Batson claim on the merits, both on direct appeal and as presented in post-conviction motions. Id. The Third Circuit held that, although the defendant failed to raise the claim to the trial court, “Riley’s Batson claim [was] not procedurally barred....” Id. at 275. In Allen‘s case, the North Carolina Supreme Court similarly considered and rejected Allen‘s Batson claim on the merits. See State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 861-62 (1988).The decision to keep Juror Thorne is particularly suspect when compared to the prosecutor‘s decision to strike Juror Davis, an African American woman in Seat 1. On the record, Davis stated that she knew of one of the defense attorneys, Mr. Graham, but that she and Graham were not friends or acquaintances, and that Graham had never done any legal work for her or any member of her family. (Tr. at 348-49). When asked to clarify what she did know about Graham, Davis stated, “Nothing other than knowing he works up here and seeing him at the store.” (Tr. at 348.) Given the prosecution‘s comfort with Thorne‘s relationship with defense counsel, it is implausible that the prosecutor was concerned about Davis’ tenuous and casual connection with that same lawyer. Additionally, unlike many other jurors, Davis was never asked about her marital status, whether she had any children, or where she might be employed.