Charles Richardson v. Richard B. Gramley, Warden of Dixon Correctional Center

ILANA DIAMOND ROVNER, Circuit Judge,

dissenting.

Under Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), Richardson is entitled to retroactive application of Batson if his conviction was not yet final when Batson was decided. For that purpose, his conviction was final if “ ‘the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before [the] decision in’ Batson v. Kentucky.” Allen v. Hardy, 478 U.S. 255 , 258 n. 1, 106 S.Ct. 2878 , 2879 n. 1, 92 L.Ed.2d 199 (1986) (per curiam) (quoting Linkletter v. Walker, 381 U.S. 618 , 622 n. 5, 85 S.Ct. 1731 , 1734 n. 5, 14 L.Ed.2d 601 (1965)); see also Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6; Teague v. Lane, 489 U.S. 288, 295 , 109 S.Ct. 1060, 1067 , 103 L.Ed.2d 334 (1989).

This definition of finality reflects Griffith’s underlying concern with treating similarly situated defendants - similarly. In other words, when the Court happens to select one defendant’s case “from the stream of appellate review” and announces a new rule of law, similarly situated cases that happen by mere chance to “flow by” should also benefit from that rule. 479 U.S. at 323 , 107 S.Ct. at 713 . Thus, if Richardson might have stood in Bat-son’s stead had the Supreme Court selected his rather than Batson’s case for review, then Richardson ought also to benefit from the newly-announced rule.

The majority recognizes that Richardson had properly preserved his Batson claim by raising it in pre-Batson form during his first round of state court review. Ante at 464. The majority also acknowledges that under Reece v. Georgia, 350 U.S. 85, 87 , 76 S.Ct. 167, 169 , 100 L.Ed. 77 (1955), and Urie v. Thompson, 337 U.S. 163, 172-73 , 69 S.Ct. 1018, 1026 , 93 L.Ed. 1282 (1949), the Supreme Court could have granted certiorari and heard Richardson’s Batson claim after *469 his second round of state court review, notwithstanding Richardson’s failure to reassert the issue during the course of the latter review. Ante at 465. Thus, Richardson could have arrived at the Supreme Court with his Batson claim properly in tow after his second round of state court appeals. It seems clear, then, that his conviction was not final in Allen terms until that time, as the third prong of finality — expiration of the time for filing a certiorari petition — was satisfied only then. Richardson -therefore was in the relevant Griffith stream when the Supreme Court decided Batson , and he, like Batson, should benefit from the new rule. Any other conclusion would violate Griffith’s technical requirements as well as its mandate of uniformity.

The majority avoids this result by characterizing Richardson’s conviction as final after it was affirmed by "the Illinois Appellate Court in December 1985 and the time to petition for certiorari review of that judgment had elapsed. The majority relies on a line of cases that examine the Supreme Court’s certiorari jurisdiction over state court judgments. See ante at 466-67, citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 480 , 95 S.Ct. 1029, 1038 , 43 L.Ed.2d 328 (1975); Brady v. Maryland, 373 U.S. 83 , 85 & n. 1, 83 S.Ct. 1194 , 1195 & n. 1, 10 L.Ed.2d 215 (1963); American Export Lines, Inc. v. Alvez, 446 U.S. 274 , 279 & n. 7, 100 S.Ct. 1673 , 1676 & n. 7, 64 L.Ed.2d 284 (1980); Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 , 65 S.Ct. 1475 , 89 L.Ed. 2092 (1945).

28 U.S.C. § 1257 , which establishes the Court’s certiorari jurisdiction over state court judgments, provides:

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari

Thus, a state court judgment must be final before the Supreme Court may exercise its certiorari jurisdiction. That finality is, of course, distinct from Allen finality, which is accomplished only after the time to petition for certiorari review of the final state court judgment has elapsed. In the Cox line of cases, the Court examines the innermost boundaries of its certiorari jurisdiction, focusing on the earliest procedural moment that it might properly hear a cash. The premise of the majority’s analysis thus appears to be that' if the Supreme Court could have exercised certiorari jurisdiction over Richardson’s case after the original affir-mance of his conviction, then Allen finality occurred when the time for petitioning for certiorari review of that judgment expired.

But reliance on the Cox line of cases is misplaced in the retroactivity context. First, contrary to the majority’s characterization, those cases do not actually speak in terms of “finality” of the state court judgment. Instead, they ask when the Supreme Court might exercise certiorari jurisdiction before strict finality of the state court judgment. The cases have thus considered the rules for early review to be exceptions to the finality requirement. Cox, for example, frames its discussion as follows:

[T]he Court [in Radio Station WOW v. Johnson ] observed that the [finality] rule had not been administered in such a mechanical fashion and that there were circumstances in which there has been “a departure from this requirement of finality for federal appellate jurisdiction.”

* ifi • # „ * ❖ *

There are now at least four categories of such cases in which the Court has treated the decision on the federal issue as a final judgment for the purposes of 28 U.S.C. § 1257 and has taken jurisdiction without awaiting the completion of the additional proceedings anticipated in the lower state courts.

420 U.S. at 477 , 95 S.Ct. at 1037 . 1 American Export Lines, Inc. v. Alvez, 446 U.S. 274, *470 277 , 100 S.Ct. 1673, 1675 , 64 L.Ed.2d 284 (1980), similarly describes the Cox rules as “categorical exceptions to strict finality which the Court has developed in construing § 1257.” More recently, Pennsylvania v. Ritchie, 480 U.S. 39 , 50 n. 8, 107 S.Ct. 989 , 997 n. 8, 94 L.Ed.2d 40 (1987), has again referred to the Cox categories as “exceptions” to the finality doctrine. See also id. at 73 , 107 S.Ct. at 1009 (Stevens, J., dissenting) (“In Cox ... the Court recognized some limited exceptions to the general principle that this Court may not review cases in which further proceedings are anticipated in the state courts.” (citation omitted)).

Contrary to the majority’s description, then, the Court does not envision that state court finality is actually accomplished more than once in any given case. The point of the cases is not that the state court judgment is final at the earlier time, but only that it may then be reviewable on certiorari. Thus, whether or not the Illinois Appellate Court’s original ruling might come within one of the Cox exceptions sheds no light on the “finality” of the state court judgment or, in turn, on Allen finality, which would follow thereáfter.

Even more fundamentally, there is no indication that the Cox exceptions include a restrictive component. That is, the cases do not suggest that an appellant who might have qualified for early review loses the opportunity for review by not petitioning for certiorari until after strict finality has been accomplished. Granted, the Supreme Court has not spoken directly to this issue. As the majority points out, however, such a reading of the cases is as undesirable as it is improbable. Ante at 467. Nor is there any reason to find Supreme Court silence on the issue to be meaningless. The issue has presumably never been discussed precisely because the Court does not engage in a Cox inquiry when cases come to it as section 1257 envisions, after strict finality of the state court judgment. The propriety of review at that time is presumably not in question. 2

Yet if the cases do not foreclose later certiorari review, as the majority seemingly agrees they do not, then they are not relevant to the retroactivity discussion. If, despite the fact that the Supreme Court may have accepted the case earlier, an appellant may also petition for certiorari later, then whether or not the Court might have granted early review is not relevant to whether the time to petition for certiorari has elapsed. That will of course not occur until the latest time that a certiorari- petition could have been filed. As long as Richardson could have petitioned for certiorari and the Court could have reviewed the federal issues decided in the earlier state court appeal, Richardson was in the stream envisioned by Griffith and could himself have reached the Supreme Court on his Batson claim had the Court not by chance selected Batson’s case instead.

Moreover, the fact that the Illinois Appellate Court has itself characterized Richardson’s conviction as final at the earlier time should have no bearing on our analysis. 3 See ante at 467. In discussing finality for purposes of certiorari jurisdiction, Cox has explicitly rejected reliance on state court characterizations of finality:

*471 [W]ith respect to finality: “The designation given the judgment by state practice is not controlling. The question is whether it can be said that ‘there is nothing more to be decided’ that there has been ‘an effective determination of the litigation.’ ...”

420 U.S. at 479 n. 8, 95 S.Ct. at 1038 n. 8 (quoting Richfield Oil Corp. v. State Board, 329 U.S. 69, 72 , 67 S.Ct. 156, 158 , 91 L.Ed. 80 (1946)) (citations omitted).

Under Allen and Griffith , which articulate the only definition of finality that is relevant for retroactivity purposes, a conviction is final only after the time to petition for certio-rari has elapsed. If a state court’s determination .that a conviction is final does not affect the Supreme Court’s certiorari jurisdiction, then neither can it affect the “finality” of the conviction for purposes of retroactive application of a rule of federal law. Thus, the Illinois Appellate Court’s determination that Richardson’s conviction had become final at the earlier time is not relevant here.

Finally, as a policy matter, the majority’s approach has. the precise effect that the majority concedes ought to be avoided-that of encouraging protective early certiorari petitions. See ante at 467. Batson was decided only four months after the Illinois Appellate Court had affirmed Richardson’s conviction on the first round of. review. If Richardson had pursued his Batson claim through the highest state court and petitioned for certio-rari at that time, his review presumably would not have been completed before the Supreme Court decided Batson . Thus, once the Batson certiorari petition had been granted, effective representation of a defendant in Richardson’s position would require the filing of an early certiorari petition in order to prolong the review process sufficiently to qualify for retroactive application, of the potential new rule. 4

Richardson properly preserved his Batson claim, and, as the majority acknowledges, he could have reached the Supreme Court with that issue after the second round of state court review. His conviction therefore was not “final” in Griffith and Allen terms.before Batson was decided. To my mind, the majority, has offered no compelling reasons for straying . from that straightforward result. Instead, it.has contradicted Griffith’s clear mandate of uniformity by refusing Richardson the retroactive benefit of Batson . .

For these reasons, I respectfully dissent.

. Quoting Cox, 420 U.S. at 480 , 95 S.Ct. at 1038 , the majority states:

This distinction has led the Court to deem a state-court judgment final if "the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings.”

Ante at 466. In actuality, that quoted Cox language describes circumstances under which the *470 state court judgment is "reviewable," not when it is "final.” See Cox, 420 U.S. at 480 , 95 S.Ct. at 1038 .

. Indeed, Reece, 350 U.S. at 87 , 76 S.Ct. at 169 (citations omitted), supports that conclusion:

[T]he state contends that the case is not properly before us because petitioner did not apply for a writ of certiorari within 90 days after the. first judgment of the Supreme Court of Georgia. This contention is clearly without substance. A timely application for certiorari to review the second judgment was made, and the case is properly here. We have jurisdiction to consider all of'the substantial federal questions determined in the earlier stages of the litigation and our right to re-examine such questions is not affected by a ruling that the first decision of the state court became the law of the case. ■ .

. The Illinois Appellate Court determined that its first judgment had been final when Richardson attempted to pursue his Batson claim on collateral review of his conviction. State v. Richardson, No. 83 CF 820, slip op. at 5 (Dec. 14, 1987). Contrary to the majority’s description (see ante at 465, 467), that review, which was initiated on July 1, 1986, took place at the same time as Richardson's second round of state court review, rather than after it was completed. The majority also has characterized Richardson’s second round of direct state court review as being "collateral,” but that characterization is without support.

. The Batson certiorari petition was granted on April 22, 1985. The case — argued on December 12, 1985 — had already been argued when Rich- ■ ardson’s conviction was originally affirmed on December 30 of that year.