Petition for Writ of Certiorari — Gregory Hill, Petitioner v. James Gammon, Superintendent, Moberly Correctional Center
Supreme Court briefAug 6, 2018
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IN THE
OFFICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2017
No.
GREGORY HILL,
PETITIONER,
VS.
JAMES GAMMON, WARDEN
RESPONDENT.
On Petition For Writ Of Certiorari to the
United States Court Of Appeals For The Eighth Circuit,
PETITION FOR WRIT OF CERTIORARI
GREGORY HILL PRO SE
POTOSI CORRECTIONAL CENTER
11593 STATE HWY. 0
MINERAL POINT, MISSOURI 636609597
b2O
QUESTIONS PRESENTED
Gregory Hill's case raises pressing issues of National
importance: Whether and to what extent the criminal justice
system tolerates racial discrimination in selection of its
jurors; and whether the federal court applied and imposed on
Mr. Hill a unduly burdensome review which deprived Mr. Hill
of his due process to a Constitutional review on his factual
issues relative to his Batson claim. Wherein Eighth Circuit
jurisprudence is that: "no Court has established bright-line
rules about how much a State Court must say or the language
it must use to compel a §2254 Court's conclusion that the State
Court has adjudicated a claim on the merits," see Brown v.
Lubbers, 371 F.3d 458/ 460-61 8th Cir. 2004).
Does the above •Eighth Circuit Ruling contravene this Court's
Precedents of Anderson v. Bessemer City, 470 U.S. 564, at 573
(1985) which establish a bright-line rule when reviewing a
discrimination claim or error; and does the above Eighth Circuit
jurisprudence contravene Congressional Intent set out I 2254
and its Amendments which states: "(I) that the merits of the
factual dispute were not resolved in the State court hearing;
"(2) that the factfinding procedure employed by the State
court was not adequate to afford a full and fair hearing; and
"(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding and this Court's
Precedent in Thomas v, Keohane, 516 U.S. 99, lii 116 S.Ct.
457 (1995)?
i
LIST OF PARTIES
All parties appear in the caption of the case on the cover
page.
Gregory Hill respectfully petition for writ of certiorari
to review the judgment of the United States Court of Appeals
for the Eighth Circuit.
11
ThBTJ! OF
CONTENTS
Questions Presented e. e.g... ..... .. ................e.eee.
I
Li st Of Parties .... •.......... .... ... •...........•.. ....
ii
Table
Of
Contents
Table
Of
Authorities
........ .. ..•...... . ....e.. •• •tC...... •.
iii-iv
. . . . . . . ..
. . . . . . . . .
V-VI
Opi nions Below •eee..e.ee..ee........e.....•..••.e•..•e•
I
Jurisdiction •...,.......................................
1
Ceastitutiocal And Statutory Provision Invoked ..........
2
. . . . . . . . . . . . . . . .
•.
Statement Of The Case
e.e.c....
2-4
Pre-Trial Proceeding ................. ....e..............
4
Mr. Hill 's State Proceeding ..,.........................
4-5
Mr. Hill's initial State Habeas Proceedings ............
5-7
Mr.
Federal
Habeas
..,.....
710
...........................
10-11
Certiorari Should Be Granted ...........................
11-21
Hill's
Proceedings
Reason
For
Conclusion
Post-Foster
........
Granting
And
Buck
.........
The
Writ
v. davis,
......
e.e.c......
.............................................
Proof Of Service ...................
.........
Appendix A
Appendix B
Appendix C .....
Appendix D
Appendix 1
Appendix F ............. .........•..... ..••.....
Appendix G
Appendix H
iii
.•.•_.
21
22
Appendix I ...........
..-.....•..............
Appendix J . .. • ...... .. .. .. •.... •. • • • •••...ee.e.. •....
Appendix K ....... ... . ....
•.s • • • • tee.
App
Appendix M ...•.......... ............ e.e.c..... ..........
Appendix N
endix
L
..,.......
.
.
•...
.......
... ........ . .........
App
Appendix P
endix
0
•...o
•0••
iv
tee•e•
•••_••
•.
•
.
...........
ThBLE OF AUTHORITIES
Anderson v. Bessemer City, 470 U.S. 546 (1985).........
Passim
Batson v. Kentucky, 476 U.S. 79 (1996)
Passia
Brown v. Lubbers, 371 F.3d 458 (8th dr. 2004) ........
11,15
Buck v. Davis, 137 S.Ct. 759 (2017) ...................
Passim
Davis V. Ayala, 135 S.Ct. 2187 (2015) •.................
20
Foster v. Chatman, 136 S.Ct. 1737 (2016) ............... Passim
Gonzalez v. Crosby, 545 U.S. 524 (2005) ................
7,9
Griffith v. Kentucky, 479 U.S. 314 (1987) ............ 5,6,7,13
Hernandez v. New York, 500 U.S. 352 (1991)
19
3,12
Hernandez v. Texas, 347 U.S., at 482 ..................
Hill V. Gammon, 2017 U.S. Dist. lexis 184842
7
Hill V. Gammon, 2000 U.S. Dist. lexis 23482
14
Kiapprott v. United States, 335 U.S. 601 (1949)
20
Liijeberg v. Health Sórvs Acquisition Corp. 486 U.S. 847
19,20
Miller-el V. Cockrell, 537 U.S. 322 (2003)
18
Miller-EL v. Dretke, 125 S.Ct. 2317 (2005)
7,16,18
Patten v. Mississippi, 332 U.S., at 469
Powers v. Ohio, 499 U.S. 400 . .. .. . . . . .. . . . . . . . . . . . .
3,12
Passim
Pullman-Standard v. Swint, 456 U.S., at 287 .............
Purkettv.
4
lam,, 514 U.S. 765 ........................... 18,19
E
..3. V. Mitchell, 443 U.S. 545 (1979) ...................
20
R.J. Reynolds Tobacco Company v. Durham County, 479 U.S. 130
(1986)
•.,...........,....••.............................
10
Sears v. Upton 561 U.S. 945 (2010)
Snyder v. Louisiana, 552 U.S. 472 (2008) ................ Passim
State V. Hill, 808 S.W.2d 882, 888-890 (1991) ..... 120 14,16,17
V
TABLE OF AUTHORITIES
State v. Kilgore, 711 S.W.2d 57, •66 (Mo.bane 1989)
State V. Pullout 811 S.W.2d 463 (1991)
..
7,16,17,19
3
................
Strauder v. West Virginia, 100 U.S. 303 (1880)
Thompson v. Keohane, 516 U.S. 99 (1995)
......,..
12
....,.......,..
15
Whitusv. Georgia, 383 U.S., at 549-550
3
Constituijcs1. Provi
U.S. Constitutional Amend. XTV..................Ø .... 2,10,13
Statutes
28 U.S.C. §1254(1)
1,10
28 U.S.C.S. §2254(e) .......,.....,.................... 2,11,15
Rule
Federal Rule 52(a)
$
... ......
....
..
•....
VI
..
.
....
.
..
•
.
•••••
21
;1
4,
OPINIONS BELOW
The May 15, 2018 order of the Eighth Circuit panel denying
Mr. Hill's rehearing is available at Hill v. Gammon, 2018
U.S.
Lexis 12606 (8th Cir. May 15, 2018) and attached as Appendix
The March 28, 2018 order of the Eighth Circuit denying Mr.
Hill's Notice of Appeal is unreported and attached as Appendix
The December 12, 2017 order of the District court denying Mr.
Hill's 59(e) alter or amend motion is unreported and attached
as Appendix C.
The November 8, 2017 order of the District court denying Mr.
Hill's 60(b)(6) application is available at Hill v. Gammon,
2017 U.S. Dist. Lexis 184842 (decided Nov. 8, 2017) and attached
as Appendix D.
The March 17, 2000 order of the habeas court denying Mr. Hill's
2254 application is available at Hill v. Gammon, 2000 U.S.
Dist. Lexis 23482 (decided March 17, 2000) and attached as
Appendix E. Appendix herein after App.
JURISDICTION
The Court of Appeals entered its judgment May 15, 2018, This
Court has jurisdiction under 28 U.S.C. §1254(1).
1
CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED
This case involves a state criminal defendant's constitutional
rights under the Fourteenth Amendment. The Fourteenth Amendment
provides in relevant part:
In all criminal prosecution, trial or appeal, no State is at
liberty to ..."deprive any person of life, liberty or property
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws.
This case also involves the application of 28 U.S.C.S.S'2254(e)
and its Amendments, which is pertinent here and provides in
relevant part:
a determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in a
proceeding to •which the applicant for the writ and the State
or an officer or agent thereof were parties, evidenced by a
written finding, written opinion, or other reliable and adequate
written indicia, shall be presumed to be correct, unless the
applicant shall establish or it shall otherwise appear, or
the respondent shall admit-that the merits of factual dispute were not resolved
in the State court hearing;
that the factfinding procedure employed by the State
court was not adequate to afford a full and fair hearing;-"(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding;..."
STATEMENT OF THE CASE
2
A. Introduction
By any measure, Mr. Hill's convictions is extraordinary.
(1) At the close of voir dire, Mr. Hill's counsel objected
and established a prima facie case of racial discrimination
pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct, 1712
(1986), of African Americans being stricken from jury selection.
The State was ordered to give explanations as to why the State
struck these blacks. Out of numerous strikes the State failed
to rebut a race based objection by Mr. Hill's counsel. During
the time of Mr. Hill's trial and direct appeal, the law of
this Court clearly states: "If the trial court decides that
the facts establish, prima facie, purposeful discrimination
and the prosecutor does not come forward with a neutral
explanation for his action, our precedents require that
petitioner's conviction be reversed Batson, 106 S.Ct., at 1725,
(quoting Whitus v. Georgia, 383 U.S., at 549-550; Hernandez
v. Texas, 347 U.S., at 482; Patton v. Mississippi, 112 U.S.,
at 469. (2) During Mr. Hill's direct appeal his Batson claim
was raised, the jurisprudence of the Eastern District Court
of Appeal, was [tihat a white male had standing to challenge
the State's use of a peremptory challenges against black members
of the venire pursuant to Batson. See Appendix F, State v.
Pullen, 811 S.W. 2d 463, 45 (Mo.App.E.D. 1991). In •Mr. Hill's
case, out of the State's explanations for its strikes, the
state volunteered its reasons for striking a WHITE juror, this
reason was based in part on the juror's race. The Eastern
District Court of Appeals did not apply the jurisprudence and
standing which it had applied to Pullen just a few months prior
3
to deciding Hill's Batson claim. The court in fact failed to
even mention or consult these two jurors, Marilyn C. Caine
and Claudia Cuccua. As a result, the Eastern District Court
of Appeals not only denied relief, it denied Mr. Hill's his
substantive due process to a Constitutional review of his
convictions, pursuant to Batson, which adopted the standard
of Anderson v. Bessemer Ciy, 470 U.S. 546, 573-575, (1985)
which states in part: "Rule 52(a) does not make exceptions
or purport to exclude certain categories of factual findings
from the obligation of a court of appeals to accept a district
court's findings unless clearly erroneous." Id. at 574 (quoting
Pullman-Standard Y. Swint, 456 U.S.. at 287. This Court in
Foster v. Chatma, 136 S.Ct. 1737 (2016), reaffirmed, "in
reviewing a ruling claimed to be a Batson error, all of the
circumstances that bear upon the issue of racial animosity
must be consulted." Id. (quoting Snyde_r, 522 U.S., at 478.
Pre-Trial Proceeding
In October of 1989 Gregory Hill was found guilty on two
counts of rape, two counts of sodomy, 2nd degree robbery and
felonious restraint. Mr. Hill was sentenced to life plus fifty
years and as an class x offender.
Mr. Hill's State Proceedings
In March of 2015 Mr. Hill filed a Motion to Recall the
Mandate in the Missouri Eastern District Court of Appeals,
Pro Se, contending that the court of appeals decision was
contrary to clearly established federal law of
4
Batson
and
Anderson. These Precedents set forth a bright-line rule, that
a reviewing court must review the record in its entirety, and
that failure to do so violates Mr. Hill's substantive due
process to a meaningful review of the factual issues/merits
of his Batson claim on his first appeal. Mr. Hill also raised
and challenged the court of appeals decision not to apply
'controlling legal principals' of
Powers v. Ohio, 499 U.S.
400 (1991), which held: "a criminal defendant may object to
race-based exclusion of jurors effected through peremptory
challenges whether or not the defendant and the excluded juror
shares the same race," to his then pending appeal. Mr. Hill's
Recall Mandate Motion was summarily denied June 17, 2015. See
App. C.
D. Mr. Hill's Initial State Habeas Proceedings.
1. In August of 2015 Mr. Hill filed into the Missouri Supreme
Court his state habeas petition Pro be, Mr. Hill knowing that
no State circuit court has jurisdiction to overturn a decision
of a appellate court. Mr. Hill continued to challenge the
validity of the procedural mechanism of his Batson review in
the appellate court and two failure to heed and give effect
to the teaching of Powers v. Ohio and Griffith Y. Kentucky,
479 U.S. 314 (1987). On October 27, 20150, the Mo. Supreme Court
denied petition without prejudice pursuant to Rule 91.02 and
84.220 which states in part ..."the petition in the first
instance shall be to a circuit or associate circuit judge for
the county in which the person is held in custody..." App.
5
H.
In November of 2015 Mr. Hill filed in Washington County
Mo. his petition for writ of habeas corpus challenging the
mechanism affirming his convictions, to be set aside, due to
•the Eastern District Court of Appeals failure to apply clearly
established federal law, of Batson and Anderson and two, failure
to apply newly declared constitutional rule to criminal case
pending on direct review. Griffith, supra 479 U.S., at 32122. On January 26, 2016, Washington County Mo. summarily denied
the petition. App. 1.
In March of 2016 Mr. Hill filed his habeas petition before
Mo. Appellate Court Eastern District, raising his initial
claims, that the Mo. Appellate Court failed to apply clearly
established federal law of
Batson
and Anderson, "clearly
erroneous standard" to his Batson claim on review which
encompasses reviewing the entire record (voir dire) and two,
failure to apply newly declared constitutional law of Powers
v. Ohio, to his then pending Batson claim on review. On April
12, 2016 the Mo, Appellate Court summarily denied Hill's
petition. App. J.
On May 23, 2016 this Court announced Foster v. Chatman,
136 S.Ct. 1737 195 L.Ed 2d 1 (2016) •which reaffirmed a reviewing
court applying the "clearly erroneous standard" to a Batson
claim, and reaffirmed "circumstances that bear upon the issue
of racial animosity must be consulted". Id.
On June 27, 2017 Mr. Hill filed into the Mo. Supreme
Court his habeas petition raising his initial claims filed
6
in his previous habeas petitions and Recall Mandate Motion
to the State's Appellate Court, relying on this Court's
Precedents of Foster v. Chatman, Snyder v. Louisiana, 552 U.S.
472, 478 (2008); Miller-El v. Dretke, 545 U.S. 231, 240 (2005);
Batson; Anderson; Griffith v. Kentucky, and Powers v. Ohio.
On October 5, 2017 the Mo. Supreme Court summarily denied Hill's
petition. App. K.
E. Mr. Hill's Post-Foster and Buck v. Davis,
137 S.Ct. 759
(2017) Federal Habeas Proceedings.
On October 30, 2017, Mr. Hill filed a motion for relief
from the District court's denial of his Batson claim that Mr.
Hill raised in his initial federal habeas corpus petition.
Rule 60(b)(6) motion, Hill v. Gammon, No.4:96C'7 _2510_CE.T(E.D.
Mo. Oct. 30, 2017), App. D. Mr. Hill detailed two defects in
the integrity of the State and Federal Court's proceedings
and six facts and circumstances demonstrating the "extraordinary
circumstances' justifying reopening of a final judgment under
Rule 60(b)(6). Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
Specifically:
Missouri Appellate Court applied State v. Kilgore, 711
S.W.2d 57, 62T (Mo.banc 1989) to Mr. Hill's Batson claim. The
defect in the Kilgore Rule is that it narrows the United States
Supreme Court's definition of the clearly erroneous standard
by omitting a certain category from that Rule-(entire evidence);
By the State's failure to consider and determine all
relevant factual issues that bear upon race, the federal habeas
court applying the presumption of correctness to Mr. Hill's
Batson claim is a defect in the integrity of the federal
proceedings;
As to the racial strike of black juror Dewilla Jennings,
the record (voir dire) shows the prosecutor's shifting
explanation which reeks of after thought and was a pretext
for discrimination;
As to the racial strike of black juror Caldonia Hackney,
the record (voir dire) shows that the prosecutor
mischaracterized and misrepresented Ms. Hackney's voir dire
testimony to the trial court;
As to the racial strike of black juror Kathleen Hubbard,
the record (voir dire) shows that the prosecutor committed
fraud upon the court;
5. As to the racial strike of black juror Aminne Jones,
the record (voir dire) shows that the prosecutor fabricated
facts to the trial court;
As to the racial strike of black juror Marilyn C. Caine,
the record would show and support that the prosecutor failed
to come forward with any explanation for his strike of this
juror;
As to the racial strike of white juror Claudia Cuccua,
the record (voir dire) would show and support that the
prosecutor not only volunteered its reasons for the strike,
the State's explanation is based in part on this juror race.
Foster and Davis now allow for federal courts review
and the reopening of final judgments under Rule 50(b)(), where
S
[rielying on race to obtain a conviction in a criminal case,
it thus injures not just the defendant, but the
law
as an
institution, the community at large, it poisons public
confidence in the judicial process. See Davis, supra, at 778
(2017).
See Rule 60(b)(6) Motion, App. D at
10-20, (E.D.Mo. Oct.
30, 2017), Doc. No. 45.
In adjudicating this 60(b) motion, the district court
recognized that Mr. Hill "attacked.., the defect in the
integrity of the proceedings", beginning with the State Court
not applying the federal standard. App. TO at 28. The district
court failed to recognize or did not even mention that Mr.
Hill attacked the integrity Of the federal habeas court. See
App. D. at 2. Which states clearly: "Tin Gonzalez, a motion
that, like Gregory challenges a defect in the integrity of
the federal habeas procedding, Id. 532, (showing extraordinary
circumstances requirement) Id. at 535 and, the failure to reach
the merits, Id. at 538 does not warrant such treatment, and
can therefore be ruled upon by the District Court without
precertification by the Court of Appeals pursuant to
2244(b)(3)" Id. at 538. The district court concluded that Mr.
Hill did not obtain certification to file a successive writ
from the Eighth Circuit and that because petitioner had not
made a substantial showing of a denial of a federal
constitutional right, the district court did not issue a
certificate of appealability. App. D at 28.
All post Foster and Davis federal habeas proceedings appear
9
in the opinion below on page 1 herein.
It is perfectly consistent with this Court's jurisdiction
and practices to review a lower federal or state court decision
in order to ascertain whether a federal question may be
implicated in an unreasoned summary order, see e.g. R.J.
Reynolds Tobacco Company v. Durham County, 479 U.S. 130, 136-139
(1986); Cf. Sears v. Upton, 561 U.S. 945
Court has jurisdiction under 28 U.S.C.
(2010);
also this
1254(l) when a district
court or a Circuit Court's decision implicates a federal right.
That condition is satisfied here.
REASON FOR GRANTING THE WRIT
The district court's decision contravened this Court's
Precedent and deepened the Circuit Courts jurisprudence in
a case raising an issue of national significance: Whether the
criminal justice system will tolerate a conviction obtained
after a State actor failed to refute a prima facie case of
racial discrimination, by not coming forward with a race neutral
explanation for his strike and that through the State's
unequivocal race based strikes of juror Claudia Cuccua in part
on race, in violation of not only Mr. Hill's 14th Amendment
right, but also the right of the excluded juror.
This Court has repeatedly stressed that racial discrimination
in the administration of justice is exceptional, and that courts
must be particularly vigilant about eliminating it in the court
rooms. Disregarding this settled precedent, the 60(b) court
10
concluded that the habeas court considered and denied both
petitioner's
Batson
claim on the merits, citing the Report
and Recommendation DOC
32
at 11-16, App. D. at
28.
This
assertion and ruling is contrary to the record and an
unreasonable application of clearly establish federal law,
as determined by this Court.
FOR ALL THESE REASONS, AND THOSE DISCUSSED MORE FULLY HEREIN,
CERTIORARI SHOULD BE GRANTED.
Certiorari should be granted because reasonable jurists
could unquestionably debate not only the extraordinariness
of the circumstances identified by Mr. Hill, but whether
Batson's factual issue{s] not adjudicated by State Court extend
beyond 28 U.S.C.S. 2254 Statutory Presumption of correctness
and, to clear up the Eighth Circuit and its sister Circuits
mis-interpretation, that, "no Court has established brightline rules about how much a state court must say or the language
it must use to compel a 2254 Court's conclusion that the state
court has adjudicated a claim on the merits". Brown v. Lubbers,
371 F.3d 458, 460-61 (8th Cir. 2004).
Mr. Hill "faces convictions whose reliability was
fundamentally compromised by the race-based strikes of the
State of Missouri."
As explained in detail above and those discussed more fully
herein, Mr. Hill's 60(b) application pled numerous exceptional
circumstances including the following Batson's factual issues
11
not adjudicated by the Stage Court;
Al]. Reference of Each Juror is Found In The Record (1Toir dire)
Herein App. L. pp. 1-325.
A. There is no doubt that Gregory's trial counsel objected
to and established a prima facie case of racial discrimination
before the trial court vihich encluded, black juror Marilyn
C. Caine. App. L, p. 303, line 7-21. The record is totally
void of the state's explanation as to why it struck this juror,
see App. L, pp. 300-25. FUrther, the Missouri Court of Appeals
during their review of Mr. Hill's
Batson claim,
failed to
determine the merits of this factual issue, the. State appellate
court made no, written finding, written opinion, or any other
reliable and adequate written indicia, to where the presumption
of correctness can be applied. See App. M at pp. 7-8 State
v. Hill 808 S.W.2d at 888-890. This Court precedents beginning
as far back as one hundred thirty seven years ago, sought to
eradicate racial discrimination from its court rooms.
See
Stràuder v. West Virginia, 100 U.S. 303 (1880). This Court
has a trilogy of precedents
and
law every since. The
reaffirming this jurisprudence
law and jurisprudence of'Batson
require, "If the trial court decides that the facts establish,
prima facie, purposeful discrimination..., as it was in Mr.
Hill's case .,."and the prosecutor does not come forward with
a neutral explanation for his action, our precedents require
that petitioner's conviction be reversed". Batson, 476 U.S.,
at 99)(quoting Whitus v. Georgia, 385
Hernandez v. Texas, 347 U.S., at 482;
12
U.S., at 549-550;
Patton v. Mississippi,
332 U.S.,
at
469. To apply the Statutory Presumption of
Correctness standard to the factual issue of Marilyn C. Caine
is not only a defect in the integrity of the habeas proceedings,
but deny Mr. lull his right under the due process clause of
the 14th Amendment to a full and fair review in federal court
and, 63çb)6) can and should reopen. Mr. Hill's first habeas
corpus proceeding.
B. There is no doubt that App. L, voir dire record will
show not only that the prosecutor volunteered it's reason for
striking white juror Claudia Cuccua, but that reason is based
in part on her race and the trial court stated on the record,
"I don't want to hear about all these other jurors." See A pp.
L, p.306, line 6-25 and p. 307, line .1-14. Further, the
Missouri Court of.. Appeals during their review failed to
determine the merits of this factual issue, the appellate court
made no, written finding, written opinion, or any other reliable
and adequate written indicia, to where the presumption of
correctness can be applied. In this case, this Court's Precedent
also controls. Griffith v. Kentucky, 479 U.S. 314 (1987), which
held :"That on direct, review, a new constitutional rule must
be applied retroactively "to all cases, state and federal."
at Id, 328. Mr. Hill direct appeal was pending when this Court
announced Powers v. Ohio, 499 U.S. 400 (1991) which held: "A
criminal defendant may object to a race based exclusions of
jurors effected through peremptory challenges Whether or not
the defendant and the excluded juror share the same race,"
Id. at 404-416.
13
The order in State' v. Hill, 808 S.W.2d
882,
888-890
(Mo.App.E.D. 1991) and attached as App. M at pp. 7-8, shows
the court never mentioned these two jurors in their review
and opinion. However, the district court prior to reaching
its determination recognized and acknowledged: "Petitioner
presented the same factual grounds, the Batson challenges and
the prosecutor's admitted consideration of gender as a basis
for his peremptory strikes, but before this Court he argues
a different legal theory than argued before the state courts."
App. E at p.5. Further, the district court's March 1.7, 2000
order in Hill v. Gammon, held: "These findings of fact, which
defeat Petitioner's Batson arguáent, are supported by the record
and are presumed to be correct." at App. E at p.6. To apply
the Statutory Presumption of Correctness standard to this
factual issue of Claudia Cuccua is a defect in the integrity
of the habeas corpus proceeding. However, the habeas court
failed to reach the above factual issues of Marilyn C. Caine
and Claudia Cuccua, which Mr. Hill raised in his initial habeas
proceeding as being struck based on race and gender.
Petitioner's Memorandum of Law in Support for writ of habeas
corpus claim 1, Doc #6, See App. N at 10-11.
This case, should serve as a "prototype or paradigm for
the federal Circuit Courts mis-interpretation, that "no Court
has established. bright-line rules about how much a State court
must say or the language it must use to compel a 2254 Court's
conclusion that the State court has adjudicated a claim on
14
the merits"; Brown at 461 (8th Cir. 2004). In context of a
Batson review in a 2254 proceeding, said mis- interpretation
contravenes clearly established federal law set out in Anderson
v. Bessemer City, 670 U.S. 564, 571 (1985). The Batson Court
adopted Anderson as its standard "bright-line rule"' for a
reviewing court
Id.
at
573. This bright-line rule dictates
exactly what a court must undertake in its review, i.e. review
of the entire evidence and all relevant circumstances that
bear upon the issue of racial animosity; these issues must
be consulted. See Foster v. Chatman, 136 S.Ct. 1717 (2016);
552 U.S., at 47.8.
Foster,
Snyder, Batson and
Anderson principals
are not
contrary to 2254 and its amendments, specifically the statutory
resumption of correctness. This Court's precedent recognized
and acknowledged in Thompson v. Keohane, 516. U.S. 99 (1995)9
that 2254 Statute list eight exception to the presumption of
correctness, Id at ilL These exception establishes bright-line
rule[s], which state and federal courts must follow. Where
there is no written opinion, evidenced by a written finding
or other reliable and adequate written indicia, by a state
court, the presumption of correctness can not be applied. Three
of the exceptions are applicable here:
%I)
that the merits
of the factual dispute were not resolved in the State court
hearing;"
"(2) that the factfinding procedure employed by the State
court was not adequate to afford a full and fair hearing;"......
"(6) that the applicant did not receive a full, fair, and
15
adequate hearing in the State court proceeding;" See App M
N
State v. Hill, 808 S.W.2d 882, 838'-890 (1991) at pp. 7-8, See
also App. P pp. 5-6. §2254. State custody; remedies in Federal
courts.
Mr. Hill has shown where there wa no written opinion,
finding or any other reliable and adequate written indicia
by the State courts as to jurors listed above. 'Mr. Hill now
shows
that
the factfinding procedure employed by the State
Appellate court was not adequate to afford a full, fair and
adequate hearing and that Mr. Hill did not receive a full,
fair, and adequate hearing in the State court proceeding.
This Court in Miller-El v. Dretke, 125 S.Ct. 2317 (2005),
clarify Batson and did not establish new rules of criminal
procedure, the Court did not merely review the reasons that
the prosecutor gave for ere.nptory striking the frican-kmerican
jurors; instead it also considered the voir dire questions
that the prosecutor had posed Co the various jurors. Id. at
2333-38.
The State appellate court reviewed Mr. Hill Batson claim
under the standard of State v. Kilgore, 71.1 S.W.2d 57,62
(Mo.banc 1989), which narrows this Court's precedent of Anderson
v. Bessemer City, "clearly erroneous standard" 'when applied
to a Batson claim on review. The Kilgore
rule omitted the
category of reviewing "entire evidence" from its review. The
factfinding procedures of Kilgore
did deny Mr. Hill a full,
fair and adequate hearing in State court on the factual issuersi
of his Batson claim, which left factual dispute unresolved.
16
See App. 0 State v. Kilgore, 711 s.W.2d at Headnote 6 and at
62 The inadequate standard of the
Kilgore
rule is
an
unreasonable application of clearly established federal law
of Anderson and when
applied to Mr. Hill's Batson claim on
reie4 violated Mr. Hill substantive due process right implicit
in the 14th Amend, to a full, fair and adequate hearing on
direct appeal.
The Missouri Court of Appeals decision's was "contrary to"
federal law, 28 U.S.C.2254(d)(l), because the court used
an incorrect legal standard in not considering the "totality
of the relevant facts" and "all relevant circumstances"
surrounding the peremptory strikes, see Batson, Id. at 94-96,
it rested its decision solely on the prosecutor's reasons for
its strikes. See App. M State v. Hill, 808 S.W.2c1 882,
88-
890 (1931) at pp. 7-8. The totality of all relevant facts and
all relevant circumstances, not considered by the State Appeal
Court in their determination of each of the following jurors
can be found in the record vire dire.
Black juror Is. Dewilla Jennings, was liked by the
prosecutor, but the State thought she was being candid in
response to questions about a Williams Jennings who was tried
by the Circuit Attorney Office. See App. L at pp. 247-248 and
P. 249, line 8-15. The court allowed the prosecutor to further
question 1s. Jennings about his concerns. Ms. Jennings said
I er husband name was Ora Jennings and not Williams Jennings.
The State admitted to knowing Ora Jennings and claimed to had
seen him many times. See App. L. pp. 2195-198. There were no
17
other questions about Ore Jennings or any questions as to any
relation between Ms. Jennings and •Williams Jennings by the
State. At the Bateau hearing the State's explanation shifted,
all the things and reasons the State liked her shifted against
Ms. Dewilla Jennings see App. L at 317-318 which reeks of after
thought, which this Court calls a sham, a pretext for
discrimination in Faster, 136 S.Ct. 1737, L.d 3d at 20-21
(2016); and Miller-Bi II, supra 125 S.Ct., at 2329 (2005).
Black juror Ms. Caidonia Hackney, the prosecutor
mischaracterizied and misrepresented Ms. Hackney's voir dire
testimony to the trial court. The prosecutor asked Ms. Hackney
about her prior jury service, her response was selection only.
See App. L at p. 115 line 9-11. The prosecutor then proceeded
and asked Ms. Hackney a compound and obfuscated question. "Any
experience with arise or the criminal justice system at all?"
Ms. Hackney, "Ma." See App. L pp. 274-275. At the Batson hearing
one of the prosecutor reasons for striking Ms. Hackney "that
she had no prior jury service of any sort." that sheet indicated
"yes." I asked her. She indicated "no." See App. L pp.
3198
line 11-25 and p. 320 line 1. This should not have been accepted
by the Missouri Appeals Court without further inquiry, however,
the record is inconsistent with that explanation. Step three
of Batson inquiry involves an evaluation of the prosecutor's
credibility and the best evidence of discriminatory intent
often will be the demeanor of the attorney who exercises the
challenge. See Snyder, 522 U.S. 472, 480 (2008); Miller-91
v. ckreU, 537 U.S. 322, 339 (2003); Purkett v. Elam, 514
18
U.S. 765, 768 (1995); Hernandez v.
New York, 500 U.S.
352,
365 (1991) and Batson, supra at 98 (1986).
Black jurors Kathleen Hubbard and ALnirme Jones was struck
by the State for reason, the prosecutor claimed
each juror
indicated they wanted off the jury. See App. L pp. 307, line
16-19, p. 309, line 7-20. Further inquiry into the record voir
dire, the Missouri Appeals Court would have found
record would
have
that
the
been inconsistent with that explanation.
Again, step three of
Batson, involves an evaluation of
the
prosecutor's credibility. However, by applying the wrong legal
standard, the credibility of the
prosecutor and the record
went un-examined by the State court hich is contrary to Batson.
Further, when the state uses the wrong legal standard, the
rule of deference does not apply.
The Kilgore rule
allows
Missouri Appeals Courts to be less intrusive when reviewing
a Batson claim, and therefore violates the Constitution. This
Court should hold that the Kilgore standard, as currently
interpreted by the Missouri Court of Appeals, does not satisfy
the constitutional requirement laid down in Batson or Anderson.
F. The District Court Failed to Undertake The Equitable Rule
60(b) Inquiry Mandated by This Court's Precedent.
The District court disregarded this Court's precedent
establishing that Rule 60(b) is an equitable remedy, which
"provides courts with authority 'adequate to enable them to
vacate judgments whenever such action is appropriate to
accomplish justice." Liijebergv. Health Servs. Acquisition
1
Corp., 485 U.S. 847, 853-54 (1988)(quoting Klapprott v. United
States, 335 U.S. 601, 614-15 (1949), As with any equitable
standard where the touchstone is accomplishing justice, a Court
iust "examine all of the circumstances" to determine whether
"collectively fthey establish] extraordinary circumstances
for purpose of Rule 60(b). See KlaRprott, 335 U.S., at 61
(analyzing circumstances collectively in concluding that
reopening the judgment was appropriate under Rule 50(5).).
Instead of follow ing this equitable, holistic approach,
the district court diluted the full weight of the circunstances
identified by Mr. Hill, for example, the district court deemed
"In denying habeas relief, this court also considered and denied
petitioner's claim on the merits. (32 at 11-141." See
App.
D at pp. 27-28. By discounting, these circumstances identified
by Mr. Hill, the district court concluded that petitioner's
petition was successive. The district court failed to undertake
the equitable, case-specific analysis mandated by this Court's
precedents suck v. Davis, 137 s.Ct, 759, 777-778 (2017)(quotin3
Rose v. Mitchell, 443 U.S. 545, 555 (1979); Davis v.
135 S.Ct. 2187, 2208 (2015);
See
Ayala,
also Li1jebeg, 485 U.S.,
at 854 (1988). The district court undermined the integrity
of both petitioner's convictions and the criminal justice system
overall. Yet, the district court failed
to
consider the
extraordinary circumstances identified by Mr. Hill and
improperly
treated Mr. Hill's case like any other involving
a successive claim. The only way that the district court reached
such a
patently incorrect conclusion is by disregarding
20
the
facts at the heart of Mr. Hill's case. To reiterate, Mr. Hill's
claim is that by the habeas court applying the statutory
presumption of correctness to Mr. Hill's factual issues of
his Batson error, not adjudicated in State court, the integrity
of the initial habeas court was constitutional flawed.
CONCLUSION
For all of the foregoing reasons, 1r. Hill's case is
extraordinary. At a minimum, Justices of this Court could
conclude, to apply §2254 Statutory Presumption of Correctness
to factual issues in the context of a Batson error' not
adjudicated by a State court, is a defect in the integrity
of a habeas proceeding.
In sum, this Court's review is warranted to resolve, a
bright-line
rule was and is established by this Court when
reviewing a Batson error or claim, and that Rülé 52(a) "does
not make exceptions or purport to exclude certain categories
of factual finding from the obligation of a court of appeals..."
Anderson, 470 U.S., at 574 (1985).
RESPECTFULL. SUBMITTED
GREGORY HILL PRO SE
21
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.