Petition for Writ of Certiorari — Ricardo Woods, Petitioner v. Brian Cook, Warden

No. _______

In The Supreme Court Of The United States

RICARDO WOODS,

Petitioner,

v.

BRIAN COOK,

WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITIONER’S MOTION TO PROCEED

IN FORMA PAUPERIS

Petitioner Ricardo Woods respectfully requests leave to proceed in forma pauperis. Woods

was declared financially eligible by the district court for appointed counsel under the Criminal

Justice Act, 18 U.S.C. § 3006A(2). On December 30, 2016, the district court appointed the

undersigned counsel to represent Woods in conjunction with his petition for habeas corpus relief

pursuant to that statute. See 18 U.S.C. § 3006A(2).

Woods is presently incarcerated at the Southeastern Correctional Institution in Lancaster,

Ohio and lacks the financial resources to afford retained counsel, court filing fees, and printing

costs. He therefore moves to proceed with the filing of his Petition for Writ of Certiorari in forma

pauperis.

Respectfully submitted,

__________________________________________

JENNIFER M. KINSLEY

Counsel of Record

Kinsley Law Office

Post Office Box 19478

Cincinnati, Ohio 45219

513.708.2595

Kinsleylawoffice@gmail.com

Counsel for Petitioner Ricardo Woods

2

No. _______

In The Supreme Court Of The United States

RICARDO WOODS,

Petitioner,

v.

BRIAN COOK,

WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JENNIFER M. KINSLEY

Counsel of Record

Kinsley Law Office

Post Office Box 19478

Cincinnati, Ohio 45219

513.708.2595

Kinsleylawoffice@gmail.com

Counsel for Petitioner Ricardo Woods

QUESTIONS PRESENTED

This case presents two critical questions of constitutional law, one related to the

introduction of a suspect identification, made by a profoundly paralyzed witness blinking at a

single photograph, and one related to the appropriate remedy when the trial court errs under Batson

v. Kentucky, 476 U.S. 79 (1986).

The first question presented is whether state courts misapply this Court’s clearly

established authority in permitting the introduction of unconfronted, out-of-court, testimonial

statements over a Confrontation Clause objection by applying a common dying declaration

exception not endorsed by this Court. Contrary to the determination of the Ohio courts and the

lower federal courts, this Court has never directly held that dying declarations are exempt from the

protections of the Confrontation Clause. See Giles v. California, 554 U.S. 353, 358-9 (2008). Yet

the Sixth Circuit elevated common law dying declarations to the same constitutionalized status

occupied by the forfeiture by wrongdoing doctrine, a question this Court reserved in Giles. In so

doing, the Sixth Circuit noted this that question remains in “High Court limbo,” practically inviting

this Court’s intervention. See Woods, 960 F.3d at 300.

The second question presented is whether the state courts misapply this Court’s clearly

established authority of the use of racially-motivated peremptory challenges when the state courts

determine that a Batson error occurred at trial, but subsequently declare that error harmless. More

specifically, this question asks whether Batson errors at the trial court level are structural, and

therefore incapable of being harmless, or whether they can be overcome by subsequent curative

actions by the trial court. The Sixth Circuit’s decision in this regard created a split between the

Circuits on the nature of Batson errors, necessitating this Court’s involvement. Compare Woods,

290 F.3d at 303; McGahee v. Alabama Dept. of Corrections, 560 F.3d 1252, 1261 (11th Cir. 2009).

i

LIST OF DIRECTLY RELATED PROCEEDINGS

1.

State of Ohio v. Ricardo Woods, Hamilton County, Ohio Common Pleas Nos. B1100377,

B1100741, Judgment Issued June 27, 2013

2.

State of Ohio v. Ricardo Woods, Ohio First District Court of Appeals Nos. C1300413,

C1300414, Judgment Issued September 10, 2014

3.

State of Ohio v. Ricardo Woods, Ohio Supreme Court No. 2014-1843, Judgment Issued

April 8, 2015

4.

Woods v. State of Ohio, United States Supreme Court No. 15-6086, Judgment Issued

November 2, 2015

4.

Woods v. Tibbals, United States District Court for the Southern District of Ohio No.

1:16cv643, Judgment Issued March 29, 2018

5.

Woods v. Cook, Sixth Circuit Court of Appeals No. 19-3254, Judgment Issued May 22,

2020

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED............................................................................................................ i

LIST OF DIRECTLY RELATED CASES..................................................................................... ii

TABLE OF CONTENTS ............................................................................................................... iii

TABLE OF AUTHORITIES ...........................................................................................................v

PETITION FOR WRIT OF CERTIORARI ....................................................................................1

Opinions Below ...................................................................................................................1

Jurisdictional Statement .......................................................................................................2

Constitutional and Statutory Provisions ..............................................................................2

Statement of the Case...........................................................................................................2

A. Procedural History .............................................................................................2

B. Summary of Relevant Facts ...............................................................................7

REASONS FOR GRANTING THE WRIT.....................................................................................7

I.

The Decision of the Sixth Circuit Conflicts with the Court’s Confrontation

Clause Precedent and Improperly Elevates Dying Declarations to

Confrontation Clause Exceptions. ..........................................................................9

II.

The Sixth Circuit’s Decision That Trial Court Batson Errors Can Be

Remedied Created A Split Of Authority In The Circuits. ....................................11

CONCLUSION ..............................................................................................................................16

CERTIFICATE OF SERVICE ......................................................................................................18

APPENDIX:

Woods v. Cook, 290 F.3d 295 (6th Cir. 2020) ......................................................................1

Woods v. Tibbals, No. 1:16cv643, 2014 WL 1531491 (S.D. Ohio March 29, 2018)..........9

Woods v. Cook, Entry Denying Rehearing En Banc (6th Cir. July 7, 2020) ......................19

iii

Woods v. Tibbals, No. 1:16cv643 (S.D. Ohio July 14, 2017), Magistrate Report

and Recommendations .......................................................................................................21

Woods v. Tibbals, No. 1:16cv643 (S.D. Ohio July 14, 2017), Supplemental

Magistrate Report and Recommendations .........................................................................65

State of Ohio v. Woods, 2014-Ohio-3892 (Ohio App. 1st Dist. 2014) ...............................77

iv

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky, 476 U.S. 79 (1986) ................................................................................. 11-13

Crawford v. Washington, 541 U.S. 36 (2004) ................................................................ 6-7, 10, 11

Drain v. Woods, 595 Fed. Appx. 558 (6th Cir. 2001) .......................................................... 5, 14-15

Galarza v. Keane, 252 F.3d 630 (2d Cir. 2001) ..................................................................... 13-14

Giles v. California, 554 U.S. 353 (2008) ............................................................................6, 10, 11

Hernandez v. New York, 500 U.S. 352 (1981) ..............................................................................13

Johnson v. California, 545 U.S. 162 (2005) .................................................................................13

Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) .................................................................................13

King v. Dingler (1791), 168 Eng. Rep. 383 ...................................................................................11

King v. Drummond (1784), 168 Eng. Rep. 271 ............................................................................11

Lancaster v. Adams, 324 F.3d 423 (6th Cir. 2003) ........................................................................15

McGahee v. Alabama Dept. of Corrections, 560 F.3d 1252 (11th Cir. 2009) ..................... 7, 14-15

Powers v. Ohio, 499 U.S. 400 (1991) ...........................................................................................12

Rice v. White, 660 F.3d 242 (6th Cir. 2011) ............................................................................12, 15

State v. Woods, 2014-Ohio-3892 (Ohio App. 1st Dist. 2014) ................................................. 2-4, 7

United States v. Kimbrel, 532 F.3d 461 (6th Cir. 2008) ................................................................13

United States v. McFerron, 163 F.3d 952 (6th Cir. 1998) .............................................................12

Walker v. Girdich, 410 F.3d 120 (2d Cir. 2005) ...........................................................................13

Woods v. Cook, 960 F.3d 295 (6th Cir. 2020) ....................................................................... passim

Woods v. Tibbals, No. 1:16cv643, 2018 WL 1531491 (S.D. Ohio March 29, 2018) .....................4

v

Statutes

28 U.S.C. § 1254(1) ........................................................................................................................2

28 U.S.C. § 2254 ..............................................................................................................................4

Other

Stephen J. Cribari, “Is Death Different? Dying Declarations and

the Confrontation Clause after Giles,” 35 Wm. Mitchell L. Rev. 1542 (2008-2009) ......10

Robert P. Mosteller, “Giles v. California: Avoiding Serious Damage to

Crawford’s Limited Revolution,” 13 Lewis & Clark L. Rev. 675 (2009) ........................10

vi

No. _______

In The Supreme Court Of The United States

RICARDO WOODS,

Petitioner,

v.

BRIAN COOK,

WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner Ricardo Woods respectfully prays that a Writ of Certiorari issue to review the

May 22, 2020 decision of the Sixth Circuit Court of Appeals denying Woods’ petition for habeas

relief (App. 1) and the subsequent July 7, 2020 decision of the Sixth Circuit denying Woods’

request for panel and en banc rehearing. (App. 19.)

OPINIONS BELOW

The opinion of the Sixth Circuit denying habeas relief is published at Woods v. Cook, 960

F.3d 295 (6th Cir. 2020), and is attached to the Petition at App. 1. The order of the Sixth Circuit

denying Woods’ petition for panel and en banc rehearing is unreported and is attached to the

Petition at App. 19.

JURISDICTIONAL STATEMENT

The decision of the Sixth Circuit was issued on May 22, 2020. The Sixth Circuit rejected

Woods’ request for rehearing en banc on July 7, 2020. This Court this has jurisdiction under 28

U.S.C. § 1254(1) to review this Petition.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Confrontation Clause of the Sixth Amendment to the United States

Constitution, which provides in relevant part: “In all criminal prosecutions, the accused shall enjoy

the right to…be confronted with the witnesses against him.” This case also involves the Equal

Protection Clause of the Fourteenth Amendment, which provides “nor shall any State … deny to

any person within its jurisdiction the equal protection of the laws,” and the Sixth Amendment right

to trial by jury.

STATEMENT OF THE CASE

A.

Procedural History

Ricardo Woods was indicted, tried, convicted, and sentenced to 36 years to life in prison

for a murder and other offenses he did not commit. Both before and during his trial, Woods

challenged the admissibility of an alleged photo identification made by the deceased victim by

blinking while he was recuperating in the hospital. State v. Woods, 2014-Ohio-3892, at ⁋ 10 (Ohio

App. 1st Dist. 2014). More specifically, Woods sought to suppress the identification on Sixth

Amendment Confrontation Clause grounds, but the trial court denied the motion. Id. at ⁋ 16. In

addition, Woods challenged the exclusion of black jurors by the prosecution, but the trial judge

erroneously required Woods to show a pattern of discrimination before requiring the state to

provide race-neutral reasons for its exclusions. Id. at ⁋⁋ 28-31.

2

Following his conviction, Woods filed a direct appeal that challenged numerous

constitutional and statutory errors in his case. Primary among his claims was that the admission

of evidence that the victim, who was paralyzed but not facing imminent death, identified Woods

by blinking his eyes at a single photo lineup violated the Confrontation Clause. Woods, 2014Ohio-3892, at ⁋⁋ 17-22. The Ohio court of appeals denied this issue on the basis that the victim

may have believed he was going to die when he identified Woods. Id. In so doing, the appellate

court interpreted the constitutional dying declaration test to be coterminous with the dying

declaration hearsay exception under state evidentiary rules. Id. In other words, rather than

adhering to this Court’s historical test for dying declarations, the Ohio court of appeals instead

substituted its own less stringent standard for when hearsay statements are admissible. The Ohio

Supreme Court declined to review this important constitutional question.

In addition, Woods sought relief in state court on the basis that the trial court had

improperly required Woods to demonstrate a pattern of discrimination before employing the

Batson burden-shifting framework.

Id. at ⁋⁋ 28-31.

Woods objected promptly when the

prosecution struck a black juror from the venire, an issue of critical importance given that Woods

himself is black and the alleged victim was white. Id. But the trial court denied Woods’ objection

without further inquiry, in essence elevating Woods’ prima facie burden at the first step of Batson

beyond what this Court has required. Id. at ⁋ 30. As a result of the trial court’s delay in holding

the prosecution accountable for offering a race-neutral basis for its initial strike, the black juror

was excused from the courtroom absent any assurance that the prosecutor’s action was not

impermissibly based on race.

3

The Ohio court of appeals found that the trial court violated Batson by requiring Woods to

demonstrate a pattern. Id. (“Woods is correct in his assertion that the opponent of a peremptory

challenge is not required to demonstrate a pattern of discrimination….Thus, the trial court did err

in concluding that Woods was required to demonstrate a discriminatory pattern.”) (internal

citations omitted). But it held that this error was harmless and therefore rejected Woods’ appeal.

Id. at ⁋ 31.

Woods then petitioned for habeas corpus relief in the United States District Court for the

Southern District of Ohio, which had jurisdiction under 28 U.S.C. § 2254. Among the bases for

relief Woods identified were the Confrontation Clause and Batson issues he advanced in his state

court appeal. The district court denied the Confrontation Clause claim outright, but its treatment

of Woods’ Batson claim was more complicated. Initially, the district court ruled in Woods’ favor

and granted habeas relief. Woods v. Tibbals, No. 1:16cv643, 2018 WL 1531491 (S.D. Ohio March

29, 2018). In so doing, it relied upon the trial transcript provided by the Warden along with his

return of writ. Id. at *8. As cited by the district court, that transcript reflects the following

exchange between the trial court, the prosecutor Mr. Prem, and defense counsel Ms. Calaway

regarding Juror No. 7:

THE COURT: . . . Mr. Prem, would you like to exercise a peremptory challenge?

MR. PREM: Yes, Your Honor. At this time we ask the Court to excuse and thank

Juror Number 7, Ms. Laury.

MS. CALAWAY: Sorry, but I'm going to make a Batson challenge. I know that he

hasn't demonstrated a pattern, but the facts of this case are particularly significant

because it's a white victim and African-American defendant, and there's only three

African-Americans in the veneer [sic], the rest are white. And so I think he should

have to raise a neutral reason for striking the juror.

4

THE COURT: Well, I think there has to have to be a pattern first. And I will cause

[sic] the State to be mindful of Batson, which I know they are, I assume they will

be. But, at this point in time I may require him to state a raise neutral reason, but

there's no pattern yet. So I'm going to reserve that statement for later.

Id.

The district court also recounted a later challenge to the prosecution’s strike of Juror No.

5:

The second Batson challenge arose when the prosecutor used a peremptory

challenge to strike Juror Number 5, Ms. Gilbert. The prosecutor then provided a

race-neutral reason for striking Ms. Gilbert, which the court accepted. According

to the transcript, the court then stated, “I'll have you move just to make your record

as well.” The prosecutor then began discussing the race-neutral reasons for striking

Ms. Laury. Ms. Laury was not identified in the discussion, but the prosecutor

referred to her as being “in quality assurance.” Earlier in the jury selection process,

Ms. Laury stated that her work was “quality assurance for a bank.”

After the prosecutor’s explanation, the court stated:

All right. I find that the State hasn't given a race-neutral explanation, so I'm gonna

allow your Batson challenge, except assuming the next juror is not subject to a

cause challenge, this will be our panel, and I'm gonna seat two alternates. Okay.

What I just said is totally inaccurate. You get one peremptory remaining.

The court then excused Ms. Gilbert.

Id. (internal citations omitted).

Based on this exchange, the district court sustained Woods’ Batson claim. Guided by the

Sixth Circuit’s decision in Drain v. Woods, 595 Fed. Appx. 558 (6th Cir. 2001), the court found

that the state courts had failed to appropriately remedy the Batson violation by holding that the

trial court’s error was harmless. Id. at *8.

Shortly after the issuance of the district court’s order, the Warden filed a Fed. R. Civ. P.

60(b) motion for relief from the decision granting Woods’ petition. He argued that the transcript

5

cited by the district court was incorrect to the extent it reflected the trial court’s determination that

the prosecution failed to offer a race-neutral reason for striking Juror No. 7. He presented an

altered version of the transcript that was filed in the Ohio appellate court changing the trial court’s

statement that the prosecution had not presented a race-neutral reason to reflect that the prosecutor

had offered a race-neutral reason. Woods objected to the submission of the altered transcript and

presented affidavits from Woods’ trial counsel that no one had discussed the change with them or

sought to determine what they remembered about the jury selection problems before substituting

the transcript. Relying on the new version of the transcript, the district court granted the motion

for relief from judgment and denied Woods’ Batson claim. Woods, 290 F.3d at 299.

On appeal, the Sixth Circuit affirmed the district court’s ultimate denial of habeas relief.

In so doing, it made two critical errors. First, it erroneously held, as a matter of first impression,

that common law dying declarations are a well-recognized exception to the Confrontation Clause,

despite its recognition that this issue is in what the court termed “High Court limbo.” Id. at 300.

In so doing, the Sixth Circuit turned this Court’s Confrontation Clause jurisprudence on its head,

elevating what this Court has described as a potential exception to a certain one. To be sure, this

Court has consistently held that unconfronted, out-of-court, testimonial statements, like the one

offered against Woods, violate the Confrontation Clause and has only identified one historical

exception to that very clear constitutional principle – the forfeiture by wrongdoing doctrine. See

Giles, 554 U.S. at 359. But the Court has never directly held that the Confrontation Clause is not

violated by the admission of dying declarations, instead observing that these forms of unconfronted

statements have historical, but not constitutional significance. See Crawford v. Washington, 541

U.S. 36, 56 n. 6 (2004). The Sixth Circuit departed from Crawford and Giles by elevating dying

6

declarations to the exception status this Court has observed is only historically occupied by the

forfeiture by wrongdoing doctrine. Woods, 290 F.3d at 299-300; Crawford, 541 U.S. at 56 n. 6.

Second, the Sixth Circuit erred in creating conflict with its own decisions and decisions of

its sister courts holding that Batson errors are structural and therefore cannot be harmless. To date,

all of the federal circuits to consider the question have determined that Batson errors cannot be

cured, but are structural constitutional flaws that mandate reversal. See, e.g., McGahee, 560 F.3d

at 1261. The Ohio court of appeals held in no uncertain terms that the trial court violated Batson,

a holding not appealed by the state and therefore not reviewable at the habeas stage. Woods, 2014Ohio-3892, at ⁋ 30. But the Sixth Circuit determined, in contradiction to the holdings of other

circuit courts, that this error was capable of being cured, and in fact was cured, when the trial court

later employed the Batson burden-shifting framework. Woods, 290 F.3d at 303.

For the reasons that follow, this Court should grant certiorari to review Woods’ appeal.

B.

Summary of Relevant Facts

During the early morning hours of October 28, 2010, David Chandler, his boyfriend James

Spears, and their acquaintance William Smith drove to the corner of York and Linn Streets in the

West End of Cincinnati to buy drugs. T.p. 1437. 1 The men had been smoking crack earlier in the

evening and went to Price Hill to obtain money from Chandler’s social security payee, Father

Philip Seher. T.p. 1424, 1597-1602, 1918, 1921. As they were waiting for Chandler’s dealer, a

man approached the passenger side of the vehicle where Chandler was seated and said “you got

my money?” T.p. 1440-1. The man then opened fire, striking Chandler in the neck. T.p. 1441,

1

Citations to “T.p.” are to the trial transcript, which comprises over 3,000 pages of typed text and

more than 35 volumes. For the sake of brevity and efficiency, Woods has not included the

transcript in the Appendix to his Petition.

7

2143. Spears, who was driving, and Smith, who crouched down in the back seat while the shots

were fired, took Chandler to the hospital, where he was treated for paralysis, bleeding in the brain,

and a bullet lodged in his cheek. T.p. 2143, 2219, 2239. Although Chandler was unable to walk

or speak, he maintained consciousness and survived on life support for 15 days. T.p. 2160, 2195.

Chandler passed away on November 12, 2010. T.p. 1604.

Chandler was an addict who purchased drugs from a variety of sources, including several

dealers who lived near York and Linn. T.p. 1917-24. In fact, numerous individuals recognized

Chandler before the shooting and tried to sell drugs to him. T.p. 1994. As Spears reported to the

police, Chandler had also bought drugs from a dealer named Joe in Price Hill and was known as a

snitch in that neighborhood. T.p. 2001, 2062-63. Two weeks before the shooting, Chandler

ducked in the floorboard when driving by a dealer named Mark near the University of Cincinnati.

T.p. 2058. Chandler also worked as a confidential police informant and performed two drug buys

in July and August of 2010, shortly before the shooting. T.p. 2807.

Neither Smith nor Spears were able to identify the perpetrator. T.p. 1470-1479, 1942.

2539. Smith was shown two separate photo lineups containing Woods’ picture, but did not identify

him. T.p. 2582, 2593. Nevertheless, the police considered Woods a suspect early in their

investigation and did not pursue other leads. T.p. 2669-70. When Chandler’s condition stabilized,

police questioned him about the identity of the shooter. Because Chandler could not talk, his

medical team had established a system where Chandler would blink his answers to basic questions.

T.p. 1659, 1851, 1857. As he was paralyzed, on a ventilator, and being administered memoryaltering medications, his blinks were erratic at best. T.p. 1676, 1685-7, 1866. In fact, the day

before the police met with him, Chandler’s responses were accurate only 50% of the time. T.p.

8

1691. The police asked Chandler to blink on the letter of the alphabet that corresponded with the

shooter’s first name. T.p. 151-2. The second time through the alphabet, Chandler blinked at “O.”

T.p. 189. The police then showed Chandler a single photograph of Woods and asked if he was the

shooter. T.p. 154-5. Although the video of the interview does not reveal a clear response, the

police claim that Chandler blinked three times for “yes.” T.p. 155. 2 Two separate medical

professionals testified that, because of Chandler’s injuries, treatment, and history of drug abuse,

this response was unreliable. T.p. 2870, 3174.

Police later arrested Woods in Lorain County. T.p. 2545. Woods was jailed for three days

with a convicted felon, Jermaine Beard. T.p. 2432. Beard’s sentence was reduced in a prior case

because he testified against an alleged murderer, and he hoped to get a light sentence in his pending

burglary case by working against Woods. T.p. 2374-5. Beard had also admitted to disposing of a

dead body on a golf course, but had not yet been charged with his participation in that crime and

hoped not to be. T.p. 2376, 2413. Beard contacted the detective who assisted him before and

reported that Woods confessed to him in jail. T.p. 2384, 2476.

Absent Chandler’s unreliable identification and Beard’s brokered testimony, there was no

evidence connecting Woods to the shooting. Woods maintains his innocence.

REASONS FOR GRANTING THE WRIT

I.

The Decision of the Sixth Circuit Conflicts with the Court’s Confrontation Clause

Precedent and Improperly Elevates Dying Declarations to Confrontation Clause

Exceptions.

As this Court has clearly held, an unconfronted, out-of-court testimonial statement is only

admissible under the Sixth Amendment Confrontation Clause if there is an exception to the

2

A video tape of the Chandler interrogation was admitted at trial as State’s Exhibit 11.

9

confrontation right that was recognized under common law. See Crawford, 541 U.S. at 53-4. The

principle behind this holding was articulated in Crawford and reaffirmed in Giles. In Crawford,

the Court examined the common law history of the confrontation right and explained that the

principal evil at which the Confrontation Clause was directed was the use of ex parte examinations

against the accused. Id. Since that time, the purposes of confrontation and the dangers of admitting

out-of-court statements have been the subject of frequent litigation and discussion. See, e.g.,

Stephen J. Cribari, “Is Death Different? Dying Declarations and the Confrontation Clause after

Giles,” 35 Wm. Mitchell L. Rev. 1542 (2008-2009); Robert P. Mosteller, “Giles v. California:

Avoiding Serious Damage to Crawford’s Limited Revolution,” 13 Lewis & Clark L. Rev. 675

(2009). Confrontation both ensures that the witness will give his testimony under oath, thus

impressing upon him the importance of truthfulness and further forces the witness to submit to

cross-examination, the “greatest legal engine ever invented for the discovery of the truth.” Giles,

554 U.S. at 348.

While continuing to acknowledge the importance of the right to confrontation, the Court

has allowed certain narrow categories of unconfronted testimony to remain admissible, observing

that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at

common law, admitting only those exceptions established at the time of the founding.” Giles, 554

U.S. at 358 (citing Crawford, 541 U.S. at 54). In Giles, the Court identified two forms of

testimonial statements which were admitted at common law even though they were not subject to

cross-examination: dying declarations and forfeiture by wrongdoing. Giles, 554 U.S. at 358. In

discussing the status of dying declarations, the Court limited its discussion to specific types of

dying declarations: those made by a speaker actually on the brink of death and aware he was dying.

10

Id. (citing King. Woodcock King v. Woodcock (1789), 1 Leach 500, 501-504, 168 Eng. Rep. 352,

353-354; State v. Moody, 3 N.C. 31 (Super. L. & Eq. 1798); United States v. Veitch, (CC DC

1803), 28 F. Cas. 367, 367-368 (No. 16,614); King v. Commonwealth (Gen. Ct. 1817), 4 Va. 78,

80-81); see also King v. Drummond (1784), 168 Eng. Rep. 271, 272; King v. Dingler (1791), 168

Eng. Rep. 383, 384. While the Court expressly held in Giles that statements covered by the

forfeiture by wrongdoing doctrine are admissible even if unconfronted, it declined to formally

recognize a dying declaration exception to the Confrontation Clause. Giles, 554 U.S. at 358; see

also Crawford, 541 U.S. at 56 n. 6. Stated another way, while common law may have supported

an exception for statements made on the brink of certain death, the Court has never interpreted that

historical exception to rise to constitutional magnitude or to be formally imported into the

Confrontation Clause. Id.

Nevertheless, the Sixth Circuit elected to remove the dying declaration doctrine from what

it termed “High Court limbo” and to formalize its status as an exception to the constitutional

requirement that out-of-court, testimonial statements be confronted. Woods, 290 F.3d at 300. The

Court previously declined to address whether dying declarations in fact occupy this constitutional

status or instead are merely a holdover from common law not relevant to Confrontation Clause

analysis. Crawford, 541 U.S. at 56 n. 6. This case provides an ideal vehicle for the Court to assess

the role of dying declarations in its Confrontation Clause jurisprudence, particularly given the

Sixth Circuit’s invitation to resolve this “High Court limbo.” Woods, 290 F.3d at 300.

II.

The Sixth Circuit’s Decision That Trial Court Batson Errors Can Be Remedied

Created A Split Of Authority In The Circuits.

It is well-settled that the state may not exercise peremptory challenges in jury selection on

the basis of race. Batson v. Kentucky, 476 U.S. 79 (1986). The principles underlying Batson are

11

significant and extend beyond the rights of individual defendants to society as a whole. As the

Court observed in Powers v. Ohio, 499 U.S. 400, 406 (1991) (internal citations omitted):

In Batson, [the Court] spoke of the harm caused when a defendant is tried by a

tribunal from which members of his own race have been excluded. But [the Court]

did not limit [its] discussion in Batson to that one aspect of the harm caused by

the violation. Batson “was designed ‘to serve multiple ends,’” only one of which

was to protect individual defendants from discrimination in the selection of

jurors. Batson recognized that a prosecutor's discriminatory use of peremptory

challenges harms the excluded jurors and the community at large.

For this reason, several circuit courts have held that Batson errors are never harmless, because they

perpetuate patterns of racial discrimination. See, e.g., United States v. McFerron, 163 F.3d 952

(6th Cir. 1998). Batson is unique in this respect, in that it “seeks to protect the rights of the litigants,

the venire, and the entire community.” Rice v. White, 660 F.3d 242 (6th Cir. 2011). Indeed, the

harm that results from discriminatory jury selection extends beyond that inflicted on the defendant

and the excluded juror by undermining public confidence in the fairness of the legal system.

Batson, 476 U.S. at 86-8.

The Court has articulated a three-step test for assessing Batson errors. First, the defendant

must make a prima facie case of racial discrimination in the state’s exercise of peremptory

challenges.

Id. at 94.

Prior to Batson, the Court had required defendants arguing racial

discrimination in jury selection to meet a higher threshold at the outset before courts were required

to inquire into possible improprieties. Id. at 91-92 (citing Swain v. Alabama, 380 U.S. 202, 224

(1965)). While the Court was imprecise as to the defendant’s burden, it was clear that the

defendant must provide proof of discrimination, such as a pattern of repeated discriminatory

strikes, beyond the facts of his own case. Id. But the Batson Court observed that this placed too

stringent a burden on defendants to prove discrimination before knowing all the facts, thus making

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preemptory challenges largely exempt from constitutional scrutiny. Id. at 92-93. The Court

therefore relaxed the defendant’s prima facie burden, instead requiring merely that a defendant

show that he is a member of a cognizable racial group and that the prosecutor has exercised a

preemptory challenge against a member of that group. Id. at 96. Because the discriminatory use

of peremptory challenges taints the entire judicial system and significantly burdens the Fourteenth

Amendment rights of the excluded juror, the mere exclusion of a single juror is enough to trigger

Batson. See, e.g., Walker v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005); Jones v. Ryan, 987 F.2d

960, 972 (3d Cir. 1993).

At the second stage, the burden shifts to the prosecution to offer a race-neutral justification.

Johnson v. California, 545 U.S. 162, 168 (2005). The prosecution bears the burden of justifying

each challenged strike. See, e.g., Hernandez v. New York, 500 U.S. 352 (1981). The trial court

must then, at the third stage, determine whether the opponent of the peremptory strike has proved

purposeful racial discrimination. Id.

Violations of Batson and with respect to the trial court’s management of the three-part test

are considered by all circuits with the exception of the Woods decision below to be structural errors

not susceptible to harmless error review. See, e.g., United States v. Kimbrel, 532 F.3d 461, 469

(6th Cir. 2008). As such, when a trial court improperly rejects a defendant’s prima facie showing

at the first step of Batson or improperly conflates the second and third steps of Batson, reversal is

required. See, e.g., Galarza v. Keane, 252 F.3d 630 (2d Cir. 2001) (vacating district court’s denial

of habeas relief and remanding when trial court failed to adjudicate step three of Batson); Kimbrel,

532 F.3d at 469-70 (reversing conviction because federal district court improperly merged steps

two and three of Batson). In other words, when a state trial court fails to discharge its duties under

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Batson, the federal courts may intervene and grant habeas relief. See Galarza, 252 F.3d at 64041.

Such a scenario occurred in McGahee v. Alabama Dept. of Corrections, 560 F.3d 1252,

1261 (11th Cir. 2009), in which the Alabama Court of Criminal Appeals erred in its application of

step three of Batson. Rather than considering “all relevant circumstances” in assessing whether

discrimination occurred in jury selection, the state appellate court instead limited its analysis to

the race-neutral explanations offered by the prosecutor and omitted crucial facts proffered by the

defense. Id. at 1263. This failure to faithfully apply Batson analysis was deemed by the Eleventh

Circuit to constitute an unreasonable application of clearly established federal law warranting

habeas relief. Id. at 1266.

Consider as well Drain, 595 Fed. Appx. 558, a case in which the Sixth Circuit determined

that the state court’s failure to reverse the defendant’s conviction under Batson violated clearly

established Supreme Court case law. Id. at 560. At Drain’s trial, the trial judge raised a Batson

question sua sponte after the prosecution struck seven African-American jurors. Id. The court

then found inadequate the prosecutor’s proffered race-neutral explanation for the strikes and

attempted to remedy the violation by requiring the prosecutor to seek the court’s consent before

striking any additional African-American jurors. Id. at 562. At no point did defense counsel

object, either to the prosecutor’s race-based peremptory strikes or to the trial court’s proposed

remedy. Id. at 561-2.

Addressing the adequacy of the trial court’s corrective action, the Sixth Circuit in Drain

held that a prospective remedy designed to prevent future discrimination in jury selection was

insufficient to address the prior discrimination that had already occurred. Id. at 581. In so doing,

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the court further observed that the only appropriate remedies for Batson violations are those

suggested in Batson itself: either empaneling a new venire or recalling the unconstitutionally

dismissed jurors. Id. The court also clarified the appropriate outcome when jurors who are later

determined to have been stricken for racially discriminatory reasons are no longer available to

serve. In such instances, “the only remaining remedy for the Batson violation would be to

discharge the entire venire and start the process anew.” Id. This Sixth Circuit in Drain also made

clear that the responsibility for remedying Batson violations lies with the trial court, regardless of

whether defense counsel appropriately objected to either the discriminatory strike or the trial

court’s proposed remedy. Id. “In the absence of any remedial action undertaken by the trial court,

the existence of an unmitigated Batson violation requires that the conviction be vacated.” Id.; see

also Rice, 660 F.3d at 259-60 (holding that only available remedy for Batson violation once juror

has been improperly excused and has left the courthouse is to empanel a new venire, and that

failure of trial court to do so warrants habeas relief).

The Sixth Circuit’s decision in this case deviates from its own precedent and the decision

of the Eleventh Circuit in McGahee. Rather than correcting the violation found by the state court

of appeals, the panel instead held the trial court’s Batson error was cured when the trial court later

inquired as to the prosecutor’s basis for the strike. Woods, 290 F.3d at 303. But, as the Sixth

Circuit previously held in Rice, 660 F.3d at 259, Batson errors cannot be “cured.” See also

Lancaster v. Adams, 324 F.3d 423, 433-35 (6th Cir. 2003) (holding that prosecutor cannot cure

discriminatory peremptory challenge by seating another juror of a cognizable racial group). Once

the trial court permitted the first juror to leave the courtroom without explanation from the

prosecutor, the trial court infected the proceeding with potential racial discrimination. Reversal of

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Woods’ conviction is the appropriate remedy for the state appellate court’s mistake. See Rice, 660

F.3d at 260 (“[i]n the absence of any remedial action undertaken by the trial court, the existence

of an unmitigated Batson violation requires that the conviction be vacated”).

The panel incorrectly analyzed Woods’ Batson claim by focusing solely on whether there

ultimately existed a race-neutral reason to justify the prosecutor’s strike of Juror No. 7. Woods,

290 F.3d at 303. But this is the wrong inquiry. The trial court’s attempt to cure its error in excusing

Juror No. 7 from service by later making the prosecutor explain his decision is immaterial. What

matters is that the trial court permitted an African-American juror to be excused and sent home

without confirming that her rejection was not the product of invidious racial discrimination.

Reflecting its structural nature, that error cannot be cured by later requiring what should have been

proffered as a prerequisite to the juror’s dismissal. The damage to Woods’ fundamental rights,

and the harm to society and the justice system as a whole, occurred when Juror No. 7 walked out

of the courtroom.

The Sixth Circuit’s departure from its own decisions on the nature of Batson errors and its

decision that Batson errors can be harmless create a split of authority on this critical constitutional

question. The Court should review this case to clarify the appropriate remedy when Batson is

violated.

CONCLUSION

For the foregoing reasons, the Court should grant Woods’ petition and issue a writ of

certiorari to review the Sixth Circuit’s erroneous decision.

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Respectfully submitted,

__________________________________________

JENNIFER M. KINSLEY

Counsel of Record

Kinsley Law Office

Post Office Box 19478

Cincinnati, Ohio 45219

513.708.2595

Kinsleylawoffice@gmail.com

Counsel for Petitioner Ricardo Woods

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No. _______

In The Supreme Court Of The United States

RICARDO WOODS,

Petitioner,

v.

BRIAN COOK,

WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CERTIFICATE OF SERVICE

I hereby certify that three copies of the enclosed Petitioner’s Motion to Proceed In Forma

Pauperis and Petition for Writ of Certiorari were served via first-class U.S. mail, postage prepaid,

on the 5th day of October, 2020 upon:

Hilda Rosenberg

Assistant Attorney General

Ohio Attorney General’s Office

411 Vine Street

1600 Carew Tower

Cincinnati, OH 45202

All persons required to be served have been served.

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__________________________________________

JENNIFER M. KINSLEY

Counsel of Record

Kinsley Law Office

Post Office Box 19478

Cincinnati, Ohio 45219

513.708.2595

Kinsleylawoffice@gmail.com

Counsel for Petitioner Ricardo Woods

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