Opposition Brief — William Allen, Petitioner v. Candice Batts, et al.

No. 20-6021

________________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________

WILLIAM G. ALLEN,

Petitioner,

vs.

CANDICE BATTS and TONY PARKER,

Respondents.

_________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________________

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

_________________________

HERBERT H. SLATERY III

Attorney General and Reporter

State of Tennessee

ANDRÉE SOPHIA BLUMSTEIN

Solicitor General

JOHN H. BLEDSOE

Deputy Attorney General

Federal Habeas Corpus Division

Counsel of Record

500 Dr. Martin L. King Jr. Blvd.

P.O. Box 20207

Nashville, Tennessee 37202-0207

John.Bledsoe@ag.tn.gov

(615)741-4351

Counsel for Respondent

QUESTION PRESENTED FOR REVIEW

In its second merits adjudication on habeas corpus review of the petitioner’s claim of

unconstitutional racial discrimination in a grand-jury-selection process used in 1968, did the Sixth

Circuit appropriately apply the deferential review required by 28 U.S.C. § 2254(d) to conclude

that the state court’s 1973 rejection of the claim was not contrary to, or an unreasonable application

of, then-applicable clearly established federal law?

ii

LIST OF PROCEEDINGS

Pursuant to Supreme Court Rules 14.1(b)(iii) and 15.2, the respondent provides the

following list of state and federal court proceedings directly related to this case:

State v. Allen, Davidson County Criminal Court No. A-1004 (Dec. 12, 1968)

(convicted of first-degree murder and sentenced to 99 years).

Canady, et al. v. State, 461 S.W.2d 53 (Tenn. Crim. App. 1970), rehearing denied

(Tenn. Crim. App. Apr. 3, 1970), perm. app. denied (Tenn. Nov. 2, 1970)

(affirming conviction).

Allen v. Tennessee, 402 U.S. 975 (1971) (denying certiorari in direct appeal).

Allen v. Rose, No. 6337 (M.D. Tenn. Nov. 24 1971) (dismissing habeas corpus

petition).

Allen v. State, Davidson County Criminal Court No. A-1004 (Apr. 13, 1972)

(dismissing petition for post-conviction relief).

Allen v. State, No. 1004 (Tenn. Crim. App. Feb. 1, 1973), perm. app. denied (Tenn.

Jun. 4, 1973) (affirming dismissal of post-conviction petition).

Allen v. Rose, No. 7057 (M.D. Tenn. Sep. 24, 1973) (dismissing habeas corpus

petition).

Allen v. Rose, No. 73-2215 (6th Cir. Apr. 30, 1974) (affirming dismissal of habeas

corpus petition).

Allen v. Rose, 419 U.S. 1080 (1974) (denying certiorari in habeas corpus appeal).

Allen v. State, Davidson County Criminal Court No. A-1004 (Feb. 23, 1990)

(dismissing petition for post-conviction relief).

Allen v. State, No. 01C01-9008-CR-00186, 1991 WL 181059 (Tenn. Crim. App.

Sep. 17, 1991) (affirming dismissal of petition for post-conviction relief).

Allen v. State, 854 S.W.2d 873 (Tenn. 1993) (reversing dismissal of petition for

post-conviction relief and remanding for further proceedings).

Allen v. Dutton, No. 3:93-cv-00366 (M.D. Tenn. Mar. 2, 1994) (dismissing habeas

corpus petition).

Allen v. Dutton, No. 94-5476, 1994 WL 659132 (6th Cir. Nov. 22, 1994) (affirming

dismissal of habeas corpus petition).

iii

State v. Allen, Davidson County Criminal Court No. A-1004 (Apr. 3, 2007)

(modifying first-degree murder sentence from 99 years to life imprisonment).

Allen v. State, Davidson County Criminal Court No. A-1004 (Sep. 30, 2009)

(dismissing petition for post-conviction relief).

Allen v. State, No. M2009-02151-CCA-R3-PC, 2011 WL 1601587 (Tenn. Crim.

App. Apr. 26, 2011), perm. app. denied (Tenn. Aug. 25, 2011) (affirming dismissal

of petition for post-conviction relief).

Allen v. Tennessee, 565 U.S. 1237 (2012) (denying certiorari in post-conviction

appeal).

Allen v. Colson, 953 F. Supp. 2d 870 (M.D. Tenn. 2013) (declaring habeas corpus

petition second-or-successive).

Allen v. Colson, No. 3:12-cv-00242 (M.D. Tenn. Sep. 10, 2013) (transferring

second-or-successive habeas corpus petition to Sixth Circuit).

In re Allen, No. 13-6226 (6th Cir. Apr. 14, 2014), rehearing denied (6th Cir. Jul.

14, 2014) (remanding in part habeas corpus petition to district court).

Allen v. Carpenter, 574 U.S. 1049 (2014) (denying certiorari in habeas corpus

appeal).

Allen v. Colson, No. 3:12-cv-00242, 2015 WL 1401041 (M.D. Tenn. Mar. 26,

2015) (dismissing habeas corpus petition).

Allen v. Westbrooks, 700 Fed. Appx. 406 (6th Cir. Jun. 23, 2017) (reversing

dismissal of habeas corpus petition and remanding for further proceedings).

Allen v. Westbrooks, 138 S. Ct. 647 (2018) (denying certiorari in habeas corpus

appeal).

Westbrooks v. Allen, 138 S. Ct. 648 (2018) (denying certiorari in habeas corpus

appeal).

Allen v. Westbrooks, No. 3:12-cv-00242, 2019 WL 2397804 (M.D. Tenn. Jun. 5,

2019) (dismissing habeas corpus petition).

Allen v. Batts, et al., 818 Fed. Appx. 437 (6th Cir. Jun. 22, 2020) (affirming

dismissal of habeas corpus petition).

iv

TABLE OF CONTENTS

QUESTION PRESENTED………………………………………………………………………..ii

LIST OF PROCEEDINGS……………………………………………………………………….iii

TABLE OF CONTENTS………………………………………………………………………….v

TABLE OF CITED AUTHORITIES…………………………………………………………….vi

STATEMENT OF THE CASE……………………………………………………………………1

ARGUMENT……………………………………………………………………………………...7

This Petition Seeking Error Correction Should Be Denied Because the

Case Has Little Precedential Value, Has No Practical Impact on the

Petitioner, and Does Not Present a Meritorious Claim For Habeas

Corpus Relief.......................................................................................................................7

CONCLUSION…………………………………………………………………………………..12

v

TABLE OF AUTHORITIES

Cases

Alexander v. Louisiana,

405 U.S. 625 (1972) .................................................................................................................... 3

Allen v. Rose,

419 U.S. 1080 (1974) ................................................................................................................... 3

Allen v. State,

854 S.W.2d 873 (Tenn. 1993) ..................................................................................................... 4

Allen v. State,

No. 01C01-9802-CR-00070, 1999 WL 618736 (Tenn. Crim. App. Aug. 11, 1999) .................. 4

Allen v. State,

No. M2003-01786-CCA-R3-HC, 2004 WL 1908809 (Tenn. Crim. App. Aug. 25, 2004) ..... 4, 8

Allen v. State,

No. M2009-02151-CCA-R3-PC, 2011 WL 1601587 (Tenn. Crim. App. Apr. 26, 2011) .......... 4

Allen v. Tennessee,

402 U.S. 975 (1971) ................................................................................................................. 1-2

Allen v. Tennessee,

544 U.S. 981 (2005) .................................................................................................................... 4

Allen v. Tennessee,

565 U.S. 1237 (2012)...................................................................................................................4

Allen v. Westbrooks,

700 Fed. Appx. 406 (6th Cir. June 23, 2017) ........................................................................... 4-5

Allen v. Westbrooks, 138 S. Ct. 647 (2018)..................................................................................4-5

Canady, et al. v. State,

461 S.W.2d 53 (Tenn. Crim. App. 1970) ................................................................................. 1-2

Carter v. Jury Commission of Greene County,

396 U.S. 320 (1970) .................................................................................................................... 2

Castaneda v. Partida,

430 U.S. 482 (1977) .................................................................................................................... 5

Jefferson v. Morgan,

962 F.2d 1185 (6th Cir. 1992) ................................................................................................... 11

vi

State v. Allen,

752 S.W.2d 515 (Tenn. Crim. App. 1988) .................................................................................. 3

State v. Allen,

No. 01C01-9006-CR-00151, 1991 WL 186854 (Tenn. Crim. App. Sept. 24, 1991) ............... 3-4

Westbrooks v. Allen,

138 S. Ct. 64 (2018).................................................................................................................4-5

Statute

28 U.S.C. § 2254(d) ............................................................................................................... 5, 7, 8

Rules

6. Cir. 32.1(b)..................................................................................................................................8

Sup. Ct. R. 10..................................................................................................................................8

vii

STATEMENT OF THE CASE

This case concerns one of the petitioner’s two convictions for first-degree murder of two

police officers. The officers were shot and killed in the course of pursuing a fleeing vehicle on

January 16, 1968, in Nashville, Tennessee. The petitioner was one of the five occupants of the

fleeing vehicle.

In his 1968 trial for the first-degree murder of Officer Charles Wayne Thomasson—the

conviction at issue here—the petitioner testified that he was not the shooter, despite his own

handwritten letter stating that he was. At his 1989 trial for the first-degree murder of Officer

Thomas Johnson, the petitioner acknowledged that he shot and killed both officers. Ultimately,

the petitioner received consecutive sentences of life imprisonment. He has been released from

prison custody onto parole on both sentences.

A.

Challenges to Original Judgment

The petitioner’s claim of racial discrimination in the grand-jury-selection process

implicates only the first conviction, which was entered following a trial on the presentment

returned by the 1968 grand jury. Prior to trial, the petitioner unsuccessfully challenged the grandjury-selection process used in the Davidson County Criminal Court at that time, alleging racial

discrimination against African Americans. In that process, the criminal court judge who was

overseeing a particular term of court personally selected 12 grand jurors, as well as one grand jury

foreperson, who voluntarily agreed to serve for that four-month term. In contrast, substitute grand

jurors were picked as-needed under the random, compulsory selection system already in place for

petit jurors. On direct appeal, the Tennessee Court of Criminal Appeals concluded that the

petitioner had not “born the requisite burden of proof to establish purposeful and systematic

exclusion” of African Americans from grand jury service. Canady, et al. v. State, 461 S.W.2d 53,

1

64 (Tenn. Crim. App. 1970), perm. app. denied (Tenn. Nov. 2, 1970), cert. denied, 402 U.S. 975

(1971).

In state post-conviction review proceedings, the trial court took testimony from the

criminal court clerk and the relevant criminal court judges about the grand-jury-selection process

and efforts by each judge to fill grand-juror positions.1 To give that evidence, each criminal court

judge reviewed lists of grand jurors per term of court and testified from memory and personal

recollection as to which grand jurors were African American. The judge who selected the grand

jury that indicted the petitioner identified one African American person on the relevant list. At

that time, approximately 20 percent of Davidson County’s total population was African American.

The court rejected the petitioner’s claim that the criminal court systematically excluded African

Americans from grand-jury service under the process used in 1968.

The Tennessee Court of Criminal Appeals affirmed, concluding that the petitioner failed

to state a prima facie case of a due process claim for racial discrimination in the grand-juryselection process. (Pet. Appx. 3.) The petitioner did not “make an adequate factual showing of

systematic exclusion” of African Americans from his 1968 grand jury “sufficient to shift the

burden of proof to the State.” (Pet. Appx. 3, p. 6.) “Neither the testimony of the clerk of the

criminal court, or those records offered as exhibits to his testimony make the prima facie case of

discrimination which would place the burden on the State to refute it.” (Pet. Appx. 3, p. 14.)

“There is no evidence in this record that these trial judges have not acted discreetly, honestly, and

conscientiously in their performance of [their] duty” to select grand jurors. (Pet. Appx. 3, p. 15.)

Considering Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970), and this Court’s

prior decisions referenced in Carter, the court concluded that the petitioner “fail[ed] to carry the

1

At the time of that hearing, the criminal court had begun using, for grand-jury service, the same random, compulsory

selection process already in place for naming petit jurors and substitute grand jurors.

2

burden of proving [a] denial of due process in this case” because the record was “devoid of any

showing of systematic exclusion” of African Americans from the grand jury. (Pet. Appx. 3, p.

15.)

On federal habeas corpus review, the district court rejected the petitioner’s claim of

purposeful discrimination in the grand-jury-selection process, and the Sixth Circuit affirmed.

(Appx. 1-4.) As for whether African Americans were “systematically excluded from the grand

juries of Davidson County, Tennessee at the time of his indictment,” the Sixth Circuit reviewed

the state-court record and found “no evidence of a system by which prospective black grand jurors

were identified and then ‘culled out’ as in Alexander v. Louisiana, 405 U.S. 625 (1972).” (Appx.

1, 3.) The record did not support an inference that African Americans were “intentionally

eliminated at that point in the selection process where subjective decisions were made.” Instead,

“the evidence is that those who made the subjective choices attempted to achieve balanced grand

juries which reflected the population of the county and made affirmative efforts to secure black

grand jurors.” (Appx. 3.) In the Sixth Circuit’s view, “the finding of the district court that there

was no purposeful discrimination in the selection of the grand jury which indicted petitioner is

supported by substantial evidence and is, therefore not clearly erroneous.” (Appx. 3-4.) This

Court denied certiorari. Allen v. Rose, 419 U.S. 1080 (1974).

In 1974, the petitioner escaped from prison custody and remained at large until 1986.

Following his return to custody, he was charged in a superseding indictment by a new grand jury

for the first-degree murder of Officer Johnson. State v. Allen, 752 S.W.2d 515, 516 (Tenn. Crim.

App. 1988). Upon conviction on that charge in 1989, the petitioner received a 78-year sentence,

to run consecutively to his 99-year sentence on the first conviction. The petitioner’s direct appeal

and state-court post-conviction challenges on the second conviction were unsuccessful. State v.

3

Allen, No. 01C01-9006-CR-00151, 1991 WL 186854 (Tenn. Crim. App. Sept. 24, 1991),

rehearing denied (Tenn. Crim. App. Oct. 29, 1991), perm. app. denied (Tenn. June 22, 1992),

rehearing denied (Tenn. Jun. 22, 1992); Allen v. State, No. 01C01-9802-CR-00070, 1999 WL

618736 (Tenn. Crim. App. Aug. 11, 1999), perm. app. denied (Tenn. Dec. 13, 1999). But his

sentence was later modified from 78 years to life imprisonment. Allen v. State, No. M2003-01786CCA-R3-HC, 2004 WL 1908809 (Tenn. Crim. App. Aug. 25, 2004), perm. app. denied (Tenn.

Nov. 29, 2004), cert. denied, 544 U.S. 981 (2005).

B.

Challenges to Amended Judgment

Relative to his first conviction, the petitioner in 1989 filed in the convicting court a second

petition for post-conviction relief. Allen v. State, 854 S.W.2d 873, 874 (Tenn. 1993). During the

long-running proceedings on that challenge, the parties in 2007 agreed to the entry of an amended

judgment modifying the petitioner’s sentence from 99 years to life imprisonment, just as the

sentence in his second conviction had been amended to life imprisonment. The trial court

ultimately denied post-conviction relief. On the grand-jury-discrimination claim, the court found

no intentional racial discrimination or systemic exclusion of African Americans from the selection

process. The Tennessee Court of Criminal Appeals affirmed and deemed the grand-jury challenge

barred by the previous state-court adjudications on the claim. Allen v. State, No. M2009-02151CCA-R3-PC, 2011 WL 1601587, at *6-*9 (Tenn. Crim. App. Apr. 26, 2011), perm. app. denied

(Tenn. Aug. 25, 2011), cert. denied, 565 U.S. 1237 (2012).

Thereafter, the petitioner sought a writ of habeas corpus relative to the 1968 conviction.

After extensive trial and appellate proceedings on the habeas corpus petition, the Sixth Circuit

determined that, due to the 2007 sentence modification, the petition was not second-or-successive

and the district court should consider the merits of the grand-jury claim. Allen v. Westbrooks, 700

4

Fed. Appx. 406 (6th Cir. June 23, 2017), cert. denied, 138 S. Ct. 647 (2018), cert. denied, 138 S.

Ct. 648 (2018). On remand, both parties agreed that the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) governs federal-court review of the claim. The district court applied the

deferential review required by 28 U.S.C. § 2254(d) to the 1973 state-court rejection of the claim

and concluded that the decision did not contravene or unreasonably apply then-applicable federal

law. (Pet. Appx. 2.)

On appeal, the Sixth Circuit affirmed. Applying AEDPA deference to the 1973 state-court

denial of the claim, the court correctly recognized that the petitioner “must prove that the

Tennessee court was not only wrong in interpreting then-existing Supreme Court precedent, but

that its interpretation was patently unreasonable.” The court expressed skepticism that the

petitioner could state a prima facie case of grand-jury discrimination based only upon (1)

identifying a selection process “susceptible to abuse” and (2) showing “a substantial disparity

between the percentage of the population that was African American and the percentage of grand

jurors that were African American.” (Pet. Appx. 1, p. 4.)

Not until this Court decided Castaneda v. Partida, 430 U.S. 482 (1977), did it “squarely

[hold] that a petitioner could make a prima facie case by demonstrating that a substantial disparity

arose from a jury-selection system that was susceptible to abuse.” (Pet. Appx. 1, p. 4-5.) This

Court did say in Alexander in 1972 that a prima facie case could be made “by showing there was

a substantial disparity and that the jury-selection system was not racially neutral.” But based on

the facts presented in Alexander and the cases cited in that decision, “one could reasonably think

that a system was racially non-neutral only when there was a ‘physical, even mechanical, aspect

of the jury-selection process that could have no conceivable purpose or effect other than to enable

those so disposed to discriminate against [African Americans] solely on the basis of their race.’”

5

(Pet. Appx. 1, p. 5) (citation omitted). That was not the case with the discretionary system at issue

here, considered at a time when this Court had upheld discretionary jury-selection systems on

multiple occasions. (Pet. Appx. 1, pp. 5-6.) In terms of AEDPA deference, the state court in 1973

was not compelled by Alexander and other prior decisions from this Court to reach the conclusion

later made in Castaneda, that a “substantial disparity” coupled with a system “susceptible to

abuse” would state a prima facie case. (Pet. Appx. 1, pp. 6-7.) And “if there are multiple

reasonable ways to interpret precedent, and one of them supports the state court judgment from

which the petitioner seeks habeas relief in federal court, then under AEDPA, we defer to the state

court’s decision.” (Pet. Appx. 1, p. 7.)

Even if the petitioner stated a prima facie case of racial discrimination, the Sixth Circuit

concluded that the state court could reasonably have determined under then-prevailing law that the

State had successfully rebutted it. This Court explained in Alexander that the State could rebut a

prima facie case by showing that permissible, race-neutral criteria and procedures produced the

result. Here, the criminal court judges testified to their preference for volunteer grand jurors and

also to their difficulty securing volunteer grand jurors generally and African American volunteer

grand jurors particularly. This could explain the disparity. (Pet. Appx. 1, pp. 7-8.) And under

AEDPA, the state court could have reasonably believed that this was sufficient to rebut the prima

facie case and that this was not an inappropriate post-hoc assertion of good faith action. “[I]t

wasn’t clear at the time the state court reviewed Allen’s [post-conviction] petition that the Supreme

Court’s rejection of good faith affirmations covered the state’s conduct here.” (Pet. Appx. 1, p.

8.) “Thus, it was not clearly established that the testimony of the judges was insufficient evidence

of the state’s race-neutral process.”

6

ARGUMENT

This Petition Seeking Error Correction Should Be Denied Because the Case Has Little

Precedential Value, Has No Practical Impact on the Petitioner, and Does Not Present a

Meritorious Claim For Habeas Corpus Relief.

For over 50 years, the petitioner has repeatedly—and unsuccessfully—challenged the

indictment underlying the first of his two convictions for first-degree murder, based on alleged

racial discrimination in the grand-jury-selection process. During all that time, he failed to prove

his claim in his direct appeal, his initial state-court post-conviction proceedings, his initial federal

habeas corpus proceedings, and his subsequent state-court post-conviction proceedings. In all four

instances, this Court denied certiorari.

At this late hour made possible only because of entry of an amended judgment addressing

a sentencing change, the petitioner returns to the Court yet again but in a less favorable posture.

In the most recent federal habeas corpus proceedings, the parties argued—and the lower courts

agreed—that consideration of the claim’s merits is subject to AEDPA’s deferential review, with

deference granted to the 1973 rejection of the claim by the Tennessee Court of Criminal Appeals.

In view of the highly unique factual and procedural history of this case, as well as the argument

offered by the petitioner, the case presents nothing more than a request for error correction, which

would have no precedential value and would have no practical impact on the petitioner. The Court

should deny the request.

Considering the matter in context, in order for the petitioner to secure habeas corpus relief

at this juncture, he must show that the Tennessee Court of Criminal Appeals on February 1, 1973,

reached a decision that was contrary to, or an unreasonable application of, clearly established

federal law as stated by this Court at that time. 28 U.S.C. § 2254(d). It is hard to imagine how

anyone else going forward, in 2020 and beyond, will need guidance from this Court on what federal

7

law was or was not clearly established on February 1, 1973, with regard to grand-jurydiscrimination claims. The Sixth Circuit’s decision on review is unpublished and binding on no

one other than the petitioner. 6 Cir. R. 32.1(b). And any decision by the Court under AEDPA

could conceivably impact only the petitioner and no one else, regardless the decision reached. This

is reason enough to conclude that the case fails to present “compelling reasons” for review, since

certiorari requests grounded on simple error-correction are “rarely granted.” Sup. Ct. R. 10.

Further weighing against the Court’s use of its scarce judicial resources to grant review in

this case is the lack of actual difference that any potential relief could make for the petitioner. As

recounted above, the petitioner stands convicted on two counts of first-degree murder for his

admitted shooting and killing of Officer Thomasson and Officer Johnson. He received consecutive

life sentences. Despite his escape from prison for more than a decade, he still served sufficient

time in custody to reach parole eligibility on both sentences, and he has been released onto parole.

See Allen, 2004 WL 1908809, at *4 n.4 (“[I]n 1968 a prisoner serving a life sentence was eligible

for parole after serving twenty-five years, less good conduct time.”).

This case and the grand-jury claim relate only to his first conviction. If he were successful

in further proceedings before this Court, he would remain on parole for a sentence of life

imprisonment on the remaining first-degree murder conviction arising out of the same offense.

This further undermines any assertion of “compelling reasons” for a writ of certiorari. Sup. Ct. R.

10.

Even assessing the Sixth Circuit’s decision with a view toward error-correction, the

petitioner shows no defect or misapplication of 28 U.S.C. § 2254(d) in the lower court’s opinion.

There is no error to correct. The Sixth Circuit accurately recognized that it was not until 1977 that

this Court clarified, in Castaneda, that a prima facie case of juror racial discrimination could be

8

based on a “substantial disparity” between the racial compositions of a population and of a jury,

coupled with a system “susceptible to abuse.” In Alexander, this Court’s most recent pre-February

1, 2013 decision, the Court did state that a prima facie case could be based on a “substantial

disparity” and on a system that was “not racially neutral.” But that provides the petitioner no

benefit, as the Sixth Circuit explained, “because not all systems that are susceptible to abuse are

necessarily racially non-neutral under Alexander.” (Pet. Appx. 4-5.) Alexander “relied only on

cases where there was a discrete step with no other purpose than to facilitate discrimination” when

assessing a prima facie case. The Court in Alexander “may have seen including a physical step in

the jury-selection procedure with no other apparent purpose than to enable discrimination as more

probative of purposeful discrimination than allowing decision maker discretion.” (Pet. Appx. 10.)

What is pertinent here is that, in terms of AEDPA review, a reasonable jurist on February

1, 1973, could have construed Alexander in this way and could have determined that the phrase

“not racially neutral” used there described “jury-selection procedures that contained a physical

step with no other apparent purpose than to facilitate discrimination,” which is not present here.

Stated differently, a reasonable jurist could have concluded that this Court had not squarely

authorized a prima facie case based more broadly on the fact that a system was discretionary and

“susceptible to abuse,” without requiring a physical step whose only apparent purpose was to

discriminate. This view is bolstered by the fact that the Court had upheld other discretionary

systems pre-Alexander. (Pet. Appx. 1, p. 4-5.) This is one reasonable construction of Alexander

and the cases predating it, and it thus supports the denial of relief under AEDPA.

Moreover, even if the petitioner stated a prima facie case, the Sixth Circuit correctly

concluded that a reasonable jurist could determine that the State rebutted it. Unlike many of the

other jury-selection systems reviewed by this Court prior to February 1, 1973, the system in place

9

in Davidson County was a discretionary system under which the criminal court judges themselves

affirmatively sought out volunteers to serve on grand juries for four-month terms. This did not

involve judges or other actors culling lists of potential jurors or removing otherwise qualified and

available persons for racial or other inappropriate reasons. The judges explained at the evidentiary

hearing their efforts to find potential grand jurors, to reach beyond their own personal social

circles, and to create grand juries that included a fair representation of the community. This was

well beyond simple post-hoc assertions of good faith efforts. It was testimony about affirmative,

ongoing steps to secure grand jurors willing to serve and difficulties in filling juror positions.

As the Sixth Circuit rightly noted, it was already clearly established on February 1, 1973,

that generalized assertions of good faith efforts were insufficient alone to rebut a prima facie case;

however, the Court at that time had not applied this rule “beyond the conclusory testimony from

jury commissioners that they followed the law and didn’t discriminate on the basis of race.” (Pet.

Appx. 1, p. 8.) The state-court record in this case includes much more than conclusory testimony

of that nature. Or rather, in terms of AEDPA deference, a reasonable jurist on February 1, 1973,

could have concluded that the judges’ testimony here went well beyond simple post-hoc assertions

of good faith, as those had been considered and discounted in the Court’s prior decisions.

Instead, a reasonable jurist at that time could have concluded that the testimony rebutted a

prima facie case of racial discrimination, with race-neutral reasons to explain any disparity.

Indeed, the Sixth Circuit reached that very same conclusion—that any prima facie case of racial

discrimination was rebutted by the record—when it rejected the claim in 1974, even without the

limiting strictures of AEDPA. (Pet. Appx. 1, p. 9.) When viewed through the lens of AEDPA,

the lower courts appropriately denied habeas corpus relief.

10

Finally, the petitioner persists in his argument that this case is somehow governed by

Jefferson v. Morgan, 962 F.2d 1185 (6th Cir. 1992). But this Court is not bound in any way by

this unrelated lower court decision. Furthermore, as the district court correctly recognized, the

review mandated by AEDPA is limited to the record presented in state court, which is not the same

record as that developed in Jefferson. And the governing federal law in 1973 is not the same as

applicable law in 1992. (Pet. Appx. 2, pp. 13-14.) The Sixth Circuit’s decision in Jefferson does

not inform whether the Court should grant certiorari.

11

CONCLUSION

For the reasons stated, the petition for a writ of certiorari should be denied.

Respectfully submitted,

HERBERT H. SLATERY III

Attorney General and Reporter

State of Tennessee

ANDRÉE SOPHIA BLUMSTEIN

Solicitor General

/s/ John H. Bledsoe

JOHN H. BLEDSOE

Deputy Attorney General

Federal Habeas Corpus Division

Counsel of Record

500 Dr. Martin L. King Jr. Blvd.

P.O. Box 20207

Nashville, Tennessee 37202-0207

John.Bledsoe@ag.tn.gov

(615)741-4351

Counsel for Respondent

12