Appendix — Alabama v. Cochran

Supreme Court, U.&.

(V) FILED

{5° 76'1 OGT 2 4 1995

IN THE SUPREME COURT OF THe THE ARR STATES

OCTOBER TERM, 1995

STATE OF ALABAMA, Petitioner

V eo

JAMES WILLIE COCHRAN, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

J. CLAYTON CRENSHAW.

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(334) 242-7300

~Counsel of Record for Respondent

INDEX TO APPENDIX

Cochran v. Herring, Case No. 90-P-1247-S,

October 3, 1990

Cochran v. Commissioner,

Alabama Department of Corrections, Case

No. 90-P-1247-S, June 8, 1993.

Cochran v. Commissioner,

Alabama Department of Corrections,

Case No. 90-P-1247-S. July 21, 1993

Cochran v. Commissioner,

Alabama Department of Corrections,

Case No. 90-P-1247-S, November 24, 1993.

Cochran v. Herring, 43 F.3d 1404

(llth Cir. 1995).

Cochran v. Herring, No. 93-7028,

On Petition For Rehearing, July 26, 1995.

DOCUMENT NUMBER 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

Southern Division

JAMES WILLIE COCHRAN,

Petitioner,

Case No. CV

90-P-1247-S

ae ae

TOMMY HERRING,

Respondent.

ee ee ee eet eet eee eee See”

OPINION AND ORDER

In this case seeking a writ of habeas

corpus with respect to Petitioner's

conviction of capital murder and death

sentence, the Petitioner seeks leave to

conduct a certain discovery pursuant to Rule

6(a) of the Rules Governing § 2254 Cases.

Petitioner seeks the following:

(1) discovery from the prosecutor

and the state trial judge relating

to his claim that the State

exercised its peremptory challenges

to members of the jury venire in a

racially discriminatory manner

(2) discovery from Petitioner's

former attorneys relating to his

Claim of ineffective assistance of

counsel and possible causes for

alleged procedural defaults

(3) discovery of grand jury

materials relating to his claims of

double jeopardy, erroneous admission

of identification testimony, and

possible other claims not now known

by Petitioner

(4) production of the audio tape of

the trial which allegedly varies

from the stenographic transcript

presented on appellate reviews.

Respondent's primary opposition to the

request is based on its contention that the

claims on which discovery is sought are ones

which the federal court is precluded from

considering because of procedural defaults

by Petitioner in state court proceedings.

I. Peremptory Challenges.

Petitioner seeks leave to conduct

discovery in various forms (request for

production of documents, interrogatories,

requests for admission, and depositions) to

support his claim that the prosecution

exercised its peremptory challenges at trial

in a racially discriminatory manner in

violation of the constitutional mandates

announced in Batson v. Kentucky, 476 U.S. 79

(1986). If this claim is one subject to

federal review, some discovery would be

appropriate under Rule 6 because of the

incomplete state of the evidence presented

in state court on this claim and the

potential need for an evidentiary hearing in

federal court.

This issue, however, was considered by

the Court of Criminal Appeals of Alabama --

the "last state court that rendered judgment

and provided reasons for the judgment" --

and was rejected because of a procedural

default under state law. See Cochran v.

State, 548 So.2d 1062 (Ala.Crim.App. 1989).

While alternatively addressing (and

rejecting) that claim on its merits, the

Court held that Petitioner was procedurally

barred from relief on the claim because of

Petitioner's failure to raise this claim on

direct appeal. (Batson was decided on April

30, 1986; Cochran's direct appeal was not

denied by the Court of Criminal Appeals of

Alabama until June 1986 and was not denied

by the Alabama Supreme Court until November

1986.)

Petitioner argues that this procedural

default does not necessarily preclude a

potential evidentiary hearing--and hence the

need for discovery--on the Batson claim.

Citing the recent decision in Johnson v.

Dugger, __ F.2d i £(iith Cir. No. 89-3195;

Aug. 21, 1990), Petitioner contends that a

hearing is -- or at least may be --

necessary on the question of whether refusal

to consider this claim would result in a

"fundamental miscarriage of justice."

Although Johnson may indeed expand the scope

of this exception to the procedural default

doctrine, it does not support Petitioner's

position here. To come within that

exception, even as enunciated in Johnson,

the alleged constitutional violation must be

one that affected the deliberative process

"to such a degree that its ultimate

conclusions [as to guilt or the death

sentence] are probably factually in

error." Id. slip op. at 4951 (emphasis in

original). A Batson claim does not meet

that stringent test.

Petitioner's requested discovery

respecting his Batson claim will be denied

because that claim is one that this court is

precluded from considering.

II. Ineffectiveness of Counsel.

In support of his claims of ineffective

assistance of counsel (both as an

independent ground and to show "cause" to

avoid the bar of procedural defaults with

respect to other claims), Petitioner seeks

to depose five attorneys who nave previously

represented him during state court

proceedings. The State argues that these

Claims likewise are procedurally barred

because they were not raised in state court

trial, on direct appeal, or at the state

collateral attack.

In the current petition, Petitioner

alleges numerous instances of deficient

representation; however, Petitioner has

presented -- or attempted to present -- only

three of such claims to the State courts.

While the other claims would presumably have

been precluded from immediate federal review

under the "exhaustion" doctrine, the State

here (paragraph 53 of its answer) has waived

any requirement for exhaustion, citing

Thompson v. Wainwright, 714 F.2d 1495 (11th

Cir. 1983).

One of the three alleged deficiencies

previously raised in state court related to

trial counsel's failure to preserve an issue

relating to search of an automobile. This

was raised in the petition seeking

collateral review, but was~ not pressed at

the hearing on that petition or pursued in

the appeal to the Court of Criminal

Appeals. It must be viewed as having been

abandoned, and discovery on that point

should be denied.

The other two alleged deficiencies

previously raised in state court have been

found by the Court of Criminal Appeals to be

procedurally barred under Alabama law. In

Part IV of its March 1989 opinion (548 So.2d

at 1074-75), that Court concluded that under

Alabama procedural rules the Petitioner was

precluded from amending the collateral

petition to state a claim of ineffective

assistance of appellate counsel in failing

to raise the Batson argument on appeal. For

the reasons expressed above with respect to

the Batson claim itself, this court must

conclude that it is precluded from

considering the claim of ineffective

assistance of counsel premised on the

failure of appellate counsel to raise

Batson. Discovery on this issue should not

be permitted.*

In Part II of that same opinion, the

Court concluded that the claim of

ineffective assistance based on failure to

obtain a psychiatric examination for

sentencing was barred because of the failure

*A very recent case, Hollis v. Davis, __

F.2d {(Iith Cir. No. 88-7477; Sept. 25,

1990), was rendered after briefs from the

parties were prepared. On initial reading,

it lends support to Petitioner's contention

that this court is not precluded from

considering the claim respecting selection

of the jury. A careful examination,

however, of the case reveals that it is

inapposite. Faced with the Magistrate's

finding that blacks had been systematically

excluded from the jury pool, the Eleventh

Circuit held that the failure of the

accused's attorney's to raise that issue

constituted inadequate representation and

therefore "cause" to avoid any procedural

~ Gefault. -The omitted claim "could hardly

have been better established by [the time of

the trialj, and any competent attorney

practicing criminal defense in Alabama at

that time should have known of it." Id., at

5307. The court specifically distinguished

that claim from a Batson claim.

of Petitioner's appellate counsel -- who

were different from Petitioner's trial

counsel -- to raise that issue on appeal.

According to Johnson v. Dugger, supra, this

Claim may still be subject to review in

federal court under the exception for a

fundamental miscarriage of justice.

Accordingly, discovery on this issue should

be permitted.

The remaining claims of ineffective

assistance, never having been presented in

state court, appear to be procedurally

barred, Parker v. Dugger, 876 F.2d 1470

(llth Cir. 1989) -- unless, that is,

Petitioner can come within the

“cause-and-prejudice" or "fundamental

miscarriage of justice" exceptions. The

court concludes that the decision whether

either of these exceptions applies should be

made only after Petitioner's present counsel

have been afforded an opportunity for

discovery on matters bearing on such

issues. In concluding that discovery on

such matters should be allowed, the court

takes into account the fact that depositions

of these attorneys, or at least some of

them, are being allowed under the preceding

paragraph.

Some of the alleged deficiencies of

former counsel appear to relate to actions

taken or omitted during the collateral

attack. In Toles v. Jones, 888 F.2d 95

(llth Cir. 1989), this circuit held that a

procedural default could not be excused on

the basis of inadequate performance of

counsel during collateral proceedings.

Since the Toles decision has been vacated

for an en banc review, raising the specter

that deficiencies in collateral proceedings

might be used to show "cause" for a

procedural default, this court concludes

that questions to these attorneys relating

to the collateral proceedings should be

10

allowed during these depositions as a matter

of efficiency.

III. Grand Jury.

Without deciding at this point whether

Petitioner's claims respecting double

jeopardy and improper admission of

identification evidence are ones subject to

federal review, the court concludes that

Petitioner has not demonstrated a sufficient

need for grand jury materials and that the

requested discovery of these materials

should be denied.

IV. Audio Tape.

The issue whether Petitioner's claim

with respect to the alleged omission from

the trial transcript of comments concerning

Petitioner's prior conviction is subject to

federal review is one that; if possible,

should be decided after Petitioner has been

afforded access to the audio tape made by

the court reporter. Accordingly, if such a

tape or stenographic notes can be

located,* Petitioner should be given

access to such materials.

ORDER

In summary, Petitioner is given leave to

depose his former counsel (except with

respect to the Batson issue and the

preservation of error with respect to the

automobile search) and to review the audio

tape of the trial proceedings. Petitioner

is denied leave to proceed with the other

discovery that has been requested.

This is the 3rd day of October, 1990.

"s/ Sam C. Pointer, Jr."

United States District

Judge

2The State has advised that the court

reporter has thus far been unable to locate

any audio tapes or notes from petitioner's

trial.

12

DOCUMENT NUMBER 2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

Southern Division

Case No. 90-P-01247-S

JAMES WILLIE COCHRAN

Petitioner,

vs.

COMMISSIONER, Alabama Department of

Corrections,

Respondent.

Judgment and Writ

For the reasons contained in the

attached Opinion, the petition for a writ of

habeas corpus is hereby conditionally

GRANTED and it is ORDERED that the

petitioner, James Willie Cochran, be

released unless, within 120 days from this

date (or, if the case is appealed, within

120 days from the date of final disposition

of the appeal), the State of Alabama either:

1. grants the petitioner a new sen-

sing hearing; or

2. commutes the petitioner's sentence

from death to life imprisonment.

This the 8th day of June, 1993.

"s/ Sam C. Pointer, Jr."

United States District Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

Southern Division

Case No. 90-P-01247-S

JAMES WILLIE COCHRAN,

Petitioner,

vs.

COMMISSIONER,

Alabama Department of Corrections,

Respondent.

Opinion

In this habeas corpus action, filed on

June 19, 1990, Cochran challenges his 1982

capital murder conviction for an offense

committed in 1976.7 The case is

*The 1982 trial was Cochran's third.

His first, in 1977, ended in a mistrial and

the second, in 1978, resulted in his

conviction for capital murder. This

conviction was reversed and remanded for new

(Footnote Continued)

before the court following evidentiary

hearings and extensive post-trial briefs.

Finding one of Cochran's many claims has

merit, the court will conditionally grant

the writ.

Cochran was convicted of Capital Murder

under Ala. Code §13-11-2(b) (1975).7

In the words of the state trial court:

"Stephen Jerome Ganey was the

assistant manager of the A & P

Grocery Store on Green Springs Road,

Homewood, Jefferson County on

November 4, 1976. Between 9:30 and

10:00 P.M. the store was robbed by

the defendant James Willie Cochran.

(Footnote Continued)

trial after the Supreme Court overturned

Alabama's Death Penalty Statute. Cochran v.

State, 400 So.2d 535 (1981). See also Beck

v. Alabama, 447 U.S. 625 (1980) (finding

Alabama's Death Penalty Statute

unconstitutional); Beck v. State, 396 So.2d

645 (Ala. 1980) (Alabama Supreme Court's

construction of the Death Penalty Statute,

curing the deficiencies).

*Section 13-11-2(b) provides that

"[r]lobbery or attempts thereof when the

victim is intentionally killed" by the

defendant constitutes a capital offense.

4

Ee

Between $200 and $700 or more was

taken by the defendant.

Identification was made by two

witnesses.

"Court finds that after obtaining

the money, Defendant left the

premises and was followed by Ganey.

It was a ‘stop and go' situation.

Defendant saw Ganey follow him and

would stop, point or exhibit his

revolver and Ganey would stop, then

Defendant would move on and Ganey

would follow. This continued for

about half a block until the two men

left the sight of witnesses going in

the general direction of a mobile

home park and a motel complex to the

north of the A & P shopping center.

Possibly a half a mile was the

distance from A & P to the mobile

home park and the motel.

"The Court further finds that law

enforcement personnel virtually

surrounded the area and in the next

twenty minutes a shot was heard. The

defendant was taken into custody

after discarding a revolver. Nearly

$250.00 with an A & P band around it

was taken from his pocket. He was

arrested about 10:18 P.M. The body

of the victim, Ganey, was recovered

an hour later under a trailer. The

Court further finds as a fact that

the defendant intentionally killed

Stephen J. Ganey."

Cochran v. State, 500 So.2d 1161, 1171

(Ala.Cr.App. 1984) quoting Findings of Fact

From Guilt Phase of the Trial, aff'd in

pertinent part, 500 So.2d 1179 (Ala. 1985),

cert. denied, 481 U.S. 1033 (1987).

PROCEDURAL HISTORY

The Alabama Supreme Court affirmed

Cochran's conviction on November 8, 1985,

but reversed the sentence of death and

remanded the case to the Court of Criminal

Appeals "for that court to order a new

sentencing hearing, at which the trial judge

is required to issue specific written

findings on all evidence of mitigating

factors." Ex parte Cochran, 500 So.2d 1179

(Ala. 1985). On remand, the trial judge

made specific written findings of his

consideration of all statutory and

non-statutory mitigating circumstance and

found the aggravating circumstances totally

outweighed the mitigating circumstances.

The trial court considered, but found

unpersuasive, testimony regarding Cochran's

good prison record from August 1981 to April

1982 and his earlier employment record as a

good employee. The trial court concluded

that a new sentencing hearing was not

warranted by the remand order. The decision

of the trial court, imposing the death

penalty, was affirmed. Cochran v. State,

500 So.2d 1188, 1189 (Ala.Cr.App. 1986),

aff'd 500 So.2d 1064 (Ala. 1986), cert.

denied, 481 U.S. 1033 (1987).

His direct appeal complete, Cochran

filed a petition in 1987 for state

post-conviction relief under Rule 20,

Ala.R.Crim.P. Temp. The Circuit Court

denied the petition after an evidentiary

hearing. On appeal, the Alabama Court of

Criminal Appeals denied all three of his

Claims for post-conviction relief: that the

prosecution used its peremptory strikes in

violation of Batson v. Kentucky; that his

appointed trial counsel and appellate

counsel were ineffective, and that the

Circuit Court erred in not allowing him to

amend his Rule 20 petition. Cochran v.

State, 548 So.2d 1062 (Ala.Crim.App. 1989),

cert. denied 493 U.S. 900 (1989).

COCHRAN'S CLAIMS

When, as in this case, federal habeas

relief is opposed by an assertion of

procedural default, the initial inquiry is

whether the State has established that the

Claim was defaulted during state proceedings

by the application of an adequate and

independent state rule. See Wainwright v.

Sykes, 433 U.S. 72 (1977) (state procedural

default bars habeas review absent a showing

of cause and prejudice); Harris v. Reed, 489

U.S. 255, 262 (1989) (the adequate and

independent state grounds doctrine applies

to habeas petitions filed pursuant to 28

U.S.C. §2254). Unless the State makes

this showing, the federal court can proceed

to an examination of the merits without

considering possible exceptions to the

procedural default doctrine or venturing

into the quicksand of cause-and-prejudice.

See Wainwright, 433 U.S. at 87; Murray v.

Carrier, 477 U.S. 478 (1986).

Cochran's federal habeas petition raises

twenty-one different claims, many of which

were procedurally defaulted at the state

level. This court will first summarize

those claims that were procedurally

defaulted or that, though reviewable,

clearly fail on the merits. The court will

‘ then address those two claims --

specifically the Batson claim and the claim

of ineffective assistance of counsel during

the sentencing state of the trial -- that

present closer questions on the merits and

warrant a more detailed discussion.

Cochran's claims will be identified by

iY reference to the paragraph- numbers of the

petition.

I. Procedurally-Defaulted Claims

Cochran raises twelve claims not subject

to federal review because of procedural

default at the state court ievel.

A. Jury Selection Claims

Cochran asserts that his rights under

the sixth, eighth, and fourteenth amendments

were violated when at trial the judge

denied three motions regarding jury

selection; namely, (i) his motion to have a

sequestered, individual voir dire with each

potential juror, 949%475-80; (ii) his

motion to have each prospective juror

complete a questionnaire providing

background information, 4981-83; and

(ii) his motion to be allowed two peremptory

challenges for each challenge of the

prosecution, 9984-90. .

The State correctly responds that,

because none of these issues was raised at

any stage of the State proceedings, either

on direct or collateral review, they were

10

defaulted. Cochran, citing Mann v. Dugger,

844 F.2d 1446, 1448, n.4 (llth Cir. 1988),

argues that, because the Alabama appellate

courts undertook a plenary review of the

recérd, these claims were impliedly

addressed and rejected, and hence were not

defaulted. Cochran's argument fails - Mann

is inapposite. Cochran's reading of Mann

calls, in essence, for a return to the

deliberate bypass standard of Fay v. Noia,

372 U.S. 391 (1963), an approach rejected by

the Supreme Court. See McKleskey v. Zant,

499 U.S. __, 111 S.Ct. 1454, (1991);

Wainwright, 433 U.S. at 89; Julius v.

Johnson, 840 F.2d 1533, 1546 (11th Cir.

1988).

B. Sentencing Claims - Defauit

on Direct Appeal

Seven of Cochran's claims were defaulted

on direct appeal: 4944120-123,

insufficiency of evidence at sentencing;

44% 124, 135, failure to instruct the jury

11

on unanimity regarding aggravating

circumstances; 949171-177, improper

closing arguments; 4% 178-180, improper

reference by the court to Cochran's 1978

trial; 4% 181-186, improper use of and

argument about the victim's family during

sentencing proceedings; 919188-189,

arbitrary, capricious and disproportionate

penalty and inadequate review on appeal;

99190-191, unconstitutionality of the

death penalty as applied in Alabama.

A review of the record indicates that

the State is correct in its assertion that

these claims were not raised on appeal and

are therefore defaulted. Cochran cannot

demonstrate cause for this default - apart

from the argument based on Mann, rejected

above; thus this court is precluded from

reviewing these claims.

12

C. Sentencing Claims - Default

at Rule 20 Hearing

Cochran challenges the trial court's

failure to instruct the jury that the

defendant's good character and employment

history could be considered mitigating

circumstances, 9996-99, and its

exclusion of evidence regarding the lack of

deterrence value of the death penalty,

99116-119. Cochran did not raise these

claims at his 1987 Rule 20 Petition for

state collateral relief, and thus defaulted

the claims at the state level. This default

was clear -- Alabama law provides that

claims not brought in the first petition are

defaulted and will not be heard on second or

successive petitions absent a showing of

cause and prejudice or a showing that there

has been a fundamental miscarriage of

justice. Ala.R.Crim.P.20.2(b). The

Eleventh Circuit has found this rule to

constitute an adequate state ground for

13

default. Persnell v. Kemp, 835 F.2d 1567,

1575 (llth Cir. 1988). These claims were

thus defaulted by the application of

Ala.R.Crim.P. 20.2(b) which constitutes an

adequate and independent state ground for

decision and precludes review by this court.

II. Constitutionality of Alabama's

Death Penalty Statute

Cochran challenges the constitutionality

of Alabama's 1975 Death Penalty Statute (Act

213). He was convicted under Act 213 in

1978, but had to be retried after the

Supreme Court held the statute

unconstitutional. Beck-v. Alabama, 447 U.S.

625 (1980). The statutory defect was then

cured by the Supreme Court of Alabama in

Beck v. State, 396 So.2d 645 (Ala. 1980)

(Beck II). Cochran contends the Alabama

Supreme Court's restructuring of the statute

violated his rights under the fifth, eighth,

and fourteenth amendments. He argues that

this restructuring could have been performed

14

only by the legislature. 4% 136-138.

This claim is without merit. See Dobbert v.

Florida, 432 U.S. 282 (1977); Jordan v.

Watkins, 681 F.2d 1067 (5th Cir. 1982);

Atwell v. Nichols, 608 F.2d 228 (5th Cir.

1979).

III. Evidence of Guilt

Cochran makes two claims concerning

evidence at the guilt phase of his 1982

trial. He first asserts that the evidence

was insufficient to support the jury's

verdict, finding his guilty of intentional

murder in the course of a robbery. {17

42-45. He then challenges the eyewitness

testimony by witnesses Jones and Peters,

4% 139-170, asserting that the

identifications resulted from unduly

suggestive procedures (44153-159) and

lacked independent indicia of reliability

(4% 160-164). The argument is that

dubious circumstantial evidence and

inadmissible identification testimony led to

15

an unjust conviction. This court rejects

these claims.

The State incorrectly contends that

these claims were procedurally defaulted.

They were explicitly addressed by the

Supreme Court of Alabama on direct review.

Ex parte Cochran, 500 So.2d 1179. That

Cochran was precluded by Ala.R.Crim.P.

20.2(a)(4) from raising these issues at his

Rule 20 hearing does not bar review by this

court. A claim raised on direct appeal and

foreclosed from state collateral review on

res judicata grounds is reviewable on

federal habeas. Smith v. Dugger, 840 F.2d

787, 791 (llth Cir. 1988).

Review on the merits, however, yields

Cochran no relief. Cochran has shown no

error by the Alabama Supreme Court either

respecting the sufficiency of the evidence

or the admissibility of in-court

identification testimony. On the first

question, the Court stated:

16

We initially note that the evidence

presented in this case is not unlike

that produced in Ex Parte Jones; 450

So.2d 171 (Ala. 1984), where we

affirmed both the defendant's

conviction and his sentence of

death. With respect to. the evidence

presented here, we have reviewed the

record and we find that there was

sufficient evidence from which the

jury could exclude every reasonable

hypothesis except that of the

defendant's guilt. Cumbo v. State,

368 So.2d 871, 874 (Ala. Crim. App.

1978).

Cochran, 500 So.2d at 1185. On the second

question, the Court found that "although the

circumstances surrounding the identification

of the defendant are troublesome, the

determination of the credibility of the

identification is to be left to the decision

of the jury." Id. at 1184. The Court

emphasized that Cochran's appellate

arguments went to the weight of the

evidence, not to whether the case presented

jury issues. Id. This court agrees.

Cochran's claims fails on the merits.

17

IV. The Skipper Claim

Cochran maintains that the trial court

improperly ruled, in violation of Skipper v.

South Carolina, 476 U.S. 1 (1986), that

his prison record and employment history

were not mitigating circumstances. Contrary

to the State's contention, this claim is not

procedurally defaulted but is reviewable

here under Smith for the same reasons

outlined in Section III.

Once, again, however, review on the

merits does not yield Cochran any relief.

Cochran argues that the trial court violated

Skipper, as well as Eddings v. Oklahoma, 455

U.S. 104 (1982), because it rules "as a

matter of law that Petitioner's employment

history and good prison record were not

mitigating circumstances."" 4 100. The

record does not support this assertion;

rather it shows that the trial court

considered the evidence but found it

unpersuasive. Cochran v. State, 500 So.2d

1188, 1189 (Ala. Cr. App. 1986). Skipper

and Eddings focus on the fact that the

sentencing authority should consider certain

types of evidence; they do not mandate what

weight should be given such evidence.

Accordingly, Cochran's Skipper claim must

fail.

V. Double Jeopardy Claims

Cochran makes two claims invoking the

double jeopardy clause of the Fifth

Amendment. Both are based on the fact that

he was originally indicted under Ala. Code

G@ 13-11-2(m) (1975) on a charge of murder

committed within 20 years of a prior murder

conviction, namely a conviction in 1961 of

second degree murder. His trial on this

indictment began on August 15, 1977, but

ended the same day in a mistrial because the

District Attorney had failed to disclose to

Cochran's counsel evidence regarding two

material eyewitnesses. At a post-trial

suppression hearing on September 8, 1977,

19

Cochran moved to quash the indictment for

lack of proof that he was the same James

Willie Cochran convicted of the earlier

murder. The trial court granted the motion

to quash.

Both of Cochran's current double

jeopardy claims focus on the quashing of the

indictment. Cochran claims that his

reindictment and trial under Ala. Code 4

13-11-2-(b) (1975) violated the double

jeopardy clause. 4% 50-52. He also

challenges the State's use of the 1961

conviction as aggravating evidence at the

sentencing phase of the trial and its

reference to the 1961 conviction in closing

argument. 4955, 109-110.

The double jeopardy claim with regard to

sentencing is subsumed by the issue

regarding reindictment. If the State

violated the double jeopardy claim in

retrying Cochran, the question respecting

sentencing is moot. If not, then Cochran

20

cannot show a separate violation of his

rights at the sentencing hearing alone.

The double jeopardy claim was admittedly

defaulted on direct review. While Cochran

argues at length that there was "cause" for

this default, it appears that the claim also

meets the fundamental miscarriage of justice

exception to the procedural default rule.

The paradigm case involving the fundamental

miscarriage of justice is "where a

constitutional violation has probably

resulted in the conviction of one who is

actually innocent." Smith v. Murray, 477

U.S. 527, 537 (1986) quoting Engle v. Isaac,

456 U.S. 107, 135 (1982). Although

Cochran's double jeopardy claim does not

focus on actual innocence, it is premised on

the assertion that after dismissal of the

first indictment he should never have been

tried on the subsequent charge, which

certainly challenges the fundamental justice

of his conviction on that charge.

21

On the merits, however, this court

concludes that Cochran was not under

jeopardy at the time the initial charges

were dismissed. Jeopardy did attach when

the jury was sworn on August 15, 1977. See

United States v. Jorn, 400 U.S. 470, 479

(1971). The trial court declared a mistrial

that same day, however, and discharged the

jury on a motion by Cochran premised on the

prosecution's failure to make pretrial

disclosures. The indictment was not quashed

until three weeks later at the September 8th

hearing. The double jeopardy clause does

not ordinarily prevent’ retrial of a

defendant after a mistrial granted on the

defendant's motion. Jorn, 400 U.S. at 476.

"Such a motion by the defendant is deemed to

be a deliberate election on his part to

forgo his valued right to have his guilt or

innocence determined before the first trier

of fact." United States v. Scott, 437 U.S.

82, 93 (1978). When Cochran moved for

22

mistrial on August 15, 1977, he made such a

choice, and the state had the right at that

time to retry him. At the September 8,

1977, hearing, therefore, he was no longer

under jeopardy, and the double jeopardy

clause was not implicated when the court

quashed the indictment. See Serfass v.

United States, 420 U.S. 377, 389 (1975)

(jeopardy does not attach when for similar

reasons an indictment is dismissed before

trial). To the extent that Cochran argues

that his double jeopardy claim should be

viewed as if this mistrial never occurred.

(see @ 52), the court rejects the argument.

Even without the intervening mistrial,

Cochran's double jeopardy claim would likely

fail. As noted, the indictment was quashed

because the Court found that the State

lacked evidence at that time to prove that

Cochran was the same James Willie Cochran

who had been convicted of second degree

murder in 1961. Cochran's argument is that,

23

under United States v. Martin Linen Supply

Co. 430 U.S. 564, 571 (1977), a defendant is

acquitted for double jeopardy purposes when 2.

"the ruling of the judge, whatever its

label, actually represents a resolution

{in the defendant's favor], correct or

not, of some or all of the factual elements

of the offense charged." Id. But Martin no

longer applies where a defendant “obtains

the termination of the proceedings against

him in the trial court without any finding

by a court or jury as to his guilt or

innocence". Scott, 437 U.S. at 100. The

Scott court rejected that part of Lee v.

United States, 432 U.S. 23, 30 (1977), which

had held that "where a mid-trial dismissal

is granted on the ground, correct or not,

that the defendant simply cannot be

convicted of the offense charged, ...

further prosecution is barred by the Double

Jeopardy Clause", and distinguished such a

case from the holding of Martin. 437 U.S.

24

at 97. Scott replaced this test with one

that asks whether the court or jury ruled on

the guilt or innocence of the defendant.

Scott 437 U.S. at 101.

Thus, even if jeopardy existed when the

indictment was quashed, Cochran's double

jeopardy claim would apparently fail under

Scott. The dismis#al of his indictment did

not involve a question of guilt or innocence

of murdering Stephen Ganey, but rather only

whether the State had evidence at the time

to show he was guilty of an earlier crime

that would make the Ganey murder punishable

by death.

VI. The Batson Claim

Cochran claims that the jury at his 1982

trial was selected in violation of Batson v.

Kentucky, 476 U.S. 79 (1986). 4%

57-90. The venire at this trial consisted

of 42 people, nine of whom were black. The

State used seven of its fourteen peremptory

strikes to strike blacks. 465. This

statistical evidence is the key support for

Cochran's assertion that the State struck

the blacks for racially discriminatory

reasons.”

Batson was decided at a time during the

state court proceedings when Cochran's case

was under submission to the Court of

Criminal Appeals on direct appeal. The

State argues that Cochran's failure to raise

immediately this issue constituted a default

on direct review and therefore precludes

federal review. This argument fails. To

succeed on an assertion of procedural

default, the State must. demonstrate that the

*Cochran does point to other evidence.

Specifically, he attempts to demonstrate in

qi 70-74 that the only common characteristic

of those blacks struck was their race. The

Claims of these paragraphs, however, contain

no references to the record, nor does a

review of the record yield specific evidence

for the general assertions made in these

paragraphs.

26

TE BS Ad RP AES ARERR MET

federal claim was defaulted at the state

leve) by the operation of an adequate and

independent state rule. Under Harris v.

Reed, "procedural default does not bar

consideration of a federal claim on either

direct or habeas review unless the last

state court rendering a judgment in the case

‘clearly and expressly' states that its

judgment rests on a state procedural bar."

Harris 489 U.S. at 263.

Cochran did raise his Batson claim at

his 1988 Rule 20 hearing, and the claim was

denied on the merits. The Circuit Court

began its discussion of the Batson claim:

At the outset of this hearing this

court did not wish to hear the Batson

motion stating the court's

consideration was precluded. The

more this court thought about the

issue, the more consideration of the

issue was required. :

Cochran v. State, 548 So.2d at 1066. The

Court then reviewed the merits and concluded

"[tjhis court finds there was no

violation of the Batson, opinion. This

27

court finds there was no discriminatory

striking of blacks...." Id. at 1067. This

ruling was reviewed by the last court to

which Cochran presented his federal claims

-- the Court of Criminal Appeals of Alabama

-- which affirmed the decision of the

Circuit Court without clearly and expressly

relying on an independent and adequate state

ground. See id. at 1067-70.

The Court of Criminal Appeals did not

intimate that the Circuit Court's discussion

of the merits was erroneous. Rather, in i

affirming, it stated: "we agree with the

circuit judge in his finding that the record

contains no plain error of any Batson

violation." Id. at 1067. Although noting

that "under the circumstances present

Cochran is procedurally barred from

relief":, id., the Court did not expressly

rely on this ground, nor does its analysis

demonstrate that any procedural bar was an

independent state ground. Rather, after a

28

agers

cf

Pen Eero tetriae ter en

long discussion of procedural default, it

stated:

All facts support our conclusions

that there is a plain error in the

record and that there is nothing in

the record to indicate or imply that

the State engaged in racial

discrimination in the selection of

the jury.

Id. at 1069. Moreover, the Court continued

to address the Batson claim on the merits

when it rejected Cochran's assertion that

his counsel had been ineffective for failing

to raise Batson on direct appeal:

"appellate counsel were not ineffective for

failing to raise this issue on direct appeal

simply because there was nothing in the

record to indicate that Batson was, in fact,

an issue." Id. at 1070.

This interwoven discussion of state

procedural rules and federal constitutional

Claims in precisely that to which the Harris

clear-statement rule is addressed. Harris

simply applied the same rule to habeas

review which had been adopted in Michigan v.

29

Long for case on direct review. The

rationale for the clear statement rule --

deference to adequate and independent state

grounds for decision -- applies to both

types of review: it is impossible to

determine whether a state ground for

decision is adequate if the state court does

not clearly indicate that it is

independently relying on that ground. Thus,

when a court, such as the Court of Criminal

Appeals in this case, relies on the merits

of the underlying federal claim in deciding

a state law question, there is no 4

independent state law ground for the

decision. For federal review to be

precluded, the basis for the decision must

be "'independent' of the merits of the

federal law claim." Harris, 489 U.S. 260

(citations omitted). Cochran's Batson claim

is, therefore, reviewable here.

Analysis of the merits of the issue is

particularly difficult because Cochran is

30

one of the few defendants for whom the

Batson rule is retroactive.“

Ordinarily, review of a Batson claim would

begin with an analysis of whether the

petitioner established at trial a prima

facie showing of discriminatory strikes by

the prosecutor. If so, the burden would

have shifted to the prosecution to "come

forward with a neutral explanation for

challenging black jurors" -- an explanation,

however, that "need not rise to the level

justifying exercise of a challenge for

cause." Batson, 476 U.S. at 97.

Accordingly, the reviewing court would

determine whether the trial court erred

either by failing to require the prosecutor

—

“Batson was decided in April of 1986,

and the petitioner's case, though tried in

1982, was not final until 1987. Under

Griffith v. Kentucky, 479 U.S. 314 (1987),

Batson applied retroactively to Cochran's

case.

31

to articulate a race-neutral reason for

striking the jurors® or by accepting

the proffered reasons as rebutting the prima

facie case. Id. at 96-98.

A different type of review must be made

in this case because the participants at

Cochran's 1982 trial did not anticipate the

rule that Batson would announce in 1986.

Cochran's trial counsel did not object to

the prosecution's peremptory challenges

during or at the conclusion of that

process. The prosecution was not asked, and

did not volunteer, to explain its

challenges. Nor has this court been

“In post-Batson cases, the trial judge

-- whose findings are to be given great

deference (476 U.S. at 98 n. 21) -- often

will take the safer and more expeditious

court of calling for the prosecutor's

explanation upon even a minimal showing of

potential discrimination, rather than

weighing carefully the relevant evidence to

determine if a prima facie case has actually

been shown.

32

apa

—

provided with any post-hoc articulation by

those who prosecuted the case as to what

actually motivated their peremptory

challenges. The success or failure of

Cochran's Batson claim, therefore, largely

depends on whether a prima facie case of

purposeful discrimination can be shown.

A Batson prima facie case consists of

three elements. First, the defendant must

show that he is a member of a cognizable

racial group and that the prosecutor used

peremptory challenges to strike members of a

cognizable racial group. Second, the

defendant may rely on the fact that

peremptory challenges provide a mechanism

that enables a prosecutor to discriminate if

so inclined. third, "the defendant must

show that these facts and any other relevant

circumstances raise an inference that the

prosecutor" used peremptory challenges to

exclude jurors because of their race. Id.

at 96.

33

If, as in this case, the defendant is

black and the prosecutor peremptorily

strikes blacks from the jury, the question

becomes whether these facts " and any other

relevant circumstances raise an inference"

that the strikes were exercised because the

jurors were black. Consideration should be

given to all relevant circumstances that may

support or refute such an inference, and

deference should be given to findings by the

trial judge who supervised the voir dire.

Id. at 97-98.°

7

“This aspect of Batson can create

special problems with retroactive

application of the standard. The problem is

not as severe in this case as it could be,

since the judge who heard and decided the

Batson challenge on collateral review was

the same judge who had presided when the

voir dire was conducted. Deference to the

trial judge's findings may, however be

somewhat diminished inasmuch as the voir

dire had not been conducted with an eye on

the Batson standard and the findings were

not contemporaneously made.

34

As earlier noted, the State used 50% of

its strikes (7 of 14) to remove 78% (7 of 9)

of the blacks from the jury. In somewhat

comparable situations, the Eleventh Circuit

has concluded that such statistical evidence

does not, by itself, establish a prima facie

case of discrimination. In United States v.

Allison, 908 F.2d 1531 (llth Cir. 1990), the

prosecutor used 50% of his strikes (3 of 6)

to remove 50% (3 of 6) of the blacks from

the jury. In United States v. Dennis, 804

F.2d 1208, 1211 (llth Cir. 1986), the

prosecutor similarly used 50% of his strikes

(3 of 6) to strike 50% (3 of 6) of the

blacks from the jury. Both courts concluded

that a prima facie case had not been

established.

It is . . . obvious that the

government did not attempt to exclude

blacks, or as many blacks as it could

from the jury. Moreover, the

unchallenged presence of two

35

blacks” on the jury undercuts

any inference of impermissible

discrimination. ...

Allison, 908 F.2d at 1537, citing Dennis 804

F.2d at 1211. Cochran cannot overcome this

standard in his attempt to establish a prima

case. The State did not exclude all blacks

from the jury which tried Cochran, and it

used half its strikes to strike whites. Two

blacks were seated on the jury.*® Under

the authority of these cases and taking into

account the finding of the judge who

supervised the voir dire, Cochran's attempt

to show a Batson prima facie case of

purposeful discrimination fails.

7The third black juror was an alternate.

“Fourteen jurors were seated, two of

whom were black. After the trial, two

jurors -- whose names were drawn randomly by

Cochran -- were excused as alternates, one

of whom was black. Cochran v. State, 548

So.2d at 1065.

VII. Ineffective Assistance of Counsel

at Sentencing

This court now addresses Cochran's two

remaining claims, which challenge the

conduct of the penalty phase of his trial.

First, Cochran asserts that his counsel

failed to seek and present mitigating

evidence, thus denying him effective

assistance of counsel. 4% 102-108.

Second, he asserts that the trial court

improperly denied his motion for funds to

hire an expert in preparation for trial in

violation of Ake v. Oklahoma, 470 U.S. 68

(1985). 9% 111-115. These claims will

be addressed together because, as in the

discussion in Part V of Cochran's two

separate double jeopardy claims, the second

-”

Claim (under Ake) is essentially subordinate

to and dependent on the first.®

The State maintains that the scope of

the claim of ineffective assistance of

counsel articulated by Cochran in his habeas

petition exceeds that presented in his Rule

20 Petition and reviewed by the Court of

Criminal Appeals. Presumably, the State is

referring to the fact that Cochran's Rule 20

Petition did not contain broad allegations

of ineffectiveness as found in the federal

petition but was more specific, viz, whether

counsel was ineffective failing to "request

a psychiatric or psychological evaluation

for use as mitigating evidence at the

°The Ake motion was made before trial,

but the trial judge delayed ruling, without

objection from Cochran's counsel, until

after the guilt phase of the trial. See R.

21, 23; 4 114. Resolution of the Ake claim,

therefore, depends in part on an analysis of

the petitioner's broader claim of

ineffectiveness of counsel.

38

sentencing hearing." Cochran v. State, 548

So.2d at 1070.

The difference in allegations, however,

is inconsequential. In order to address the

more specific claim of ineffectiveness, the

state courts first had to consider whether

the background investigation conducted by

Cochran's attorneys indicated that a

psychological evaluation was necessary and

relevant. It is clear from the arguments

presented by the parties to the Circuit

Court,*° and from the analysis by both

+°The State presented proposed findings

of fact and conclusions of law which stated

"Cochran's trial lawyers conducted a

reasonable investigation into possible

mitigation but were unsuccessful in finding

any." SR-Tab 64, at 14. Cochran's

attorneys argued “[a]bsolutely no

investigation was done, other than to find

one prior employer. No effort was made to

investigate other statutory or non-statutory

circumstances." SR-Tab 66, at 48.

39

the Circuit Court and the Court of Criminal

Appeals, that what was at issue was the

broad question of defense counsel's

preparation for the penalty phase of

Cochran's trial. See Cochran v. State, 548

So.2d at 1071, 1073.

To the extent the State's opposition is

based on a contention that Cochran cannot

introduce new facts in support of his claim,

it also is without merit. A petitioner is

not barred from introduc: additional facts

on federal habeas provided the claim was

presented to and reviewed on the merits by

the state courts. See Aldridge v. Dugger,

925 F.2d 1320, 1330 (llth Cir. 1991); Brand

v. Lewis, 784 F.2d 1515, 1517 (11th Cir.

1986) ("failure to enumerate all instances

of attorney error does not-~preclude

[federal habeas] review" (citations

omitted)).

The ineffectiveness-of-counsel claim

here presented by Cochran, therefore, cannot

40

be distinguished from that presented in his

Rule 20 Petition. That claim was reviewed

on the merits by the last state court

rendering a judgment in the case, the

Alabama Court of Criminal Appeals. See

Cochran v. State, 548 So.2d at 1072-74.

Accordingly, it is reviewable by this court.

Harris, 489 U.S. at 263 (1989).

Cochran has the burden to demonstrate

that "there is a reasonable probability

that, but for counsel's unprofessional

errors, the result of the proceeding would

have been different." Strickland v.

Washington, 466 U.S. 668, 694 (1984).

Strickland thus provides a two-pronged

test. A petitioner must first demonstrate

that his counsel's performance fell outside

the range of professionally competent

assistance. Id. at 687-88. This

determination is to be made in the light of

all the circumstances and facts of the case,

viewed as of the time of the questioned

41

conduct. Id. at 690. If counsel's

performance was deficient, the petitioner

must then demonstrate that he was prejudiced

by the error -- that there is a reasonable

possibility, sufficient to undermine

confidence in the outcome, that the result

would have been different. ID., at 694.

Not surprisingly, analysis of Cochran's

claim is complicated by the case's

procedural history. A short recap ie

appropriate. Cochran was arrested in 1976,

and his first trial (ending in a mistrial)

was held in 1977. He was then tried and

convicted of capital murder in 1978, but

this conviction was vacated when Alabama's

Death Penalty Statute was held

unconstitutional in Beck v. Alabama, 447

U.S. 625. The State prepared to try Cochran

for a third time, and trial was set for

October 1981. Throughout this five-year

period, Cochran was being represented by

Mike McCormick and John Carroll. McCormick

42

had sole responsibility for the guilt phase

of the trial, and Carroll had sole

responsibility for the penalty phase.

HR-III, at 8.** Due to a death in

Carroll's family, the October 1981 tril

date was postponed. Carroll subsequently

withdrew as co-counsel and was replaced by

Robert Shields. In March 1982 Cochran was

tried again, resulting in the conviction and

death penalty at issue in his habeas review.

Review by this court of a claim of

ineffectiveness of counsel is de novo

because it is a mixed question of fact or

law. See Strickland. 466 U.S. 668. To the

extent the Circuit Court made factual

findings on the ineffectiveness claim, this

court concludes that those facts were not

-

*+Evidentiary hearings held before this

court will be identified by reference to the

Hearing Record, designated as HR, followed

by the volume and page number.

43

adequately developed at the state court

hearing and are not entitled to deference.

28 U.S.C. § 2254(d)(3)

The essential flaw in the state process

stems from the manner in which the Circuit

Court and Court of Criminal Appeals

considered the peculiar procedural history

of Cochran's case. Both courts evaluated

Cochran's challenge regarding the

effectiveness of counsel at the penalty

phase of his 1982 trial by stressing the

preparation for sentencing taken by his

attorneys in connection with his 1978

trial. The problem is that under the law in

effect at the time of his 1978 trial there

was no penalty hearing before the jury -

upon finding Cochran guilty of capital

murder for robbery-intentional killing, the

jury was required by then-existing law to

impose the death penalty. The only

sentencing hearing in 1978 was before the

judge, who had the authority to refuse to

44

impose the death sentence because of the

weight of mitigating factors balanced

against aggravating factors.**

Cochran's third trial occurred after the

Alabama Supreme Court, to cure defects in

the Death Penalty Act, instituted a new

requirement that trials under the Act be

conducted in two separate stages, a guilt

stage and a penalty stage, both before the

jury. At the penalty hearing, the jury

would hear evidence of aggravating and

mitigating factors and then recommend a

sentence to the trial judge. Beck v. State,

396 So.2d at 662.

**The Supreme Court found, however, that

"it is fair to infer that the jury verdict

wili ordinarily be followed by the judge

even though he must hold a separate hearing

in aggravation and mitigation before he

imposes sentence." Beck v. Alabama, 447

U.S. at 632, 645.

45

The investigation and preparation by

counsel for the 1978 trial, while certainly

relevant to his claim of ineffectiveness

respecting the 1982 sentencing hearing,

should be viewed with care in the light of

changed conditions resulting both from a

replacement of counsel and from the new

legal standards effective in 1982.

Unfortunately, with this point apparently

not being stressed by counsel, the state

courts looked to the preparations of counsel

through the entire history of the case as

directly bearing on the claim of

ineffectiveness at the 1982 sentencing

hearing. Illustrative was the Circuit

Court's emphasis on an investigative report

made by the probation department, dated

April 5, 1978, describing who Cochran's

family members were where they lived, his

work history, and his prior convictions. The

Circuit Court noted:

46

"A full and complete investigative

report was made by the probation

department. Is there anything in

this report that gives rise to the

need for a psychiatric or

psychological evaluation? After

reading the report, how can an

attorney be deemed incompetent when

there is nothing that alerts, prompts

or raises the need of an evaluation?"

Cochran v. State, 548 So.2d at 1072. This

report, however, was not prepared with the

aim of identifying mitigating evidence that

would be relevant after Beck, and does not

appear to have been relied on by defense

counsel in deciding how to prepare for the

sentencing hearing in 1982.

The significance of Beck to attorneys

preparing for the penalty phase of a capital

case was explained by John Carroll when

testifying before this court:

"(Before Beck] my general

practice was not to focus on the

penalty phase because it was

essentially a waste of time. I think

the death penalty sentencing rate in

Alabama at that time was almost a

hundred percent. A judge did the

sentencing and the jury was required

to, if they found the defendant

guilty, automatically sentence him to

47

death and I think there was

absolutely no realistic possibility

of having any effect in the penalty

phase in the pre-Beck cases."

HR-III, at 9. According to Carroll, defense

counsel would not have included an extensive

background investigation of their clients to

prepare for pre-Beck sentencing. He

testified that after Beck, however,

preparation for the penalty phase changed

considerably:

"I. . . would have interviewed tiie

client, found out as much as [I]

possibly could from him about his

background, talked to people in his

family, his mother, his father, his

relatives and tried to get access to

whatever hard records** there

might be about the particular

individual, learn as much as we

possibly could about his life,

essentially from birth to the time of

trial."

HR-III, at ll.

*3Carroll further testified that hard

records included school, hospital, and

prison records. Id. at 12.

48

Carroll's testimony highlights what was

apparently not clear at the Rule 20 hearing;

namely, that the type of penalty-phase

preparation done for Cochran's 1977 and 1978

trials was quite different from that needed

to prepare for the 1982 trial. As a result,

the Circuit Court erroneously relied on the

preparation done by McCormick and Carroll

for the 1977 and 1978 trials, and on the

1978 probation office investigative report,

as an answer to Cochran's charge of

ineffectiveness at the 1982 sentencing

hearing.

This same error was carried forward

when, on review, the Court of Criminal

Appeals concluded:

From the testimony at the

post-conviction hearing, we conclude

that Cochran's defense counsel did

not request a mental evaluation

because there. was no reasonable

indication that such an evaluation

would have been beneficial to

Cochran's defense at trial or that it

would have supplied mitigating

evidence at sentencing. A tactical

49

decision had been made to emphasize

the weakness of the State's case.

Cochran v. State, 548 So.2d at 1073. As

evidence of this "tactical decision," the

Court quoted Carroll's testimony at the 1988

Rule 20 hearing: "we decided to fight the

battle in this case on the guilt-phase.

Because, as I recall, we had a guilt-phase

defense or at least the State's evidence in

the guilt phase was not all that strong..."

Id. at 1073. Carroll was, however,

referring to the 1978 trial, the last trial

he worked on, and the tactic he described is

consistent with the testimony before this

court that, pre-Beck, defense counsel had

little choice but to take that approach.

The proper focus must be on the

preparation of defense counsel for the 1982

trial. Until October of 1981, all

background investigation for the purposes of

identifying potential mitigating evidence

was the responsibility of Carroll, who had a

50

number of years experience in defending

capital cases. Carroll testified before

this court that he had had sole

responsibility for the penalty phase of the

case (HR-III, at 8); that a background

investigation would have been critical to an

adequate penalty phase defense (HR-III, at

12, 42); and that he did rot remember -- and

his files did not reflect -- preparing such

a background investigation on Cochran prior

to withdrawing from the case a few months

before the 1982 trial (HR-III, at 12).

Though lacking specific recollection,

Carroll indicated that he "probably did not

do such an investigation." This court finds

Carroll did not conduct the investigation

that, he concluded, would have been required

-

to prepare adequately for the penalty phase

of the case.**

Robert Shields, who assisted McCormick

after Carroll's withdrawal, testified that

he began working on the case in January or

*“Carroll testified that the death of

his mother in October 1981 and of his father

in April 1982 made that period of time a

"blur" in his memory. HR-III, at 14.

Indeed, these personal problems led to his

withdrawal from the case. Although

Carroll's memory was clouded by these

events, this court notes that Carroll was

one of the attorneys who briefed Beck v.

Alabama, before the Supreme Court, Beck, 447

U.S. 626, and it stands to reason that he

was acutely aware of increased relevance and

importance of a background investigation.

In light of this, had Carroll conducted an

investigation of Cochran, this court would

expect Carroll's files to contain some

record of it, even if the only records were

notes indicating that he was not turning up

anything. In addition, this court notes

that Carroll's personal crises in late 1981

and early 1982 do not seem to dim his memory

more than normal for representations

conducted prior to October 1981. At the

hearings before this court he clearly

remembered a background investigation and

penalty phase preparation done in another

capital case that he had completed in the

middle of 1981. Id.

52

February of 1982, (HR-III, at 171) and that

Cochran's case was the first he had worked

on where the death penalty was an available

sentence (HR-III, at 1972). Like Carroll,

he had sole responsibility for the penalty

phase of the trial. HR-III, at 71. Shields

testified that he first talked to Cochran

immediately before trial (HR-III, at 172)

and had no recollection of conducting any

background investigation before trial

(HR-III, at 172-173). He did attempt to

contact Cochran's relatives in New York

after the guilt phase of the trial. HR-III,

at 176, 178.

It is clear from the evidence presented

that no background investigation of Cochran

was ever performed. McCormick testified

unequivocally that he never conducted such

an investigation. HR-III, at 75. As noted

above, Carroll's testimony strongly

indicates that he never conducted one, and

Shield's testimony demonstrates that his

53

investigation, if any, occurred after the

guilt phase and before the sentencing

hearing -- a period of fifteen hours.**

The standard governing counsel's duty to

investigate a client's background for

purposes of developing mitigating evidence

is clear in this Circuit: "[a] lawyer .

- » Must first evaluate the potential

avenues of investigation and then advise the

client of their merit." Tafero v.

Wainwright, 796 F.2d 1314, 1320 (11th Cir.

1986). "A strategy of silence may be

adopted only after a reasonable

investigation for mitigating evidence or a

reasonable decision that an investigation

would be fruitless." Id. citing Strickland

v. Washington, 466 U.S. at 690-91. Even if

-

**The guilt phase ended at 5:25 p.m. on

March 25, 1982. The sentencing phase began

at 9:00 on March 26, 1982. SR-Tab 19, at

1047; SR-Tab 20 at 1048.

54

a client advises counsel not to investigate,

or is not readily forthcoming with

information, this refusal should not be

blindly followed, counsel still has a basic

duty to investigate. Thompson v.

Wainwright, 787 F.2d 1447, 1450-51 (llth

Cir. 1986). See also Cunningham v. Zant,

928 F.2d 1006, 1016 (llth Cir. 1991).

The lack of investigation conducted

prior to Cochran's 1982 trial constitutes

deficient performance under Strickland.

Both the testimony before this court and the

record reflect that, if any investigation

was done, it was cursory and hurried. This

case is similar to Harris v. Dugger, 874

F.2d 756 (llth Cir. 1989), where the

defendant's counsel did not attempt to

investigate his background until immediately

prior to sentencing. In holding that this

constitutes ineffective assistance of

counsel, the court stated: "it should be

beyond cavil that an attorney who fails

55

altogether to make any preparations for the

penalty phase of a capital murder trial

deprives his claim of reasonably effective

assistance of counsel by any objective

standard of reasonableness." Id. at 763,

citing Black for Kemp, 758 F.2d 523, 533

(llth Cir. 1985) cert. denied, 474 U.S. 998

(1985). See also Blanco v. Singletary, 943

F.2d 1477, 1503 (llth Cir. 1991).

Having found deficient performance by

Cochran's counsel, the court next addresses

the prejudice prong of Strickland. The

first task is to identify what evidence

would have been available had there been an

adequate investigation. Second, this

evidence must be compared to what was

actually introduced in mitigation at

Cochran's trial to determine whether its

omission prejudiced Cochran.

It is clear from the evidence before

this court that an investigation of

Cochran's background would have yielded

56

substantial amounts of admissible,

potentially mitigating evidence including:

evidence of Cochran's turbulent family

history and borderline intellectual

functioning;** evidence of his mental

illness and organic brain damage;*”

evidence of his exemplary behavior in prison

after his 1961 conviction;*®* and

evidence that friends and family would have

testified that Cochran made a positive

*SHR-I, at 75, 152, 167-71. Mitigating

under Blanco, 943 F.2d 1477.

*7HR-I, at 76, 81, 153. Mitigating

under Thomas v. Kemp, 796 F.2d 1322 (11th

Cir. 1986).

*®See generally Alabama Department of

Corrections Prison Records. Mitigating

under Skipper v. South Carolina, 476 U.S. l

(1986).

57

contribution to his family and the

community. *®

What was actually introduced by the

defense at the trial was limited to evidence

of Cochran's prison record while in county

jail from April 1981 to April 1982, and

testimony of a former employer that Cochran

had not been a discipline problem before

being discharged.*° The paucity of

*9HR-I, at 168; HR-III at 130.

Mitigating under Harris, 874 F.2d at 763.

7°The very fact that Cochran's counsel

introduced this evidence at all undermines

the State's argument that the failure to

introduce more evidence in mitigation was a

strategic decision by defense counsel.

Counsel clearly attempted to use what little

background information they had uncovered,

an approach which indicates that, had they

investigated and discovered the additional

mitigating evidence, they would have

introduced it. The argument that this

evidence was withheld from the jury as a

matter of strategy need be addressed no

further because, as noted above, such a

decision can be made only after an

investigation of available evidence, which

(Footnote Continued)

this presentation is perhaps best

demonstrated by the finding of the trial

judge that it should be given no weight --

thus causing the aggravating circumstances

to outweigh the wikseubins circumstances.

Cochran v. State, 500 So.2d at 1189. While

the trial court was not compelled under law

to sentence Cochran to death, the Court of

Criminal Appeals stated:

While this offense is not as heinous

and atrocious as many of those we

have reviewed, the fact that Cochran

deliberately killed an unarmed man in

order to effectuate his escape after

(Footnote Continued)

was not done in this case. See Thompson,

787 F.2d at 1450-51. The State's

> alternative theory to explain why additional

evidence was not introduced is that the

mitigation evidence now being identified has

been fabricated. This argument is

completely without merit. The testimony of

all Cochran's family members is consistent

with each other; the psychiatrists for the

State and the Petitioner agree on large

areas of relevant testimony, and the records

available to counsel, such as Cochran's

prison records, speak for themselves. See

generally, HR-I, II and III.

59

the commission of a robbery, when

coupled with the facts that Cochran

pled guilty to second degree murder

in 1961 and was convicted of robbery

in 1976, dictates a sentence of death.

Cochran v. State, 500 So.2d at 1178.

The State's evidence, though sufficient

to support a verdict of guilt beyond any

reasonable doubt, depended on circumstantial

evidence and involved questionable --

although, as discussed in Section II,

admissible -- eyewitness testimony. The

Court of Criminal Appeals noted that the

murder was not particularly heinous or

atrocious, and it is clear from the evidence

at trial that the murder was

unplanned.** Compare Harris, 874 F.2d

at 763-64. Although the aggravating

circumstances were legitimate, therefore,

there is a reasonable probability that the

7*See note, 2, supra and accompanying

text.

judge or jury would have been sympathetic to

the quality and quantity of mitigating

evidence that could have been presented and

would have found this evidence outweighed

the aggravating circumstances. See Horn v.

Zant, 941 F.2d 1449, 1462 (llth Cir. 1991);

Harris, 874 F.2d at 763; Armstrong v.

Dugger, 833 F.2d 1430, 1433-34 (11th Cir.

1987).

CONCLUSION

The court concludes that, with one

exception, all of Cochran's claims are

either defaulted or without merit. However,

the court concludes that the performance of

Cochran's counsel in failing to conduct a

background investigation prior to the

penalty phase of the case in 1982 was

constitutionally deficient-~and that, had the

judge and jury been presented the mitigating

evidence that was available but

undiscovered, there is a reasonable

probability that "the sentencer ... would

have concluded that the balance of

aggravating and mitigating circumstances did

not warrant death.” Strickland, 466 U.S. at

695. Cochran was thus denied effective

assistance of counsel during the penalty

phase of his trial. Accordingly, he is due

a new sentencing hearing.

This the 8th day of June, 1993.

"s/ Sam C. Pointer, Jr."

United States District Judge

62

DOCUMENT NUMBER 3

dent. pos Sk a eae a ee ee te ee ey ee ee

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES WILLIE COCHRAN,

Petitioner,

CASE NO.

90-P-01247-S

Vv.

COMMISSIONER,

Alabama Department of

Corrections,

ee

Respondent.

ORDER

As a result of a July 21, 1993,

conference with counsel for both parties,

this court ORDERS that Respondent's Motion

to Alter Judgment of June 15, 1993, is

hereby DENIED. The court acknowledges that

its parenthetical statement quoting Brand v.

Lewis, 784 F.2d 1515 (11 Cir. 1986), on page

16 of its Opinion dated June 8, 1993, was an

inappropriate reference. The court notes

that the overruling of Brand in Footman v.

Singletary, 978 F.2d 1207 (llth Cir. 1992)

has no effect on the outcome of this case.

The court emphasizes that the issue of

adequacy of representation was sufficiently

considered by the state court and therefore

this court properly considered the issue.

This court further ORDERS that

Petitioner's Motion for Reconsideration and

Request to Alter or Amend Judgment and

Findings of June 22, 1993, is hereby

GRANTED. Given the limitations placed by

this court on the items to be presented at

trial, the court recognizes that petitioner

was not afforded an adequate opportunity to

present evidence on the issue of the

constitutionality of prosecution's exercise

of peremptory challenges at trial (the

Batson claim). The court therefore will

afford petitioner such opportunity by

opening this issue for an evidentiary

hearing.

This the 2lst day of July, 1993.

"s/ Sam C. Pointer, Jr."

UNITED STATES DISTRICT JUDGE

DOCUMENT NUMBER 4

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES WILLIE COCHRAN,

.

Petitioner, )

)

Vv. ) Case No.

) 90-P-01247-S

COMMISSIONER, )

Alabama Department of )

Corrections, )

)

Respondent. )

ORDER

For the reasons outlined in the

accompanying opinion, the petition for

habeas corpus is hereby conditionally

GRANTED and it is ORDERED that the

petitioner, James Willie Cochran, be

released unless, within 120 days from this

date (or, if the case is appealed, within

120 days from the date of final disposition

of the appeal), the State of Alabama grants

the petitioner a new trial.

This the 24th day of November, 1993.

"s/ Sam C. Pointer, Jr."

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES WILLIE COCHRAN,

)

)

Petitioner, - )

)

Vv. ) Case No.

) 90-P-01247-S

COMMISSIONER, )

Alabama Department of )

Corrections, )

)

Respondent. )

OPINION

Petitioner James Willie Cochran brought

this habeas corpus action on June 19, 1990,

challenging his 1982 capital murder

conviction. Among the challenges raised was

a claim that the 1982 conviction was issued

by a jury that had been selected in

violation of Batson v. Kentucky, 476 U.S. 79

(1986). After an evidentiary hearing, this

court held on June 8, 1993, that, under

Eleventh Circuit precedent established in

United States v. Allison, 908 F.2d 1531

(llth Cir. 1990), and United States v.

Dennis, 804 F.2d 1208 (lith Cir. 1986),

Petitioner had failed to present evidence

sufficient to establish a prima facie case

of a Batson violation. On June 22, 1993,

Petitioner filed a Motion for Reconsidera-

tion and Request to Alter or Amend Judgment

and Findings, arguing that his Batson claim

had not been fully heard by this court

because an earlier order of this court had

precluded him from fully developing evidence

on the Batson issue at the evidentiary

hearing. Petitioner's motion was granted,

and thus a supplemental evidentiary hearing

was held on November 22, 1993.

Based on the evidence presented at the

November 22 hearing, this court finds that

Petitioner has shown by a preponderance of

the evidence that in the 1982 trial race was

a determining factor in the prosecution's

exercise of its peremptory challenges. As

had been shown in the earlier evidentiary

hearing, Petitioner presented evidence

showing that the prosecution used 7 of its

14 peremptory challenges to strike 7 of the

9 blacks on the jury venire.*

Petitioner supplemented this showing with

evidence that, in Petitioner's original

trial in 19777 the prosecution used 9

of its first 10 challenges, as well as its

llth and 12th challenges, to strike black

jurors; and in Petitioner's first retrial in

1978,7 the prosecution used 13 of its

It was this evidence that, taken alone,

was held by this court not to establish a

prima facie case in the earlier hearing.

2This trial ended in a mistrial.

2This trial resulted in a conviction,

which was later reversed and remanded for

new trial after the Supreme Court overturned

Alabama's Death Penalty Statute. Cochran v.

State, 400 So.2d 435 (1981). See also Beck

v. Alabama, 447 U.S. 625 (1980) ) (finding

Alabama's Death Penalty Statute

unconstitutional); Beck v. State, 396 So.2d

645 (Ala. 1980)(Alabama Supreme Court's

construction of the Death Penalty Statute,

curing the deficiencies).

14 challenges to strike black jurors.“

Further, Petitioner presented evidence, in

the form of oral testimony by two former

prosecutors who worked for the District

Attorney during the time at issue,

demonstrating that there was in the District

Attorney's office an informal practice of

using peremptory challenges to strike black

jurors at least in part on the basis of

their race. Finally, the candid testimony

of the prosecutor of Cochran's case

indicates factors typically considered in

“At the evidentiary hearing, counsel for

Respondent objected to evidence from the

1977 and 1978 trials as irrelevant. This

court overruled that objection, noting that

the evidence was relevant because David

Barber was the prosecutor in all three

trials; however, the court further noted

that the evidence had only circumstantial

value.

the prosecution's decision to exercise

peremptory challenges.®*

The sum of this evidence indicates that,

in Petitioner's 1982 trial, race was a

determining factor in the prosecution's

exercise of its peremptory challenges, and

thus Batson was violated. Therefore, the

petition for habeas corpus is hereby

conditionally GRANTED and it is ORDERED that

the petitioner, James Willie Cochran, be

released unless, within 120 days from this

date (or, if the case is appealed, within

120 days from the date of final disposition

Because of the time of the trial -- it

occurred in 1982 and Batson was decided in

1986 --it was not yet the practice of

defense counsel to object to the

prosecutor's strikes at the time they were

made, and thus the prosecutor was not asked

at the trial to give explanations for his

strikes. Unsurprisingly, the prosecutor is

now unable to recall the specific reasons

that he exercised peremptory challenges

against 7 jurors in a trial held over a

decade ago.

of the appeal), the State of Alabama grants

the petitioner a new trial.

This the 24 day of November, 1993.

"s/ Sam C. Pointer, Jr."

UNITED STATES DISTRICT JUDGE

DOCUMENT NUMBER 5

ee ee en ee ee ee es ee ee eee ee v ~~“

IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

No. 93-7028

$ D.C. Docket No. 90-P-01247-S

JAMES WILLIE COCHRAN

Petitioner-Appellee,

Cross~-Appellant,

vs.

TOMMY HERRING, Commissioner,

Alabama Department of Corrections,

Respondent-Appellant,

Cross-Appellee.

Appeals from the United States District

Court for the Northern District of Alabama

(January 10, 1995)

Before TJOFLAT, Chief Judge, ANDERSON and

COX, Circuit Judges.

i ha | hors iain ee hes re RR ep Ry tee ew

COX, Circuit Judge:

INTRODUCTION

James Willie Cochran, an Alabama inmate,

was convicted of murder after a trial by

jury and sentenced to dank: Cochran

appealed his conviction and sentence. After

exhausting his state remedies, Cochran filed

a habeas petition in the United States

District Court. The district court granted

relief based on two claims: (1) that

Cochran's counsel was ineffective at

sentencing; and (2) that the prosecution

used its peremptory strikes to exclude

blacks from the jury in violation of Batson

v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712

(1986). The State appeals, arguing that

both claims are procedurally barred and lack

merit. Cochran cross-appeals, contending

that the district court erred in denying

relief on his claims that the state trial

court improperly disregarded mitigating

evidence at sentencing and that the

consideration of a prior conviction during

the sentencing phase of his trial violates

the Double Jeopardy Clause. Because we

affirm the district court's grant of relief

on the Batson claim, we find it unnecessary

to address the other issues.

I. FACTS AND PROCEDURAL HISTORY

The State's evidence at trial was as

follows. Cochran robbed an A & P Grocery

Store in Jefferson County, Alabama. Stephen

Jerome Ganey, the assistant manager of the

store, followed Cochran out of the store.

Cochran saw Ganey following him. While

running away from the store, Cochran stopped

several times and pointed his revolver at

Ganey, causing Ganey to momentarily pause in

his pursuit of Cochran. The police arrived

soon thereafter and virtually surrounded the

area around the A & P. Within twenty

minutes a gunshot was heard. Although there

were no eyewitnesses to the actual murder of

Ganey, the police found Cochran within

one-half mile of the A & P soon after they

es are er ee OR mr om me

heard the gunshot. At the time Cochran was

arrested, he was carrying nearly $250 with

an A & P band wrapped around it, and he had

just discarded a revolver. Ganey's body was

later found under a trailer in a nearby

mobile home park.

Cochran was tried in 1982 for the murder

of Ganey.* The venire panel for this

trial consisted of forty-two potential

jurors, nine of whom were black. The

defendant in the case, Cochran, is black,

while the victim, Ganey, was white. At the

conclusion of voir dire and before the

actual striking of jurors began, Cochran's

counsel moved to restrict the State from

*Ganey was killed in 1976. Cochran's

first trial ended in a mistrial. The second

trial, which resulted in a conviction, was

reversed and remanded for a new trial after

the United States Supreme Court overturned

Alabama's death penalty statute. Thus, the

1982 trial was Cochran's third trial for

Ganey's murder.

arbitrarily striking blacks from the jury.

The motion was denied; however, the court

stated that it would be guided by Swain v.

Alabama, 380 U.S. 202, 85 S.Ct. 825 (1965),

in determining whether the State was

appropriately using its peremptory strikes.

In selecting the jury for the 1982 trial,

the prosecution used seven of its fourteen

peremptory challenges to exclude seven of

the nine black members of the venire panel.

After the jury was selected Cochran's

counsel did not object to the manner in

which the State used its peremptory

strikes. A jury of eleven whites and one

black found Cochran guilty of murder, and he

was sentenced to death.”

-

2The jury consisted of 14 people, two of

whom were black. The alternates were

determined by lot at the end of the trial

and were then excused. One of the two

alternate jurors was black.

Cochran appealed his 1982 conviction and

sentence in state court. Cochran never

raised the Batson claim on direct appeal;

however, Batson was not decided until late

in Cochran's appeal process. In 1984, the

Court of Criminal Appeals affirmed Cochran's

conviction. Cochran v. State, 500 So.2d

1161 (Ala.Crim.App. 1984). However, in

1985, the Alabama Supreme Court remanded the

case for resentencing. Cochran v. State,

500 So.2d 1179 (Ala. 1985). The circuit

court resentenced Cochran in February 1986.

See Cochran v. State, 500 So.2d 1188, 1188

(Ala.Crim.App. 1986). Soon thereafter, the

Court of Criminal Appeals again reviewed the

sentencing. Appellate counsel filed

Cochran's brief with the Court of Criminal

Appeals on April 22, 1986.- Eight days

later, on April 30, 1986, the Supreme Court

decided Batson. The Court of Criminal

Appeals affirmed Cochran's sentence in May

1986, id., and the Alabama Supreme Court

affirmed that decision in November 1986. Ex

parte Cochran, 500 So.2d 1064 (Ala. 1986).

The United States Supreme Court denied

certiorari in Cochran's case on April 27,

1987. Cochran v. Alabama, 481 U.S. 1033,

107 S.Ct. 1965 (1987).

In 1987, Cochran filed a petition for

post-conviction relief under

Ala.R.Crim.P.Temp. 20° in Alabama state

court, still without making a Batson claim.

Cochran raised the Batson issue for the

first time on February 1, 1988, when he

filed an amendment to the State petition.

The amendment to the petition alleges:

"Petitioner's rights were violated

when the State struck all seven

blacks from the venire, which acts |

and results in the petitioner

being tried by an all white jury,

in violation of Batson v.

Kentucky--particularly when the

*The rule is now codified as

Ala.R.Crim.P.32.

Court overruled both an oral and a

written motion specifically

anticipating an all white jury and

specifically requesting the Court

to prevent the prosecution from

striking without good reason black

jurors."*

The state circuit court ruled that the

Batson claim was procedurally barred.

However, the court also addressed the merits

of the Batson claim, noting that the record

did not contain any evidence of racial

discrimination in the use of peremptory

strikes. Specifically, the court stated:

"'The composition of the jury (black v.

white) is not shown in the record. We are

unable to discern how many blacks and whites

were on the jury. The record does not

—

“Cochran v. State, 548 So.2d 1062, 1065

(Ala.Crim.App.)(quoting Cochran's amendment

to the petition for post-conviction relief),

cert. denied, 493 U.S. 900, 110 S.Ct. 259

(1989).

raise an inference that the state was

engaged in purposeful discrimination.'"*

Cochran filed an objection to the trial

court's findings on the Rule 20 motion,

alleging that the trial court had not

allowed him to present evidence on the

Batson issue. Attached to the objection

were copies of the jury list and the strike

sheets which Cochran had obtained from the

State. After the trial court overruled the

objection, Cochran appealed. The Court of

Criminal Appeals reviewed the jury list and

strike sheets and concluded that "we cannot,

with any degree of certainty, reach any

conclusion as to the number of blacks on the

venire, the number of blacks removed by

peremptory challenge, or the number of

blacks who actually served on the jury."

Id. at 1066 (quoting the Alabama circuit

court's order).

Cochran v. State, 548 So.2d 1062, 1067

(Ala.Crim.App.), cert. denied, 493 U.S. 900,

110 S.Ct. 259 (1989). The court held that

Cochran was procedurally barred from raising

the Batson claim in a Rule 20 motion because

he had not raised it on direct appeal. Id.

at 1067-68.

After the Supreme Court denied Cochran's

petition for writ of certiorari, Cochran v.

Alabama, 493 U.S. 900, 110 S.Ct. 259 (1989),

Cochran filed a 28 U.S.C. §2254 petition

in the United States District Court. At the

evidentiary hearing, Cochran presented

documentary evidence, consisting of the

strike sheets used by the prosecutor at

Cochran's trial, as well as the testimony of

Cochran's prosecutor and other members of

the district attorney's office. The

district court found that the evidence

tended to show that the district attorney's

office maintained an informal poldcy of

striking black jurors because of their

10

icici eit ea

race. The court further found that race was

a determining factor in the striking of

black jurors in Cochran's case. As the

State offered no race-neutral reason for its

peremptory strikes, the district court

granted Cochran relief on the Batson

claim.*

II. ISSUES ON APPEAL AND CONTENTIONS

OF THE PARTIES

We find it necessary to address only two

issue on appeal. The first issue is whether

Cochran's Batson claim is procedurally

barred from review by the federal courts.

The State contends that the Batson claim is

“Initially, the district court granted

Cochran habeas relief but only on an

ineffective assistance of counsel claim.

Cochran moved for reconsideration of the

Batson claim. As the district court found

that Cochran had not been afforded an

adequate opportunity to present evidence on

the Batson claim, the court reconsidered the

Batson claim after holding an evidentiary

hearing and thereafter granted relief on the

Batson claim as well.

11

procedurally barred because the last state

court rendering a judgment in Cochran's case

Clearly and expressly stated that the claim

was procedurally barred under Alabama law.

Cochran contends that the district court

did not err in addressing the Batson claim.

Cochran argues that the last state court to

render judgment on the Batson claim

primarily based its decision on federal

law. Cochran claims that the state court

plainly stated that the application of the

alleged procedural default depended on the

court's view that the claim lacked merit.

Because the discussion of the procedural

default was interwoven with federal law,

Cochran contends that the procedural default

was not an adequate and independent state

ground for the decision which bars federal

review of the Batson claim.

Moreover, Cochran contends that even if

the last state court to render judgment on

the Batson issue clearly and expressly

12

stated that its judgment rested on a state

procedural bar, the district court did not

err in addressing the Batson claim because

Alabama courts do not strictly and regularly

apply procedural defaults in cases such as

Cochran's.

The second issue is whether the district

court erred in finding that the prosecution

in Cochran's case exercised its peremptory

challenges in a racially biased manner in

violation of Batson v. Kentucky, 476 U.S.

79, 106 §.Ct. 1712 (1986). The State

contends that the district court clearly

erred in finding a Batson violation on the

facts in this case. Alabama argues that

although the State used seven of its

fourteen peremptory challenges to strike

seven of the nine blacks on the venire, the

statistical evidence alone does not

establish a Batson violation. Moreover,

Alabama contends that the fact that two

blacks served on the jury undercuts any

13

inference of impermissible discrimination.

However, the State offers no race-neutral

reasons for striking seven blacks.

Cochran contends that the district court

correctly found that the prosecution in his

case violated Batson. Cochran supports his

contention not only with statistical

evidence, but also with the testimony of

members of the district aitorney's office.

Cochran contends that the evidence not only

shows a policy of race discrimination in

jury selection at the time Cochran was being

tried, but also shows actual discrimination

in the selection of Cochran's jury.

III. STANDARDS OF REVIEW

The district court's holding that, under

the facts of this case, the Batson claim is

not procedurally barred is~a mixed question

of law and fact subject to de novo review by

this court. See Tower v. Phillips, 7 F.3d

206, 210 (llth Cir. 1993). The ultimate

question of whether Cochran has established

14

purposeful discrimination in violation of

Batson is a question of fact subject to

deferential review. A district court

finding of purposeful discrimination in

violation of Batson will not be overturned

unless clearly erroneous. Hancock v. Hobbs,

967 F.2d 462, 465 (llth Cir. 1992).

IV. DISCUSSION

A. The State Procedural Bar

The first issue is whether the Batson

claim is procedurally barred from federal

review. A federal court may not reach a

federal question on collateral review of a

state conviction if the state court's

opinion “contains a ‘plain statement’ that

[its] decision rests upon adequate and

independent state grounds." Harris v. Reed,

489 U.S. 255, 261, 109 S.Ct. 1038, 1042,

(1989) (quoting Michigan v. Long, 463 U.S.

1032, 1042, 103 S.Ct. 3469, 3477 (1983) )

(alteration in original). A state

procedural bar constitutes an adequate and

15

independent state ground, thereby precluding

federal habeas review, only if the last

state court rendering a judgment on the

procedural default. Id. at 261-63, 103

S.Ct. at 1042-43. In this case, the

district court held that the Court of

Criminal Appeals of Alabama did not clearly

and expressly rely on the state procedural

bar because the state court addressed the

merits of the underlying federal claim in

deciding the procedural state law question.

(R.1-22 at 11-12.) Therefore, the district

court held that it was not barred from

addressing the Batson claim on collateral

review. (Id. at 13.) Although we affirm

the judgment of the district court, we base

our affirmance on other grounds, and

therefore offer no opinion-regarding whether

the Court of Criminal Appeals clearly and

expressly relied on the state procedural bar.

In order for a state procedural bar to

foreclose a federal court from reviewing a

16

federal claim in a §2254 proceeding, not

only must the last state court rendering a

judgment in the case comply with the "plain

statement" rule, but also the procedural bar

must be firmly established and a regularly

followed state practice. Ford v. Georgia,

498 U.S. 411, 423-24, 111 S.Ct. 850, 857

(1991). When a state's “procedural default

rule has been only sporadically invoked, the

procedural default no longer bars

consideration of the issue in federal

court." Messer v. Florida, 834 F.2d 890,

893 (llth Cir. 1987)(citation omitted).

The Court of Criminal Appeals held that

Cochran's Batson claim was procedurally

barred because he did not raise the claim on

direct appeal. Cochran, 548 So.2d at 1068.

The State procedural bar precludes federal

review of the Batson claim only if the State

has firmly established and regularly

followed this specific procedural bar in

cases such as Cochran's. To answer this

17

question, we therefore must look at whether

Alabama courts have consistently barred

Batson claims because they were not raised

on direct appeal in similar cases.

Cases such as Cochran's are unusual

because the Batson decision came down while

the case was on direct review.” [In

7Although Cochran was tried in 1982, his

judgment of conviction was not final until

1987, when the Supreme Court denied

certiorari from his direct appeal. Cochran,

548 So.2d at 1065. Batson was decided in

April 1986, before Cochran's judgment of

conviction was final. Under Griffith v.

Kentucky, 479 U.S. 314, 107 S.Ct. 708

(1987), Batson applies retroactively to

Cochran's case.

Although Cochran did not initially make a

Batson challenge to the selection of his

jury, Cochran did challenge the selection of

his jury at the end of the voir dire under

the rule of Swain v. Alabama, 380 U.S. 202,

85 S.Ct. 824 (1965). In cases such as

Cochran's, where the trial took place

pre-Batson, a properly made Swain claim made

in a pre-trial motion is treated as a timely

made Batson objection for the purpose of

preserving the Batson issue for appeal.

Ford v. Georgia, 498 U.S. 411, 418-25, 111

S.Ct. 850, 855-58 (1991). Cochran did not

(Footnote Continued)

18

such cases, the Alabama courts have not

consistently applied a procedural bar to

Batson claims asserted in state collateral

petitions where the defendant had raised a

Swain objection at trial. The case most

factually similar to Cochran's is Floyd v.

State, 571 So.2d 1221 (Ala.Crim.App. 1989).

Floyd is a case in which Batson had been

(Footnote Continued)

raise the Batson claim on direct appeal, |

even though his appeal was not final until

1987, approximately one year after Batson

was decided. Cochran raised the Batson

issue for the first time in an amendment to

his state petition for post-conviction

relief. The State contends that Cochran

could have raised the Batson claim on direct

appeal by submitting a supplemental brief to

the Alabama appellate courts after Batson

was decided. The Alabama Court of Criminal

Appeals held that because Cochran could have

raised the Batson issue on direct appeal but

did not, he was procedurally barred from

raising it in a state collateral

proceeding. Cochran, 548 So.2d at 1068.

Because the Batson claim could have been

raised on direct appeal but was not, the

State argues, the claim is procedurally

barred under state law, and therefore the

district court was precluded from addressing

the Batson claim in the §2254 proceeding.

19

decided following the denial of Floyd's

application for a rehearing on direct appeal

and while Floyd's petition for certiorari

was pending in the United States Supreme

Court. The Alabama Court of Criminal

Appeals held that Floyd's Batson claim was

procedurally barred because he had not

raised the claim on direct appeal. Id. at

1223. The Alabama Supreme Court reversed,

holding that Floyd should be allowed to

raise a Batson claim in a Rule 20

proceeding, even though he had not raised

the Batson claim on direct appeal, noting

that Floyd had raised a Swain objection at

trial. Ex parte Floyd, 571 So.2d 1234,

1235-36 (Ala. 1990).

In contrast, State v. Tarver, 629 So.2d

14, 18-19 (Ala.Crim.App. 1993), the Court of

Criminal Appeals held that Tarver was

procedurally barred from raising a Batson

claim in a post-conviction hearing when

Batson was decided while the case was on

20

direct appeal. The court distinguished

Floyd because Tarver had not preserved the

Claim for appellate review by raising a

Swain objection at the trial level. This

case is factually more similar to Floyd than

Tarver because Cochran, of course, did raise

a Swain objection at trial. See also

Watkins v. State, 632 So.2d 555, 562-63

(Ala.Crim.App. 1992)(noting that the Alabama

Supreme Court has often remanded cases for a

Batson hearing despite various procedural

defaults), cert. quashed, 632 So.2d 566

(Ala.), cert. denied, U.S. , 114

S.Ct. 2153 (1994).

The procedural posture of Cochran's case

is unusual. Its characteristics are as

follows: The case was tried pre-Batson, but

the Batson issue was preserved because

Cochran asserted a Swain objection; Cochran

did not challenge the selection of the jury

while the case was on direct review; Batson

was decided after Cochran's conviction was

21

affirmed, but while his sentence was still

being reviewed by the Court of Criminal

Appeals; and the Batson claim was asserted

for the first time in a state

post-conviction proceeding. As Floyd and

Tarver suggest, Alabama courts have not

consistently applied a procedural bar to

Batson claims in cases like Cochran's.

Because the procedural bar has not been

consistently applied in such cases, we hold

that the procedural bar does not constitute

an adequate and independent state ground

which bars federal review. Therefore, the

district court properly addressed the merits

of Cochran's Batson claim.

B. The Batson Claim

The State contends that the district

court erred in granting reiief because the

Claim lacks merit. The State argues that

the statistical evidence Cochran presented

does not establish a prima facie Batson

violation, and therefore the district

22

court's finding that a Batson violation

occurred is clearly erroneous. Cochran

contends that the district court correctly

granted him relief because the evidence,

both statistical and testimonial, clearly

supports the district court's finding that a

Batson violation occurred.

The district court held an evidentiary

hearing on the Batson issue. At the

evidentiary hearing, Cochran presented

evidence showing that the prosecution used

seven of its fourteen peremptory challenges

to strike seven of the nine blacks on the

forty-two person jury venire.*® At the

"This was Cochran's third trial: for

Ganey's murder. The first trial ended in a

mistrial. The second trial resulted in a

conviction, but was later reversed and

remanded for a new trial. (R. 1-30 at 2 nn.

2-3.) At Cochran's previous two trials, the

prosecution used a total of twenty-four of

twenty-six peremptory challenges to strike

blacks. This does not account for all of

(Footnote Continued)

23

evidentiary hearing, the State offered no

race-neutral reason for these strikes. We

need not decide whether the statistical

evidence alone establishes a prima facie

Batson violation, because there is

additional evidence supporting the district

court's finding.

Cochran presented evidence that the

district attorney's office which prosecuted

his case had an informal practice of using

peremptory challenges to strike black jurors

based, at least in part, on their race. A

former prosecutor who worked for the

district attorney's office around the time

(Footnote Continued)

the prosecution's peremptory strikes. A few

of the strikes could not be reconstructed at

the evidentiary hearing. The court held

that the evidence from Cochran's two

previous trials was relevant circumstantial

evidence in determining what happened at the

1982 trial because the same prosecutor

served at all three of Cochran's trials.

(Id. at 2.)

24

of Cochran's trials testified that the

philosophy of the office "was that

prospective black jurors at that time were

anti-police, anti-establishment and should

not be left on juries, if at all possible."

(R.5 at 16.) He testified that there was a

pattern in that office of striking blacks

from juries, and that as a prosecutor, he

struck black jurors because they were

black. (Id. at 16-17, 25.) Another former

prosecutor for the district attorney's

office who served at the time of Cochran's

trials testified that "race was a factor as

particularly where you had a white victim

and a black defendant ... [and] you had

police involvement in the case," and that

“most of the people in the office were aware

of [this], and acted accordingly." (Id.

at 44.) This former prosecutor indicated

25

that black jurors were struck because they

were black.®

The prosecutor in Cochran's case’*°®

testified that at the time of Cochran's

trial he believed that black jurors were

less reliable for law enforcement than were

white jurors, that they were more

distrustful of police than were white

jurors, that they would be less likely to

return a death penalty verdict than would

white jurors, and that they would be more

*This prosecutor testified that the

official policy of the District Attorney's

office was that they were not to strike

jurors solely on the basis of race, but the

District Attorney allowed the deputy

district attorneys to select juries in

whatever way they felt comfortable. (R.5 at

48.) The prosecutor indicated that in

practice, the prosecutors used race as a

factor in selecting the juries and struck

black jurors because they were black. (Id.

at-44-45.)

*°The same individual served as

prosecutor at all three of Cochran's trials.

26

likely to identify with a black defendant

than would white jurors. (Id. at 33-34.)

The prosecutor offered no specific reasons

for striking any of the seven blacks on the

venire in Cochran's 1982 trial. (Id. at 38.)

Based on this evidence, the district

court found that "there was in the District

Attorney's office an informal practice of

using peremptory challenges to strike black

jurors at least in part on the basis of

their race." (R.1-30 at 2.) The court

further found that “at the time of Cochran's

1982 trial, race was at least one of several

determining factors typically considered in

the prosecution's decision to exercise

peremptory challenges." (Id.) Thus, the

Court found that "in [Cochran's] 1982

trial race was a determining -factor in the

prosecution's exercise of its peremptory

challenges." (Id.) Noting that the State

failed to give race-neutral reasons for

striking black jurors, the court found that

27

I iiiiiiiitinnmaeettoncarennsti

Batson was violated. The court granted

Cochran's habeas petition based on his

Batson claim. (Id. at 2-3.)

Under a typical Batson analysis, the

defendant must establish a prima facie case

of racial discrimination. Once the

defendant makes a prima facie showing, the

burden shifts to the State to come forward

with a neutral explanation for challenging

black jurors. The trial court then

determines whether the defendant has

established purposeful discrimination.

Batson, 476 U.S. at 96-98, 106 S.Ct. at

1723-24.** Because the State has

**The district court applied a slightly

different legal framework in this case. It

should be noted that the legal framework

applied in this case has not been

challenged. The State has only challenged

the district court's factual findings. The

court's opinion granting Cochran relief on

the Batson claim does not recite the law

governing the case. (See R.1-30.) However,

(Footnote Continued)

28

failed to articulate a race-neutral reason

(Footnote Continued)

the court's original opinion, issued before

the court granted the motion for

reconsideration of the Batson issue,

outlines the legal framework which the court

applied in this case. (R.1-22 at 13.)

In the district court's first opinion on

the Batson issue, the court noted that

analyzing the merits of the Batson issue is

particularly difficult in this case because

Batson affects Cochran's case

retroactively. The district court stated

that ordinarily the trial court reviews a

Batson claim by determining first whether

the defendant has established a prima facie

showing of discriminatory strikes by the

prosecutor. If a prima facie case is

established, the burden shifts to the

prosecution to come forward with a neutral

explanation for challenging black jurors. A

reviewing court normally determines whether

the trial court erred by failing to require

the prosecutor to articulate a race-neutral

reason for striking the jurors or by

accepting the proffered reasons as rebutting

the prima facie case. (Id.)

However, the district court stated that

this case requires a different type of

review because neither the trial court nor

the parties anticipated the announcement of

the Batson decision. Because of this,

Cochran did not object to the prosecution's

actual peremptory challenges at trial, and

the prosecution was not afforded the

opportunity to explain its challenges. In

this case, the Batson claim is being

(Footnote Continued)

29

for challenging any of the black jurors, the

only required analysis here is to determine

whether Cochran has established purposeful

discrimination. The State contends that

under the statistical evidence of this case,

the district court clearly erred in finding

a prima facie case of discrimination. The

State argues that under factually similar

circumstances, this court has held the

defendant had not established a prima facie

Batson claim. Specifically, the State

compares the facts in this case to United

States v. Dennis, 804 F.2d 1208 (11th Cir.

1986), cert. denied, 481 U.S. 1037, 107

S.Ct. 1973, and cert. denied, 481 U.S. 1037,

(Footnote Continued)

reviewed for the first time in district

court on collateral appeal: Because the

prosecution offers no post-hoc explanation

for striking black jurors, the court held

that the success of Cochran's Batson claim

hinged on whether Cochran could establish a

prima facie case of purposeful

discrimination. (Id.)

30

107 S.Ct. 1973, and cert. denied, 481 U.S.

1037, 107 S.Ct. 1973, and cert. denied, 481

U.S. 1974 (1987), and United States v.

Allison, 908 F.2d 1531 (llth Cir. 1990),

cert. denied, 500 U.S. 904, 111 S.Ct. 1681

(1991).

In Dennis, the Government used three vut

of four peremptory challenges to exclude

blacks from the jury and from being

alternates. However, the Government did not

use all of its peremptory challenges,

accepting a jury that contained two blacks.

Thus, the Government did not attempt to

exclude all blacks from the jury. This

court concluded, under all the relevant

facts and circumstances of that case, that

an inference of purposeful racial

discrimination was not raised. Dennis, 804

F.2d at 1210-11.

In Allison, the Government used three out

of six peremptory challenges to strike black

jurors. However, the court found that the

31

"unchallenged presence of three blacks on

the jury undercuts any inference of

impermissible discrimination that might

arise simply by the striking of other

blacks." Allison, 908 F.2d at 1537.

In this case, the State contends that

although the prosecutor used seven of

fourteen peremptory challenges to strike

seven of the nine blacks on the venire, the

jury contained two black members, one of

whom was an alternate. Because the

prosecutor could have struck all of the

blacks from the jury but did not, the State

argues that under Allison and Dennis, the

unchallenged presence of blacks on the jury

undercuts any inference of impermissible

discrimination. The State also argues that

the statistical evidence presented does not

establish a prima facie case, because the

venire was twenty-one percent black (nine

out of forty-two) and the jury was fourteen

percent black (two out of fourteen).

32

ase

"In deciding whether the defendant has

made the requisite showing, the ... court

should consider all relevant

circumstances." Batson, 476 U.S. at 96-97,

106 S.Ct. at 1723. "Although statistics

showing discriminatory impact may in

themselves constitute a showing of

intentional discrimination, a statistical

showing is not the sole means for

establishing a prima facie case of

discrimination." United States v. David,

803 F.2d 1567, 1571 (lith Cir. 1986)

(citation omitted). "'[T])he totality of

the relevant facts [may give] rise to an

inference of discriminatory purpose.'" Id.

(quoting Batson, 476 U.S. at 94, 106 S.Ct.

at 1721.) Therefore, contrary to the

State's contention, the statistical evidence

is merely one factor which the court

examines, and it is not necessarily

dispositive.

33

Moreover, although the seating of blacks

on the jury is a significant fact, it does

not bar a finding of racial discrimination.

Allison, 908 F.2d at 1537. "“[U]}nder

Batson, the striking of one black juror for

a racial reason violates the Equal

Protection Clause, even where other black

jurors are seated, and even when valid

reasons for the striking of some black

jurors are shown." David, 803 F.2d at 1571.

In this case, the district court based

its decision not only on the statistical

evidence in the strike sheets, but also on

the testimony of the prosecutor in the case

and other members of the district attorney's

office. The evidence supports the

conclusion that a disproportionate number of

blacks were struck from the jury in this

case, as well as in Cochran's previous

trials. The evidence also supports the

conclusion that at the time of Cochran's

trial, members of the district attorney's

34

office followed an informal policy of

striking black jurors because of their

race. Finally, the testimony of the

individual who prosecuted Cochran supports

the district court's conclusion that race

was a determining factor in the exercise of

peremptory challenges at Cochran's trial.

Notwithstanding the fact that two of the

fourteen jurors at the trial were black, the

sum of the evidence supports the district

court's conclusion that race was a

determining factor in the prosecution's

exercise of its peremptory challenges at

Cochran's 1982 trial. Thus, the district

court did not clearly err in concluding that

the prosecution impermissibly discriminated

against blacks in the selection of the jury

at Cochran's trial. ‘

V. CONCLUSION

We find that the district court was not

precluded from addressing Cochran's Batson

claim in a federal habeas proceeding because

35

ee ee

Alabama has not consistently applied a

procedural bar to Batson claims in cases

like Cochran's. Moreover, we find that the

district court did not clearly err in

finding that the prosecution in this case

impermissibly discriminated against blacks

in using its peremptory strikes in violation

of Batson.*?

*2This' case was well briefed and well

argued by counsel for both parties. The

court wishes to express its appreciation.

36

JAMES WILLIE COCHRAN,

Petitioner-Appellee,

Cross~-Appellant,

Vv.

TOMMY HERRING, Commissioner,

Alabama Department of Corrections,

Respondent-Appellant,

Cross~Appellee.

No. 93-7028

United States Court of Appeals,

Eleventh Circuit

July 26, 1995.

Appeals from the United States District

Court for the Northern District of Alabama

(No. 90-P-1247-S); Sam C. Pointer, Jr.,

Judge.

ON PETITION FOR REHEARING

Before TJOFLAT, Chief Judge, ANDERSON and

COX, Circuit Judges.

PER CURIAM: z

The panel opinion is reported at 43 F.3d

1404 (llth Cir. 1995). The panel modifies

its opinion by deleting the following

citation from the end of the second full

paragraph on page 1409:

See also Watkins v. State, 632

So.2d 555, 562-63 (Ala.Crim.App.

1992) (noting that the Alabama

Supreme Court has often remanded

cases for a Batson hearing despite

various procedural defaults),

cert. quashed 632 So.2d 566

(Ala.), cert. denied, U.S.

, £14 §.Ct. 2153, 128 L.Ed.2d

880 (1994).

The petition for rehearing filed by

appellant/cross-appellee, Tommy Herring, is

otherwise DENIED.