Opposition Brief — Alabama v. Cochran

Supreme Court, U.S.

(s) FILED

EC 14 1995

No. 95-761 |

OFFICE OF THE ULERA |

In The

Supreme Court of the United States

October Term, 1995

é

STATE OF ALABAMA,

Petitioner,

JAMES WILLIE COCHRAN,

Respondent.

a

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

+

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

LAWRENCE J. Fox

KENNETH C. FRAZIER

Seamus C. Durry*

BreNDA W. Ho ston

*Counsel of Record

DriNKER BippLte & REATH

1345 Chestnut Street

Philadelphia, PA 19107

(215) 988-2700

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

JFUIOIIC EIN cco vccvevves Mae Rial eGvaWds suse bus-one 1

IT sn 2 wo vrs Oo dan aw N on are tbed oe bak 1

SEAR MMeeINE OF THE CASE. 2... ccc ccdvcdeccccees 3

SUMMARY OF THE ARGUMENT ................. 9

REASONS FOR DENYING THE WRIT............. 10

A. The Court of Appeals’ “Inconsistent Applica-

tion” Rationale Is Sound, And Does Not Con-

flict With This Court’s Precedents ........... 11

B. The District Court’s “Clear and Plain State-

ment” Rationale Provides An Independent

Basis For Affirmance Of The Court Of Appeals’

PO Ce bei vier vivurssutrscctecoveesesioes 16

RAED chahs¥o0 sb etrdr eeu rarccsseetn eee deo. 21

ii

TABLE OF AUTHORITIES

Cases

Barr v. City of Columbia, 378 U.S. 146 (1964)......... 11

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

Cochran v. State, 548 So.2d 1062 (Ala. Crim. App.

WDE) ssc ctcesconvdass Urneeekseveresbnes 6, 13, 17, 18

Cochran v. State, 500 So.2d 1064 (Ala. 1986)........... 4

Coleman v. Thompson, 501 U.S. 722 (1991)

va ehdkesobun Vers CODaaR SOREL settee 10, 16, 17, 19, 21

Delap v. Dugger, 890 F.2d 285 (11th Cir. 1°%,....... 15

Dugger v. Adams, 489 U.S. 401 (1989)........ 9 34,35

Engle v. lenac, 456 US. 107 (ROGA) so oo civ cece se eerie 20

Ex parte Adkins, 600 So.2d 1067 (Ala. 1992).......... 12

Ex parte Bankhead, 585 So.2d 112 (Ala. 1991)......... 12

Ex parte Cochran, 500 So.2d 1179 (Ala. 1985).......... 4

Ex parte Floyd, 571 So.2d 1234 (Ala. 1990)........ 11, 13

Ex parte Godbolt, 546 So.2d 991 (Ala. 1987).......... 12

Ford v. Georgia, 498 U.S. 411 (1991).......4......... 3, 11

Francois v. Wainwright, 741 F.2d 1275 (11th Cir.

GDR). wee divtncvedas ative Giese 11

Giles v. State, 632 So.2d 568 (Ala. Crim. App. 1992) ..4, 20

Guthrie v. State, No. 7 Div. 287, slip op. (Ala. Crim.

App. FOMO U2, TOE) vnc cSeaee sedi cewnaaese cee cua 12

Hardin v. Black, 845 F.2d 953 (11th Cir. 1988)........ 21

Hargrave v. Dugger, 832 F.2d 1528 (11th Cir. 1987) .... 20

iii

TABLE OF AUTHORITIES - Continued

Page

Harris v. Reed, 489 U.S. 255 (1989)..... 16, 17, 18, 19, 21

Hathorn v. Lovorn, 457 U.S. 255 (1982)............ 11, 15

Hemphill v. State, 571 So. 2d 365 (Ala. Crim. App.

soe AEE AT PEE be BRC eS ie Pe ee 12

Huffman v. Ricketts, 750 F.2d 798 (9th Cir. 1984) ..... 20

James v. Kentucky, 466 U.S. 341 (1984)................ 1

Johnson v. Mississippi, 486 U.S. 578 SS Sek oe Ss 11, 20

Lynn v. State, 477 So.2d 1365 (Ala. Crim. App.

AUNT LEC GtG Ved cedineT s seir eds vatevbirevccs cece 3

Lynn v. State, 543 So.2d 704 (Ala. Crim. App. 1987) .... 12

Messer v. Florida, 834 F.2d 890 (11th Cir. 1987)....... 11

Michigan v. Long, 463 U.S. 1032 (1983)........ 16, 19, 21

Morrison v. State, 551 So.2d 435 (Ala. Crim. App.

Ee eins Gas aiahs bh aebe pwned acd evede es 9, 13, 14

Powers v. Ohio, 499 U.S. 400 (1991).................. 21

Rogers-Bey v. Lane, 896 F.2d 279 (7th Cir. 1990)...... 20

Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986) ...... 11

State v. Tarver, 629 So.2d 14 (Ala. Crim. App. 1993) .... 13

Turner v. Murray, 476 U.S. 28 (1986)................. 22

U.S. ex rel. Gibson v. McGinnis, 773 F. Supp. 126

PEE nas a Fun e eet ke ccd Geveckecedesscs 21

Walker v. Endell, 850 F.2d 470 (9th Cir. 1987) ........ 20

Walker v. State, No. 7 Div. 164, Slip op. (Ala. Crim.

EY SE ir he aihescebecceacestcodcusss 12

iv

TABLE OF AUTHORITIES —- Continued

Page

Walton v. State, 523 So.2d 134 (Ala. Crim. App.),

cert. denied, No. 86-829 (Ala. 1987)...........++0+: 12

Watkins v. State, 632 So.2d 555 (Ala. Crim. App.

WON ic kdnsescesuateshes (oeatetaushbetesieets teas 11

Wheat v. Thigpen, 793 F.2d 621 (5th Cir. 1986) ....... 15

Wilcher v. Hargett, 978 F.2d 872 (Sth Cir. 1992)....... 15

Ylst v. Nunnemaker, 501 U.S. 797 (1991).............. 17

JURISDICTION

The Clerk of this Court originally rejected the Peti-

tion for Writ of Certiorari in this case because the Petition

was neither timely received nor postmarked by the due

date in accordance with this Court’s Rule 29.2. The Attor-

ney General attempted to cure this jurisdictional defect

by filing the Affidavit of Brenda L. Bell, an employee of

the United States Postal Service. The Affidavit is insuffi-

cient to cure the jurisdictional defect because the affiant

does not state that the “package” addressed to this Court

and placed in the United States mail on the due date

contained the Petition for Writ of Certiorari relating to

this case. The Petition for Writ of Certiorari should be

denied for lack of jurisdiction.

€

INTRODUCTION

The courts below granted James Cochran habeas

corpus relief based on overwhelming and undisputed

evidence of racial discrimination in the prosecutor’s use

of peremptory strikes at Cochran’s pre-Batson trial. This

evidence included that prosecutor’s own candid and

striking testimony that he viewed black jurors as, among

other things, “unreliable.” Of the thirty-five black jurors

known to have been available for service at Cochran’s

three pre-Batson trials, he struck thirty-one. Colleagues

from that prosecutor’s office testified below that exclu-

sion of black citizens from jury service was a prevalent

and accepted practice in Jefferson County, Alabama prior

to Batson. It is unfortunate that the Attorney General

persists in seeking to preserve a conviction and death

sentence so clearly marred by racial prejudice.

This is an important case because it involves a capital

sentence, and because it demonstrates that Batson was a

necessary change in the law. The case is not worthy of

this Court’s review, however, because the lower courts

reached the correct result by application of settled princi-

ples of law concerning which this Court's prior decisions

have provided clear and adequate guidance. Moreover, as

discussed below, the “inconsistent application” rationale

on which the Court of Appeals relied in reaching the

merits of Cochran’s Batson claim was but one of many

avenues of analysis available to support the judgment.

Finally, the unique facts and procedural history of this

case — particularly as they relate to the Batson claim -

make it highly unlikely that the decision below will affect

an appreciable number of other cases or litigants.

The sole Question Presented by Petitioner is whether

the Court of Appeals erred in concluding that the Batson

claim “could be reviewed on the merits in Cochran’s

federal habeas corpus proceeding because the state courts

did not consistently apply its procedural bar.” The Attor-

ney General contends that the decision below conflicts

with this Court’s decision in Dugger v. Adams, 489 U.S.

401 (1989), and also with the Court of Appeals’ prior

decisions. As discussed below, however, there is neither

tension nor conflict amongst these decisions, and review

by this Court is not warranted. We begin by clarifying the

procedural history as it relates to the Batson claim.

S

STATEMENT OF THE CASE

From the very beginning of the state proceedings,

Cochran’s lawyers challenged the State's racially biased

use of peremptory challenges. In a written motion filed

on February 28, 1977, before Cochran’s first trial, Cochran

requested that “the District Attorney and his staff be

restricted from using their peremptory strikes in a

racially biased manner or, in the alternative, that the

District Attorney and his staff not be allowed to use the

peremptory strikes.” R1-3-Tab R-38, at 27. In the motion,

Cochran’s counsel argued that “[t]he District Attorney

and his staff have over a long period of time excluded

members of the black race from being allowed to serve on

the jury where the issues to be tried involved members of

the opposite race.” Id. Despite the fact that the motion

requested only that the prosecutor be restricted from

using peremptory strikes in a racially biased manner, it

was opposed by the prosecutor, and denied by the trial

court. R1-3-Tab R-38, at 90.

The trial court’s refusal to restrict the prosecution

from rvsially biased use of peremptory strikes flowed

presumably from a prevalent, albeit erroneous, view that

racially motivated use of peremptory challenges was per-

missible under the then-governing law. R1-36, at 22, 45

(testimony of former assistant district attorneys); Lynn v.

State, 477 So.2d 1365, 1376-77 (Ala. Crim. App. 1985)

(“Alabama courts have consistently held that it is not

error for the prosecuting attorney to strike a jury on the

basis of race.”); but see Ford v. Georgia, 498 U.S. 411, 420

(1991) (explaining that beth Batson and Swain prohibited

racially biased use oi peremptory strikes, and that Batson

simply altered the quantum of proof necessary to estab-

lish a particular claim). Unfettered by the trial court, the

prosecutor exercised 24 of 26 strikes in Cochran’s first

two trials to exclude black members of the venire.

Cochran’s counsel reasserted the motion to restrict

racially biased striking of jurors at the trial in 1982.

Again, the trial court denied the motion. R1-3-Tab R-9, at

539. On direct appeal from the 1982 conviction, and

before Batson was decided, the Alabama Supreme Court

affirmed Cochran’s conviction, but remanded for resen-

tencing. Ex Parte Cochran, 500 So.2d 1179, 1187 (Ala.

1985). On remand, the trial court resentenced Cochran to

death without an evidentiary hearing.

Batson was decided on April 30, 1986, eight days after

Cochran’s counsel filed their brief attacking the resen-

tencing order in the Alabama Court of Criminal Appeals.

At that time, Cochran’s case was on submission in the

Court of Criminal Appeals at a stage in the direct appel-

late proceedings in which the sole focus was on issues

concerning the resentencing proceedings that were the

subject of the Alabama Supreme Court’s remand. Cochran

v. State, 500 So.2d 1064 (Ala. 1986) (“The only issue before

us is whether the trial court erred in not holding a new

sentencing hearing.”). Alabama appellate ‘courts have

refused to consider “guilt phase” claims when asserted

on appeal from a remand proceeding involving only

resentencing. See Giles v. State, 632 So.2d 568, 576 (Ala.

Crim. App. 1992) (citing Magwood v. State, 548 So.2d 512,

515 (Ala. Crim. App. 1988)). Cochran’s direct appellate

counsel testified below that, given the unique procedural

posture of the case at the time Batson was decided, they

knew of no method by which they could place the claim

eT

before the Alabama Supreme Court. R1-20-Volume I, at

36, 212-13. In any event, given the posture of the appeal,

the Alabama Supreme Court reviewed only the propriety

of the trial court’s refusal to hold a new sentencing hear-

ing on remand.

Cochran raised the Batson issue by written amend-

ment to his Petition for Post-Conviction Relief under

Temporary Rule 20. R1-3-Tab R-64. The Attorney General

quotes at length from a colloquy that occurred at the

post-conviction hearing in which the state trial court

expressed the conclusion that the Batson claim was pro-

cedurally defaulted. Respondent's (sic) Petition for Writ of

Certiorari, at 10-11 (citing R1-3-Tab R-60, at 22-23) (the

“Certiorari Petition”). Although conceding that the state

trial court ultimately ruled on the merits of the Batson

claim “in the alternative,” the Attorney General neverthe-

less relies on this colloquy to support the State’s argu-

ment that the state trial court defaulted the claim.

But the post-conviction hearing transcript does not

tell the whole story. In fact, after the post-conviction

hearing, the state trial judge contacted Cochran’s counsel

by telephone, expressing “concern” over the summary

disposition of the Batson issue, and requested copies of

counsels’ strike sheets from the 1982 trial. R1-20-Volume

I, at 40. Having apparently reviewed this limited evi-

dence, the state trial judge began his discussion of the

Batson issue in his written opinion with a cryptic dis-

avowal of the very colloquy on which the Attorney Gen-

eral now relies:

Now to the Batson issue. ‘The matter does not

appear to me now as it appears to have

appeared to me then.’ From ‘Judicature’ Febru-

ary-March, 1988 publication.

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 this issue, the more

consideration of the issue was required.

R1-3-Tab R-61, at 5. The trial court then reviewed the

merits and concluded:

This Court finds that there is no ground nor

evidence to justify further hearing on this issue.

This Court finds that there was no violation of

the Batson opinion. This Court finds there was

no discriminatory striking of blacks within the

criteria outlined by the Batson decision... .

Id. at 7. The Court of Criminal Appeals affirmed the trial

court’s rejection of the Batson claim on the merits, sim-

ilarly concluding that “there is nothing in the record to

indicate or imply that the State engaged in racial discrim-

ination in the selection of the jury . . . .” Cochran, 548

So.2d 1062, 1069 (Ala. Crim. App. 1989).

We raised the Batson claim again in the habeas corpus

proceedings below. The District Court initially denied

discovery on the claim on the ground that the claim was

procedurally barred from review, but later concluded that

the claim was reviewable because the state courts had

decided the claim on the merits. Appendix to Petition for

Writ of Certiorari, at 27-30. Although the Court of Appeals

opted to dispose of the procedural default issue on the

“inconsistent application” rationale, it is clear, as dis-

cussed below, that the District Court’s reasoning provides

an equally compelling basis for affirmance of the judg-

ment below.

The evidence presented to the District Court on the

Batson claim was undisputed, clear and compelling. The

prosecutor from Cochran’s 1982 trial admitted that, at the

time of Cochran’s trial, he believed that black jurors, as a

class, were: (i) less “reliable” jurors for law enforcement

than white jurors; (ii) more likely to be “distrustful of

police” than white jurors; (iii) less likely to recommend

the death penalty than white jurors; and (iv) more likely

to “identify with” a black defendant than white jurors.

R1-36-Volume V, at 33-34. The prosecutor offered no race-

neutral explanation for having used seven of his first ten

peremptory strikes to exclude all but two of the nine

black members of the trial venire. In fact, the prosecutor

could not deny that his beliefs about black jurors influ-

enced his selection of Cochran’s jury. Id. at 38.

Also, two former assistant district attorneys

employed by the Jefferson County District Attorney's

office during the relevant time period testified that exclu-

sion of black jurors from service was a prevalent and

accepted practice in the office at the time of Cochran’s

trial, particularly in cases involving a black defendant

and a white victim. Id. at 16, 44. This practice infected

Cochran’s trial in 1982, just as it had his first two trials, in

1977 and 1978. The Attorney General stipulated in the

court below that the prosecutor used 11 of 12 strikes in

the 1977 trial and 13 of 14 strikes in the 1978 trial to

exclude black jurors from.service. Id. at 3-11. This general

pattern continued at Cochran’s 1982 trial.

Again by stipulation, the Attorney General conceded

below that: (i) the prosecutor struck black jurors who had

given the same answers in voir dire as white jurors whom

the prosecutor did not strike; (ii) the prosecutor struck

black jurors who provided only responses favorable for

the prosecution in voir dire, i.e., that they had been

victims of a crime; and (iii) the prosecutor struck one

black juror despite the fact that the juror did not respond

to any questions during voir dire. R1-36-Volume V, at 3-4;

Petitioner's Motion for Reconsideration and Request to Alter

or Amend Judgment and Findings, at 15-18 (citing state

record as to each fact) (the “Reconsideration Motion”).!

The one black juror who participated in deliberations

at Cochran’s trial testified in voir dire that: (i) he was

personally acquainted with the District Attorney and had

played golf with him; (ii) he had served on a jury previ-

ously and voted to convict the defendant; (iii) he had

been the victim of a crime; and (iv) his son, like the

victim, had worked in a grocery store. The prosecutor

testified in the District Court that these factors rendered

this particular black juror “very satisfactory” to the gov-

ernment. R1-36-Volume V, at 41.

On the basis of this evidence, the District Court

granted the writ.

1 The Attorney General stipulated in the District Court to

the facts set forth in the Reconsideration Motion. R1-36-Volume

V, at 3. A copy of the Reconsideration Motion was included at

Tab 1 in Appellee’s Record Excerpts filed in the Court of

Appeals.

SUMMARY OF THE ARGUMENT

In the years following this Court's decision in Batson,

the courts of Alabama repeatedly excused both trial and

direct appellate defaults in order to remedy Batson viola-

tions that occurred in pre-Batson trials. The Attorney

General’s contention that this case involves a procedural

default rule that was applied by the state courts in two

out of only three cases is thus misleading and incorrect.

We cite below nine examples of cases in which defaults

were excused, and there are surely more. This is not an

appropriate case, therefore, in which to examine the

limits of this Court’s suggestion in Dugger v. Adams, 489

U.S. 401, 410 (1989) that the “adequacy” of a procedural

default rule enforced in the “vast majority of cases”

might not be undermined by deviations in, as the Attor-

ney General puts it, a “few cases.”

Even if this Court were to accept the Attorney Gen-

eral’s myopic focus on the three state court decisions he

chooses for comparison, there is still no conflict between

the Court of Appeals’ decision in this case and Adams.

Adams simply does not stand for the proposition that a

default rule applied in a “majority” of cases must be

enforced by a federal court. Moreover, as demonstrated

below, the Attorney General flatly misstates the holding

in one of the three chosen cases — Morrison v. State — to

support his contention that the procedural default rule at

issue has been consistently applied to cases “like

Cochran’s.”

In any event, the sole Question Presented here would

in all likelihood not be reached by this Court on review,

because the record of the state proceedings demonstrates

10

that the Alabama state courts resolved the Batson claim

on the merits, as the District Court held. There is thus no

reason in this case to address the consistency, or lack

thereof, with which Alabama courts have applied pro-

cedural default rules to Batson claims.

Finally, the unique procedural history of this case,

particularly as it relates to the timing of the Batson deci-

sion, makes it highly unlikely that the decision below will

affect many other litigants. Batson has been the law now

for almost a decade, and the struggle to remedy Batson

error from pre-Batson trials is nearing an end. In this case,

the lower courts were able to remedy a clear Batson

violation by application of settled principles of habeas

corpus jurisprudence.

+

REASONS FOR DENYING THE WRIT

The doctrine of procedural default in habeas corpus

jurisprudence is rooted in the “independent and adequate

state law ground” doctrine first enunciated by this Court

in defining its certiorari jurisdiction. Coleman v. Thompson,

501 U.S. 722, 729-30 (1991). The principle, put simply, is

that a federal court in a habeas corpus proceeding will

not disturb a dispositive ruling by a state court rejecting a

federal constitutional claim where the state court’s judg-

ment rests on state law grounds that are both “adequate”

to support the judgment and “independent” of any inter-

pretation of federal law. Id. In the habeas corpus context,

the rule is grounded on concerns for comity and federal-

ism. Id. at 730-31. Application of the rule ensures state

courts an opportunity to address federal constitutional

11

state courts an opportunity to address federal constitu-

tional claims in the first instance, and reflects respect for

the states’ interest in enforcing local procedural rules in

the conduct of criminal proceedings.

A. The Court of Appeals’ “Inconsistent Applica-

tion” Rationale Is Sound, And Does Not Con-

flict With This Court’s Precedents.

To be “adequate” to foreclose federal review, the

procedural default upon which the state judgment is

premised must be one that is strictly and regularly

applied. Ford, 498 U.S. at 423-24; Dugger v. Adams, 489

U.S. 401, 410 n.6 (1989); Johnson v. Mississippi, 486 U.S.

578, 589 (1988); James v. Kentucky, 466 U.S. 341, 348-51

(1984); Hathorn v. Lovorn, 457 U.S. 255, 263-65 (1982); Barr

v. City of Columbia, 378 U.S. 146, 149 (1964); Messer v.

Florida, 834 F.2d 890, 893 (11th Cir. 1987); Spencer v. Kemp,

781 F.2d 1458, 1470-71 (11th Cir. 1986); Francois v. Wain-

wright, 741 F.2d 1275, 1281 (11th Cir. 1984). There is more

than ample support for the Court of Appeals’ conclusion

that trial and direct appellate procedural default rules

have not been strictly or consistently applied to Batson

violations in the Alabama courts, particularly those Bat-

son claims arising from capital trials conducted before

Batson was decided. See, e.g., Watkins v. State, 632 So.2d

555 (Ala. Crim. App. 1992) (collecting cases).

Indeed, in the aftermath of Batson, the courts of Ala-

bama routinely disregarded procedural obstacles to cor-

recting Batson error that occurred at pre-Batson trials. See,

e.g., Ex parte Floyd, 571 So.2d 1234, 1236 (Ala. 1990) (in

context of state post-conviction proceeding, Alabama

12

Supreme Court remands to trial court for Batson hearing

despite procedural default on direct appeal); Lynn v.

State, 543 So.2d 704, 706 (Ala. Crim. App. 1987) (Alabama

Court of Criminal Appeals remands for Batson hearing on

recommendation of Attorney General); Hemphill v. State,

571 So.2d 365, 367 (Ala. Crim. App. 1990) (in non-capital

case, Court of Criminal Appeals remands for Batson hear-

ing without discussing procedural default); Ex parte Bank-

head, 585 So.2d 112, 117 (Ala. 1991) (On Application for

Rehearing) (on direct appeal, Alabama Supreme Court

remands for Batson hearing under plain error rule where

no objection was raised at trial); Walker v. State, No. 7 Div.

164, slip op. at 3 (Ala. Crim. App. July 26, 1991) (remand

for Batson hearing under plain error rule where Batson

issue raised for first time on direct appeal).

Given the prevalent misconception in the Alabama

courts prior to Batson that race-based use of peremptory

challenges was constitutional, the Alabama courts were

particularly aggressive in the years following Batson in

reaching out to protect the rights of capital defendants

where Batson error appeared in the record of a pre-Batson

trial. See, e.g., Bankhead, 585 So.2d at 117 (on application

for rehearing, Court remands for Batson hearing); Ex parte

Adkins, 600 So.2d 1067, 1068-69 (Ala. 1992) (remand for

Batson hearing); Ex parte Godbolt, 546 So.2d 991, 998-99

(Ala. 1987) (remand for Batson hearing “[a]lthough the

matter was not called to our attention by counsel”); Guth-

rie v. State, No. 7 Div. 287, slip op. at 2 (Ala. Crim. App.

June 12, 1992) (remand for Batson hearing where “appel-

lant neither raised this issue in the trial court nor argued

it on appeal”); Walton v. State, 523 So.2d 134 (Ala. Crim.

App.), cert. denied, No. 86-829 (Ala. 1987) (remand for

13

Batson hearing on application for rehearing). The courts

of Alabama spoke clearly during these years, by aggres-

sive, indeed extraordinary application of the “plain

error” rule and, where necessary, by simple disregard of

procedural default rules altogether. See, e.g., Floyd, 572

So.2d at 1236. Given that the courts of Alabama opted

repeatedly to excuse procedural defaults in order to rem-

edy Batson violations from pre-Batson trials, it cannot

fairly be said that the courts below showed any disre-

spect to the courts of Alabama by proceeding to the

merits of Cochran’s Batson claim.

In its opinion, the Court of Appeals focused primar-

ily on Floyd and State v. Tarver, 629 So.2d 14, 18-19 (Ala.

Crim. App. 1993). In Tarver, the Alabama Courts of Crimi-

nal Appeals ruled that a Batson claim raised for the first

time at the post-conviction phase had been procedurally

defaulted on direct appeal. The Tarver Court distin-

guished Floyd on the ground that no Swain objection had

been raised at Tarver’s trial. Tarver, 629 So.2d at 19. The

Court of Appeals noted in its analysis below that this case

is like Floyd, and not like Tarver, because Cochran’s coun-

sel made a Swain objection at his trial.

The Attorney General argues here, as he did on

application for rehearing below, that a third case, Mor-

rison v. State, 551 So.2d 435 (Ala. Crim. App. 1989), shares

the procedural characteristics of both Cochran and Floyd,

in that Morrison involved a pre-Batson trial at which a

Swain objection was raised. Given that the Morrison court

rejected the Batson claim on procedural default grounds

in the state post-conviction proceedings, the Attorney

General posits that the courts of Alabama have indeed

applied its procedural default rules “consistently” — at

14

least in two out of three cases in which a Swain objection

was made at trial prior to a direct appellate default of a

Batson claim. This argument does not warrant this Court’s

consideration for several reasons.

First, the “two out of three” argument is grounded in

the false premise that a procedural default rule can be

“adequate” despite widespread inconsistent application

so long as the rule is applied marginally consistently to

an isolated triad of cases sharing similar procedural his-

tories. As discussed above, the cases are legion in which

the Alabama courts excused both trial and direct appel-

late defaults to address Batson error arising from pre-Bat-

son trials. There is simply no support, and the Attorney

General points to none, for the proposition that “rele-

vant” cases for purposes of analyzing consistency of

application are limited to those sharing like procedural

histories.

The second flaw in the “two out of three” rationale is

that it proceeds from the premise that the Alabama courts

defaulted the Batson claim in the Morrison case despite

knowing that a Swain objection had been raised at Mor-

rison’s trial. The Attorney General fails to point out,

however, that the Alabama Court of Criminal Appeals

was apparently unaware that a Swain objection had

been raised at Morrison’s trial. Morrison, 551 So.2d at 437

(“There was no objection to [the prosecutor’s use of

peremptory strikes] at trial or on direct appeal.”

(emphasis added)). Thus, the decision in Morrison lends

no support to the Attorney General’s contention that the

Alabama courts have been consistent in rejecting Batson

claims in cases he deems “like Cochran’s.”

15

Even if this case were as the Attorney General pre-

sents it, there would be no conflict with Adams, or with

the Court of Appeals’ prior decision in Delap v. Dugger,

890 F.2d 285 (11th Cir. 1989). This Court did not hold in

Adams that-the failure to enforce a procedural default rule

in a “few cases” should be disregarded, or that a rule

enforced in the “vast majority of cases” is “adequate” per

se. Neither did the Court of Appeals so hold in Delap. In

fact, in neither case did the majority acknowledge any

deviation by the state courts in application of the relevant

procedural default rule. Adams, 489 U.S. at 410 n.6; Delap,

890 F.2d. at 300. Instead, in both cases the majority con-

cluded that the alleged examples of “deviation” by the

state courts were either unclear or misinterpreted by the

habeas corpus petitioner. Id. Neither Adams nor Delap,

then, can fairly be read as establishing that state pro-

cedural rules applied in a “majority” of cases are “ade-

quate” to bar federal review.

In fact, this Court has suggested that a single devia-

tion from enforcement of a procedural rule undermines

“adequacy,” if the deviation occured under circumstances

similar to that presented in the case under review. Ha-

thorn, 457 U.S. at 264 (“[t]he striking similarity between

Quinn [in which the procedural default rule was not

enforced] and this case . . . persuades us that the Missis-

sippi Supreme Court is not ‘strictly or regularly’ follow-

ing [the relevant procedural rule] . . . .”); see also Wheat v.

Thigpen, 793 F.2d 621, 626 (5th Cir. 1986) (finding incon-

sistent application on the basis of a single state court

decision); Wilcher v. Hargett, 978 F.2d 872 (5th Cir. 1992)

(same). Thus, the weight of authority, including this

16

Court’s prior decisions, supports the Court of Appeals’

rationale. There is thus no conflict in the decisional law.

B. The District Court’s “Clear and Plain State-

ment” Rationale Provides An Independent

Basis For Affirmance Of The Court Of Appeals’

Decision,

State court decisions often contain mixed discussions

of federal (substantive) and state (procedural) grounds

for decision, as in this case. In such cases, this Court has

developed and applied a conclusive presumption -

referred to as the “clear and plain statement” rule - to

determine whether the state procedural ground for deci-

sion should foreclose federal review of a constitutional

claim. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)

(articulating the rule in the context of certiorari jurisdic-

tion); Harris v. Reed, 489 U.S. 255, 263 (1989) (extending

the rule to habeas corpus proceedings). The rule provides

that federal courts will presume that there is no indepen-

dent and adequate state ground for a decision where the

decision “fairly appears to rest primarily on federal law

or to be interwoven with the federal law, and when the

adequacy and independence of any possible state law

ground is not clear from the face of the opinion.” Cole-

man, 501 U.S. at 735 (quoting Long, 463 U.S. at 1040-41).?

2 In Coleman, this Court made clear that the Harris pre-

sumption “applies only when it fairly appears that a state court

judgment rested primarily on federal law or was interwoven

with federal law, that is, in those cases where a federal court has

good reason to question whether there is an independent and

adequate state ground for the decision.” Id. at 739. Coleman thus

|

17

The Alabama Court of Criminal Appeals’ decision

here presents a classic case for application of the Harris

presumption, as the District Court held. The court's

extensive discussion of the factual merit of Cochran’s

Batson claim, and its conclusion that there was “nothing

in the record to indicate or imply that the State engaged

in racial discrimination in the selection of the jury”

plainly demonstrate that the decision rested primarily on

federal law. Moreover, the discussion of procedural

default contained in the opinion is itself “interwoven

with federal law.” The court stated plainly that applica-

tion of the alleged procedural default depended on the

court’s view that the claim lacked merit. Cochran, 548

So.2d at 1068 (“Although Cochran has been sentenced to

death, the alleged error in this case is not ‘plain’ as we

have indicated above.”).

The Attorney General argues here, as he did below,

that the following text, carefully excised from the State

court’s extensive discussion of the merits, constitutes a

“clear and plain statement” within the meaning of Harris:

Under the circumstances present, Cochran is

procedurally barred from relief on his claim that

the State actually used its peremptory chal-

lenges in a racially discriminatory manner in

violation of Batson, supra. As we have observed,

that issue could have been raised on direct

appeal. A petitioner will not be given relief

made clear that there is no requirement of a “clear and plain

statement” in cases involving state court summary affirmances

or dismissals that contain no federal law component, and that

clearly rest on a state procedural ground. Id. at 739-44; see also

YIst v. Nunnemaker, 501 U.S. 797 (1991).

18

under . . . [Rule 20] based upon any ground

which could have been but was not raised on

appeal.

Id. at 1067-68 (citations omitted). The Attorney General

argued below that the quoted text clearly and plainly

demonstrates that the Court of Criminal Appeals’ exten-

sive merits discussion was simply an “alternative” hold-

ing, which is permissible under the Harris test.

But the language the Attorney General cites does not

constitute a “clear and plain statement” within the mean-

ing of Harris. The text includes nothing to support the

contention that the alleged procedural bar was “ade-

quate” to support the judgment, or was “independent” of

federal law. To the contrary, the procedural default para-

graph is preceded by a detailed discussion of the merits

of the claim, and the paragraph itself begins with the

phrase “under the circumstances present,” which ties the

procedural default paragraph to the merits discussion.

Moreover, the discussion that follows the Attorney Gen-

eral’s favored paragraph reveals plainly that the alleged

default would not have been sufficient itself to bar relief,

had the Batson claim been found to have merit. The

court’s concluding paragraph demonstrates that its ruling

was driven primarily by its view that the record con-

tained nothing “to indicate or imply that the state

engaged in racial discrimination in the selection of the

jury.” Cochran, 548 So.2d at 1069. This, we now know, was

simply incorrect.

Where, as here, a state court’s procedural default

finding is interwoven with the merits of a federal consti-

tutional claim, the “clear and plain statement” rule

requires something more than the mere recitation that a

19

procedural default occurred. Harris, 489 U.S. at 264 n.10

(state courts are free to reach merits of federal claim as

“alternative” holding “as long a3 the state court explicitly

invokes a state procedural bar rule as a separate basis for

decision.”). In the words of the District Court, “it is

impossible to determine whether a state ground for deci-

sion is adequate if the state court does not clearly indicate

that it is independently relying on that ground.” R1-31-12

(emphasis added). In Coleman, this Court articulated the

principle succinctly:

After Long, a state court that wishes to look to

federal law for guidance or as an alternative

holding while still relying on an independent

and adequate state ground can avoid the pre-

sumption by stating ‘clearly and expressly that [it's

decision] is .. . based on bona fide separate, adequate

and independent grounds.’

Coleman, 501 U.S. at 733 (quoting Long, 463 U.S. at 1041)

(emphasis added). Thus, it is “the adequacy and indepen-

dence of any possible state law ground” that must be

expressed “clearly” and “plainly” — not simply the fact of

a default. Id. (quoting Long, 463 U.S. at 1040-41)

(emphasis added).

The Court of Criminal Appeals reviewed the merits

of Cochran’s Batson claim under the “plain error” rule.

Plain error review commonly occurs only on direct

review, and the very purpose of the plain error rule is to

identify those claims as to which otherwise applicable

procedural defaults are to be excused. Thus, the very

nature of the Court of Criminal Appeals’ merits discus-

sion reveals that the procedural default finding was

20

dependent on the court’s merits ruling.? Whatever the

Court of Criminal Appeals’ intentions, it is clear from the

opinion that the court would have granted relief, and

thus excused any procedural default, had it found

Cochran’s Batson claim to have merit.

Where a state court reaches the merits of a claim

under the “plain error” rule, federal review is not barred.

See Engle v. Isaac, 456 U.S. 107, 135 n.44 (1982) (“If Ohio

had exercised its discretion to consider respondents’

claim [under the plain error rule], then their initial

default would no longer block federal review.”); Hargrave

v. Dugger, 832 F.2d 1528, 1539 (11th Cir. 1987) (Tjoflat, J.,

specially concurring) (habeas corpus review not barred

where state court elects to address merits of claim under

“plain error” rule); Rogers-Bey v. Lane, 896 F.2d 279, 281

(7th Cir. 1990) (same); Walker v. Endell, 850 F.2d 470,

473-74 (9th Cir. 1987) (federal review permitted where

claim was “reviewed by a state appellate court on the

merits for plain error.”); Huffman v. Ricketts, 750 F.2d 798,

800-01 (9th Cir. 1984) (federal review required where state

3 The court’s willingness to engage in “plain error” review

at the collateral stage flowed presumably from the fact that

Batson had been decided at a point in the direct appellate stage

at which the parties were precluded from raising issues other

than those arising from the resentencing proceedings. Giles, 632

So.2d at 576. The Alabama appellate courts’ “plain error”

review on direct appeal occurred prior to this Court’s decision

in Batson, and Cochran had no real opportunity to raise the

claim on direct appeal thereafter. This is yet another ground on

which the Court of Appeals’ judgment could be affirmed. See

Johnson, 486 U.S. at 587-89 (procedural default rule not “ade-

quate” where rule would require assertion of claim in forum

where claim could not be heard).

21

court entertains merits of procedurally defaulted claim to

determine whether claim constitutes “fundamental

error”); U.S. ex rel Gibson v. McGinnis, 773 F. Supp. 126,

131-32 (C.D. Ill. 1991) (“A state court’s examination of the

merits of a federal claim - even if only to determine

whether it would be fair to impose a state procedural bar

- constitutes sufficient predicate to apply the Harris pre-

sumption.”).

The Harris presumption is triggered “when the ade-

quacy and independence of any possible state law ground is

not clear from the face of the opinion.” Coleman, 501 U.S.

at 735 (quoting Long, 463 U.S. at 1040-41) (emphasis

added). The Attorney General can point to no word or

phrase in the opinion of the Court of Criminal Appeals to

support his contention that the court’s merits discussion

was truly an “alternative” holding. The District Court

thus correctly concluded that the Batson claim was subject

to review, and this rationale provides an independent

basis for affirmance of the judgment below.

¢

CONCLUSION

Racial discrimination in the selection of jurors “ ‘casts

doubt on the integrity of the judicial process . . . and

places the fairness of the criminal proceeding in doubt.”

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

“Purposeful racial discrimination in selection of the

venire violates a defendant’s right to equal protection

22

because it denies him the protection that a trial by jury is

intended to secure.” Batson, 476 U.S. at 86. “The risk of

racial prejudice infecting a capital sentencing proceeding

is especially serious in light of the complete finality of the

death sentence.” Turner v. Murray, 476 U.S. 28, 35 (1986).

These words reflect this Court’s unwavering commit-

ment to the promise of Batson. James Cochran respect-

fully requests that this Court deny the Petition for Writ of

Certiorari, so that he might enjoy the benefit of that

promise.

Respectfully Submitted,

LAWRENCE J. Fox

KENNETH C. FRAZIER

Seamus C. Durry

BrENDA W. HoLsTon

DrinKER BippLte & REATH

1345 Chestnut Street

Philadelphia, PA 19107