UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31047
CARTER PAUL PETERSON,
Petitioner-Appellant,
VERSUS
BURL CAIN,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
August 19, 2002
Before JOLLY, DeMOSS, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Petitioner Carter Paul Peterson (“Peterson”), a Louisiana
state prison inmate, appeals the ruling of the district court,
seeking federal habeas corpus relief. He presents two issues for
review. First, whether the United States Supreme Court’s opinion
in Campbell v. Louisiana, 523 U.S. 392 (1998), announced a new rule
of constitutional criminal procedure under 28 U.S.C. §
2244(d)(1)(c). Second, whether such a “new rule,” if it exists, is
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retroactively applicable to a case such as his on collateral
review. Because we find that no new rule is stated in Campbell, we
AFFIRM the judgment of the district court, although on alternative
grounds.
I. Background.
Peterson was convicted of second-degree murder in 1981 in
Louisiana state court and was sentenced to life imprisonment. His
conviction and sentence were affirmed on appeal and became final in
1982. He did not seek collateral relief at that time, but filed a
state application for post-conviction relief on September 24, 1998.
His application was based on Campbell, which announced on April 21,
1998, that a white defendant has standing to raise equal-protection
and due-process challenges to discrimination against African-
Americans in the selection of a grand jury. Id. at 400-03. He
argued that the selection process for grand jury forepersons in
Lafayette Parish, Louisiana, violated constitutional due process
and equal protection requirements by systematically excluding
African-Americans; that LA. CODE CRIM. PROC. ANN. art. 413 B (West
Supp. 1997),1 providing the selection procedure, was
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“In parishes other than Orleans, the court shall select one
person from the grand jury venire to serve as foreman of the grand
jury. The sheriff shall draw indiscriminately and by lot from the
envelope containing the remaining names on the grand jury venire a
sufficient number of names to complete the grand jury. The envelope
containing the remaining names shall be replaced into the grand
jury box for use in filling vacancies as provided in Article 415.”
(Emphasis added)(the 2002 Supplement reflects such selection by
nondiscriminatory lot).
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unconstitutional; and that Peterson was denied effective assistance
of counsel because his attorney did not file a motion to quash his
indictment based on the allegedly discriminatory selection process.
The Louisiana district court denied his application and the
Louisiana Supreme Court denied his application for supervisory or
remedial writs on December 17, 1999. See State ex. rel. Peterson
v. State, 751 So.2d 876 (La. 1999).
Peterson, acting pro se, filed the present application for a
federal writ of habeas corpus under 28 U.S.C. § 2254 on May 24,
2000, with the same arguments. It was referred to a magistrate
judge for recommendations. She found that Peterson’s claim fell
within the ambit of the Antiterrorism and Effective Death Penalty
Act (AEDPA) because he brought the petition after the AEDPA’s
effective date of April 24, 1996. The AEDPA-modified federal
habeas law requires that a prisoner bring a collateral attack
within one year of final judgment or within one year of the AEDPA’s
effective date. Peterson did not meet either of those criteria.
Some exceptions are enumerated. Pertinent to Peterson, a prisoner
may collaterally attack a judgment within one year of the date on
which the claimed constitutional right was newly recognized by the
United States Supreme Court and made retroactive to cases on
collateral review. See 28 U.S.C. § 2244(d)(1)(C). The magistrate
judge recognized that the Supreme Court may have announced a new
constitutional right in Campbell, but recommended that Peterson’s
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petition be denied because the Supreme Court did not explicitly
make Campbell retroactive for collateral attack purposes. The
district judge adopted that recommendation and denied relief on
August 2, 2000.
Peterson timely filed a notice of appeal on August 18, 2000.
On August 28, 2000, the district court denied a COA. On October
25, 2000, this Court granted Peterson’s motion for a COA on the
issues herein.2
II. Standard of Review.
A case announces a new rule when it breaks new ground or
imposes a new obligation on the States or the Federal Government.
Teague v. Lane, 489 U.S. 288, 301 (1989). Stated differently, a
case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became
final. Id. (citing generally Truesdale v. Aiken, 480 U.S. 527,
528-29 (1987)(Powell, J., dissenting)).
If a new rule of constitutional criminal procedure has been
announced, it is generally unavailable retroactively to collateral
2
See Peterson v. Cain, No. 00-31047 (5th Cir. Oct. 25, 2000),
ruling that a COA should issue because the district court denied
habeas relief on procedural grounds, citing Slack v. McDaniel, 120
S. Ct. 1595, 1604 (2000), and because “jurists of reason would find
it debatable” whether the district court was correct in its
procedural ruling and whether Peterson’s petition stated a valid
claim of the denial of a constitutional right. Cf. Fitzpatrick v.
Cain, No. 00-30500 (5th Cir. Oct. 30, 2000), denying COA to a
similar argument because Campbell does not represent a “new rule”
of equal protection but is merely an extension of Powers v. Ohio,
499 U.S. 400 (1991).
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cases in which judgment has become final unless it falls within an
exception to the general rule, Teague, 489 U.S. at 310, or the
Supreme Court explicitly makes it retroactive.
The AEDPA effectively codified Teague such that federal habeas
courts must deny relief that is contingent upon a rule of law not
clearly established at the time the state conviction becomes final.
Williams v. Taylor, 529 U.S. 362, 380-81 (2000). The AEDPA-
modified federal habeas law does, however, provide a one-year
period of limitation for a criminal defendant to apply for habeas
relief under a new rule of law that has been made retroactive.
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of . . . the
date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review[.]
28 U.S.C. § 2244(d)(1)(C). Peterson filed his federal habeas claim
after the effective date of the AEDPA, which therefore governs.
III. Analysis.
Peterson argues that Campbell expresses a “new rule” of
constitutional criminal procedure: namely, that a white criminal
defendant has the requisite standing to raise equal protection and
due process objections to discrimination against black persons in
the selection of grand jurors. See Campbell, 523 U.S. at 400. He
asserts that this constitutes a “new rule” because the result was
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not “dictated by precedent” when his conviction became final in
1982. No circuit has issued a definitive published opinion as to
whether Campbell represents a new rule of criminal procedure.3
A. Equal Protection.
Campbell enunciated that a white defendant has Fifth Amendment
equal protection standing to assert the third-party rights of black
venire members who were discriminated against in the selection of
his grand jury. Campbell, 523 U.S. at 400. Peterson filed for
collateral relief in 1998 based on this enunciation. See
Appellant’s Br. at 2.
The Supreme Court noted that “we can ascertain standing with
relative ease by applying rules established in prior cases.” See
Campbell, 523 U.S. at 397 (citing Allen v. Wright, 468 U.S. 737
(1984)). The Court then derived its decision regarding the equal
protection issue in Campbell from its earlier decisions in Powers
v. Ohio, 499 U.S. 400 (1991), and Rose v. Mitchell, 443 U.S. 545
(1979).4
In Powers, the Court concluded that “a defendant in a criminal
case can raise the third-party equal protection claims of jurors
excluded by the prosecution[’s use of peremptory challenges]
3
The Sixth Circuit did address the subject in Coe v. Bell, 161
F.3d 320, 352-55 (6th Cir. 1998), but did not resolve whether
Campbell stood for a “new rule” under either equal protection or
due process prongs.
4
Cited hereinafter in the short form as Rose v. Mitchell.
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because of their race.” Powers, 499 U.S. at 415. To reach that
conclusion, the Court examined three factors: (1) the litigant must
have suffered an “injury in fact,” thus giving him or her a
“sufficiently concrete interest” in the outcome of the issue in
dispute; (2) the litigant must have a close relation to the third
party; and, (3) there must exist some hindrance to the third
party’s ability to protect his or her own interests. Id. at 411
(citations omitted). Integrity of the judicial system is at the
core of the review.
As to the first factor, the Court held that the discriminatory
use of peremptory challenges causes cognizable injury to a criminal
defendant, who has a concrete interest in challenging the practice.
Id. at 411. This is “because racial discrimination in the
selection of jurors ‘casts doubt on the integrity of the judicial
process.’” Id. (quoting Rose v. Mitchell, 443 U.S. at 556 (finding
that discrimination on the basis of race in the selection of
members of a grand jury strikes at the fundamental values of the
judicial system and society as a whole, and thus that a criminal
defendant’s right to equal protection is denied when he is indicted
by a grand jury from which members of a racial group purposefully
have been excluded)).
As to the second factor, the Court held that the excluded
juror and the criminal defendant have a common interest in
eliminating racial discrimination from the courtroom. Powers, 499
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U.S. at 413. A venireperson excluded on the basis of race suffers
personal humiliation before the public and may lose confidence in
the court and its verdicts, as may the defendant if his or her
objections cannot be heard. Thus, the Court ruled, “[t]his
congruence of interests makes it necessary and appropriate for the
defendant to raise the rights of the juror.” Id. at 414 (emphasis
added). Further, the defendant has much at stake in challenging
the constitution of the jury on equal protection grounds – his or
her conviction might be overturned. See id. (citing, inter alia,
Rose v. Mitchell, 443 U.S. at 551).
As to the third factor, the Court held that the third-party,
excluded juror was hindered by a considerable practical barrier in
bringing suit because of the “small financial stake involved and
the economic burdens of litigation.” Powers, 499 U.S. at 415
(citing, inter alia, Rose v. Mitchell, 443 U.S. at 558).
There is no leap in logic nor a significant difference between
Powers and Rose v. Mitchell to Campbell. Once again, the Court’s
concern is focused on the integrity of the judicial process in the
selection of a grand jury foreperson. By “applying rules
established in prior cases,” Campbell, 523 U.S. at 397, the Court
conducted precisely the same analysis founded in maintaining
judicial integrity as in Powers.
Once again, the Court found that, regardless of skin color, a
criminal defendant suffers a significant injury in fact when the
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composition of the grand jury is tainted by racial discrimination.
Id. at 398. Such discrimination “‘strikes at the fundamental
values of our judicial system’ because the grand jury is a central
component of the criminal justice system.” See id. (quoting Rose
v. Mitchell, 443 U.S. at 556). Even less distinguishing is the
Court’s review of the second and third factors. As to the second,
the defendant and the excluded grand juror share a common interest
in eradicating discrimination from grand jury selection; the
defendant’s conviction might be overturned as a result of his or
her challenge. Campbell, 523 U.S. at 400 (citing Rose v. Mitchell,
443 U.S. at 551). As to the third, there is no reason why a white
defendant would be any less effective as an advocate for excluded
grand jurors than for excluded petit jurors. Campbell, 523 U.S. at
400 (citing Powers, 499 U.S. at 413-14). The Court’s analysis is
completely race-neutral regarding the defendant and the excluded
jurors; what matters is discriminatory exclusion or selection on
the basis of race.
Peterson argues that what is at stake is the potential for
judicial misconduct in the discriminatory selection of a grand jury
foreperson instead of potential prosecutorial misconduct in the
discriminatory exclusion of petit jury jurors. Granted, that there
may be an impression of a difference of magnitude between judicial
and prosecutorial misconduct. Both, however, are firmly embedded
in the integrity of the judicial system overall and are embraced by
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the Powers/Rose analysis. Just as the Court in Powers held that it
was necessary and appropriate for a defendant to raise the rights
of a juror under equal protection analysis, Powers, 499 U.S. at
414, so was it in Campbell, without material differentiation. The
analysis is color-blind and Campbell, while perhaps adding
refinement, does not state a new Fifth Amendment equal protection
rule of criminal procedure. Instead, the result in Campbell was
dictated by the Court’s precedents. Whether the rule was
originally stated in Powers (1991), in Rose v. Mitchell (1979), or
at some earlier point is immaterial. When Peterson filed his
habeas petition in 1998, it was more than a year after either of
the previous cases and his petition is therefore barred on equal
protection grounds.
We now turn to due process analysis.
B. Due Process.
Campbell further enunciated that a white defendant has
Fourteenth Amendment due process standing to litigate whether his
conviction was obtained by means or procedures contravening due
process when black venire members are discriminated against in the
selection of his grand jury. Campbell, 523 U.S. at 400-01.
Such a Fourteenth Amendment due process right has also been
previously addressed by the Court. See Peters v. Kiff, 407 U.S.
493 (1972)(plurality opinion). The opinion in Peters was expressed
by Justice Marshall, joined by Justices Douglas and Stewart,
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holding that constitutional due process and 18 U.S.C. § 243 applied
so that “whatever his race, a criminal defendant has standing to
challenge the system used to select his grand or petit jury, on the
ground that it arbitrarily excludes from service the members of any
race, and thereby denies him due process of law.” See id. at 504.
Three other justices concurred in the opinion, but “would implement
the strong statutory policy of [18 U.S.C. §] 243, which reflects
the central concern of the Fourteenth Amendment with racial
discrimination, by permitting petitioner to challenge his
conviction on the grounds that Negroes were arbitrarily excluded
from the grand jury that indicted him.” See id. at 507 (White, J.,
concurring). The concurring plurality thus would have put the
exclusion into a class by itself under § 243 rather than under the
Fourteenth Amendment.
The Court was faced with another grand jury selection question
in Hobby v. United States, 468 U.S. 339 (1984). There, the Court
held that discrimination in the selection of a grand jury
foreperson, from within the ranks of a properly constituted grand
jury and as distinguished from discrimination in the selection of
the grand jury itself, did not violate due process. Id. at 344.
Because the duties of a foreperson were “ministerial,”
discrimination in his or her selection would have little if any
effect on a defendant’s due process right to fundamental fairness.
Id. Such a concern does not arise when no large and identifiable
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segment of the community has been excluded from jury service and
the alleged discrimination “pertains only to the selection of a
foreman from among the members of a properly constituted federal
grand jury.” Id. (citing Peters, 407 U.S. at 503).
When it decided Campbell in 1998, the Court tread lightly on
its decision in Peters, noting that “a majority of Justices could
not agree on a comprehensive statement of the rule or an
appropriate remedy for any violation.” Campbell, 523 U.S. at 401.
Nonetheless, it expressly recognized that its later analysis in
Hobby had “proceeded on the implied assumption that a white
defendant had standing to raise a due process objection to
discriminatory appointment of a federal grand jury foreperson and
skipped ahead to the question whether a remedy was available.” See
id. Therefore, “[t]he relevant assumption of Hobby, and [the
Court’s] holding [in Campbell], is that a defendant has standing to
litigate whether his conviction was procured by means or procedures
which contravene due process.” See id.
The Hobby foreperson had been selected under North Carolina
law from an already-impaneled grand jury and his or her further
duties were merely “ministerial.” In Campbell, however, Louisiana
law specified that the foreperson be selected by the judge of the
case from the grand jury venire before the remaining grand jurors
were selected by lot and impaneled. Therefore, the foreperson was
selected not merely to conduct ministerial duties, but was also
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selected to act as a voting member of the grand jury, a vote that
directly impacted the defendant. To the extent that such a
selection was made discriminatorily, it ran afoul of the Hobby
implied assumption of due process. The Court’s decision in
Campbell was therefore dictated by its opinion in Hobby.
Campbell therefore does not represent a “new rule” of criminal
procedure under the due process requirements of the Fourteenth
Amendment. Because Peterson did not make his due process argument
at the time of his trial or within one year following Hobby (1984),
his claim must be disallowed under the AEDPA.
C. Sixth Amendment Fair Cross-Section Claim.
Peterson briefly avers that Campbell extends to the Sixth
Amendment right to a fair cross-section in jury composition, but
does not seriously argue it. Further, he has not raised this issue
in state court. The Supreme Court expressly declined to consider
this Sixth Amendment issue in Campbell because it had not been
presented to the state court previously. Campbell, 523 U.S. at
403. We will similarly disregard it.
IV. Conclusion.
Because Campbell does not express a new rule of constitutional
criminal procedure, we need not carry out a retroactivity analysis.
Based on the analysis herein, we hereby AFFIRM the district court.
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