[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 16, 2007
No. 05-15724 THOMAS K. KAHN
_______________________ CLERK
D.C. Docket No. 03-20387-CV-UNGARO-BEN
MANUEL VALLE,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS, Florida Department of
Corrections,
Respondent-Appellee.
_______________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
ON PETITION FOR REHEARING EN BANC
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and
PRYOR, Circuit Judges.
O R D E R:
The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.
/s/ J.L. Edmondson
_____________________________
CHIEF JUDGE
2
WILSON, Circuit Judge, concurring:
Although Manuel Valle’s petition for rehearing failed to raise the issue, we
considered sua sponte his challenge to the composition of his grand and petit
juries.1 Valle had originally contended that the process for selecting jurors in 1978
when he was indicted underrepresented “Latin Americans” in a way that violated
his due process and equal protection rights under the United States Constitution.
We considered whether this Court erred in finding that the Florida Supreme
Court’s decision in Valle v. State (Valle II) 474 So. 2d 796 (Fla. 1985), which
concluded that the term “Latin American” failed to represent a single cognizable
class for equal protection analysis, was not contrary to or an unreasonable
application of clearly established federal law. While I agree that today Latin
Americans are a constitutionally cognizable class under the Fourteenth
Amendment, the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
strictly limits our habeas review to whether the Florida Supreme Court’s decision
of July 11, 1985 “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States” at the time the case was decided. 28 U.S.C. § 2254(d)(1); see also Lockyer
1
The sole argument made in Valle’s petition for rehearing was that the Court erred in
rejecting his Batson claim. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986).
3
v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003).
Our habeas review is so limited that we are not permitted to disturb a state court
decision even if we conclude in our independent judgment that the state court
incorrectly applied the relevant Supreme Court precedent. See Woodford v.
Visciotti, 537 U.S. 20, 24-25, 123 S. Ct. 357, 360, 154 L. Ed. 2d 279 (2002). The
federal habeas scheme authorizes intervention on our part only when the state
court decision was objectively unreasonable. Id. at 27, 123 S. Ct. 361. Applying
this limited standard of review to Valle’s case, we held that the Florida Supreme
Court’s decision respecting his equal protection and due process claims was not
contrary to or an unreasonable application of clearly established federal law as
determined by the United States Supreme Court at the time Valle II was decided.
Valle v. Sec’y for Dep’t of Corr., 459 F.3d 1206, 1216-17 (11th Cir. 2006).
On habeas review, we go back in time and put ourselves in the position of
the Florida Supreme Court when it decided Valle II. Therefore, we look to United
States Supreme Court precedent as of July 11, 1985 for guidance. In Hernandez v.
Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954), the question before the
Supreme Court was not whether “Latin Americans” but whether persons of
“Mexican” descent were systematically excluded from the jury venires in Jackson
County, Texas. Id. at 476-77, 74 S. Ct. at 669-70. In deciding the case, the
4
Supreme Court recognized persons of Mexican descent as a cognizable class in the
community. Id. at 479-80, 74 S. Ct. at 671. In Keyes v. School District No. 1, 413
U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973), the Supreme Court arguably
expanded upon Hernandez to the extent that it was willing to include within the
class “Hispano” persons from more than one country. Id. at 195-97, 93 S. Ct. at
2691. However, Keyes did not clearly establish that Latin Americans were a
constitutionally cognizable group for the selection of grand and petit juries. In
fact, each case the Supreme Court cited in support of its conclusion that Hispanos
were an identifiable class referred only to persons of Mexican descent. Keyes, 413
U.S. at 197, 93 S. Ct. at 2691 (citing Hernandez, 347 U.S. 475, 74 S. Ct. 667;
United States v. Tex. Educ. Agency, 467 F.2d 848 (5th Cir. 1972) (en banc);
Cisneros v. Corpus Christie Indep. Sch. Dist., 467 F.2d 142 (5th Cir. 1972) (en
banc); Alvarado v. El Paso Indep. Sch. Dist., 445 F.2d 1011 (5th Cir. 1971);
Romero v. Weakly, 226 F.2d 399 (9th Cir. 1955); Soria v. Oxnard Sch. Dist., 328
F. Supp. 155 (C.D. Cal. 1971)). Therefore, no United States Supreme Court cases
prior to July 11, 1985 provide support for a finding that the Florida Supreme
Court’s decision in Valle II was contrary to clearly established federal law.2
2
In Valle II, the Florida Supreme Court cited United States v. Rodriguez, 588 F.2d 1003
(5th Cir. 1979), where this Court’s predecessor found that the appellant had failed to establish
that voters of “Latin origin” were a cognizable class for a jury challenge. Id. at 1007. The Court
5
In her dissent, Judge Barkett suggests that the Florida Supreme Court
overruled Valle II in State v. Alen, 616 So. 2d 452 (Fla. 1993). I am not so sure.
Even if it did, whether or not the Florida Supreme Court decides to later revisit
one of its own opinions has no bearing upon our standard of review. In Alen, the
Florida Supreme Court did not state that its holding in Valle II was an incorrect
statement of federal law. See id. at 455. Rather, the Alen court receded from Valle
II to the extent that Valle II conflicted with its decision in Alen that a person’s
national origin or geographical area was only an important, but not a decisive,
factor in determining a person’s ethnicity. Id. The Florida Supreme Court’s
decision in Alen also recognized that neither the U.S. Supreme Court nor Florida
law had clearly defined Hispanics as a cognizable class. See id. at 454-55. In
Alen, the Florida Supreme Court only went so far as to note a national trend
towards identifying Hispanics, or Latin Americans, as a cognizable class.
stated that: “there [is] simply no evidence upon which this Court could base a finding that
persons of such diverse national origins as Cubans, Mexicans, and Puerto Ricans possess such
similar interests that they constitute a cognizable group.” Id. (alteration in original; internal
quotation marks omitted). The Florida Supreme Court also cited United States v. Duran de
Amesquita, 582 F. Supp. 1326 (S.D. Fla. 1984), in which the district court stated: “If the
proposed class were ‘Cuban-Americans,’ or ‘Spanish-Americans,’ or ‘Puerto Rican-Americans,’
[instead of ‘Hispanics,’] the mental image of the ‘cognizable class’ would be easy to discern. . . .
But to lump persons from so many countries (even continents) together as a distinct class
requires the exercise of considerable philosophical imagination.” Id. at 1328. While not U.S.
Supreme Court precedent, Rodriguez and Duran de Amesquita demonstrate that the Florida
Supreme Court’s decision in Valle II was consistent with this Circuit’s interpretation of the Sixth
and Fourteenth Amendments in this context and further support our conclusion that Valle II was
not contrary to or an unreasonable application of clearly established federal law in 1985.
6
Accordingly, Alen, which was decided eight years after Valle II, cannot establish
that Valle II was contrary to federal law at the time it was decided.
In sum, I agree that the law has evolved to the point that Latin Americans
are now a cognizable class for due process and equal protection purposes.
However, the matter before this Court in the present context is the proper
interpretation and application of our statutorily mandated § 2254(d)(1) deferential
standard of review of a 1985 Florida Supreme Court decision. In the absence of a
United States Supreme Court holding as of July 11, 1985 that the term “Latin
American” constituted a cognizable class for equal protection purposes, this Court
properly adhered to § 2254(d)(1)’s standard of review. I have no worry then, as
does Judge Barkett, that our decision to deny rehearing en banc will result in a
misapprehension of law.
7
BARKETT, Circuit Judge, dissenting:
I would grant the petition for rehearing en banc in this case. I believe en
banc review is warranted to correct a misapprehension of law in the panel opinion
that states that Latin Americans, at the time that Valle’s conviction was upheld in
1985, were not a constitutionally protected cognizable class, and that may
erroneously be read to suggest that they are still not a constitutionally protected
cognizable class.
The panel opinion affirms the denial of habeas relief on the basis that the
Florida Supreme Court held in 1985 that the “term ‘Latin American’ encompasses
people from too many different countries and different cultural backgrounds and
attitudes to constitute a single cognizable class for equal protection analysis.”
Valle v. Sec’y for Dep’t of Corr., 459 F.3d 1206, 1216-17 (11th Cir. 2006)
(“Valle”) (citing Valle v. State, 474 So.2d 796, 800 (Fla. 1985) (“Valle II”)). What
the opinion fails to say is that this holding was expressly overruled by the Florida
Supreme Court and that Latin Americans have been found to constitute a
cognizable class under the Fourteenth Amendment. More importantly for the
resolution of this case, the opinion fails to recognize that federal law prior to 1985,
the year Valle II was decided, already afforded protection to Latin Americans as a
8
cognizable class under the Fourteenth Amendment.1
Prior to 1985, Latin Americans or Hispanics were considered a
constitutionally protected cognizable class under the law. In 1954, the Supreme
Court held in Hernandez v. Texas that evidence warranted the finding that persons
of Mexican descent were a separate class, “distinct from ‘whites’” in the
community in question, and that there had been systematic exclusion of the
members of such class from jury service. 347 U.S. 475, 479-482 (1954). Although
Hernandez dealt specifically with Mexican-Americans, the Court also referred to
“Latin Americans” more generally and people with “Latin American surnames”
when discussing the evidence presented by the petitioner. Id. at 480-81.
In 1973, the Supreme Court held in Keyes v. Sch. Dist. No. 1 that “Hispanos
constitute an identifiable class for purposes of the Fourteenth Amendment.” 413
U.S. 189, 197 (1973) (citing Hernandez, 347 U.S. at 475). Instead of using the
term “Mexican-Americans,” the Supreme Court chose to use the broader term
“Hispanos.” The term “Hispanos” was used and defined by the Colorado
Department of Education to refer to persons of Spanish, Mexican, or Cuban
1
Contrary to Judge Wilson’s characterization of the case as a mere “incorrect”
application of federal law, Valle II fundamentally misunderstood and unreasonably applied
relevant Supreme Court precedent at the time. See Woodford v. Visciotti, 537 U.S. 19, 25 (2002)
(stating that an unreasonable application of federal law is different from an incorrect application
of federal law; only an unreasonable application of federal law warrants granting a writ of habeas
corpus).
9
heritage. Keyes, 413 U.S. at 196 n.6. There is no principled distinction to be made
between Hispanos and Latin Americans. If anything, the term “Hispanos” denotes
a larger ethnic group of people than those considered to be “Latin Americans” or
“Mexican-Americans.”2 In light of these two Supreme Court cases, it is clear that,
prior to 1985, Latin Americans were afforded protection as a cognizable class
under the law.3
In addition to incorrectly concluding that the Florida Supreme Court’s
2
This analysis parallels cases dealing with challenges to jury venires based on the
exclusion of black or “African-American” people. Claims concerning African-American
prospective jurors have never been denied on the basis that they do not represent a distinct group
within the community, notwithstanding the fact that African-Americans may be born in the
United States and have African, Carribean, South American, etc., ancestry. Rather, courts have
consistently held, since 1879, that blacks are distinctive members of the community. See Gibson
v. Zant, 705 F.2d 1543, 1547 (11th Cir. 1983) (“[B]oth black persons, Strauder v. West Virginia,
100 U.S. 303 (1879), and women, Taylor v. Louisiana, [419 U.S. 522 (1975)], constitute
recognizable, distinct classes.”). See also United States v. Williams, 264 F.3d 561, 568 (5th Cir.
2001) (“In so far as African-Americans constitute a distinctive group in the community, the first
requirement of Defendant’s prima facie case is met”); United States v. Royal, 174 F.3d 1, 6 (1st
Cir. 1999) (“There is no dispute that Royal has satisfied the first prong of this test; blacks are
unquestionably a ‘distinctive’ group for the purposes of a fair cross-section analysis.”). There is
no reason why we should treat Hispanics or Latin Americans any differently.
It is also worthwhile to note that courts use the term “black” and “African-American”
interchangeably, in spite of the fact that the term “African-American” refers to a specific subset
of “black” people who descend from people originally from Africa. The difference in these terms
is analogous to the differences between the terms “Hispanic” and “Latin American” and
highlights the fact that the national origin of the people comprising the relevant racial group is
not always a critical factor in their experiences of discrimination in a community—rather, their
experiences are based on discrimination against their linguistic and cultural differences, things
that are shared by Hispanics and Latin Americans irrespective of their national origin.
3
Although, as Judge Wilson points out in his concurrence, the language of these cases did
not expressly use the term “Latin Americans” in extending protection under the Constitution, the
language the Court used compels the conclusion that Latin Americans were also protected at the
time.
10
decision in Valle II was not contrary to clearly established federal law as it existed
in 1985, the panel’s opinion creates the erroneous impression that Latin Americans
are still not deserving of recognition as a cognizable class for equal protection
purposes under the law as it exists today. Although the panel’s opinion is
grounded in the narrow standard of review required of habeas petitions, this
analysis is absent in the opinion, which simply says that “the Florida Supreme
Court’s conclusion . . . is not contrary to or an unreasonable application of
Castaneda or Duren.” Valle, 459 F.3d at 1216-17. This conclusory statement
creates the erroneous impression that the Florida Supreme Court’s conclusion in
Valle II reflects the current legal landscape.4
To the contrary, the case relied upon by the panel was overruled in 1993 by
the Florida Supreme Court in State v. Alen, 616 So.2d 452, 455 (Fla. 1993).5 In
4
The panel’s opinion also erroneously creates the impression that the inquiry into
whether a group is deserving of status as a cognizable class for equal protection purposes is a
pure question of law, rather than a mixed question of law and fact. The inquiry into whether a
group is one that is “a recognizable, distinct class” within a community is a factual one requiring
evaluation of the manner in which the group is treated within the community. Castaneda v.
Partida, 430 U.S. 482, 494-496 (1977). Valle was therefore entitled to an evidentiary hearing on
this issue.
5
Although Judge Wilson professes uncertainty as to whether Alen overruled the holding
of Valle II, the language in Alen speaks for itself. Alen expressly extends protection to Hispanics,
a group which the court found to include Latin Americans, which is directly contrary to the
language in Valle II denying protection to that group. Alen notes that to “the extent that our
decision today is inconsistent, we recede from our holding in Valle.” Alen, 616 So.2d at 455.
Accordingly, at a minimum, the panel opinion should acknowledge that Valle II has been
abrogated by the Florida Supreme Court in Alen, 616 So. 2d at 455, which held, directly
contrary to Valle II, that Hispanics constitute a protected, cognizable class. See The Bluebook: A
Uniform System of Citation R. 10.7, at 92-94 (Columbia Law Review Ass’n et al. eds., 18th ed.
11
Alen, the Florida Supreme Court held that Hispanics are, in fact, a cognizable
group within the community. The Court explained:
Like many ethnic groups, there are a variety of distinctive variables that
divide the Hispanic community into subgroups, just as there are a variety
of variables that divide other cognizable classes such as African
Americans. Notwithstanding these distinctions among Hispanics, the
size and the external and internal cohesiveness of this ethnic group
qualify Hispanics as a cognizable class for Neil purposes. We join the
California Supreme Court in recognizing that many ties bind Hispanics
together as a cognizable group within the community. Hispanics often
share an ethnic and cultural community of interest, including language,
history, music, and religion.6
Id. (footnote, quotations, and citations omitted).
In receding from its prior decision in Valle II, the Florida Supreme Court
further explained:
In Valle v. State, 474 So. 2d 796 (Fla. 1985), vacated on other grounds,
476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986), we stated that
“the term ‘Latin American’ encompasses people from too many different
countries and different cultural backgrounds and attitudes to constitute
a single cognizable class for equal protection analysis.” 474 So. 2d at
800. The term “Latin American” denotes a person who comes from a
geographical area, whereas the term “Hispanic” denotes a broader group
of people who have a similar ethnic and cultural background, but may
2005).
6
The Court went on to explain:
In addition, Hispanics have made notable achievements in the professions,
the arts, industry and public life. On a more somber note, Hispanics, in
relation to other Americans, share a host of harsh realities, such as relatively
high unemployment, poverty, relative lack of educational opportunity and, of
import to the present case, discrimination directed at them precisely because
they are Hispanic.
Alen, 616 So.2d at 455 (citing People v. Trevino, 704 P.2d 719, 726-27 (Cal. 1985).
12
or may not have a country in Latin America as their place of national
origin. To the extent that our decision today is inconsistent, we recede
from our holding in Valle. Like the characteristics of language and
surname, national origin is an important, but not a decisive, factor in
determining a person’s ethnicity.
Id. (emphasis added).
Further, several United States Supreme Court and Court of Appeals
decisions also identify Hispanics, or Latin Americans, as a cognizable class that is
clearly afforded constitutional protection under the law today. In Bush v. Vera, the
Supreme Court simply accepted that “Hispanics” constituted a racial group and
struck down a 61% majority “Hispanic” district as an unconstitutional racial
gerrymander. 517 U.S. 952, 973-75 (1996). In a recent Texas redistricting case,
the Court treated “Latinos” as a “racial group” able to assert a violation of Section
2 of the Voting Rights Act. League of United Latin Am. Citizens v. Perry, 126 S.
Ct. 2594, 2614-15 (2006). Indeed, the only district that the Court struck down in
Perry was one that replaced a politically cohesive Latino district with another
Latino district whose “only common index [was] race.” Id. at 2619. See also
United States v. Rodriguez-Lara, 421 F.3d 932, 941 (9th Cir. 2005) (“Hispanics
have long been recognized as a ‘distinctive’ group in the community.”); United
States v. Alvarado, 891 F.2d 439, 444 (2d Cir. 1989), vacated on other grounds,
497 U.S. 543 (1990) (holding that Hispanics constitute a cognizable group for
13
purpose of assessing claims of discriminatory use of peremptory challenges and
that a defendant is not required to establish that fact when challenging exclusion
of Hispanics from a jury). The Voting Rights Act’s inclusion of linguistic
minorities further supports that “Latin Americans” are treated as a distinct group
in the community. Indeed, Congress included language minorities in the Voting
Rights Act based on findings that “voting discrimination against citizens of
language minorities is pervasive and national in scope.” 42 U.S.C. § 1973b(f)(1)
(2000).
For these reasons, I dissent from the denial of rehearing en banc.
14