Harris v. Haeberlin

ALICE M. BATCHELDER, Circuit Judge,

dissenting.

The majority holds that the Kentucky Supreme Court unreasonably applied clearly established Supreme Court precedent, i.e., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when — at the petitioner-appellant’s request on direct appeal — it made a factual determination on newly discovered Batson evidence, rather than remanding the case to the state trial court for a renewed Bat-son hearing on the new evidence. I must respectfully dissent.

I.

The Commonwealth of Kentucky charged Frederick Jesse Harris with several felonies, including kidnapping and robbery, and tried him to a jury in Jefferson County Circuit Court. During jury selection, Harris raised a Batson claim, alleging that the prosecution had unconstitutionally used peremptory challenges to strike certain venire members based on their race, i.e., African-American. The trial court applied Batson’s three-step analysis and determined that the prosecution’s nondiscriminatory reasons for excusing the jurors were legitimate and not pretextual. The trial proceeded and the jury — which included African-American jurors — convicted Harris as charged.

Harris appealed directly to the Kentucky Supreme Court and, among his numerous claims on appeal, reasserted the Batson claim on the theory that the trial court had erred by believing the prosecutor’s proffered race-neutral explanations for the strikes. While preparing the appeal, Harris’s counsel discovered that a portion of the prosecution team’s conversation at counsel table regarding the peremptory strikes, which they had thought to be private, had actually been recorded on the trial videotape and correspondingly included in the record. In his appellate brief to the Kentucky Supreme Court, Harris began his Batson argument by stating: “The record on appeal in this case *915refutes much of what the prosecutor said about why he struck [three African-American venire members].” Apt.’s Br. to Ky. S.Ct., No. 98-SC-414-MR, *16 (Ky. Nov. 25, 1998). Harris then introduced the videotape, with its previously undisclosed (private) conversation (i.e., “the record in this case reveals that while the prosecutor, co-counsel and the lead detective in the case were discussing whom to strike or leave on the panel, the court’s videotape system began recording,” id.) to bolster his argument that “[t]he record certainly calls into question the credibility of the prosecutor.” Id. at 17. It is noteworthy that Harris urged the Kentucky Supreme Court to consider the videotape evidence, deem the prosecutor not credible, and grant relief in the form of a new trial.1 Harris never suggested that the Kentucky Supreme Court was forbidden — under Batson or any other principle or precedent — from reviewing the videotape for itself as a means of granting him relief. In fact, Harris relied on Kentucky law, pursuant to Batson’s deference to the states’ discretion, to request a new trial, or alternatively, a renewed Batson hearing, explaining:

In Batson [476 U.S. at 99 n. 24, 106 S.Ct. 1712], the United States Supreme Court left to the various lower court jurisdictions the mechanics of how trial courts should deal with jury selection discrimination claims. This [Kentucky Supreme] Court, in Simmons v. Commonwealth, 746 S.W.2d 393, 397-98 (Ky. 1988), made it clear that once a challenge is made to the exercise of peremptories, the trial court must then hold a hearing. Obviously the hearing in this case did not include consideration of the most important facts in the record — the prosecutor’s real reasons for his strikes.
[Harris] was denied his right to a fair trial as guaranteed by the 6th and 14th Amendments to the United States Constitution and Sections 1, 2, 3, 7 and 11 of the Kentucky Constitution. He is entitled to a new trial. Alternatively, at the very least, [Harris] is entitled to a remand of his case to [the] circuit court for a hearing. See Washington v. Goodman, 830 S.W.2d 398, 402 (Ky.App.1992).

Apt.’s Br. to Ky. S.Ct. at *19-20 (certain citation form altered).

The Kentucky Supreme Court considered the whole record, including the videotape, and concluded that “[t]he record supports the prosecutor’s articulated reasons for striking [the] juror,” and “the discovery that the prosecutor’s peremptory strike conference had been partially videotaped warrants neither a reversal nor a remand for reconsideration.” Kentucky v. Harris, No.1998-SC0414-MR, *9 (Ky. Mar. 16, 2000) (unpublished). The three dissenting justices argued for a remand to the trial court for a new Batson hearing on the basis of Kentucky precedent.

On federal habeas review, the district court established that the state trial court had properly applied Batson, noting that “[t]he record here shows no error in the [Jefferson County] circuit court’s application of the applicable three-step process.” Harris v. Haeberlin, No. 3:03-CV-00754, *10 (W.D.Ky. Mar. 16, 2005). The district *916court then addressed the videotape evidence 2 in a conclusory fashion, concluding that, “[w]hile the parties may disagree in their interpretation of the taped lawyer conversation, the decision of the Supreme Court of Kentucky was not an unreasonable application of Batson [and] no federal habeas relief is available on this ground.” Id. at 10-11. But the court granted a Certificate of Appealability on this single issue, stating, without elaboration:

No less than three justices of the Kentucky Supreme Court would have remanded [Harris’s] case for an evidentiary hearing on this issue. While this Court concludes that no Batson violation occurred during jury selection at [Harris’s] criminal trial, it nevertheless believes that [Harris] is entitled to further review of this claim only.

Id. at 30. Thus we were left to both define and resolve the issue in this appeal.

II.

Let us be very clear about the purported error in this case. There is no longer any colorable claim that the Jefferson County Circuit Court erred in either its application or resolution of the Batson issue — that is, the state trial court decision was correct, based on the information before it at the time Harris raised the Batson challenge (during jury selection preceding his trial). Furthermore, there is no claim that the Kentucky Supreme Court — i.e., the state appeals court — erred in its application or resolution of the Batson three-step process, inasmuch as Batson itself expressly left it to the individual jurisdictions and lower courts to determine how to implement its holding. See Batson, 476 U.S. at 99 n. 24, 106 S.Ct. 1712 (“In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today.”). The purported error, such as it is, stems from the Kentucky Supreme Court’s — and correspondingly, the federal district court’s — decision to consider for itself the newly discovered, after-acquired videotape evidence in the context of the Batson claim.

The majority grants habeas relief based on its conclusion that “the Kentucky Supreme Court unreasonably applied clearly established federal law, as enshrined in Hernandez [v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) ], when it upheld the trial court’s Batson finding without allowing [the trial court] to consider this new evidence.” The majority further specified: “Batson requires that the trial court, not the appellate court, assess the prosecutor’s demean- or as captured on the videotape,” and “we merely hold that when after-acquired ‘best evidence’ bearing on prosecutorial demean- or surfaces, it is the trial court, not the appellate court, that [must3] consider the evidence as part of the Batson fact-finding process.” Both the conclusion and the holding are incorrect.

*917A.

Under AJEDPA, the phrase “unreasonable application of’ Supreme Court precedent means that the state court “identifie[d] the correct governing legal principle from [Supreme Court] decisions but unreasonably applie[d] that principle to the facts” of the case. Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). But, “a federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). Even “a firm conviction that the state court was erroneous” is not enough. Id. at 75, 123 S.Ct. 1166 (quotation marks omitted; emphasis added). Rather, “[t]he state court’s application of clearly established law must be objectively unreasonable.” Id. at 76, 123 S.Ct. 1166 (emphasis added). And “clearly established law as determined by [the Supreme] Court refers to the holdings, as opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (quotation marks omitted); see also Wright v. Van Patten, 552 U.S. -, 128 S.Ct. 743, 747, 169 L.Ed.2d 583 (2008) (“Because our cases give no clear answer to the question presented, let alone one in [petitioner]^ favor, it cannot be said that the state court unreasonably applied clearly established Federal law.” (quotation marks and citations omitted)).

1.

Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), is a plurality opinion, and thus, for all practical purposes, dicta. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” (quotation marks and editorial marks omitted)). It is therefore questionable whether it would even qualify as “clearly established federal law.”

More importantly, Hernandez actually holds that, on direct review, appellate courts are to review the trial court’s Bat-son findings regarding discriminatory intent for clear error. See Hernandez, 500 U.S. at 372, 111 S.Ct. 1859 (O’Connor, J., concurring). There is no suggestion that an appellate court cannot consider for itself the effect (or non-effect) of newly discovered evidence, nor is there any suggestion that either the Constitution or any other federal law requires a remand to the trial court for a renewed Batson hearing upon the mere discovery of new evidence. But that is just what the majority professes to have found “enshrined in Hernandez.” Quite to the contrary, however, the Hernandez plurality explained that while deference to the trial court is preferred, “[t]he precise formula used for review of factfindings, of course, depends on the context,” id. at 366, 111 S.Ct. 1859, and the context before us here — the newly discovered or after-acquired evidence context — is distinctly different from the direct-review-of-the-trial-judge’s-credibility-findings context in Hernandez. Thus, the fundamental premise set forth by the Hernandez plurality — that the trial judge is in the best position to decide the credibility of the prosecutor at the time of the Batson proffer of nondiscriminatory reasons — is wholly inapposite in the present context.

2.

Indeed, the Supreme Court has never retreated from its general premise that *918state appellate courts’ factual findings are entitled the same deference on habeas review that we extend to state trial courts’ factual findings. See Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66.L.Ed.2d 722 (1981) (holding that § 2254 “makes no distinction between the factual determinations of a state trial court and those of a state appellate court”). In light of this clearly established Supreme Court precedent, the majority cannot justify its conclusion that the Kentucky Supreme Court was not merely incorrect but “objectively unreasonable,” see Lockyer, 538 U.S. at 76, 123 S.Ct. 1166, in making its own factual finding regarding this newly discovered evidence rather than sua sponte remanding the case to the trial court.

In fact, neither Harris nor the dissenting justices of the Kentucky Supreme Court argued or even suggested that Hernandez set out a constitutional prohibition that forbade the Kentucky Supreme Court from reviewing the newly discovered Bat-son evidence. The argument they raised was not based on any mandate from Hernandez, but rather, was that the Kentucky courts had expressed a preference for having the trial court decide Batson issues in the first instance. See Washington v. Goodman, 830 S.W.2d 398, 402 (Ky.App.1992) (cited by the dissenting justices). The fact that remand would be prudent— and perhaps even dictated by state law on direct appeal — is irrelevant, inasmuch as “this case turns on the recognition that no clearly established law contrary to the state court’s conclusion justifies collateral relief.” See Wright, 128 S.Ct. at 747.

3.

Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), offers no support for the proposition that the Kentucky Supreme Court’s failure to (sua sponte) adopt a prohibition against appellate fact finding of newly discovered Bat-son evidence was an objectively unreasonable application of established precedent. In Johnson, the Court considered California’s peculiar burden of proof on the prima facie showing, i.e., step one of Batson’s three-step approach. See id. at 168, 125 S.Ct. 2410. In the present case, there is no contention that Harris failed to establish his prima facie case. Even before the revelation of the videotape evidence, the trial court had acknowledged the prima facie case and moved on to consideration of the prosecutor’s proffered non-discriminatory reasons. The Johnson Court offers dicta to the effect that it had “assumed in Batson that the trial judge would have the benefit of all relevant [facts],” id. at 170, 125 S.Ct. 2410, but there was no newly discovered evidence in Johnson, nor was there any speculation about how newly discovered evidence would be considered in a Batson review, other than the now-familiar concession “that States do have flexibility in formulating appropriate procedures to comply with Batson.” Id. at 168, 125 S.Ct. 2410. Indeed, Justice Thomas emphasized in dissent:

Because Batson’s burden-shifting approach is a prophylactic framework that polices racially discriminatory jury selection rather than an independent constitutional command, Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), States have wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy, Smith v. Robbins, 528 U.S. 259, 273, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Dickerson v. United States, 530 U.S. 428, 438-39, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

Id. at 174, 125 S.Ct. 2410 (Thomas, J., dissenting) (quotation marks omitted).

B.

We have previously explained that, in conducting our AEDPA review, we “may *919look to [ ] courts of appeals’ decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court.” Foley v. Parker, 488 F.3d 377, 382 (6th Cir.2007). Certain cases are enlightening.

1.

In Pemberthy v. Beyer, 19 F.3d 857, 863 (3d Cir.1994), the Third Circuit considered whether the district court had erred by conducting an evidentiary hearing on the petitioners’ Batson-based habeas claim, rather than accepting the state appellate court’s factual findings. Then-Judge/now-Justice Alito, writing for the panel, held, among other things, “that the district court erred in failing to accept the state appellate court’s factual determinations.” Id. at 858 (emphasis added).

The Supreme Court had decided Batson while Pemberthy’s direct appeal was pending. Thus, the trial court had not conducted a Batson hearing. When Pemberthy raised a Batson claim on direct appeal, the state appellate court did not remand the case to the trial court for a Batson hearing, but instead considered the evidence— thus, making factual determinations for itself in the first instance — and decided the claim. See id. at 862. The appellate court determined that the prosecutor had legitimate, non-discriminatory reasons for the strikes and denied the Batson claim. The state supreme court denied review and Pemberthy sought habeas relief. On habeas review, the district court concluded that the state appellate court had not made the pertinent factual findings and “thus decided that it should conduct a Bat-son hearing and proceeded to do so.” Id. at 863. Ultimately, the district court “held that the state had failed to establish a legitimate justification for its peremptory challenges,” and granted Pemberthy’s petition. Id. The government appealed.

The Third Circuit began its analysis by citing Hernandez, 500 U.S. at 364, 111 S.Ct. 1859, for the proposition that if the Batson claim was on “direct appeal from a federal criminal conviction, [a reviewing court] would give substantial deference to the findings of the district court judge who presided over the jury selection process.” Id. at 864. But, the court continued, “[t]his appeal [ ] involves collateral attacks on state convictions, and thus both our court and the district court must defer to any factual determinations made by the state courts.” Id. The court then applied Sumner, 449 U.S. at 546-47, 101 S.Ct. 764, to explain that — even in the context of a Batson claim — “[t]he Supreme Court has held [ ] that this [deference to state court fact-finding] applies, not only when a state trial court makes what are conventionally regarded as findings of fact, but also tuhen a state appellate court makes factual determinations in a written opinion.” Id. (emphasis added). The court then demonstrated that the state appellate court had made the pertinent factual findings and concluded:

In sum, we hold that the Appellate Division made a factual determination that the prosecutor peremptorily challenged the prospective jurors in question because of their ability to speak Spanish, that this determination is fairly supported by the record, and that it was therefore binding on the district court.

Id. at 868. Since its issuance in 1994, Pemberthy has been cited 31 times and never challenged.

But, by the majority’s reasoning here, Pemberthy is wrong, and worse, it is an objectively unreasonable application of Batson — a proposition with which I obviously disagree. But, even if the majority’s position is correct and Pemberthy is wrong, the mere existence of the Pemberthy opinion (and the 31 cases citing it) *920serves notice that a subsequent, similar opinion is not objectively unreasonable. That is, this “mistake,” such as it is, is proof positive that it was not “objectively unreasonable” for the Kentucky Supreme Court to make a similar mistake.

2.

Of course, the Third Circuit is not the only court to “misapply” Batson in a manner that the majority condemns. See, e.g., Jones v. Jones, 988 F.2d 838, 842-43 (8th Cir.1991) (“Thus, Sumner requires us to also consider whether the Missouri Court of Appeals made any finding of fact regarding the prosecutor’s peremptory challenges.”). If Batson actually mandates that only the trial court can decide the Batson issue in the first instance, then it is indeed odd that so many courts have considered Batson issues raised for the first time on appeal. See, e.g., Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1019-20 (10th Cir.2000) (reviewing a Batson claim raised for the first time on appeal for plain error); United States v. Contreras-Contreras, 83 F.3d 1103 (9th Cir.1996) (same); Esquivel v. McCotter, 791 F.2d 350, 351 (5th Cir.1986) (affirming state appellate court’s factual decisions regarding a Bat-son claim raised for first time on appeal); McGee v. Mississippi, 953 So.2d 211, 214 (Miss.2007) (considering a Batson challenge despite the fact that defendants raised it for the first time on appeal); Pennsylvania v. Freeman, 573 Pa. 532, 827 A.2d 385, 395-96 (2003) (“Nevertheless, the relaxed waiver doctrine has obliged this Court to review a Batson claim raised for the first time on direct appeal.”); Brooks v. Alabama, 695 So.2d 176, 180 (Ala.Cr.App.1996) (“Because this issue is raised for the first time on appeal, it is reviewable only under the plain error rule.”); Hurts v. Woodis, 676 So.2d 1166, 1172 (La.App.1996) (“we note that this court has previously reviewed a Batson ruling even where, as here, the issue was raised for the first time on appeal”). In fact, despite a thorough search — as evidenced by the forgoing — I have been unable to locate any court in the country that has applied Batson in the manner the majority labels “clearly established.”

C.

Finally, consider Miller-El v. Dretke, 545 U.S. 231, 257 & n. 15, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), in which the Supreme Court decided a Batson claim based on evidence that was never presented to the state trial court. Indeed, Justice Thomas wrote a 32-page dissent protesting this very fact, in which he stated:

Not even the majority is willing to argue that the evidence before the state court shows that the State discriminated against black veniremen. Instead, [the majority] bases its decision [finding unconstitutional exclusion of black veniremen] on juror questionnaires and juror cards that Miller-El’s new attorneys unearthed during his federal habeas proceedings and that he never presented to the state courts.

Id. at 279, 125 S.Ct. 2317 (Thomas, J., dissenting) (citation and footnote omitted).

Miller-El is indeed a peculiar decision if the majority’s rendition of “clearly established” Supreme Court precedent is correct and Batson mandates that only the state trial court may assess the evidence in the first instance, or, as the majority stated more specifically — “when after-acquired ‘best evidence’ bearing on prosecutorial demeanor surfaces, it is the trial court, not the appellate court, that [must] consider the evidence as part of the Batson fact-finding process.”

III.

I cannot agree that the Kentucky Supreme Court was obligated to (sua sponte) *921impose upon itself a prohibition against appellate fact finding on review of newly discovered Batson evidence. Moreover, I cannot agree that its failure to do so was an objectively unreasonable application of clearly established Supreme Court precedent. Therefore, I must respectfully dissent.

. There could be no more appropriate case than this for the invocation of the invilederror doctrine. Under the doctrine, "a party may not complain on appeal of errors that he himself invited or provoked the court to commit.” United States v. Wells, 519 U.S. 482, 488, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (editorial and quotation marks omitted) (citing United States v. Sharpe, 996 F.2d 125, 129 (6th Cir.1993), and Harvis v. Roadway Express, Inc., 923 F.2d 59, 60 (6th Cir.1991)). But, as it turns out, the failure to apply the invited-error doctrine is among the least of the majority's mistakes in this case.

. The majority variously labels this evidence "newly acquired evidence,” "after-acquired videotape evidence,” or simply "new evidence.” Regardless of the label, the point is the same: this is evidence that was introduced to the Kentucky Supreme Court on direct review (and the district court on habeas) that was not presented to the state trial court.

. The majority actually used the word "should,” for which I substituted "must” based on my assumption that "should” was merely a misstatement. If I am incorrect, and the majority actually intended to state the rule as a bland recommendation (i.e., should) rather than a requirement (i.e., must), then the majority’s entire theory is untenable, inasmuch as no decision could ever be an objectively unreasonable application of such an equivocal suggestion.