Davis v. Secretary for the Department of Corrections

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 15, 2003
No. 01-16602 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 00-02976-CV-ASG

JOSEPH H. DAVIS, JR.,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James Crosby,
Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(August 15, 2003)

Before BARKETT and WILSON, Circuit Judges, and LIMBAUGH*, District
Judge.

PER CURIAM:

*
Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of
Missouri, sitting by designation.
 This appeal requires us to determine whether we should look to the outcome

of the trial or the outcome of the appeal in determining whether a petitioner was

prejudiced when his attorney failed to preserve his Batson v. Kentucky, 476 U.S.

79 (1986), claim for appellate review.1 In addressing this issue, we must

determine whether Jackson v. Herring, 42 F.3d 1350, 1361–62 (11th Cir. 1995)

(requiring the petitioner to show some likelihood of a more favorable result at trial

had trial counsel raised the Batson claim), or Eagle v. Linahan, 279 F.3d 926,

943–44 (11th Cir. 2001) (requiring a showing of some likelihood of a more

favorable result on appeal had appellate counsel raised a Batson claim), controls.

As we find that trial counsel is acting in an appellate role when he fails to preserve

a Batson claim, we believe that Eagle, not Jackson, controls. Accordingly, we

1
The district court granted a certificate of appealability on the following issues:

(1)[w]hether the state prosecutor exercised a preemptory challenge in a
discriminatory manner thereby denying Petitioner Davis equal protection of the
law; [and]
(2) [w]hether the petitioner was denied effective assistance of counsel in
violation of the Sixth Amendment where his attorney (a) failed to renew an
objection regarding the state prosecutor’s exercise of a preemptory challenge in a
discriminatory manner, (b) failed to interview and subpoena Brenda Smith as a
defense witness, and (c) failed to introduce testimony regarding petitioner Davis’
first encounter and altercation with the deceased twenty (20) minutes before the
shooting.

Davis v. Moore, S.D. Fla. 2001, __ F. Supp. 2d __ (No. 00-02976-CV-ASG, Dec. 12, 2001)
(footnote omitted). We, however, address only the Batson issues herein, as we find that the other
issues lack merit.

2
vacate the district court’s order denying Joseph H. Davis, Jr. habeas relief and

remand this case for further proceedings consistent with this opinion.

BACKGROUND

Davis was indicted for first degree murder, burglary with a firearm, and

possession of a firearm during the course of an armed burglary, and, on July 18,

1996, a jury found him guilty of all three charges. Thereafter, he was sentenced to

life in prison plus consecutive sentences of fifteen years and 201.7 months of

imprisonment. Davis appealed, raising various issues.

Among the issues Davis raised on direct appeal was a Batson claim.

Essentially, he asserted that the trial court erred in overruling his attorney’s Batson

challenge, because the court inadvertently attributed the statements of one

venireperson to another.2 Although the Florida Third District Court of Appeal

found that Davis’s Batson claim was “well taken,” it declined to address it because

2
The trial judge ruled as follows:

Well, I think Mr. Swift is also the only one who felt that he could not follow the
law that he was going to be instructed upon, and he would follow his gut feeling.
I went back and asked him, and he said he could, and while I think that would
prevent the state from making a cause challenge, it certainly permits a racially-
neutral reason for a peremptory challenge, and I will allow it.

Although the trial court found that Broderick Swift stated that he would follow his gut feeling,
the record clearly establishes that Swift never said anything during the voir dire that would
indicate that he was unable to follow the law or that he would decline to follow the court’s
instructions. In fact, the only two statements he made with respect to that issue were “I would
follow the law” and “I can follow it.”

3
his attorney failed to preserve the issue for appeal. Davis v. State, 710 So. 2d 723,

724 (Fla. Dist. Ct. App. 1998) (per curiam) (citing Joiner v. State, 618 So. 2d 174

(Fla. 1993)).3 As a result, the court affirmed the first degree murder and burglary

convictions.4 Id.

Thereafter, Davis filed a Florida Rule of Criminal Procedure 3.850 motion

in which he asserted, among other things, that he received ineffective assistance of

trial counsel, because his attorney failed to preserve his Batson challenge. That

motion, however, was denied on March 16, 2000, and the court of appeal affirmed

the denial on June 28, 2000. See State v. Davis, Fla. Cir. Ct. 2000, __ So. 2d __

(No. 95-023785, Mar. 16, 2000), aff’d, 763 So. 2d 332 (Fla. Dist. Ct. App. 2000)

(per curiam) (unpublished table decision). As a result, Davis filed a 28 U.S.C. §

2254 petition for a writ of habeas corpus in the Southern District of Florida. In

that petition, he raised the same claims that were raised in his Rule 3.850 motion,

but added a substantive equal protection claim based upon the government’s

improper exercise of its peremptory challenges. The magistrate judge

recommended that the petition be denied, and the district court, adopting the report

3
To preserve a Batson challenge, counsel must renew his objections before the swearing
in of the jury. Joiner, 618 So. 2d at 175–76.
4
The court, however, vacated Davis’s possession conviction, held that Davis’s sentences
should have been concurrent rather than consecutive, and remanded for resentencing. Davis, 710
So. 2d at 724.

4
and recommendation of the magistrate judge, denied the petition. See Davis v.

Moore, S.D. Fla. 2001, __ F. Supp. 2d __ (No. 00-02976-CV-ASG, Oct. 23,

2001). The district court, however, granted Davis a certificate of appealability.

STANDARD OF REVIEW

We review a district court’s denial of a § 2254 petition de novo. Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). As Davis filed his § 2254

petition after the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996, the provisions of that Act apply. See Wilcox v. Fla. Dep’t of Corr.,

158 F.3d 1209, 1210 (11th Cir. 1998) (per curiam). As a result, the district court

normally could not grant habeas relief under § 2254 for claims that were

adjudicated on the merits in state court unless the state court’s “decision . . . was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). In this case, however, such deference was not required.

Although Davis raised his claim of ineffective assistance of counsel in

failing to preserve the Batson claim in his Rule 3.850 motion, the state courts

failed to address it in denying relief. Instead, the state courts construed his motion

as resting on the clearly unsupported assertion that trial counsel failed to raise a

5
Batson claim. 5 As the Florida courts failed to resolve the merits of Davis’s claim,

the present controversy falls outside of § 2254(d)(1)’s requirement that we defer to

state court decisions that are not contrary to, or an unreasonable application of,

clearly established federal law. See id.; Wiggins v. Smith, __ U.S. __, 123 S. Ct.

2527, 2542 (2003) (When a state court denies relief by making an unreasonable

application of the first prong of the test for ineffective assistance of counsel and

thus never reaches the second prong, application of the second prong in federal

habeas proceedings is de novo.); Wright v. Sec’y for the Dep’t of Corr., 278 F.3d

1245, 1254 (11th Cir. 2002) (interpreting § 2254(d)(1)’s requirement of deference

with respect to federal claims “adjudicated on the merits in State court

proceedings” (internal quotation marks omitted)), cert. denied, __ U.S. __, 123 S.

Ct. 1511 (2003).

DISCUSSION

Davis asserts that he received ineffective assistance of counsel when his

5
Because Davis’s motion, when read against the disposition of his original appeal, fairly
presented the quite different claim that trial counsel was ineffective for failing to preserve the
Batson issue by renewing his earlier objection, Davis has satisfied the exhaustion requirement of
§ 2254(c). See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (applying the exhaustion
requirement by assessing “whether [the petitioner] has fairly presented his claims to the state
courts”).

6
attorney failed to preserve his Batson claim. 6 Ineffective assistance of counsel

claims are governed by Strickland v. Washington, 466 U.S. 668, 687 (1984),

which established a two-pronged test that a habeas petitioner must satisfy to obtain

relief. Under Strickland, the petitioner “must show that counsel’s performance

was deficient” and “that the deficient performance prejudiced the defense.” Id.

On the record before us, there is no question that Davis’s counsel performed

deficiently in failing, as required by Florida’s Joiner rule, to renew Davis’s Batson

challenge before accepting the jury. 7 The parties, however, relying upon Eagle

and Jackson, dispute whether we should look to the outcome of the trial or the

outcome of the appeal in determining whether Davis was prejudiced by his

attorney’s performance.

Jackson and Eagle both confronted a state’s use of peremptory strikes to

remove black veniremembers from the jury pool in a manner highly suggestive of

unconstitutional racial discrimination. See Batson, 476 U.S. at 89 (holding that

6
The district court denied Davis’s equal protection claim as procedurally defaulted. We
cannot review a claim that has been procedurally defaulted unless the petitioner can show cause
for failing to raise it before the state court. See Jackson, 42 F.3d at 1358 (“All is not lost . . .,
however, if [the petitioner] can demonstrate cause and prejudice for her default . . . .”).
“However, by asserting ineffective assistance of appellate counsel as the substantive claim and
relying on counsel’s failure to raise the Batson claim as the evidence of [counsel’s]
ineffectiveness, [Davis] has avoided the need to justify his procedural default of the Batson
claim.” Eagle, 279 F.3d at 938.
7
There is no indication that Davis’s counsel decided to abandon the previously rejected
Batson claim on the basis of any sort of strategic calculation.

7
racial discrimination by the state in the selection of juries violates the Equal

Protection Clause). In Jackson, the prosecutor had used twelve of twenty-two

peremptory strikes to exclude all twelve black venire members who were qualified

to serve as jurors, leaving an all-white jury to pass on the defendant’s guilt and

decide whether she should be sentenced to death. 42 F.3d at 1354. In Eagle, the

prosecutor had used eight or nine peremptory strikes to excuse black venire

members. See 279 F.3d at 930 & n.3, 941. Both patterns led this Court to

conclude that an objectively reasonable defense attorney would have challenged

the state’s conduct under the Equal Protection Clause of the Fourteenth

Amendment. Id. at 943; Jackson, 42 F.3d at 1360. Yet in Jackson the petitioner’s

trial attorney and in Eagle the petitioner’s appellate attorney had failed to do so.

In both cases, we turned from our conclusion that counsel had performed

deficiently to the showing of prejudice required to establish constitutionally

ineffective assistance of counsel.8 In Jackson, we required the petitioner to show

some likelihood of a more favorable result at trial had trial counsel raised the

8
More precisely, Jackson examined whether counsel’s faulty performance excused the
habeas petitioner’s default of a Batson claim, not whether counsel’s ineffectiveness directly
entitled the petitioner to relief. Jackson, 42 F.3d at 1358. We made clear, however, that our
inquiry was governed by the same test we would apply had the petitioner been challenging her
lawyer’s performance directly: “In order to constitute cause sufficient to overcome procedural
default, a counsel’s performance must be constitutionally ineffective under the standards of
Strickland.” Id.

8
equal protection claim. 42 F.3d at 1361–62. In Eagle, we required a showing of

some likelihood of a more favorable result on appeal had appellate counsel raised

a Batson claim. 279 F.3d at 943–44.

At first blush, it might appear that following Jackson would be proper as

that case, like this one, dealt with the performance of trial counsel while Eagle

dealt with the performance of appellate counsel. This means of distinguishing

between Jackson and Eagle, however, fails to take account of Roe v. Flores-

Ortega, 528 U.S. 470 (2000).

In Flores-Ortega, a habeas petitioner argued that his trial counsel rendered

constitutionally ineffective assistance when, by neglecting to file timely notice in

the trial court, she failed to preserve the petitioner’s right of appeal. Id. at 474.

The United States Supreme Court held that Strickland’s prejudice prong required

the petitioner to show “that, but for counsel’s deficient failure to consult with him

about an appeal, he would have timely appealed.” Id. at 484. Flores-Ortega thus

establishes that the prejudice showing required by Strickland is not always

fastened to the forum in which counsel performs deficiently: even when it is trial

counsel who represents a client ineffectively in the trial court, the relevant focus

in assessing prejudice may be the client’s appeal.

9
 Under the peculiar circumstances of this case the only effect of trial

counsel’s negligence was on Davis’s appeal. Unlike the situation in Jackson –

where defense counsel “remained absolutely silent as prosecutor Hudson struck all

blacks from the venire,” 42 F.3d at 1360 – Davis’s trial counsel ably brought the

state’s possibly unconstitutional conduct to the trial court’s attention. He objected

when the state moved to strike first one, and then a second, black venire member.

He responded to the prosecutor’s explanation for the second strike by emphasizing

that not a single black juror had been seated on the panel as of that point in the

selection process. Moreover, although Davis’s counsel did not emphasize the

point, the prosecutor’s explanation for the strike did not make sense.9 As Florida’s

Third District Court of Appeal later noted, this record was sufficient to make

Davis’s Batson claim “well taken.” Davis, 710 So. 2d at 724.

The trial court nonetheless upheld both of the challenged strikes. It is only

at this point in the proceedings that the efficacy of Davis’s counsel became

9
The prosecutor defended the second challenged strike “for the exact same reason” she
had given moments before for striking a different black juror. This was the first juror’s
somewhat equivocal “answers about his ability to follow the law.” Yet unlike the first juror, the
second stated with perfect consistency that he would follow the law regardless of any tension
between its rules and his own beliefs. Indeed, one additional disclosure made by this second
juror was that he had family and friends in law enforcement, a point that would seem to make
him a more rather than less desirable juror for the state. The prosecutor’s apparent confusion of
identities spilled over to the trial court, which likewise appears to have attributed a statement
made by the first black juror to the second.

10
doubtful. Under Florida law, simply objecting to the state’s possibly

discriminatory strikes, and then countering any purportedly race-neutral

explanation given by the prosecution, does not suffice to preserve a Batson claim

for appeal. Rather, trial counsel must press the already rejected challenge a

second time at the conclusion of voir dire, either by expressly renewing the

objection or by accepting the jury pursuant to a reservation of this claim. Joiner,

618 So. 2d at 176; see also Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996)

(ruling that a defendant “failed to preserve” a claim of discriminatory jury

selection “because she did not renew her objection before the jury was sworn”).

Davis’s counsel did neither, and on direct appeal the Third District Court of

Appeal accordingly ruled that the claim had not been preserved.

Thus, Davis faults his trial counsel not for failing to raise a Batson

challenge – which counsel did – but for failing to preserve it. As his federal

habeas counsel puts it, the issue is not trial counsel’s failure “to bring the Batson

issue to the attention of the trial court,” but “failure in his separate and distinct role

of preserving error for appeal.” As in Flores-Ortega, the attorney error Davis

identifies was, by its nature, unrelated to the outcome of his trial. To now require

Davis to show an effect upon his trial is to require the impossible. Under no

readily conceivable circumstance will a simple failure to preserve a claim – as

11
opposed to a failure to raise that claim in the first instance – have any bearing on a

trial’s outcome. Rather, as when defense counsel defaults an appeal entirely by

failing to file timely notice, the only possible impact is on the appeal.

Accordingly, when a defendant raises the unusual claim that trial counsel,

while efficacious in raising an issue, nonetheless failed to preserve it for appeal,

the appropriate prejudice inquiry asks whether there is a reasonable likelihood of a

more favorable outcome on appeal had the claim been preserved. Cf. Clark v.

Crosby, No. 01-12940, slip op. 2937, 2946 n.9 (11th Cir. July 2, 2003) (defining

“prejudice,” in context of an ineffective assistance of appellate counsel claim as

“the reasonable probability that the outcome of the appeal would have been

different”); Cross v. United States, 893 F.2d 1287, 1290 (11th Cir. 1990). That

means Eagle, not Jackson, should control this case. We therefore must consider

how Davis would have fared on appeal had counsel preserved a Batson claim for

review.

On the same record now before us, Florida’s Third District Court of Appeal

expressly announced its view that Davis’s Batson challenge was “well taken.”

Davis, 710 So. 2d at 724. As this observation suggests, his claim is meritorious as

a matter of law. Davis established a prima facie case of racial discrimination with

12
respect to the second black juror’s removal from the jury panel,10 and the state

failed altogether to rebut the inference thereby raised. Thus, the record shows a

violation of the Equal Protection Clause. See United States v. David, 803 F.2d

1567, 1571 (11th Cir. 1986) (“[U]nder Batson, the striking of one black juror for a

racial reason violates the Equal Protection Clause, even where other black jurors

are seated, and even when valid reasons for the striking of some black jurors are

shown.”).

Both because Davis’s Batson claim was meritorious and because the Third

District recognized it as such, the only question as to the likely outcome of Davis’s

appeal, had counsel preserved the issue, is whether he would have been afforded a

remedy. We believe that there is a reasonable probability that the Florida courts

would have found the Batson violation to warrant automatic reversal. That is, the

Florida Third District Court of Appeal or Supreme Court would have deemed

“harmless error” review inapplicable in the context of Batson violations. This

conclusion follows from several considerations.

10
Davis established his prima facie case by objecting to the state’s exclusion of a second
African American venire member at a stage of voir dire when no African American had been
seated among the first ten jurors accepted. The burden then shifted to the state to give a
race-neutral explanation for its second strike of a black venire member. The state purported to do
so by repeating the reason it had given for its first strike yet the record offers no indication
whatsoever that this reason properly applied to the second black prospective juror as well.

13
 To begin with, the United States Supreme has not suggested yet that the

discriminatory exclusion of prospective jurors is subject to harmless error review.

On several occasions, however, the Court has reversed convictions without

pausing to determine whether the improper exclusion of jurors made any

difference to the trial’s outcome. See Powers v. Ohio, 499 U.S. 400, 416 (1991)

(reversing and remanding based upon a finding that the defendant was wrongfully

barred from raising a Batson claim); Batson, 476 U.S. at 100 (ordering that a

conviction be reversed if the defendant, on remand, establishes a prima facie case

of discrimination and the state fails to provide a neutral explanation for the

challenged strikes). The Court has also required automatic reversal in the related

context of discrimination in the selection of grand jurors. Vasquez v. Hillery, 474

U.S. 254, 263–64 (1986); Rose v. Mitchell, 443 U.S. 545, 556 (1979).

Further, the Court has expressly recognized that the discriminatory exercise

of peremptory challenges harms interests in addition to the defendant’s, namely,

the interests of jurors themselves in not being improperly excluded from service

and the interest of the community in the unbiased administration of justice. See

Georgia v. McCollum, 505 U.S. 42, 48–50 (1992); Powers, 499 U.S. at 402;

Batson, 476 U.S. at 87–88. Thus, the doctrine of third-party standing enables

defendants to speak for improperly excluded jurors by raising Batson claims in

14
their stead, even when the defendant and the improperly excluded juror or jurors

are not of the same race. Powers, 499 U.S. at 415–16. Also significant is the rule

that a defendant is no more entitled than the state to exercise peremptory strikes on

a racially discriminatory basis. McCollum, 505 U.S. at 59. Obviously, the harm

proscribed by Batson must redound to interests beyond the defendant’s if it

constrains the defendant’s own selection of trial strategies.

A substantial number of our sister circuits also have declined to apply

harmless error analysis in reviewing Batson violations. Tankleff v. Senkowski, 135

F.3d 235, 248 (2d Cir. 1998); Ford v. Norris, 67 F.3d 162, 170–71 (8th Cir. 1995);

Rosa v. Peters, 36 F.3d 625, 634 n.17 (7th Cir. 1994) (explaining that Supreme

Court precedent supports a conclusion that the harmless error analysis does not

apply to Batson violations); United States v. Thompson, 827 F.2d 1254, 1261 (9th

Cir. 1987); cf. Ramseur v. Beyer, 983 F.2d 1215, 1225 n.6 (3d Cir. 1992) (en banc)

(noting, in challenge to a grand jury’s selection, “that harmless error analysis is

inappropriate in cases involving discrimination in the jury selection process”).

Consequently, there is a reasonable probability that the Florida Third

District Court of Appeal would have reversed Davis’s conviction had trial counsel

preserved a Batson challenge. Because we believe that the likelihood of a

different outcome on appeal is the appropriate focus of our inquiry under

15
Strickland and Flores-Ortega, we hold that the district court should grant Davis a

writ of habeas corpus conditioned on the state’s provision of either a new trial or

an opportunity to take an out-of-time appeal wherein his freestanding Batson

challenge could be decided by the state courts on the merits. Compare Eagle, 279

F.3d at 944 (remanding “with instructions to issue a writ of habeas corpus

conditioned on the State’s right to provide Eagle a new trial within a reasonable

period of time” (emphasis added)), with Pressley v. Wainwright, 540 F.2d 818,

819 n.2 (5th Cir. 1976) (ordering the state “either to allow a belated application for

certiorari or to set aside the conviction and grant a new trial within a reasonable

time,” in a case granting habeas relief on the basis of counsel’s ineffectiveness in

protecting a client’s right to seek review in the Florida Supreme Court).

CONCLUSION

Accordingly, we VACATE the district court’s order denying Davis habeas

corpus relief and REMAND this case for further proceedings consistent with this

opinion.

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