Peterson v. Cain

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

1
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

1
“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).

2
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

3
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).

4
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

5
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.

6
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

7
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

8
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

9
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,

10
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

11
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

12
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.

13