Harris v. Haeberlin

752 F.3d 1054

Frederick Jesse HARRIS, Petitioner–Appellant,

v.Glenn HAEBERLIN, Warden, Respondent–Appellee.

No. 09–5858.

United States Court of Appeals, Sixth Circuit.

May 28, 2014.

ON BRIEF:David Debold, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellant. Bryan D. Morrow, Ken W. Riggs, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: BATCHELDER, Chief Judge; COLE and GRIFFIN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court, in which, COLE, J., joined, and BATCHELDER, C.J., joined in the result. COLE, J. (pp. 1063–64), delivered a separate concurring opinion. BATCHELDER, C.J. (pp. 1064–65), delivered a separate opinion concurring in the judgment.

OPINION

GRIFFIN, Circuit Judge.

Previously, we remanded Frederick Jesse Harris's 28 U.S.C. § 2254 petition to the district court for a hearing to determine whether the prosecutors at his state trial had exercised certain peremptory strikes in a racially discriminatory manner. The district court held a reconstructed Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), hearing and concluded that the strikes in question had not been motivated by purposeful racial discrimination. After remand, Harris appeals the district court's factual findings. We affirm.

I.

We have previously detailed the facts underlying this case. See Harris v. Haeberlin, 526 F.3d 903, 905–09 (6th Cir.2008). Harris's current argument now hinges solely on the prosecution's peremptory strike of Juror 49, who is African–American. The facts pertinent to this claim are as follows: After jury selection in Harris's 1998 Kentucky state criminal trial, Harris objected to the prosecution's use of its peremptory strikes, four of which eliminated prospective African–American jurors from the jury pool, including Juror 49. The trial court accepted the prosecution's rationale that Juror 49 was struck “because she had difficulty following questions asked of her, was joking with a neighboring juror who was subsequently struck for cause, and had a grandson who was convicted for his involvement in a shooting.” Id. at 906.

Harris was convicted and sentenced to seventy-five years in prison. After he was sentenced, Harris discovered that a courtroom videotape system had reactivated during a recess in his criminal trial and had recorded a conversation among the prosecutors in which they discussed how to exercise the last of their peremptory strikes. During this conversation, the chief prosecutor, John Dolan, reviewed the eight prospective jurors whom the prosecution had already struck and commented, “We've got [name deleted], 49, she's the old lady, the black lady. The other one is already off.” Id. at 907 (emphasis added).

Harris argued on direct appeal in the Supreme Court of Kentucky that the newly-discovered videotape evidence clearly demonstrated the prosecution's improper reliance on race. Nevertheless, a 4–3 majority of the Supreme Court of Kentucky rejected Harris's Batson claim, reviewing the videotape evidence and concluding that it did not put into question the soundness of the trial court's adjudication of Harris's Batson allegations. Id. at 908. Harris subsequently pursued state habeas relief, but it was denied.

In 2003, Harris filed a § 2254 petition in federal district court, alleging various constitutional defects in his state prosecution, including a Batson violation. The district court denied his petition but granted a certificate of appealability on the Batson claim.

Harris appealed to this court. In 2008, a majority of this panel ruled that Batson and Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), required a trial court—rather than an appellate court—to review the uniquely relevant videotape evidence that was discovered in Harris's case after his sentencing but prior to his direct appeal. See Harris, 526 F.3d at 912. We held that, “[b]ecause the after-acquired videotape is an ideal piece of evidence with which to assess prosecutorial credibility, the Kentucky Supreme Court unreasonably applied clearly established federal law, as enshrined in Hernandez, when it upheld the trial court's Batson finding without allowing it to consider this new evidence.” Id. Having determined that the state appellate court had unreasonably applied Batson by failing to remand Harris's case to the state trial court, we gave Harris a specific remedy for the state courts' error, vacating and remanding his case to the district court for it “to conduct a renewed Batson hearing in light of the videotaped evidence.” Id. at 910. We directed that, at this “second Batson hearing,” the district court must “reassess prosecutorial credibility in light of the videotaped evidence.” Id. at 914.

On remand, the district court held the required Batson hearing. The district court took testimony from both of the state prosecutors involved in Harris's case, reviewed the videotape, reviewed the prosecutors'contemporaneous voir dire notes, and reviewed the record of the Batson hearing that had taken place before the state trial court. It then ruled (1) that it had been able to reconstruct a meaningful Batson hearing, despite the lapse of eleven years since Harris's prosecution, and (2) that the prosecution's peremptory strikes had not been improperly motivated by race. See Harris v. Haeberlin, 2009 WL 1883934, at *6–12 (W.D.Ky. June 30, 2009).

Harris again appeals the district court's judgment.

II.

On appeal, Harris argues that the district court erred in concluding (1) that it could hold a meaningful Batson hearing more then eleven years after his state trial, and (2) that the prosecution's strike of Juror 49 was not improperly motivated by racial considerations.

A.

At the outset, the parties briefly allude to Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)—which the Supreme Court decided while Harris's current appeal was pending—questioning whether it bars our consideration of the new evidence produced during the evidentiary hearing on remand. It does not. Pinholster held that “evidence introduced in federal court has no bearing on [28 U.S.C.] § 2254(d)(1) review”—that is, on whether a state court's adjudication of a claim was contrary to or involved an unreasonable application of clearly established federal law. Id. at 1400. Instead, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Id.; see Moore v. Mitchell, 708 F.3d 760, 780 (6th Cir.), cert. denied,––– U.S. ––––, 134 S.Ct. 693, 187 L.Ed.2d 559 (2013).

In this case, we determined in our prior decision that, on the basis of the evidence that was before the state appellate court, the state court unreasonably disregarded Batson's directive “that the trial court, not the appellate court, assess the prosecutor's demeanor as captured on the videotape.” Harris, 526 F.3d at 913–14. We then gave Harris a specific form of relief for the state court's unreasonable federal-law error: we remanded the case to the district court for “a second Batson hearing” so that the district court could “reassess prosecutorial credibility” and determine if the relevant peremptory strikes had been improperly motivated. Id. at 914.

Pinholster is inapplicable to this case because it precludes consideration of evidence introduced in federal court only when determining whether a state court's adjudication of a claim involved an unreasonable federal-law error. See Pinholster, 131 S.Ct. at 1400.¹ Here, by contrast, the evidence introduced in federal court was not considered for the purpose of ascertaining whether the state court had unreasonably applied clearly-established federal law, because we had already concluded that the state court had done so. Instead, the evidentiary hearing was ordered as a remedy for the state court's unreasonable federal-law error: the state court had denied Harris a meaningful Batson hearing before a trial court, so we ordered that he receive one, albeit in the federal district court. See, e.g., Hardcastle v. Horn, 368 F.3d 246, 261 (3d Cir.2004) (noting that the federal habeas statutes do not permit a federal appellate court to remand a habeas petition to a state court for an evidentiary hearing and directing that the district court review the merits of a § 2254 petitioner's Batson claim in a federal evidentiary hearing); Jordan v. Lefevre, 293 F.3d 587, 593 (2d Cir.2002) (where the state courts have inadequately dealt with a state prisoner's Batson claim, “the responsibility for assessing the prosecutor's credibility and determining his intent falls on the district judge”).

Because the evidentiary hearing in this case was ordered as a remedy for a federal-law error that had already been found by this court on the basis of the record that was before the state courts, Pinholster does not bar consideration of the evidence introduced for the first time in the district court on remand. See Pinholster, 131 S.Ct. at 1400. The Fifth Circuit has reached the same conclusion on similar facts. See Smith v. Cain, 708 F.3d 628 (5th Cir.), cert. denied,––– U.S. ––––, 134 S.Ct. 134, 187 L.Ed.2d 95 (2013). It held that, where the district court “determined on the basis of the state court record that the state court's Batson analysis ... involved an unreasonable application of [ ] clearly established Federal law” and subsequently granted the petitioner relief for the state court's error “in the form of an evidentiary hearing on [the petitioner's] Batson claim,” Pinholster did not bar the district court's consideration of the evidence produced at the evidentiary hearing. Id. at 634–35 (internal quotation marks omitted). Smith's reasoning is sound, and its analysis applies equally to Harris's case. The district court properly reviewed the evidence introduced at the evidentiary hearing.

B.

The first strand of Harris's...