Opinion
No. 00-1649
January 31, 2001
ORDER AND REASONS
Before the Court is Kenneth Stone's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Stone is a state prisoner incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. He plead nolo contendere, reserving his right to appeal the trial court's rulings on pretrial motions, to one count of distribution of heroin in violation of La. Rev. Stat. Ann. § 40:966(A) (West 1997) and one count of possession with intent to distribute heroin in violation of La. Rev, stat. Ann. § 40:966(A) (West 1997). On that same date petitioner was sentenced to serve life in prison at hard labor, without benefit of parole, probation, or suspension of sentence, with credit for time served.
In the instant matter, the petitioner in his application for federal habeas corpus relief claims that (1) his constitutional rights were violated as a result of the racially discriminatory manner in which grand jury forepersons were selected and (2) that he was denied effective assistance of counsel when counsel failed to challenge discriminatory practices with respect to the selection of grand jury forepersons. The Court, after considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and plaintiffs Objections received on December 7, 2000, and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636 (b)(1), hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter for the reasons that follow.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations on an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244 (d)(1)(a). Its effective date was April 24, 1996. The petitioner's judgment was final on January 20, 1997, giving him any benefit of any doubt. (See n. 9 of the Report and Recommendation). Thus, under AEDPA, petitioner had until January 20, 1998 to file for relief pursuant to § 2254, unless he had properly pursued post-conviction relief Under AEDPA, the one-year statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. Fields v. Johnson 159 F.3d 914, 916 (5th" Cir. 1998); 28 U.S.C. § 2244 (d)(2). He did not seek any kind of post-conviction relief until December 23, 1998, and he did not seek federal habeas corpus relief until May 29, 2000. He is time-barred under AEDPA.
Petitioner objects to the report and recommendation submitted by the Magistrate Judge which found Stone's petition to be time barred. In support of his argument, petitioner claims that the magistrate judge incorrectly assessed the retroactive effect of Campbell as it enunciated a new rule of constitutional law, and that the Magistrate erroneously applied the rule of Teague v. Lane, 489 U.S. 288 (1989) to petitioner's claims.
"A threshold question in every habeas case . . . is whether the court is obligated to apply the Teague rule to the defendant's claim." Matthew v. Johnson, 201 F.3d 353, 359 (5th Cir. 2000) (quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994)). Even assuming that Campbell articulated a new rule of constitutional law as argued by Stone, petitioner's claims of racial discrimination in the selection of a grand jury foreperson are barred under section 2254. In reviewing petitioner's claims, the Court keeps in mind that "AEDPA's section 2254(d) does not work any expansion of the availability to state prisoners of federal habeas relief." Williams v. Cain, 229 F.3d 468, 475 (5th Cir. 2000). Indeed, "Justice Stevens states that AEDPA codifies [Teague v. Lane] to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final." Id. An analysis of Stone's claim under the rule of Teague v. Lane is therefore appropriate.
In Teague four justices wrote that a "new rule" should be applied retroactively to all cases on direct review, but generally should not be applied on collateral review." Wright, Miller Cooper, Federal Practice and Procedure, § 3535 (2000 supplement). The nonretroactivity rule of Teague has been put forth by the United States Court of Appeals for the Fifth Circuit as follows;
In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, we must determine when [the defendant's] conviction and sentence became final for Teague purposes. Second, we must survey the legal landscape as it then existed and determine whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. Third, if we determine that [the defendant] seeks the benefit of a new rule, we must consider whether that rule falls within one of the two narrow exceptions to the nonretroactivity rule.
Barrientes v. Johnson, 221 F.3d 741 (5th Cir. 2000)(quoting Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999).
The first exception to the rule, clearly inapplicable to Stone's case, is when the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe." Barrientes at 763 (quoting Teague v. Lane, 489 U.S. 288, 307 (1989)). The second exception occurs when the new rule "is a rule of procedure that is implicit in the concept of ordered liberty. This second exception is reserved for watershed rules of criminal procedure."Id.(quoting Teague). Although the Teague court failed to provide the exact limits of this exception, the jurisprudence is instructive. In Graham v. Collins, 506 U.S. 461, 478 (1993), the Court further explained the second exception to Teague stating that it applied "only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty." The rule must be of monumental proportion, one that requires "a "sweeping" change that applies to a large swath of cases rather than a "narrow right" that applies only to a "limited class" of cases." United States v. Mandanici, 205 F.3d 519, 528 (2d Cir. 2000) (citing O'Dell v. Netherland, 521 U.S. 151, 167 (1997)).
The Supreme Court has cited the decision of Gideon v. Wainwright, 372 U.S. 335 (1963), as the type of rule that fits within the second exception. See Saffle v. Parks, 494 U.S. 484, 495 (1990). There are a plethora of decisions that have held rules of constitutional law barred byTeague's nonretroactivity rule. For example, Teague itself found that any rule applying the fair cross section requirement of the Sixth Amendment as applied to petit juries could not be retroactively applied to a habeas petitioner's case. Teague, 489 U.S. at 311-316. The rule of Teague has prevented several other new rules of constitutional law from retroactively applying to habeas petitions. See e.g. Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (rule of Bullington v. Missouri, 451 U.S. 430 (1981) not retroactive on habeas); Butler v. McKellar, 494 U.S. 407 (1990) (rule ofArizona v. Robertson, 486 U.S. 675 (1988) not applicable retroactively to habeas petition); Jones v. Smith, 231 F.3d 1227 (9th Cir. 2000) (Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) does not apply to cases on collateral review); Lyons v. Stovall, 188 F.3d 327, 341 (6th Cir. 1999) (jury instruction that infringes upon presumption of innocence does not fall under Teague's second exception).
Other rules of law more analogous to petitioner's have been found inapplicable to collateral proceedings. For example, in Allen v. Hardy, 478 U.S. 255 (1986), the Court held that the rule of Batson v. Kentucky, 476 U.S. 79 (1986), significantly changing the standard for proving unconstitutional application of peremptory challenges, could not be applied retroactively to cases on collateral review. There, the Court stated that the Batson rule served multiple purposes, only one of which was to ensure neutral fact finding. Id at 259. Accordingly, the Court could not say "that the new rule has such a fundamental impact on the integrity of fact finding as to compel retroactive application." Id. at 259. In the context of extending Batson beyond race the United States Court of Appeals for the Fifth Circuit has held that "even if we were to find that peremptory strikes based on a venire member's religion violate the Equal Protection Clause, [habeas petitioner's] claim is barred by Teague." Fisher v. Texas, 169 F.3d 295, 306 (5th Cir. 1999). See also Nguyen v. Reynolds. 131 F.3d 1340, 1351 (10th Cir. 1997) (holding that Powers v. Ohio, 499 U.S. 400 (1991) rule on cross racial abuse of peremptory challenges could not be applied retroactively to cases on collateral review).
"Review on habeas to determine that the conviction rests upon correct application of the law in effect at the time of conviction is all that is required to "forc[e] trial and appellate courts . . . to toe the constitutional mark." Lyons v. Stovall, 188 F.3d at 343 (quoting Solem v. Stumes, 465 U.S. 653, 654 (1984)(Powell, J. concurring)). The Teague court recognized this very principle in limiting the application of new rule of law to cases on collateral review when it recognized that "[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge." Teague, 489 U.S. at 313.
Given the dictates of the Supreme Court and appellate courts concerning the limited nature of the application of new rules of law to cases on collateral review, this Court cannot find that Campbell v. Louisiana, 523 U.S. 392 (1986) applies retroactively to Stone's claims. As opposed to a watershed rule of law such as Gideon v. Wainwright, the Campbell case held that a white defendant has third party standing "to assert the well-established equal protection claims of black persons not to be excluded form grand jury service on the basis of their race."Campbell, 523 U.S. at 398. Whether petitioner asserts his own claims or that of third persons excluded from the jury, his claims fail either way. If petitioner does indeed assert his own rights, theCampbell decision suggests that Stone's claim would not pass the threshold test of asserting a new rule of law. Indeed Campbell states that the proposition that a criminal defendant has standing to assert his own due process rights when the grand jury selection procedure eliminates members of any race is "axiomatic", citing the 1972 opinion of Peters v. Kiff, 407 U.S. 493 (1972). Inasmuch as petitioner asserts the claims of those excluded from grand juries in the past, it cannot be said that such claims rise to the level of "a rule of procedure that is implicit in the concept of ordered liberty." Teague at 307.
Based on the foregoing, the Court finds that petitioner's objections are without merit. Accordingly,
IT IS ORDERED that Kenneth Stone's 2254 application for writ of habeas corpus is DENIED and DISMISSED with PREJUDICE