Mary Beth Westmoreland, State of Georgia Law Dept., Atlanta, GA, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before TJOFLAT, WILSON and FLETCHER, Circuit Judges.
CORRECTED OPINION
TJOFLAT, Circuit Judge:
In this case, the petitioner, a Georgia prison inmate, seeks a writ of habeas corpus setting aside his conviction for murder. The district court denied the writ, rejecting, among other claims, petitioner's assertion that his attorney, in appealing his conviction to the Georgia Supreme Court, failed to provide the effective assistance of counsel required by the Sixth and Fourteenth Amendments. We conclude that appellate counsel was ineffective in failing to ask the supreme court to set aside the conviction on the ground that petitioner had been denied the equal protection right recognized by Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. We therefore reverse, and direct the district court to issue a writ of habeas corpus conditioned on the State's right to retry petitioner.
I.
A.
Petitioner, Cedric Daniel Eagle, was indicted on the charge of malice murder by a grand jury in Laurens County, Georgia on October 17, 1990 for the shooting death of Tommy Ford. Eagle entered a plea of not guilty, and, after disposing of several pretrial matters, the court scheduled his trial for December 2, 1991. In the selection of the petit jury, which began that day, the State used nine of its ten peremptory challenges to excuse black members of the venire. After twelve jurors had been selected, but before they were sworn, Eagle's attorney, the Laurens County Public Defender, citing Batson, objected to their empanelment, contending that the State had exercised its challenges to the black venire persons on account of their race, in violation of the Equal Protection Clause. The judge met with counsel in chambers to hear and rule on the motion. After defense counsel reiterated her objection, the prosecutor responded. He argued that a Batson violation had not occurred because the racial composition of the twelve jurors seated in the box mirrored that of the venire: 31% of the persons comprising the venire were black, and 33% of those who had been selected (four of twelve) were black. The prosecutor also noted that Eagle had used eighteen of his peremptory challenges against whites. Eagle's attorney countered that Batson claims cannot be decided by relying on mathematical ratios, comparing the racial composition of the petit jury to that of the venire.
After noting that the prosecutor had correctly calculated the ratios of whites and blacks on the venire and the jury to be empaneled, the judge overruled Eagle's Batson objection. After ruling, he added this comment about the attorneys' use of their peremptory challenges: "I think both of you were doing what you could to get the different races off."
On December 4, at the conclusion of a three-day trial, the jury found Eagle guilty of malice murder. On December 18, the court sentenced Eagle to prison for life. On January 3, 1992, Eagle's attorney filed a motion for a new trial. Shortly thereafter, she was replaced by the newly chosen Laurens County public defender, who handled the motion. The motion was denied on July 6, 1993; on August 4, 1993, the public defender appealed Eagle's conviction to the Georgia Supreme Court.
B.
In preparing Eagle's brief to the supreme court, the public defender conversed with Eagle by telephone about the issues she intended to raise. Eagle told her to include in her brief ten instances in which his trial attorney's performance was deficient. She declined to include them, whereupon Eagle asked the supreme court to discharge her and to permit him to proceed pro se. The court refused his request.
Meanwhile, the public defender filed Eagle's brief with the supreme court. In her brief, she contended that three trial court errors warranted the reversal of Eagle's conviction: the court erred (1) in failing to suppress Eagle's confession as involuntary; (2) in refusing to declare a mistrial after a prosecution witness commented on Eagle's bad character without Eagle having first placed his character in issue; and (3) in improperly interrogating defense witnesses by asking irrelevant and prejudicial questions in the presence of the jury. In the cover letter accompanying her brief to the court, counsel stated that Eagle was going to file a pro se brief raising issues she had not briefed; she asked the court to accept his brief. Eagle thereafter filed a pro se brief; it contained the ineffective assistance issues he had discussed with counsel. His brief also contained the Batson issue his trial attorney had raised before the jury was empaneled.
The supreme court refused to entertain the supplemental brief, concluding that Eagle had no right to simultaneous self-representation and representation by counsel. Eagle v. State, 264 Ga. 1, 440 S.E.2d 2 (1994). The court then rejected the arguments the public defender had presented and affirmed Eagle's conviction. Id. Given the supreme court's adverse decision, Eagle turned to the Superior Court of Lowndes County, Georgia for relief from his conviction, filing a pro se petition for a writ of habeas corpus.
C.
1.
Eagle's petition alleged that he had been denied the effective assistance of counsel by both his trial and appellate attorneys. His trial attorney was ineffective for the reasons stated in his pro se brief to the supreme court, and his appellate attorney was ineffective in failing to include his Batson and ineffective assistance of trial counsel claims in her brief to the supreme court.
The superior court held an evidentiary hearing on Eagle's petition. Eagle's trial and appellate attorneys were the only witnesses; both were called by the State and cross-examined by Eagle, who was representing himself. After receiving this testimony and argument from the parties, the court entered an order denying relief. Addressing Eagle's ineffective assistance of trial counsel claim, the court then concluded that all ten bases of the claim were procedurally defaulted since, in his direct appeal to the Georgia Supreme Court, Eagle failed to present them in his brief (filed by the public defender) as required by Georgia law. The court considered whether Eagle had cause for the procedural default (and resulting prejudice), and found none. The court based its finding on the testimony appellate counsel had given at the evidentiary hearing. She testified that she raised the claims on direct appeal that she deemed most meritorious. This testimony, in the court's view, showed that she had made an informed strategic decision not to present an argument (to the supreme court) that trial counsel's performance had been deficient. Eagle v. Linahan, Civil Action No. 94CV790, (Ga.Sup. Ct. Mar. 10, 1995) at 7 (citing Smith v. Murray,
477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986), in which the Supreme Court noted that, with rare exception, "a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a State's legitimate rules for the fair and orderly disposition of its criminal cases").
After concluding that Eagle's ineffective assistance of trial counsel claim was procedurally barred, the court considered the claim on the merits, and denied it under the "performance" prong of the standard laid down by the Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Addressing the quality of trial counsel's performance, the court found that it "fell within the wide range of reasonable professional conduct" required by Strickland, in that "all significant decisions were made in the exercise of reasonable professional judgment." Eagle v. Linahan, Civil Action No. 94CV790 at 9.
The superior court also rejected both bases of Eagle's ineffective assistance of appellate counsel claim. Regarding Eagle's claim that counsel should have challenged trial counsel's effectiveness on appeal, the court rejected the claim for the same reason it found no cause for Eagle's procedural default of his ineffective assistance of trial counsel claim: appellate counsel made an informed strategic decision to omit that claim in her brief to the supreme court. The court disposed of Eagle's Batson claim without comment.
The superior court denied Eagle's habeas petition on March 10, 1995. The Georgia Supreme Court denied Eagle a certificate of probable cause to appeal on April 14, 1995. After exhausting his state remedies, Eagle brought the habeas corpus petition now before us, filing it in the Southern District of Georgia on June 8, 1995.
2.
Eagle's petition contained the claims he had presented to the state habeas court and the three claims the Georgia Supreme Court resolved against him on direct appeal. The district court summarily disposed of Eagle's ineffective assistance of trial counsel claim on the ground that the state habeas court had rejected the claim on an independent and adequate state procedural ground. Eagle v. Linahan, CV395-35 (S.D.Ga. Dec. 22, 1997) (citing Marek v. Singletary,
62 F.3d 1295, 1301-02 (11th Cir.1995), which noted that "[w]hen a state court addresses both the independent state procedural ground and the merits of the federal constitutional claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim").
The district court reviewed Eagle's ineffective assistance of appellate counsel claim on the merits, and, like the state habeas court, concluded that Eagle had failed to demonstrate that his appellate counsel's performance was constitutionally deficient. Regarding Eagle's allegation that appellate counsel was ineffective in failing to include an ineffective assistance of trial counsel claim in her appellate brief, the district court presumed correct the state court's finding of fact that counsel's decision to forego the claim was an acceptable tactical decision. See
28 U.S.C. 2254(d) (1994). As for Eagle's claim that counsel should have briefed his Batson claim, the court, relying on the transcript of the evidentiary hearing in the state habeas court, concluded that Eagle failed to satisfy the burden of proving that counsel's performance was deficient. Finally, the district court found no error in the Georgia Supreme Court's rejection of the three claims of error presented by appellate counsel's brief.
The district court dismissed Eagle's petition on December 22, 1997. In early 1998, the court denied Eagle's application for a certificate of probable cause ("CPC") to appeal the court's disposition of his ineffective assistance of trial and appellate counsel claims. A judge of this court granted the CPC on September 4, 1998.
II.
At the time Eagle sought leave to appeal the district court's denial of his habeas petition, it was proper procedure in this circuit to apply the CPC rules developed under the old version of 28 U.S.C. section 2253 to habeas petitions, like Eagle's, filed before the April 24, 1996 effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which, among other provisions, amended 28 U.S.C. section 2253. See Tompkins v. Moore,
193 F.3d 1327, 1330 (11th Cir. 1999). After Eagle received his CPC, however, the Supreme Court held that the AEDPA amendments to section 2253 govern all appeals initiated after AEDPA's effective date, regardless of the filing date of the habeas petition with the district court. See Slack v. McDaniel,
529 U.S. 473, 478, 120 S.Ct. 1595, 1600, 146 L.Ed.2d 542 (2000).
AEDPA changed the name of the certificate required to appeal the denial or dismissal of a section 2253 petition from CPC to "certificate of appealability" ("COA") and added a statutory standard for issuing the certificate. See Henry v. Dep't of Corr.,
197 F.3d 1361, 1364 (11th Cir.1999). Unlike a CPC, a COA must "indicate which specific issue or issues" show that the applicant has suffered "the denial of a constitutional right."
28 U.S.C. 2253(c)(2)-(3); Franklin v. Hightower,
215 F.3d 1196, 1199 (11th Cir.2000). Although the pre-AEDPA version of section 2253 did not require that the certificate specify the issues for which the applicant had been granted leave to appeal, precedent required that a petitioner make a "substantial showing of the denial of [a] federal right" in order to obtain a CPC. Barefoot v. Estelle,
463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (alteration in original) (quoting Stewart v. Beto,
454 F.2d 268, 270 n. 2 (5th Cir.1971), overruled in part on other grounds by Lindh v. Murphy,
521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Recently, the Supreme Court decided that the pre-AEDPA showing a petitioner had to make to obtain a CPC and the post-AEDPA statutory standard for obtaining a COA are substantially the same. See Slack, 529 U.S. at 483-84, 120 S.Ct. at 1603, ("Except for substituting the word `constitutional' for the word `federal,' § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle ...."). The primary difference between the certificates, then, is that a COA must specify on its face the issues on which the petitioner has been granted leave to appeal. Appellate review of an unsuccessful habeas petition is limited to the issues enumerated in the properly granted COA. See Murray v. United States,
145 F.3d 1249, 1251 (11th Cir.1998).
In Slack, the Supreme Court clearly laid out the tests that courts should apply in deciding whether to grant a COA, both as to claims disposed of by the district court on the merits and those disposed of on procedural grounds. "Where a district court has rejected the constitutional claims on the merits, ... [t]he petitioner [seeking a COA] must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484, 120 S.Ct. at 1604. Where a district court has disposed of claims raised in a habeas petition on procedural grounds, a COA will be granted only if the court concludes that "jurists of reason" would find it debatable both "whether the petition states a valid claim of the denial of a constitutional right" and "whether the district court was correct in its procedural ruling." Franklin, 215 F.3d at 1199 (quoting Slack, 529 U.S. at 483, 120 S.Ct. at 1604).
"Pursuant to Slack, it is now clear that there should have been a COA in this case rather than a CPC." Peoples v. Haley,
227 F.3d 1342, 1346 (11th Cir.2000). That Eagle was granted a CPC rather than a COA does not, however, render his appeal invalid. As we ruled in Franklin,
215 F.3d 1196:
[T]he grant of a CPC rather than a COA here is not fatal to the appeal. By applying AEDPA's standards to this appeal and issuing a proper COA (if warranted), this panel may "fix" the inadequacies of the present CPC. The CPC was issued by a single judge, and as a panel we may revisit the ruling. See Fed. R.App. P. 27(c); 11th Cir. R. 27-1(g).
Id. at 1199. Accord Peoples, 227 F.3d at 1346 ("[I]n this situation, it is within the discretion of the court of appeals whether to apply the COA standards itself, or remand to the district court."). We therefore revisit Eagle's application for a CPC, construing it as a request for a COA and applying the standards set forth in the post-AEDPA version of section 2253. In so "fixing" Eagle's CPC, we necessarily limit the claims properly before us to those that we deem satisfy the AEDPA standards for appeal elucidated in Slack.
In seeking a certificate to appeal the district court's dismissal of his habeas petition, Eagle asserted that he should be granted a CPC on the same ineffective assistance of trial and appellate counsel claims he presented to the state habeas court and to the district court. After we granted Eagle a CPC, we appointed counsel to represent him in this appeal. In addition to elaborating on the claims Eagle raised in his application for a CPC and pro se brief, appointed counsel raised an additional ineffective assistance of appellate counsel claim in the supplemental brief he filed. We decline to consider this additional claim because it was not presented to the district court.
A.
The district court denied Eagle's ineffective assistance of trial counsel claims because he procedurally defaulted those claims under Georgia law by not raising them on direct appeal. It is a maxim well rooted in our federalist system that federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson,
501 U.S. 722 , 729, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). Furthermore, "[t]his rule applies whether the state law ground is substantive or procedural." Id. The independent and adequate state grounds doctrine "applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30, 111 S.Ct. at 2554. Abiding by this principle of comity, the district court could have looked beyond the state habeas court's finding that Eagle had procedurally defaulted his ineffective assistance of trial counsel claims only if Eagle had made a showing of cause excusing the default and prejudice arising therefrom. See Wainwright v. Sykes,
433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977) (holding that a state procedural waiver of a federal claim will serve to bar to federal habeas review of the claim absent a showing of "cause and prejudice") (internal quotation marks omitted). Following these principles, we, in turn, will grant Eagle a COA on his ineffective assistance of trial counsel claims only if he can convince us that reasonable jurists could disagree on whether the district court's procedural ruling was correct (i.e., that Eagle had not shown cause and prejudice to excuse the default), and that reasonable jurists could debate whether his trial counsel's performance was constitutionally deficient.
Eagle asserts that his appellate counsel's refusal to raise the ineffective assistance of trial counsel claims was sufficient cause to overcome the procedural default of those claims. The Supreme Court, however, made clear in Murray v. Carrier, 477 U.S. 478, 486-87, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986), that "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." This is true whether the procedural default resulted from counsel's failure to make a claim at trial or failure to raise a claim on appeal. Id. at 492, 106 S.Ct. at 2647 (holding that "counsel's failure to raise a particular claim on appeal is to be scrutinized under the cause and prejudice standard when that failure is treated as a procedural default by the state courts"). Moreover, attorney error is cause for procedural default only if the error rises to the level of constitutionally deficient assistance of counsel under the Sixth Amendment. Id. at 488, 106 S.Ct. at 2645. At the state habeas hearing, Eagle's appellate counsel testified that she considered raising an ineffective assistance of trial counsel claim on appeal but rejected it because she saw no basis for the claim and because she did not want to cloud what she deemed to be more persuasive arguments. Eagle has adduced no evidence, and it is not apparent from the record, that his appellate counsel acted unreasonably in not including his ineffective assistance of trial counsel claims in her brief to the Georgia Supreme Court. Since reasonable jurists could not debate the correctness of the district court's procedural ruling, we deny a COA on Eagle's ineffective assistance of trial counsel claims.
B.
Since the district court disposed of Eagle's ineffective assistance of appellate counsel claims on the merits, we will grant a COA on those claims if Eagle can demonstrate that jurists of reason would debate whether the district court's decision was wrong. As discussed above, Eagle has not demonstrated that reasonable jurists would debate whether his appellate counsel's decision not to raise the ineffective assistance of trial counsel claims was so misconceived as to render her representation constitutionally deficient. Analysis of Eagle's claim that appellate counsel was ineffective for not raising a Batson claim on appeal, however, leads to a different conclusion.
The district court rejected Eagle's Batson theory of ineffective assistance of appellate counsel on the ground that, at the evidentiary hearing held in the state habeas court, Eagle failed establish that his appellate counsel's failure to raise a Batson claim on appeal was unreasonable. After noting the habeas court's finding, the court reasoned that since Eagle's appellate attorney testified in the state collateral proceeding that she had raised the three claims on appeal that she deemed most meritorious, she must have concluded that the Batson claim lacked merit. While it may be true that Eagle's appellate attorney considered and rejected the Batson claim, we disagree with the court's insinuation that a habeas petitioner raising an ineffective assistance of counsel claim must always present testimonial evidence that counsel's performance was unreasonable or, ipso facto, lose on the claim. Instead, we believe that reasonable jurists could debate, based exclusively upon a review of the trial transcripts, whether the decision of Eagle's appellate attorney not to raise a Batson claim on appeal comported with the Sixth Amendment right to competent representation by appellate counsel. Therefore, we grant Eagle a COA on the issue of whether his appellate counsel was ineffective for failing to raise a Batson claim on appeal.
III.
Claims by criminal defendants that they were denied effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments are the cornerstone of many habeas corpus petitions, including this one. In both his state and federal petitions, Eagle's Batson claim has necessarily been a rider on his ineffective assistance of appellate counsel claim because he procedurally defaulted the Batson claim by not raising it on direct appeal. Were he so inclined, Eagle could bring his Batson claim as a substantive claim and seek to overcome the procedural default by alleging that his appellate counsel's ineffectiveness satisfied the Wainwright cause and prejudice test. 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 her ineffectiveness, Eagle has avoided the need to justify his procedural default of the Batson claim.
We review the district court's denial of habeas corpus relief de novo. See Agan v. Singletary,
12 F.3d 1012, 1017 (11th Cir.1994). In Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that the Sixth Amendment Counsel Clause guarantees criminal defendants a right to effective assistance of counsel. The Court in Strickland articulated a two-pronged test for determining whether a defendant was denied constitutionally adequate assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, 104 S.Ct. at 2064. The same standard applies whether we are examining the performance of counsel at the trial or appellate level. See Matire v. Wainwright,
811 F.2d 1430, 1435 (11th Cir. 1987).
A.
To demonstrate that his appellate counsel rendered deficient representation, Eagle must show that her performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Eagle asserts that it was unreasonable for counsel not to raise the Batson claim on appeal. As we noted in Bolender v. Singletary,
16 F.3d 1547, 1558 n. 12 (11th Cir.1994) (citations omitted), "[t]he question of whether a decision by counsel was a tactical one is a question of fact." "Whether the tactic was reasonable, however, is a question of law and is reviewed de novo." Collier v. Turpin,
177 F.3d 1184, 1199 (11th Cir.1999) (citing Horton v. Zant,
941 F.2d 1449, 1462 (1991)).
The record contains no testimonial evidence as to whether Eagle's appellate counsel made a tactical decision not to raise the Batson claim or, rather, simply overlooked that potential ground for reversal. Eagle did not specifically question his appellate counsel about the Batson claim during the state habeas hearing. Nevertheless, based on her testimony, the state habeas court found that she raised the three claims she deemed most meritorious on appeal. That finding seems to presume that counsel considered and rejected the Batson claim. Since Eagle does not challenge any of the state habeas court's factual findings, we presume this finding to be correct. See
28 U.S.C. 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.") Therefore, we begin our analysis of whether the failure by Eagle's appellate counsel to raise the Batson claim on appeal rendered her performance constitutionally deficient from the factual premise that she made a tactical decision not to raise the Batson claim. Contrary to the conclusions of the state habeas court and the district court, we find sufficient evidence in the cold record to evaluate the reasonableness of the attorney's decision not to raise the Batson issue on appeal.
In considering the reasonableness of an attorney's decision not to raise a particular claim, we must consider "all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. In Jones v. Barnes,
463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the Supreme Court held that the Sixth Amendment does not require appellate attorneys to press every non-frivolous issue that the client requests to be raised on appeal, provided that counsel uses professional judgment in deciding not to raise those issues. See id. at 751, 103 S.Ct. at 3312. Thus, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at that time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In the fall of 1993 when Eagle's appellate counsel submitted her brief appealing Eagle's conviction, the Supreme Court's Batson decision had been embedded in our constitutional jurisprudence for seven years and the principle of equal protection in jury selection the decision espoused had been applied by the Supreme Court and the courts of this circuit many times. See, e.g., Georgia v. McCollum,
505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Hernandez v. New York,
500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Powers v. Ohio,
499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); United States v. Williams,
936 F.2d 1243 (11th Cir.1991); United States v. Allison,
908 F.2d 1531 (11th Cir.1990); United States v. Alston,
895 F.2d 1362 (11th Cir.1990); Fludd v. Dykes,
863 F.2d 822 (11th Cir.1989); United States v. David,
844 F.2d 767 (11th Cir.1988). Thus, we evaluate the reasonableness of counsel's decision not to raise the Batson claim through a lens tinted by Batson and its progeny at the time counsel was prosecuting Eagle's appeal.
1.
In Batson, the Supreme Court held that a prosecutor's use of peremptory challenges to preclude blacks from serving on a petit jury on account of their race violates the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky,
476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986) ("[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."). In conjunction with its holding, the Batson Court established a framework for courts to use in evaluating Batson challenges to the state's use of peremptory strikes: The defendant must first make out a prima facie case of discriminatory purpose on the part of the prosecution and, if the defendant has made out a prima facie case, the prosecution must "come forward with a neutral explanation for challenging black jurors." Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. A defendant makes out a prima facie case of discrimination in jury selection by showing that "`he is a member of a cognizable racial group' and that `the relevant circumstances raise an inference' that [the prosecution] has `exercised peremptory challenges to remove from the venire members of [his] race.'" Fludd v. Dykes,
863 F.2d 822, 829 (11th Cir.1989) (quoting Batson, 476 U.S. at 96, 106 S.Ct. at 1723). In Powers v. Ohio,
499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court held that a defendant of any race can raise an equal protection challenge to the prosecution's discriminatory use of peremptory challenges, thereby eliminating any need for a criminal defendant raising such an equal protection challenge to show commonality of race with the excluded jurors.
In this appeal, Eagle argues that the trial court erred when it held that he had not established a Batson violation. Ordinarily, reviewing such a claim would require us to look over the trial court's shoulder, reconstructing the circumstances surrounding the voir dire of the venire persons and the Batson hearing from the cold record, to decide whether the court correctly determined that the defendant had not raised an inference that the prosecution used its peremptory challenges to remove jurors on account of their race. In this case, however, we need not engage in this exercise; the trial judge's own finding immediately following his ruling against Eagle revealed that the ruling was based on a misapplication of the law. Given that the trial judge found that "both [the defense and the prosecution] were doing what [they] could to get the different races off" in the use of their peremptory strikes, his ruling that Eagle had failed to make out a Batson claim must have been incorrect, even when viewed through a deferential lens. See Central Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., Inc.,
236 F.3d 629, 635 (11th Cir.2000). Instead of focusing on what motivated the prosecutor's use of his peremptory challenges, and the fact that eight of nine of those he struck were black (in determining whether the prosecution's use of peremptory strikes raised an inference of racial discrimination), the judge focused on the racial characteristics of the venire persons whom the prosecution chose not to strike. The judge concluded that Eagle had not raised an inference of unlawful discrimination because the proportion of blacks empaneled as petit jurors fairly represented the racial mix of the broader venire. The judge concluded from these figures that the prosecutor's use of peremptory challenges to eliminate blacks from the jury was counteracted by Eagle's use of peremptory challenges to eliminate whites from the jury.
The trial court's exclusive reliance on a comparison of the proportion of blacks on the petit jury to the proportion of blacks in the venire to determine the presence of a Batson violation was error. While it may be true that the prosecution's use of peremptory strikes did not result in a racially unbalanced petit jury, that is not the test for deciding whether there has been an equal protection violation. As we said in United States v. David, "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." United States v. David,
803 F.2d 1567, 1571 (11th Cir.1986). Thus, the presence of blacks on the jury, while significant, does not preclude a finding of racial discrimination. See Cochran v. Herring,
43 F.3d 1404, 1412 (11th Cir.1995) (citing United States v. Allison,
908 F.2d 1531, 1537 (11th Cir. 1990)). Since the trial judge stated on the record that he believed, based on the totality of the circumstances surrounding the selection of the jury, that the prosecution had used peremptory strikes to remove blacks on account of their race, Eagle had established a Batson violation and the trial court should have required the prosecution to produce "a neutral explanation for challenging black jurors." Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
Furthermore, while we are troubled that Eagle also may have been using his peremptory strikes in a discriminatory manner, that does not justify allowing the prosecution's unconstitutional use of peremptory strikes to stand. As the Supreme Court has indicated in Batson and its progeny, Eagle's equal protection rights are not the only ones at stake; defendants like Eagle have standing to raise equal protection challenges during jury selection as a means of allowing the courts to vindicate the rights of the excluded jurors as well. See supra note 18. That Eagle may have unclean hands, and therefore receive a seemingly undeserved new trial, is a necessary byproduct of our Fourteenth Amendment jurisprudence. As the Supreme Court said long ago in Hill v. Texas,
316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942), a case in which blacks had been discriminatorily excluded from the indicting grand jury, "no state is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution ... forbid[s]. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty." Id. at 406, 62 S.Ct. at 1162. We believe the same principle governs when racial discrimination affects the composition of the petit jury that renders a conviction. The fundamental premise of Batson and its progeny is that criminal defendants and excluded jurors alike are denied equal protection of the laws when the trial jury is constructed in a racially discriminatory manner. The remedy for such an equal protection violation is reversal of the conviction without regard to whether we perceive the defendant to be actually innocent or guilty.
2.
The trial court's error in applying the rule in Batson is apparent on the face of the transcript of the jury selection proceedings. Where, as here, appellate counsel fails to raise a claim on appeal that is so obviously valid that any competent lawyer would have raised it, no further evidence is needed to determine whether counsel was ineffective for not having done so. Although Eagle did not question his appellate attorney about the Batson claim during the state habeas proceeding, no conceivable reason that she might have proffered would have made her failure to pursue the claim reasonable. Her failure to raise it, standing alone, establishes her ineffectiveness.
B.
Having determined that Eagle's appellate counsel rendered ineffective assistance of counsel in not raising the Batson claim on appeal, we must now decide whether her conduct prejudiced Eagle's case. In Strickland, the Supreme Court stated that to establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. To determine whether the failure to raise a claim on appeal resulted in prejudice, we review the merits of the omitted claim. See Cross v. United States,
893 F.2d 1287, 1290 (11th Cir.1990). If we conclude that the omitted claim would have had a reasonable probability of success, then counsel's performance was necessarily prejudicial because it affected the outcome of the appeal. See Id. It is clear that Eagle's Batson claim would have succeeded on appeal. Had the claim been presented, the supreme court would have had two options: remand the case for an evidentiary hearing concerning the prosecutor's motive for peremptorily challenging the black venire persons or remand the case for a new trial. Since the trial judge had already found, and stated on the record, that the prosecutor's challenges, like Eagle's, were race based, an evidentiary hearing would have been unnecessary. Consequently, the supreme court would, in all probability, have opted to grant a new trial. There can be no doubt, then, that counsel's decision to omit the Batson claim from her brief undermines confidence in the outcome of Eagle's direct appeal sufficient to satisfy the prejudice prong of Strickland.
IV.
Eagle was denied the effective assistance of counsel on appeal, in violation of the Sixth and Fourteenth Amendments, and is entitled to habeas corpus relief. We therefore REVERSE the district court's judgment and REMAND the case 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.
SO ORDERED.
An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.
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