Chambers v. Johnson ( 1999 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-11205
    ROY GLENN CHAMBERS,
    Petitioner-Appellee,
    versus
    GARY L. JOHNSON, DIRECTOR, TEXAS
    DEPARTMENT OF CRIMINAL JUSTICE,
    INSTITUTIONAL DIVISION,
    Respondent-Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    December 2, 1999
    Before REAVLEY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
    HIGGINBOTHAM, Circuit Judge:
    Roy Glenn Chambers was convicted in 1984 of two counts of
    failure to appear at trial for burglary.            He was sentenced to
    twenty-five years imprisonment, a sentence enhanced for previous
    felony convictions.   Chambers seeks habeas relief on the basis of
    Batson v. Kentucky, 
    476 U.S. 79
    (1986).         The Supreme Court decided
    Batson while Chambers' direct appeal was pending in state court.
    Chambers contends that his prosecutors' use of peremptory strikes
    violated the Equal Protection Clause of the Fourteenth Amendment.
    The magistrate judge agreed with Chambers and the district court
    adopted the recommendation to grant habeas relief.             The Director
    maintains   that   Chambers'     claim     is   barred   for   want   of   a
    contemporaneous objection to the strikes, and regardless should be
    dismissed as a delayed petition under Rule 9(a) of the habeas
    rules.    We find that the magistrate judge abused his discretion in
    refusing to consider the merits of the Director's 9(a) defense. We
    VACATE    the   judgment   of   the   district   court   and   REMAND   for
    proceedings in which the defense may be considered.
    I
    During jury selection in Chambers' trial, the prosecutor used
    his peremptory strikes to exclude three black members of the
    venire.    After the petit jury was selected but before they were
    sworn, the trial judge asked the parties whether they had any
    "objections to the jury as seated."       The state made no objections,
    and the trial judge said to Chambers’ attorney, "[y]ou have a
    matter you want to urge, but other than that any objection?" to
    which Chambers' attorney replied "[o]ther than that."          After this
    reply, the jury was sworn and directed to enter the jury room.          The
    court dismissed the venire, and then heard the defense counsel's
    objection.
    Chambers' counsel stated:
    [t]hose three people . . . were blacks and they were the
    only blacks among the first thirty-two. And we would
    object on that ground, and that Mr. Chambers is being
    denied a true jury of his peers and would, therefore,
    state that the prejudice shown him would cause it to be
    in line for a mistrial.
    This colloquy ensued:
    2
    THE COURT: Any response to that?
    MR. ISAACKS [prosecutor]: Four, five and thirty-two were
    just three of ten people struck. The preemptory [sic]
    strikes were not used solely on the basis of a person’s
    race, if that’s what the defense attorney is objecting
    to.
    THE COURT: I don’t know if that’s it or not. I think
    the objection is there are no blacks on the seated jury.
    MR. LAMB [defense counsel]:       That’s correct, Judge.
    THE COURT: There aren't any.      I will let the record
    reflect there are none on the seated jury.        I don't
    recall frankly how many were on the jury panel, whether
    the names you mentioned were or not even black. I can't
    comment on that. I do know, at least by name, that there
    are three Hispanics on the jury itself. That may or may
    not mean anything.
    Mr. Lamb, I'm going to overrule your objection and
    deny your motion for mistrial at this time based on that.
    I'm not sure that I can make the State or the defendant
    ever state specifically why they exercised the preemptory
    [sic]. Mr. Isaacks has said it's not based on race, at
    least alone.   I don't think I can go any further, at
    least, I'm not willing to. So I deny that motion.
    (emphasis supplied).
    Although Chambers pursued direct and discretionary review of
    his conviction, he did not raise the Batson issue until he filed a
    state application for habeas review with the Court of Criminal
    Appeals, which the court denied.          In its judgment the court
    accepted the State's contention that under Allen v. Hardy, 
    478 U.S. 255
    (1986), the Batson claim could not be pressed in a collateral
    attack. That was error.   Allen held that Batson had no retroactive
    effect for habeas petitioners whose convictions were final when
    Batson was announced.     See 
    Allen, 478 U.S. at 257-58
    .        As the
    magistrate judge correctly decided, because Chambers' direct appeal
    3
    was pending when Batson was decided, he may pursue any claim he may
    have under Batson.       See 
    Allen, 478 U.S. at 258
    n.1 (defining
    finality to include exhaustion of availability of appeal); see also
    Griffith v. Kentucky, 
    479 U.S. 314
    , 328 (1986)(holding that Batson
    applies retroactively to cases pending on direct review when the
    decision was announced).
    II
    Chambers filed a federal habeas petition in July 1996.          Two of
    his three claims were denied, but the magistrate judge set an
    evidentiary hearing for the Batson claim, the only subject of this
    appeal. The Director first asserted his defense arising under Rule
    9(a) of the Rules Governing Section 2254 Cases at the evidentiary
    hearing, when the testimony of the prosecutors from Chambers’ trial
    showed that they could not remember why the black members of the
    venire were struck.1    The magistrate judge requested the parties to
    brief the 9(a) issue.    The court found that the Director had waived
    the defense of laches under 9(a) by not presenting it in a
    responsive   pleading   at   an   earlier   point   in   time,   implicitly
    refusing leave to amend to conform to the evidence.
    1
    Rule 9(a) of the Rules Governing Section 2254 Cases provides:
    Delayed Petitions. A petition may be dismissed if it
    appears that the state of which the respondent is an
    officer has been prejudiced in its ability to respond to
    the petition by delay in its filing unless the petitioner
    shows that it is based on grounds of which he could not
    have had knowledge by the exercise of reasonable
    diligence before the circumstances prejudicial to the
    state occurred.
    4
    First we must explain why it is necessary to reach the
    question of laches when the absence of a Batson issue is so
    conspicuous. Having been directed to an evidentiary hearing on the
    merits of the Batson claim by the district court, the Director
    conceded to the magistrate judge that Chambers proved a prima facie
    case under Batson.      The Director's concession is troubling.                 The
    objection lodged at trial was that there were no black persons on
    the   seated   jury.     At   best     it   was    a   Swain    objection,      and
    understandably so since that was the legal regime at the time of
    trial.2    Of course, Chambers has the benefit of Batson since his
    case was pending on appeal when Batson was decided as we explained.
    With no assistance from the Director, the district court and in
    turn the magistrate judge failed to realize that under controlling
    decisions of this court a Batson objection must be asserted before
    the   venire   is   dismissed,   and    that   a   timely      objection   is    an
    essential condition to the assertion of the Batson claim.                    See,
    e.g., Wilkerson v. Collins, 
    950 F.2d 1054
    , 1063 (5th Cir. 1992);
    United States v. Romero-Reyna, 
    867 F.2d 834
    , 837 (5th Cir. 1989);
    Jones v. Butler, 
    864 F.2d 348
    , 369 (5th Cir. 1988);               United States
    v. Erwin, 
    793 F.2d 656
    , 667 (5th Cir. 1986).             As Judge Reavley has
    explained for this court, the Batson "right" is grounded in a
    process.   See Thomas v. Moore, 
    866 F.2d 803
    , 805 (5th Cir. 1989).
    On objection a party must articulate race-neutral reasons for a
    2
    Swain v. Alabama, 
    380 U.S. 202
    , 223-24 (1965), required a
    showing of systematic race discrimination in jury selection beyond
    the defendant's own case to establish a violation of the Equal
    Protection Clause. Batson overruled Swain.
    5
    peremptory challenge; absent an objection there is no Batson
    violation.   See 
    id. That said,
    we will not relieve the Director of
    his concession any more than we will supply an objection that
    Chambers never made.
    III
    At the hearing it became clear that the prosecutors could not
    remember the specific reasons that they struck three black members
    of the venire, and the prosecutor who actually made the strikes had
    long since lost his notes from Chambers' trial.       With the passage
    of over thirteen years since Chambers' trial and the issue of a
    timely Batson objection not considered, the result was preordained.
    As the magistrate judge observed, the outcome now turned on whether
    the court would allow the state to invoke the defense of laches
    under Rule 9(a) of the federal habeas rules.     Chiding the state for
    letting some months go by before the hearing without filing a
    responsive pleading asserting laches, the magistrate judge refused
    to consider the defense.
    Rule 9(a) of the Rules Governing Section 2254 Cases codifies
    an equitable defense of laches.        See, e.g., Walters v. Scott, 
    21 F.3d 683
    , 686 (5th Cir. 1994).     It is also true that "laches" is
    among the affirmative defenses listed in Fed. R. Civ. P. 8(c),
    requiring a responsive pleading.        But accepting that a Rule 9(a)
    defense must be supported by a pleading does not answer the
    question of when an amendment asserting the defense is allowed.
    Specifically, an affirmative defense under Fed. R. Civ. P. 8(c) is
    not waived when a defendant who failed to assert it in a responsive
    6
    pleading "raised the issue at a pragmatically sufficient time, and
    [the plaintiff] was not prejudiced in its ability to respond."
    Lucas     v.   United     States,   
    807 F.2d 414
    ,   418   (5th   Cir.
    1986)(alterations in original).
    There has been no showing that the defense was not raised at
    a pragmatically sufficient time or that Chambers was prejudiced in
    his ability to respond.       Perhaps there is more, but on this record
    the ruling strikes one as blind formalism on the one hand and
    extraordinary tolerance on the other.       An insistence on timeliness
    has its virtues.        Here, however, the magistrate judge held the
    state's feet to the fire but granted relief to a petitioner who
    waited over nine years after exhausting his state remedies to file
    a federal habeas petition. During this time the state's ability to
    defend was lost.        The prosecutor who struck the three members of
    the venire testified at the evidentiary hearing that race was not
    a reason for the challenges, but could not recall the specific
    reasons for the strikes, such as occupation, work history, and so
    forth.    We are persuaded there is no unfair surprise attending the
    consideration of the effects of Chambers' nine-year delay in filing
    his federal habeas petition upon the State's ability to defend
    itself.    We VACATE the judgment granting relief and remand         for
    further proceedings.       On remand the magistrate judge will consider
    the defense, allowing Chambers a fair opportunity to respond.
    VACATED and REMANDED.
    7