Capital Defense Weekly

Los Angeles Police Dept v. United Publishing Corporation  The Supreme Court (7-2) reverses the Ninth Circuit's holding that the "a law regulating access to information in the hands of the police department" relating to in custody suspects.  The below held the statute  was "facially invalid" but "alternative bases for affirmance urged by respondent will remain open on remand if properly presented and preserved in the Ninth Circuit." From the syllabus:

Respondent was not, under this Court’s cases, entitled to prevail on a “facial attack” on §6254(f)(3). The allowance of a First Amendment overbreadth challenge to a statute is an exception to the traditional rule that “a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.” New York v. Ferber, 458 U.S. 747, 767. The overbreadth doctrine is strong medicine that should be employed only as a last resort. At least for the purposes of facial invalidation, petitioner is correct that §6254(f)(3) is not an abridgment of anyone’s right to engage in speech, but simply a law regulating access to information in the government’s hands. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. California law merely requires respondent to qualify under the statute if it wishes to obtain arrestees’ addresses. California could decide not to give out arrestee information at all without violating the First Amendment. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 14. To the extent that respondent’s “facial challenge” seeks to rely on the statute’s effect on parties not before the court–respondent’s potential customers, for example–its claim does not fall within the case law allowing courts to entertain facial challenges. No threat of prosecution, see Gooding v. Wilson, 405 U.S. 518, 520—521, or cut off of funds, see National Endowment for Arts v. Finley, 524 U.S. 569, hangs over their heads. The alternative bases for affirmance urged by respondent will remain open on remand if properly presented and preserved in the Ninth Circuit.

The only order that is the subject of this appeal is the district court's order of November 2, 1998, denying the warden's motion for reconsideration under Fed. R. Civ. P. 59(e). See Notice of Appeal, filed Nov. 9, 1998 ("[R]espondent . . . hereby appeals . . . from the November 2, 1998, denial of respondent's motion to alter or amend the judgment .. . ."); Appellant's Opening Brief at 5 (stating the issue as "[w]hether the district court erred in denying respondent's motion to amend the order . . . ."). The warden did not appeal either the protective order of February 25, 1994, or the order of September 15, 1998, which reaffirmed the protective order. Those prior orders are therefore not before us.

[2] A motion for reconsideration under Rule 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange St. Partners  v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (emphasis added) (citing School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)). In moving for reconsideration, the warden alleged neither the discovery of new evidence nor an intervening change in the controlling law. Therefore, the only question before us is whether the district judge committed clear error in entering the protective order.

[3] In answering this question, we do not review de novo the legal basis for the protective order, as we would if this were an appeal from the order itself. See Floyd  v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991) ("An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment.") (citing Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989)). Rather, we ask whether the protective order involved a clear error of law. See e.g., Faile v. Upjohn Co., 988 F.2d 985 (9th Cir. 1993) (reversing denial of a Rule 60(b) motion to vacate dismissal, where the district court had failed to apply provision of Fed. R. Civ. P. 5(b) that service is complete upon mailing).

[4] The warden contends that, because raising ineffective assistance of counsel claims in a habeas petition waives the attorney-client privilege, the district court erred in prohibiting the Attorney General from disclosing the documents discovered from McDowell's trial counsel's file to "prosecutorial personnel or agencies" for use in connection with McDowell's penalty phase retrial. It is debatable whether the district court can so limit the Attorney General's use of the documents from McDowell's trial counsel's file. The question being a debatable one, the district court did not commit clear error when it limited access to the file pursuant to the terms of the protective order. District courts have very broad discretion in fashioning discovery orders under Fed. R. Civ. P. 26(c), and the protective order did not fall clearly outside the bounds of that authority. The district court therefore did not abuse its discretion in denying reconsideration. See Pasatiempo, 103 F.3d at 801 (denial of a motion to alter or amend judgment under Fed. R. Civ. P. 59(e) may be reversed only for abuse of discretion).

A. Sochor Claim

The State argues, and we agree, that a procedural default bars this claim. Following the unanimous jury recommendation of death, the resentencing court found that the State had proven five aggravating circumstances beyond a reasonable doubt, one of which was that King had knowingly created a great risk of death to many persons by setting fire to Natalie Brady's house. The court rejected all asserted mitigating factors, both statutory and nonstatutory. On appeal, the Florida Supreme Court sua sponte addressed the sufficiency of the evidence to support the factors. The court concluded that the evidence was insufficient to support a finding of the creating-a-great-risk-to-many- persons aggravator. The court declined to vacate King's sentence, however, explaining that "[a]fter striking this factor, however, we are left with four valid aggravating circumstances and no mitigating circumstances. We therefore affirm King's sentence of death." King v. State, 514 So. 2d 354, 360 (Fla. 1987). This is the disposition that King claims violates his Eighth Amendment rights.

Although the asserted error occurred during direct review, King did not mention this treatment of his sentence in his petition for rehearing before the supreme court, and the sufficiency of this review was not a subject of his original petition for habeas corpus filed in the same court. Nor did it form the basis of a claim for relief in his petition under Rule 3.850.  Under our precedent, King's failure to present this kind of claim to the Florida state courts bars it. See Davis v. Singletary, 119 F.3d 1471, 1481 (11th Cir. 1997).

There is, however, a small complication here: the State concedes  that the failure to challenge the supreme court's harmless-error analysis in the Rule 3.850 petition does not bar the claim, because (according to the State) a trial court could not review a supreme court action for constitutionality. The State's concession notwithstanding, we think that Davis's rule still bars the claim. As the State goes on to point out, Florida law provides King with a viable means of raising this constitutional error before the Florida Supreme Court: an original habeas corpus proceeding before that court. The Florida Supreme Court indeed routinely entertains such petitions in death cases. See, e.g., Teffeteller v. Dugger, 734 So. 2d 1009, 1024-29 (Fla. 1999); Van Poyck v. Singletary, 715 So. 2d 930 (Fla. 1998); Bottoson v. Singletary, 685 So. 2d 1302 (Fla. 1997); Dougan v. Singletary, 644 So. 2d 484 (Fla. 1994); Occhicone v. Singletary, 619 So. 2d 730 (Fla. 1993). So King had an avenue for relief in Florida courts on this claim.

But King would now stumble on a bar to habeas corpus review by the Florida Supreme Court - that the issue could have been, but was not, raised in an earlier proceeding. See Teffeteller, 734 So. 2d at 1024. That bar was, indeed, the only one the supreme court mentioned in refusing to consider on habeas petition a claim identical to the one that King has made here; the petitioner had not made the claim in his earlier habeas petition. See Mills, 606 So. 2d at 622. Thus, King should have presented the claim in his petition for habeas corpus before the Florida Supreme Court. Because King failed to do so, the claim is procedurally barred. See Teague v. Lane, 489 U.S. 288, 297- 99, 109 S. Ct. 1061, 1068-69 (1989).

B. Batson Claim

This claim, on the other hand, is properly presented, having been raised and rejected on direct appeal to the Florida Supreme Court. But it fails on the merits.

The venire for King's resentencing included three blacks. Both sides accepted the first to come up for peremptory strikes, Jermima McBride. The State exercised a peremptory strike, however, against the next black to come up, a minister and school-bus driver named Robert Coleman. King immediately objected to Coleman's exclusion, relying on a Florida case, Neil v. State, that anticipated the holding in Batson by two years. (Neil held that if the defendant shows a "strong likelihood" that the prosecution has struck prospective jurors solely because of their race, the prosecution must demonstrate that the reasons for the strike were race-neutral; if the defendant does not meet its initial burden, no inquiry into the State's motives may be made at all. See Neil, 457 So. 2d at 486- 87.) The trial court denied this objection without asking the State to articulate a reason for excluding Coleman because it found no "systematic exclusion" of black persons from the jury. (Dir. App. R.7 at 1139.)

Shortly thereafter, questioning began for the third black venireperson, a St. Petersburg Police Department typist named Mary Ann Brinson. Brinson was questioned first by the State, and then by the defense. Brinson vacillated as to whether she could follow the court's instructions. . . . .

During the next sidebar, the State excused Brinson, and King objected. This time, the court deemed it "appropriate" to ask the State to articulate reasons for its decision to strike Brinson. (Id. at 1208.) The State offered two reasons, one racial and one not. The court then overruled King's objection. . .

King attacks these two rulings on his Batson objections on three grounds, which we reject in turn.

1. Burden-Shifting as to Coleman.-King first argues that he had established an inference that the prosecutor excluded Coleman because of his race, accordingly requiring the court to demand from the State a race-neutral explanation. See Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1723 (1986). Whether a defendant has thus made a prima facie showing is (perhaps counterintuitively) treated as a question of fact to be decided by the trial judge. Because the state trial court concluded that King had not made a prima facie showing, the first issue here is whether that ruling deserves deference. Under the pre-1996 version of § 2254, state-court findings of fact generally control, but there is an exception if "the merits of the factual dispute were not resolved in the State court hearing." 28 U.S.C. § 2254(d)(1) (1988). That exception applies here. The state trial court simply did not decide whether King made a prima facie showing under Batson. Rather, the trial court decided (since the hearing was pre-Batson) that King had not made a prima facie showing under Neil v. State. Neil's standard for a prima facie case, however, is higher than Batson's: Neil requires the party opposing a strike to point to facts establishing a "strong likelihood" that the strike had racial motives. 457 So. 2d at 486-87. Batson, on the other hand, requires the party merely to "raise an inference" of improper motive. 476 U.S. at 96, 106 S. Ct. at 1723. The trial court did not determine whether the more relaxed standard of Batson required the State to explain its strikes; on direct appeal, the Florida Supreme Court did not discuss Coleman's exclusion at all. We thus have no on-point state-court finding to defer to.

Nor, as it turns out, do we have the benefit of a finding from the district court. The district court concluded as to Coleman only that King had not established a pattern of discriminatory strikes. But a pattern of strikes is only one fact that could imply a discriminatory motive. See United States v. Blackman, 66 F.3d 1572, 1575 (11th Cir. 1995). The district court did not find whether all the circumstances here amount to a prima facie showing.

A remand for a finding could be in order. A remand is unnecessary here, however, because the district court could not find an inference of discrimination on this record without clearly erring. Cf. United States v. Allison, 908 F.2d 1531, 1537 (11th Cir. 1990); United States v. Dennis, 804 F.2d 1208, 1210 n.22 (11th Cir. 1986) (both declining to remand a Batson-related fact-issue because the record permitted only one finding). The points of evidence that King could point out to create an inference of discrimination are two: first, that Coleman testified that he could follow the law, even regarding the imposition of the death penalty; and second, that Coleman is black. An inability to follow the law - such as that engendered by disagreement with the present death penalty - disqualifies a juror to serve in Florida. See Sanchez-Velasco v. State, 570 So. 2d 908, 915-16 (Fla. 1990). In essence, therefore, King would have us conclude that the mere striking of a qualified black juror raises an inference of race discrimination. We have found no case so concluding.

There is no need here, moreover, to decide that King's two points will never be enough, because there is evidence in the record that undermines any discriminatory inference. First, the State rejected Coleman just a few pages of transcript after accepting another black venireperson; not only was there no pattern of discriminatory strikes, there was a sort of "antipattern." Furthermore, while we do not intend to speculate about the State's motives for striking Coleman, Coleman's profession was an important circumstance undermining any inference of discrimination. He was a minister, and in fact he was in the process of establishing a prison ministry. In various pretrial filings, King's counsel had identified prison ministers as witnesses to King's good character. (See, e.g., Dir. App. R.1 at 67, 156.) These circumstances would obviously diminish Coleman's desirability as a juror. Perhaps because of all these facts, King's counsel acknowledged that "I certainly don't infer any ill motive." (Dir. App. R.7 at 1139.) The only proper finding is that no inference of discrimination has arisen, and it follows that Batson did not oblige the state trial court to inquire into the State's reasons for striking Coleman, or to sustain King's objection.

2. Finding as to Motive for Striking Brinson.-Second, King contends that the trial court erred in accepting the State's reasons for striking Brinson. Here, the state-court finding merits deference. The state court's finding as to the State's motives for striking Brinson binds the federal courts unless the finding is not "fairly supported by the record." 28 U.S.C. § 2254(d)(8) (1988). We interpret the state trial court's finding, which was quoted above, to be that the State had mixed motives, but that the nonracial motives - principally Brinson's equivocation on her death-penalty views - independently sufficed to exclude her. This finding has fair record support.

First, the prosecution could reasonably have worried about Brinson's views. Even though the court's questioning elicited the response only that Brinson was "in the middle" on the death penalty, (Dir. App. R.8 at 1205) - an answer that might by itself seem innocuous - Brinson had earlier denied an ability to follow the law, which made any error in her understanding of death penalty standards that much riskier. And there was reason to think her death-penalty notions erred; as the State said, one could infer from her statement a belief that multiple murders were necessary for death to be appropriate. Second, the court could reasonably see race as a weak factor here. After all, even though the State admitted that race figured into its decision to excuse Brinson, it had accepted one of the other two black persons in the venire. Taken together, these two points are enough to command deference to the state court's finding that nonracial motives sufficed to assure a strike, even if motives were mixed.

Once we defer to that state-court finding, we must conclude that King is not entitled to relief. When the motives for striking a prospective juror are both racial and legitimate, Batson error arises only if the legitimate reasons were not in themselves sufficient reason for striking the juror. See Wallace v. Morrison, 87 F.3d 1271, 1274 (11th Cir. 1996).

3. Failure to Revisit Coleman Strike After Striking of Brinson.-According to King, once the State had exercised a peremptory strike against Brinson, the trial court should have reconsidered its earlier ruling on Coleman. King cites no authority in support of his argument, and we decline to conclude that Batson requires a court to follow