Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84 C 1934, William T. Hart, Judge.
Before BAUER, Chief Judge, CUMMINGS, WOOD, CUDAHY, POSNER, COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges.
The original panel decision in this case reversing the order of the district court that denied the appellant Frank Teague's petition for a writ of habeas corpus was vacated, United States ex rel. Teague v. Lane, 779 F.2d 1332 (7th Cir. 1985), and the case set for rehearing en banc pursuant to Circuit Rule 16(e).*fn1 We now affirm the order of the district court denying Teague's petition for a writ of habeas corpus.
Teague, a black man, was convicted after a jury trial in an Illinois court for attempted murder and armed robbery.*fn2 In the process of selecting the Teague jury, the prosecution in the exercise of its peremptory challenges excluded ten black jurors. In the exercise of the defendant's peremptory challenges, the only other black on the juror list was removed. The defendant initially challenged for State's use of its peremptory challenges after the state had exercised six of its peremptories and again after jury selection was completed claiming that the State's exclusion of all blacks from the jury deprived him of his right to "trial by a jury of his peers." The trial court rejected the defendant's argument that he was deprived of a "trial by his peers" stating that "the jury appears to be a fair jury" and the Illinois Court of Appeals affirmed the defendant's conviction explaining that no restriction could be placed on a prosecutor's exercise of peremptory challenges in the absence of a demonstration that blacks had been systematically excluded under the Swain v. Alabama test. People v. Teague, 108 Ill. App. 3d 891, 64 Ill. Dec. 401, 439 N.E.2d 1066 (1st Dist. 1982). The Illinois Supreme Court denied Teague's Petition for Leave to Appeal, 93 Ill. 2d 547 (1983), and the United States Supreme Court denied certiorari. 464 U.S. 867, 104 S. Ct. 206, 78 L. Ed. 2d 179 (1983). Teague then filed a petition for a writ of habeas corpus in the federal district court. The district court denied Teague's petition for a writ of habeas corpus explaining that Teague's claim that his constitutional rights were violated by the prosecution's use of its peremptories was "foreclosed by Swain and the Seventh Circuit's recent decisions in United States v. Clark [737 F.2d 679 (7th Cir. 1984)], and United States ex rel. Palmer v. DeRobertis, [738 F.2d 168 (7th Cir. 1984)]."
In Batson, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the Supreme Court decided that "the 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."*fn3 The Batson decision expressly overruled Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), but did not address the sixth amendment question concerning the right to a trial by an impartial jury. In Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986), the Supreme Court held that Batson was not to be applied "retroactively [to cases such as Teague's] on collateral review of convictions that became final before our opinion [in Batson] was announced."*fn4 However, even if Batson were to be applied retroactively to Teague's case, it would not control this court's disposition of Teague's petition for habeas corpus, since Teague challenges his conviction on sixth amendment*fn5 grounds and does not raise an equal protection claim subject to the holdings in Batson and Allen.*fn6
In Batson v, Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court held that "The 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." Id. at 1719. The Batson decision adopted a new analysis for establishing whether the prosecution's use of its peremptory challenges had violated the Equal Protection Clause and "reject[ed] this [the Swain v. Alabama] evidentiary formulation [for establishing Equal Protection violation] as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause." Id. Under Batson,
"a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, supra, 430 U.S. at 494, 97 S. Ct. at 1280, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, 345 U.S. at 562, 73 S. Ct. at 892. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination."
Id. at 1722-23. The Swain court refused to adopt a rule that would allow a criminal defendant to establish an Equal Protection violation simply by demonstrating that in his particular case, the prosecution had used its peremptories to remove all blacks from the jury actually empaneled to try the defendant:
"In the light of the purpose of a peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.
380 U.S. at 223. Instead, Swain required that a defendant seeking to establish an Equal Protection violation must demonstrate that the prosecutor systematically used his peremptories to exclude Blacks or other suspect classes from petit juries in case after case, and not just that all Blacks were peremptorily removed from the jury in the particular defendant's case:
"We have decided that it is permissible to insulate from the inquiry the removal of Negroes of a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, a particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors and the jury commissioners, and who survive challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance."
Batson rejected this approach as a requirement for establishing an Equal Protection violation based on the prosecutor's use of peremptory challenges. The court explained that Swain: "Placed on defendants the crippling burden of proof" and thus "prosecutors peremptory challenges are now arguably immune of constitutional scrutiny." 106 S. Ct. at 1720-21 (footnote omitted). Accordingly, the court in Batson rejected the Swain court's "evidentiary formulation [for establishing that a prosecutor used its peremptories for a constitutionally impermissible purpose] as inconsistent with standards that have developed since Swain for assessing a prima facie case under the Equal Protection Clause." Id. at 1719.
The Batson decision makes clear that the court decided the case on equal protection grounds and declined to rule on Batson's claimed sixth amendment violation:
"We agree with the State that resolution of the petitioner's claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner's Sixth Amendment arguments."
Batson, 106 S. Ct. at 1716 n.4.*fn7 Although in Batson a criminal defendant was allowed to establish a violation of the equal protection clause by alleging, as Teague has, that the prosecution exercised its peremptories solely on the basis of a prospective juror's race, the Supreme Court's Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986) decision, precludes an application of the Batson rule to Teague's appeal. In Allen, decided just two months after Batson, the court held that Batson did not apply "retroactively on collateral review of convictions that became final before our opinion [in Batson] was announced." The court went on to explain that:
"By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Batson v. Kentucky."
Id. at n.1. Teague's appeals were rejected by the Illinois appellate courts and his petition for writ of certiorari from the United States Supreme Court was denied on October 3, 1983. See Teague v. Illinois, 464 U.S. 867, 78 L. Ed. 2d 179, 104 S. Ct. 206 (1983). Thus, Teague's case is "final" for purposes of applying Batson retroactively and therefore our review of Teague's appeal is limited solely to his sixth amendment argument, an argument the Supreme Court declined to consider in Batson.
Essentially, Teague relies on Smith v. Texas, 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164 (1940), and subsequent Supreme Court decisions, to argue that the "fair cross section of the community" requirement as found in the sixth amendment is applicable to jury pools from which the petit jury is selected to reflect the trial community and must likewise be applied to the jury ultimately empaneled (petit jury) for trial. Teague asserts that the use of peremptory challenges to exclude certain classes of a community from the petit jury in effect undermines the Supreme Court's fair cross-section requirement in the jury pool and contravenes the very idea of a jury composed of the peers and equals of the person on trial. Teague acknowledges that the Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975), refused to extend the fair cross-section requirement to the petit jury, but maintains that two Supreme Court cases, Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970), and Ballew v. Georgia, 435 U.S. 223, 55 L. Ed. 2d 234, 98 S. Ct. 1029 (1978), addressing the small number of jurors on petit juries support his argument that the sixth amendment requires the fair cross section principle be applied to petit juries as well as the jury pools they are drawn from. Teague asserts that Williams v. Florida, stands for the proposition that the sixth amendment requires that the petit jury must be selected pursuant to procedures that provide a "fair possibility" of obtaining a petit jury representative of the community. Accordingly, Teague reads the Supreme Court's determination in Ballew v. Georgia, that a trial by jury of less than six persons*fn8 violates the sixth amendment because it in effect mathematically decreases the opportunity for meaningful representation of a cross section of the community as supporting his position. Teague interprets Ballew as meaning that the use of peremptory challenges to remove prospective jurors on the basis of race alone violates the sixth amendment since exercising one's peremptory challenges on the basis of race alone decreases the "opportunity" for minority representation on the petit jury and thereby prevents the jury from reflecting a fair cross-section of the community. Therefore, according to Teague, the use of peremptories to remove prospective jurors on the basis of race alone violates the sixth amendment since the petit jury ultimately empaneled does not reflect a fair cross-section of the community.
Teague's argument that the petit jury should be considered the same as the jury pool for purposes of the fair cross-section requirement rests on the mistaken assumption that the word "impartial" as used in the sixth amendment requires that the petit jury reflect a cross-section of the community from which it is drawn. Teague has not argued to this court nor any of the other courts that have heard this case, that the jury that tried him was not impartial. Rather, he asserts only that the jury in his case did not represent a cross-section of the community wherein he was tried. We refuse to break new grounds and read such a requirement into the sixth amendment for the decisions of the United States Supreme Court to date fail to support such an argument. Since we agree with the United States Supreme Court and not with Teague's theory that the sixth amendment requires that the petit jury be identical to the community where the jury is drawn from, we reject Teague's assertion that the prosecutor's use of his peremptories to remove ten prospective black jurors from the petit jury violated his sixth amendment right to trial by an impartial jury.
The sixth amendment provides that:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ."
The United States Supreme Court has consistently interpreted the sixth amendment right to trial by an impartial jury to require a jury that is "indifferent" and that the petit jury be selected from a "fair cross-section of the community:" "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors," Irvin v. Dowd, 366 U.S. 717, 723, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961), and "A fair possibility for obtaining a jury constituting a representative cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 529, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). In Taylor, the court explained:
"The unmistakable import of this court's opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial. Recent federal legislation governing jury selection within the federal court system has a similar thrust. Shortly prior to this court's decision in Duncan v. Louisiana, supra, the Federal Jury Selection and Service Act of 1968 was enacted. In that Act, Congress stated 'The policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.' 28 U.S.C. § 1861. In that Act, Congress also established the machinery by which the stated policy was to be implemented. 28 U.S.C. §§ 1862 through 1866. Passing this legislation, the Committee Reports of both the House and the Senate recognized that the jury plays a political function in the administration of the law and that the requirement of a jury's being chosen from a cross section of the community was fundamental to the American system of justice. Debate on the floors of the House and Senate on the Act invoked the Sixth Amendment, the Constitution generally, and prior decisions of this Court in support of the Act."
419 U.S. at 529-31 (footnotes omitted). Although the Supreme Court has interpreted the sixth amendment to require that the jury in a criminal trial be chosen from a jury pool that represents a fair cross-section of the community, it has never interpreted the explicit command of the sixth amendment that the petit jury itself be "impartial" to require that the petit jury actually represent each and every element of the community from which it is selected. Instead, the fair cross-section requirement, like all constitutionally mandated characteristics of the jury, has its origins in the purpose the Supreme Court has interpreted the sixth amendment right to jury trial to serve:
"The purpose of the jury is to guard against the exercise of arbitrary power -- to make available the common sense judgment of the community as a hedge against the over zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of the judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage, but is also critical to public confidence in the fairness of the criminal justice system."
Taylor, 419 U.S. at 531 (citation omitted). Contrary to Teague's assertion that the Supreme Court decisions in Williams and Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628 (1972), require us to apply the fair cross-section requirement to the petit jury, those decisions, as well as the decisions in Ballew and Burch v. Louisiana, 441 U.S. 130, 60 L. Ed. 2d 96, 99 S. Ct. 1623 (1979), require only that the jury selection process provide for the "possibility" that the jury empaneled reflect a fair cross-section of the community. The decisions of the Supreme Court make clear that absent a pattern of systematic exclusion of a particular class from the petit jury, no constitutional wrong has occurred.*fn9 As the court explained in Apodaca:
"There are two flaws in this argument [that the fair cross-section requirement requires a unanimous verdict]. One is petitioners' assumption that every distinct voice in the community has a right to be represented on every jury and a right to prevent conviction of a defendant in any case. All that the Constitution forbids, however, is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels; a defendant may not, for example, challenge the makeup of a jury merely because no members of his race are on the jury, but must prove that his race has been systematically excluded. See Swain v. Alabama, 380 U.S. 202, 208-09, 85 S. Ct. 824, 829, 13 L. Ed. 2d 759 (1965); Cassell v. Texas, 339 U.S. 282, 286-287, 70 S. Ct. 629, 631, 94 L. Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 403-404, 65 S. Ct. 1276, 1279, 89 L. Ed. ...