Peters and Gometz decisions were directly applicable to his situation. Petitioner stated in his memorandum that "in Peters, ... the Supreme Court held a white man had standing to raise a systemic challenge even though the discrimination was being practiced against another race." (Defendant's [Petitioner's] Memorandum in Support of Habeas Petition at 3).
However, petitioner now disavows the precedential value of Peters and Gometz in his reply to respondent's answer. Petitioner currently contends that he did not have the requisite standing to raise a Swain challenge at the time of his trial. In fact, petitioner now states that "it was not until 1991 that the Supreme Court held that a white man could challenge the exclusion of African-Americans from the jury panel," citing Powers. (Plaintiff's [Petitioner's] Response to Defendant's Answer to Habeas Petition at 2). Petitioner contends that his alleged lack of standing constitutes cause sufficient to excuse his procedural default.
Petitioner was right the first time; he had the requisite standing to raise his current challenge during the pendency of his state court proceedings. The Swain case provided petitioner, at the time of his trial and initial appellate proceedings, with a sufficient legal basis to support his current claim, and the Peters and (less so, because of timing) Gometz cases clearly provided petitioner with the requisite standing to raise such a claim at the time of his trial and initial appellate proceedings.
The law of cross-racial standing, not to say the law regarding racialist peremptory challenges in general, developed in the case of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Batson case removed the requirement that a defendant show systematic exclusion in addition to exclusion in his particular trial. After 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." Id. at 96, 106 S. Ct. at 1723. In articulating the requirements for a new Batson claim, the Batson court at the very least strongly suggested that the defendant must be of the same "cognizable racial group" as the excluded juror to assert a claim of actionable race bias in that defendant's jury selection based on evidence solely from his trial. Id.; see also Holland v. McGinnis, 963 F.2d 1044, 1053 (7th Cir. 1992), cert. denied, 122 L. Ed. 2d 360, 113 S. Ct. 1053 (1993). Powers in 1991 allowed cross-racial standing in Batson claims. Powers, 499 U.S. at 409, 111 S. Ct. at 1369. Powers is not available to give Neumann a Batson claim here, since his direct appeal was long final when the "new rule" in Powers came down. Holland, 963 F.2d at 1053-55. But remaining to consider is whether Batson effects the analysis of the availability of a Swain-type claim to Neumann during his state direct appeal. Batson was decided April 1986; the Illinois Appellate Court affirmed Neumann's conviction initially in August 1986 and denied rehearing in November 1986.
One fundamental point here is that Swain -claim cross-racial standing and Batson- claim cross-racial standing have two different histories. Batson -claim cross-racial standing did not arrive until Powers. Swain -claim cross-racial standing is traced to the Supreme Court's Peters decision. There are two sources of support for assigning a meaningful distinction to the cross-racial standing histories of Batson and Swain claims. First, Batson, in articulating a test that would exclude cross-racial standing, did not come to grips either with Peters or any circuit court cases reading Peters as approving cross-racial standing for Swain claims, suggesting it did not need to come to grips with those cases because they applied to a different sort of claim. Second, the Powers decision used as a basis for its Batson -claim analysis the Peters analysis on Swain claims: "In Peters v. Kiff 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972), Justice White spoke of 'the strong statutory policy of § 243, which reflects the central concern of the Fourteenth Amendment.' Id., at 507, 92 S. Ct. at 2170 (concurring in judgment). The Court permitted a white defendant to challenge the systematic exclusion of black person from grand and petit juries." Powers, 499 U.S. at 408, 111 S. Ct. at 1369.
Viewed as such, Batson's implicit rejection of cross-racial standing for Batson-type claims is not directly relevant to the history of Swain-type claims.
Additionally, leaving aside any distinctions in the history of cross-racial standing, it would be hard to categorize Batson on standing as the "cause" of Neumann's default. It is not as if Neumann, bolstered by Peters (and later by Gometz), had been pressing a systematic exclusion claim when Batson came along and caused him to withdraw his jury-selection objections. The jury selection issue was nowhere to be seen on direct appeal. And since the jury selection issue he could press now (systematic exclusion plus exclusion in his trial) was reasonably available at the state court level, that claim is defaulted.
In sum, sufficient legal bases were available to petitioner and his counsel at the time of petitioner's state proceedings. This court cannot conclude that some external, objective factor resulted in petitioner's failure to preserve or raise his current legal claim during his state court proceedings.
2. Availability of Factual Basis
Petitioner next contends that he was unable to introduce evidence of systematic racial discrimination at trial because such information was not available or known to him at the time of his trial. Similarly, petitioner states that "the record did not contain systemic information which would have permitted review on direct appeal." (Petition for Writ of Habeas Corpus at 8, P 13.) Finally, petitioner contends that such information was outside of the scope of appropriate trial issues and that it was unlikely that the trial court would have entertained such a challenge during the course of his trial. Petitioner argues that these factors constitute sufficient cause to excuse procedural default.
The factual argument petitioner now asserts was similarly available at the time of his state proceedings. Therefore, petitioner now wishes to introduce facts that were not introduced during state proceedings. But petitioner fails to identify any facts existing now that were not in existence at the time he was proceeding in the Illinois state courts.
The affidavits submitted by petitioner, including that of petitioner's trial and appellate counsel (now petitioner's counsel on habeas review), contradict petitioner's factual argument. In fact, the affidavits allege that facts relating to the state's systematic use of race-based peremptory strikes were available at the time petitioner was pursuing state court relief. Specifically, each affidavit states that "at that time, it was very common for the prosecutors in Cook County to exclude African Americans from juries. I believed then and now that racial discrimination was the reason for the practice." (emphasis added).
Evidence of systematic racial discrimination was as readily available to petitioner at the time of his trial as it is today. Petitioner's trial counsel should have attempted to gather and introduce into the record evidence of systematic discrimination during the course of petitioner's trial. In fact, in conjunction with his objection challenging the jury selection, petitioner's counsel could have sought leave to introduce evidence that would meet the Swain standard. United States ex. rel. Allen v. Hardy, 583 F. Supp. 562 (N.D. Ill. 1984), denial of certificate of probable cause affirmed sub. nom. Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986). At that point the state judge could have addressed the issue in any of several ways. For example: counsel "might have been granted a continuance to gather evidence on systematic exclusion" of potential jurors, or counsel "might have made an offer of proof and proceeded with the trial." Id. at 563.
Had petitioner objected to the state's use of its peremptory strikes, the issue would have been within the scope of appropriate trial issues to be addressed by the court. Petitioner cannot seriously argue that the trial court was "unlikely" to have entertained an attempt to introduce evidence into the trial record when petitioner in fact failed to even attempt such. At the very least, the trial court was obligated to allow petitioner to make an offer of proof with respect to the existence of systematic exclusion. Petitioner failed to make such an offer of proof. This court cannot conclude that some external "objective" factor resulted in petitioner's failure to preserve or raise his current factual claim during the pendency of his state court proceedings.
Overall then, petitioner fails to demonstrate cause sufficient to overcome petitioner's procedural default. The mere fact that petitioner's 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 procedural default. See Engle v. Isaac, 456 U.S. at 133-34 102 S. Ct. at 1575. Petitioner does not present a compelling case for overriding the general principle that a federal court should not intrude in a state's criminal process when the state's highest court has not had an opportunity to rule on the constitutional issue presented.
Lawrence Neumann's petition for writ of habeas corpus is denied with prejudice.
Date: APR 21 1995
JAMES H. ALESIA
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to a hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that petitioner Lawrence Neumann's petition for writ of habeas corpus is denied with prejudice.
April 21, 1995