| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 87-5277 |
| [3] | 1988.SCT.42482 <http://www.versuslaw.com>; 486
U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249, 56 U.S.L.W.
4460 |
| [4] | decided: May 31, 1988. |
| [5] | AMADEO v. ZANT |
| [6] | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT. |
| [7] | Stephen B. Bright argued the cause for petitioner. With him on the
brief were Palmer Singleton, Robert L. McGlasson, and William M.
Warner. |
| [8] | Susan V. Boleyn, Senior Assistant Attorney General of Georgia, argued
the cause for respondent. With her on the brief were Michael J. Bowers,
Attorney General, Marion O. Gordon, First Assistant Attorney General, and
William B. Hill, Jr., Senior Assistant Attorney General.*fn* |
| [9] | Marshall, J., delivered the opinion for a unanimous
Court. |
| [10] | Author: Marshall |
| [11] | JUSTICE MARSHALL delivered the opinion of the Court. |
| [12] | In considering petitioner's motion for a writ of habeas corpus, the
District Court concluded that petitioner successfully established cause
for his failure to raise in the state trial court a constitutional
challenge to the composition of the juries that
indicted him, convicted him, and sentenced him to death. This case
presents the question whether the factual findings upon which the District
Court based its conclusion were clearly erroneous. |
| [13] | I |
| [14] | Petitioner Tony B. Amadeo was convicted of murder and
criminal attempt to commit theft in November 1977 in the Superior Court of
Putnam County, Georgia. The jury returned a recommendation of death for
the murder charge, and the court imposed the death sentence. In addition,
the court imposed a 10-year sentence for the attempted theft
charge. |
| [15] | Nine months later, while petitioner was pursuing his direct appeal to
the Georgia Supreme Court, an independent civil action in federal court
brought to light a scheme by the District Attorney and the Jury
Commissioners of Putnam County to underrepresent black people and women on
the master jury lists from which all grand and traverse (petit) juries
were drawn. See Bailey v. Vining, Civ. Action No. 76-199 MAC (MD Ga., Aug.
17, 1978). Bailey involved a challenge to the at-large voting procedures
in Putnam County. In the course of researching the case, one of the
plaintiffs' attorneys reviewed the master jury lists for a period of 20 to
30 years and uncovered a handwritten memorandum on a sheet of legal paper.
The missive bore no caption or other designation, no signature, no date,
and no file stamp from the court Clerk's office. Under the heading
"Result," the sheet listed figures for the number of black people and
women to be placed on the master jury lists that would result in their
under-representation on grand and traverse juries by a range of 5 to 11%.
App. 4. The attorney who discovered the memorandum asked the Clerk of the
court where it came from, and the Clerk responded that it was instructions
from the District Attorney's Office to the Jury Commissioners about the
master jury lists. Id., at 45. According to the Clerk,
the Jury Commissioners followed the memorandum's instructions.*fn1
Id., at 9. |
| [16] | The District Court in Bailey found that the memorandum was
intentionally designed to underrepresent black people and women on grand
and traverse juries without giving rise to a prima facie case of racial
discrimination under this Court's opinion in Swain v. Alabama,
380 U.S. 202, 208-209 (1965) (under-representation of
less than 10% is insufficient to prove intentional discrimination), and
the Fifth Circuit's opinion in Preston v. Mandeville, 428 F.2d
1392, 1393-1394 (1970) (13.3% under-representation constitutes
prima facie case). See App. 10, 78. Concluding that the master jury lists
could not be used for any purpose until the discrimination had been
corrected, the District Court ordered the Jury Commissioners to
reconstitute the lists in conformity with the Constitution. Bailey v.
Vining, supra, at 7. |
| [17] | Citing the District Court's order in Bailey, petitioner's attorneys
raised a challenge to the composition of the Putnam County juries that had
indicted, convicted, and sentenced petitioner in their opening brief on
direct appeal to the Georgia Supreme Court. In addition, petitioner's
attorneys filed a supplemental brief devoted solely to the jury
composition issue, in which they argued that the challenge had not been
waived in Superior Court because they had not had any opportunity to
discover the purposeful discrimination. See App. 14-18. The Georgia
Supreme Court nevertheless affirmed petitioner's convictions and
sentences, rejecting his challenge to the jury on the ground that it
"comes too late."*fn2
Appeals
nonetheless found the record insufficiently developed for proper review of
the question of cause.*fn3
Id., at 1145. The Court of Appeals requested that the District Court
establish on remand "[t]he specifics of the alleged unconstitutional
method of selecting the jurors and whether this method was so devious and
hidden as to be nondiscoverable." Ibid. |
| [18] | On remand, the District Court held an evidentiary hearing at which it
received testimony from petitioner's two trial lawyers, a lawyer who
assisted petitioner's lawyers in developing the jury challenge on direct
appeal, and the lawyer who discovered the memorandum in the Bailey case.
At the conclusion of the hearing, the judge issued an oral order and
memorandum opinion in which he reaffirmed his earlier conclusion that
petitioner had demonstrated adequate cause to excuse his procedural
default. App. 90-93. The court observed that the District Attorney had
made no attempt to deal honestly with petitioner's lawyers and reveal that
he had guided the Jury Commissioners' manipulation of the jury lists. Id.,
at 92. The court concluded that, in light of all the circumstances of the
case, "it was reasonable for [petitioner's lawyers] at the time that they
were appointed, to not challenge the list," ibid., adding, "I don't think
it was a deliberate by-pass in any sense." Id., at 93. The court
specifically found that if petitioner's lawyers had known of the District
Attorney's memorandum, they would have challenged the composition of the
jury. Id., at 92. |
| [19] | A divided panel of the Eleventh Circuit reversed. Amadeo
v. Kemp, 816 F.2d 1502 (1987). The court noted that
the District Court had found that the racial disparity on the jury lists
was concealed by county officials, id., at 1507, but the court stated
simply that it "disagree[d] with that conclusion." Ibid. The court found
instead that "[t]he memorandum detailing the
county's efforts to alter the racial composition of the master jury lists
. . . was readily discoverable in the county's public records" and that
petitioner's lawyers "would have found the memorandum" had they examined
the records. Ibid. The court further found that petitioner's lawyers had
"made a considered tactical decision not to mount a jury challenge because
they wanted to preserve an advantageous jury venire," ibid., although the
court acknowledged that there had been conflicting testimony at the
evidentiary hearing on this point. Id., at 1507, n. 9. In light of these
findings, the court concluded that petitioner had not established cause
for his failure to raise his constitutional challenge in accordance with
Georgia procedural law. |
| [20] | The dissenting judge argued as a threshold matter that the majority
ignored its obligation to defer to the trial court's factual findings
unless they are clearly erroneous. Id., at 1508, 1510, 1511. More broadly,
the dissent maintained that "[w]here the state's efforts to conceal its
misconduct cause an issue to be ignored at trial, the state should not be
allowed to rely on its procedural default rules to preclude federal habeas
review." Id., at 1513. |
| [21] | We granted certiorari, 484 U.S. 912 (1987), and
we now reverse. |
| [22] | II |
| [23] | In Wainwright v. Sykes, 433 U.S. 72 (1977), this
Court adopted the "cause and prejudice" requirement of Francis v.
Henderson, supra, for all petitioners seeking federal habeas relief on
constitutional claims defaulted in state court. The Sykes Court did not
elaborate upon this requirement, but rather left open "for resolution in
future decisions the precise definition of the 'cause'-and-'prejudice'
standard." 433 U.S., at 87. Although more recent
decisions likewise have not attempted to establish conclusively the
contours of the standard, they offer some helpful guidance on the question
of cause. In Reed v. Ross, 468 U.S. 1 (1984), the
Court explained that although a "tactical" or "intentional" decision to
forgo a procedural opportunity normally cannot constitute cause, id., at
13-14, "the failure of counsel to raise a constitutional issue reasonably
unknown to him is one situation in which the [cause] requirement is met."
Id., at 14. The Court later elaborated upon Ross and stated that "the
existence of cause for a procedural default must ordinarily turn on
whether the prisoner can show that some objective factor external to the
defense impeded counsel's efforts to comply with the State's procedural
rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).
We explained that "a showing that the factual or legal basis for a claim
was not reasonably available to counsel, or that 'some interference by
officials' made compliance impracticable, would constitute cause under
this standard." Ibid. (citations omitted). |
| [24] | The Court of Appeals did not contest, nor could it, that the facts
found by the District Court in this case permitted the District Court's
legal conclusion that petitioner had established cause for his procedural
default. If the District Attorney's memorandum was not reasonably
discoverable because it was concealed by Putnam County officials, and if
that concealment, rather than tactical considerations, was the reason for
the failure of petitioner's lawyers to raise the jury challenge in the
trial court, then petitioner established ample cause to excuse his
procedural default under this Court's precedents. The situation described
by the District Court fits squarely, indeed almost verbatim, within our
holdings in Ross and Carrier. First, the District Court essentially found
that the basis for petitioner's claim was "reasonably unknown" to
petitioner's lawyers, Reed v. Ross, supra, at 14, because of the
"objective factor" of "'some interference by officials.'" Murray v.
Carrier, supra, at 488 (citation omitted). Second, the District Court's
finding of no deliberate bypass amounted to a conclusion that petitioner's
lawyers did not make a "tactical" or "intentional" decision to forgo the
jury challenge. Reed v. Ross, supra, at 13-14. Hence,
the Court of Appeals offered factual rather than legal grounds for its
reversal of the District Court's order, concluding that neither of the two
factual predicates for the District Court's legal conclusion was
adequately supported by the record. The Court of Appeals never identified
the standard of review that it applied to the District Court's factual
findings. It is well settled, however, that a federal appellate court may
set aside a trial court's findings of fact only if they are "clearly
erroneous," and that it must give "due regard . . . to the opportunity of
the trial court to judge of the credibility of the witnesses." Fed. Rule
Civ. Proc. 52(a); see Anderson v. Bessemer City, 470 U.S. 564, 573-576 (1985) (describing clearly-erroneous review
generally); Wade v. Mayo, 334 U.S. 672, 683-684
(1948) (applying clearly-erroneous review in federal habeas proceeding).
We have stressed that the clearly-erroneous standard of review is a
deferential one, explaining that "[i]f the district court's account of the
evidence is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence
differently." Anderson v. Bessemer City, supra, at 573-574. After
considering the "record viewed in its entirety" in the instant case, we
conclude that the Court of Appeals failed properly to apply this
standard. |
| [25] | A |
| [26] | The first factual finding rejected by the Court of Appeals is the
District Court's conclusion that the District Attorney's memorandum was
concealed by county officials and therefore was not reasonably available
to petitioner's lawyers. The Court of Appeals acknowledged that the
District Court had found these facts. See 816 F.2d, at 1507. But without examining the record or discussing its
obligations under Rule 52(a), the court simply expressed disagreement and
substituted its own factual findings for those of the District Court. See
ibid. (finding that the memorandum was "not concealed," but
rather "was readily discoverable in the county's public
records"). |
| [27] | Even assuming, somewhat generously, that the Court of Appeals
recognized and applied the appropriate standard of review, we cannot agree
that the District Court's factual findings were clearly erroneous. The
District Court's finding of concealment is supported by the nature of the
memorandum itself, which was part of the documentary record before the
court. See App. 44. The District Attorney's memorandum was handwritten,
unsigned, unstamped, and undesignated -- physical characteristics that
strongly belie the notion that the document was intended for public
consumption. Moreover, the attorney who originally discovered the
memorandum testified that he did so as part of a sweeping investigation of
20 to 30 years' worth of jury lists. Id., at 42. He further testified that
the memorandum was "not on the first page of the materials that I was
perusing but somewhere within the stack of materials that [the court
Clerk] gave me." Id., at 44. This testimony was not disputed, and the
District Court permissibly could have concluded that the memorandum was
discovered by mere fortuity and that it would not have been "readily
discoverable" had petitioner's attorneys investigated the jury lists that
were relevant to petitioner's trial. Indeed, the Court of Appeals
identified no evidence in the record -- aside from the fact that the
memorandum eventually was discovered -- that contradicted the District
Court's conclusions about the concealment and availability of the
memorandum. The Court of Appeals therefore should not have set aside as
clearly erroneous the District Court's findings on these
matters. |
| [28] | B |
| [29] | The second factual finding rejected by the Court of Appeals is the
District Court's conclusion that petitioner's lawyers did not deliberately
bypass the jury challenge. Here the Court of Appeals drew more heavily
upon the record below,
citing testimony from the evidentiary hearing in the District Court to the
effect that petitioner's lawyers considered a jury challenge, thought they
could win it, but decided not to bring the challenge because they were
pleased with the jury ultimately empaneled. See 816 F.2d, at
1506. The Court of Appeals emphasized that petitioner is a
white man with a history of assaulting black people and that petitioner's
lawyers therefore were not eager to have more black people on the jury.
Ibid. The court also cited testimony from the lawyers that they were
satisfied with the jury venire because it contained several members of a
charismatic religious group that had seemed sympathetic to petitioner.
Ibid. Most damaging to petitioner's case on habeas was the court's
reliance on the statement of one of his lawyers that "'we made a tactical
decision, a knowing, tactical decision not to challenge the array.'"
Ibid., quoting 2 Record 13, App. 23. |
| [30] | In the face of this potent testimony from petitioner's trial lawyers,
petitioner argues that even if the lawyers did consider and deliberately
bypass a jury challenge, the challenge that they bypassed was not the same
challenge that is now being pressed, because the only argument available
at the time of trial was a statistical challenge rather than a challenge
based on direct evidence of intentional discrimination. The dissenting
Circuit Judge also advanced this argument. 816 F.2d, at
1510-1511 (Clark, J., dissenting). In the alternative,
petitioner argues that the District Court's finding of no deliberate
bypass was supported by other testimony and evidence in the record and
thus should not have been set aside by the Court of Appeals. |
| [31] | It is not necessary to address the merits of petitioner's first
argument, because we agree that the District Court's conclusion that
petitioner's lawyers did not deliberately bypass the jury challenge was
not clearly erroneous. Although there is significant evidence in the
record to support the findings of fact favored by the Court of Appeals,
there is also significant evidence in the record to support the District
Court's contrary conclusion,
as we describe in more detail below. We frequently have emphasized that
"[w]here there are two permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous." Anderson v. Bessemer
City, 470 U.S., at 574, citing United States v.
Yellow Cab Co., 338 U.S. 338, 342 (1949), and Inwood
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982). We reaffirm that stricture today. |
| [32] | First, the District Court reasonably could have concluded that the
lawyers' statements that they considered but ultimately rejected a jury
challenge simply were not credible. Petitioner's trial lawyers, who were
no longer representing him when they testified at the evidentiary hearing,
had significant incentive to insist that they had considered every
possible angle: they had lost a capital murder trial, and another lawyer
had uncovered evidence of serious constitutional error in the proceedings.
Moreover, the lawyers' statements that they thought they could win a jury
challenge if they brought it are open to serious doubt. For one thing, the
lawyers were quite wrong that they could have won a jury challenge; the
under-representation of blacks and women on the master jury lists was
engineered precisely to avoid a successful statistical challenge. Absent
the "smoking gun" of the memorandum or some other direct evidence of
discrimination, a statistical challenge would have certainly failed. In
addition, the lawyers, when pressed, could offer no explanation for why
they thought they could win such a jury challenge.*fn4
Thus, it was reasonable for the District Court
to reject the lawyers' testimony and conclude that "ignorance" of the
strength of the jury challenge -- rather than strategy -- was the true
reason for the lawyers' failure to raise the claim at trial. App.
93. |
| [33] | Second, the District Court's refusal to credit the testimony of
petitioner's lawyers was supported by the directly contradictory testimony
of two other witnesses. Christopher Coates, the lawyer who discovered the
memorandum in the Bailey case, testified that when he told E. R. Lambert,
one of petitioner's lawyers, about the memorandum and the result in the
Bailey case, Lambert said: "'Well, we did not know that . . . I wish that
we had known it because we were looking for every issue to raise because
it was a serious case.'" App. 47. In addition, C. Nelson Jarnagin, a
lawyer who assisted Lambert on appeal, testified that Lambert told him:
"'If I'd known about this jury issue prior to trial, I would've raised
it.'" Id., at 59-60. It was within the District Court's discretion as
factfinder to credit these statements over the potentially self-interested
testimony of petitioner's lawyers.*fn5
See Anderson v. Bessemer City, supra, at 575 (stressing the special
deference accorded determinations regarding the credibility of witnesses).
Indeed, the Court of Appeals even noted the conflict in the testimony
before the District Court, see 816 F.2d, at 1507, n.
9, and its failure to defer to the District Court's findings in light of
this recognition is difficult to fathom. |
| [34] | Finally, the District Court's conclusion that petitioner's lawyers did
not deliberately bypass the jury challenge was supported by events
contemporaneous with the jury selection process. Petitioner's lawyers
filed pretrial motions for a change
of venue and for a continuance to the next term of Superior Court, both of
which, if granted, would have resulted in an entirely different jury
venire. See App. 61-65. Both motions cited juror prejudice and claimed
that a fair trial was not possible in Putnam County at that time. The
District Court permissibly could have concluded that these motions and
sworn statements undercut the lawyers' statements that they were
completely satisfied with the jury venire they had drawn. Indeed, the
District Court might well have considered this evidence more persuasive
than the after-the-fact assessments of petitioner's lawyers or the other
witnesses. |
| [35] | To be sure, the District Court could have been more precise about the
bases for its factual conclusions. Indeed, had the District Court
identified the record evidence that supported its findings or made clear
that it was relying upon credibility determinations, the Court of Appeals
might have deferred to its factual findings without dispute. The District
Court's lack of precision, however, is no excuse for the Court of Appeals
to ignore the dictates of Rule 52(a) and engage in impermissible appellate
factfinding. See Icicle Seafoods, Inc. v. Worthington, 475 U.S.
709, 712-715 (1986). Because there is sufficient evidence in
the record considered in its entirety to support the District Court's
factual findings, the Court of Appeals should not have set them aside.
Respondent does not dispute that those factual findings are sufficient as
a matter of law to support a finding of cause.*fn6
The Court of
Appeals thus erred in holding petitioner's jury challenge to be
procedurally barred from federal habeas review. Accordingly, the judgment
of the Court of Appeals is reversed, and the case is remanded for
proceedings consistent with this opinion. |
| [36] | It is so ordered. |
| [37] | Disposition |
| [38] | 816 F.2d 1502, reversed and
remanded. |
| [39] | Counsel FOOTNOTES |
| [40] | * Julius L. Chambers and Charles Stephen Ralston filed a brief for the
NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging
reversal. |
|
| |
| Opinion Footnotes | |
|
| |
| [41] | *fn1
The Jury Commissioners were able to determine the race of prospective
jurors because the master jury lists were drawn from the list of
registered voters in Putnam County, which was maintained on a racially
segregated basis. See Bailey v. Vining, Civ. Action No. 76-199 MAC (MD
Ga., Aug. 17, 1978), p. 9. |
| [42] | *fn2
Georgia law requires that a known challenge to the composition of the
grand jury be raised before indictment, see Sanders v. State, 235 Ga. 425,
425-426, 219 S. E. 2d 768, 771 (1975), and that a challenge to the
composition of the traverse jury be raised before voir dire commences, see
Spencer v. Kemp, 781 F.2d 1458, 1463-1464 (CA11 1986)
(en banc). |
| [43] | *fn3
Noting that the State apparently had conceded that the Putnam County jury
selection procedures were unconstitutional, the Court of Appeals found the
prejudice requirement to be satisfied. 773 F.2d, at 1145, n. 6. |
| [44] | *fn4
See App. 28:
"THE COURT: But I mean what led you to believe you would win if you
challenged [the jury] . . . ? "WITNESS PRIOR: I can't answer that; I think
we just had a general knowledge that it probably wasn't statistically
right and I don't know -- I don't think we had any investigation to back
that up." See also id., at 39 (witness Lambert offering no specific answer
to the same question). |
| [45] | *fn5
To be sure, the testimony of these two witnesses was hearsay, and
Jarnagin's statement was prompted by a leading question on redirect
examination. Nonetheless, no objection to either statement was made at the
hearing, and the State does not argue that the District Court's admission
of the statements was "plain error" under Federal Rule of Evidence
103(d). |
| [46] | *fn6
Respondent seems to argue, however, that even if cause is found to be
established, petitioner suffered no cognizable prejudice. See Tr. of Oral
Arg. 57-58. This argument is irreconcilable with respondent's
predecessor's failure to dispute in either the District Court or the Court
of Appeals that the finding in Bailey of intentional racial discrimination
in the composition of the master jury lists satisfies the requirement of
prejudice. See 2 Record 67; Amadeo v. Kemp, 773
F.2d, at 1145, n. 6. Having conceded this point in both courts
below, respondent will not be heard to dispute it here. See Washington v.
Yakima Indian Nation, 439 U.S. 463, 476, n. 20 (1979)
(alternative ground for affirmance must be properly raised
below). |