Jerry Mahaffey v. Anthony Ramos ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3916
JERRY M AHAFFEY,
Petitioner-Appellant,
v.
A NTHONY R AMOS,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:95-cv-06623—James B. Zagel, Judge.
A RGUED D ECEMBER 2, 2009—D ECIDED D ECEMBER 21, 2009
Before B AUER, K ANNE and T INDER, Circuit Judges.
B AUER, Circuit Judge. Jerry Mahaffey burglarized a
home in which he murdered one person, raped and
murdered another, and attempted to murder a third. In
seeking relief from his life sentence, he contests not that
he is actually innocent of these crimes, but that he
deserves a new trial because the prosecution improperly
used peremptory challenges to exclude members of his
race from the jury. But the state court found that the
2 No. 08-3916
prosecutor’s use of peremptory challenges was motivated
by legitimate, race-neutral concerns. As this finding was
not clearly unreasonable, we affirm the district court’s
denial of Mahaffey’s habeas petition.
I. BACKGROUND
In 1983, Mahaffey burglarized a home in which he
murdered Dean Pueschel, raped and murdered Jo Ellen
Pueschel, and attempted to murder, by beating and
stabbing, their eleven-year-old son Richard. The evidence
of Mahaffey’s guilt of these crimes is overwhelming,
including Richard’s identification of Mahaffey, Mahaffey’s
confession, and that property taken from the Pueschel
home was found in Mahaffey’s home. Indeed, Mahaffey’s
attorney admitted at oral argument that the State of
Illinois “can prove its case” even now, almost three de-
cades later, were we to order a new trial. But Mahaffey
seeks relief not because he is actually innocent of the
crimes, but because he claims the prosecution violated
the Fourteenth Amendment by excluding blacks from
the jury on account of their race.
Mahaffey is black, the victims were white, and the jury
that convicted Mahaffey was all white except for one
Asian-American. While Mahaffey’s direct appeal to the
Illinois Supreme Court was pending, the United States
Supreme Court decided Batson v. Kentucky, 476 U.S. 79(1986), which held that a defendant may rely solely on
evidence at his own trial to establish that a prosecutor’s
use of peremptory challenges on the basis of race
denied him equal protection, and Griffith v. Kentucky, 479
No. 08-3916 3
U.S. 314 (1987), which held that Batson applied retroac-
tively. So the Illinois Supreme Court directed the trial
court to conduct a Batson hearing to determine whether
the prosecution had violated the Fourteenth Amend-
ment in employing its peremptory challenges. After
conducting that hearing, the state trial judge concluded
that Mahaffey had failed to establish a prima facie case of
discrimination under Batson. The Illinois Supreme Court
affirmed, and in 1995 Mahaffey petitioned the federal
district court for a writ of habeas corpus, which the
district court declined to issue. We reversed, finding that
Mahaffey indeed established his prima facie case, and
ordered the district court to grant the writ unless the
state trial court held a new hearing on Mahaffey’s Batson
claim, this time requiring the prosecution to come
forward with race-neutral explanations for each of the
challenged strikes. Mahaffey v. Page, 162 F.3d 481 (7th Cir.
1998), rev’g 151 F.3d 671 (7th Cir. 1998). The trial court
held a new hearing in which it received the prosecu-
tion’s testimony and heard oral argument, and concluded
that in light of the proffered justifications, Mahaffey
still failed to establish his burden of proving purposeful
discrimination. The Illinois Appellate Court affirmed and
the Illinois Supreme Court denied leave to appeal on
December 1, 2005.
On November 21, 2006, Mahaffey filed in the federal
district court a “motion to reinstate” the 1995 habeas
petition’s Batson claim, which the district court promptly
granted. On February 19, 2008, Mahaffey filed a “memo-
randum” in support of his Batson claim. The district court
then dismissed Mahaffey’s habeas petition as untimely,
4 No. 08-3916
construing the memorandum, not the motion to
reinstate, as his new substantive habeas petition. It then
granted a certificate of appealability as to the timeliness
of Mahaffey’s habeas petition and the merits of his
Batson claim.
II. DISCUSSION
A. Timeliness of Habeas Petition
We review the district court’s denial of Mahaffey’s
habeas petition as barred by the statute of limitations
de novo. Lo v. Endicott, 506 F.3d 572, 574 (7th Cir. 2007).
Congress mandates that a one-year statute of limitations
shall apply to “an application for a writ of habeas corpus.”
28 U.S.C. § 2244(d)(1). Mahaffey’s habeas petition filed
in 1995 challenging the state trial court’s first Batson
hearing does not satisfy the statute of limitations,
because we treat the state trial court’s subsequent Batson
hearing as a “new holding” requiring a “new petition.”
Coulter v. McCann, 484 F.3d 459, 466 (7th Cir. 2007). At
issue then is what constitutes Mahaffey’s new petition:
(1) his motion to reinstate, or (2) his memorandum in
support of his Batson claim. If the motion to reinstate,
then we may consider the merits of his petition because
it was filed within the limitations period, running from
February 23, 2006, ninety days after Mahaffey’s new state-
court judgment became final. 28 U.S.C. § 2244(d)(1)(A).
If the memorandum, then we are barred from con-
sidering the merits because it was filed almost one year
late.
No. 08-3916 5
The motion to reinstate, not the memorandum, consti-
tuted the habeas petition and so it was not time barred.
Habeas petitions must state the relief requested, specify
the ground for relief, and state the facts supporting the
ground for relief. See Rule 2(c) of the Rules Governing
§ 2254 Cases. Mahaffey’s motion to reinstate stated the
relief requested, where it said “Petitioner . . . requests that
this Court . . . grant the petition pursuant to 28 U.S.C.
§ 2254.” Mot. to Reinstate at 1. It also specified the
ground for relief, where it said “the State’s use of peremp-
tory challenges to exclude blacks from the jury violated
petitioner’s right to equal protection of law as guaran-
teed by the Fourteenth Amendment to the United States
Constitution.” Id. The remaining issue is whether the
motion “state[d] the facts supporting” his Fourteenth
Amendment challenge as required by Habeas Rule 2(c),
i.e., whether it provided sufficient factual support to
challenge the second Batson hearing’s holding that the
prosecutor’s race-neutral explanations for striking par-
ticular jurors are credible.
We did not address this issue of habeas petition
pleading standards in Coulter, 484 F.3d at 466, the only
case we are aware of in any circuit to review a second
Batson hearing that had been remanded to state court, thus
initiating a second habeas petition. Here, we find that
Mahaffey’s motion pleaded sufficient facts to draw
enough of a connection between his right to equal pro-
tection and the trial court’s alleged racially motivated
use of peremptory challenges to render his claim cog-
nizable on habeas review. Mahaffey’s motion pleaded,
incorporating from the 1995 petition, that out of twenty
6 No. 08-3916
black members on the seventy-seven person venire panel
for Mahaffey’s trial, none served, and that, although
thirteen were excused for cause, seven were peremptorily
struck by the prosecution. These numbers describing the
prosecution’s use of peremptories, as “remarkable” as
those in Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005),
constitute at least some evidence for disbelieving the
state’s race-neutral justifications. Id. And although
Mahaffey’s motion lacks mention of the state’s
race-neutral justifications, it does cite and exhibit a case
discussing them, People v. Mahaffey, No. 1-03-2409 (Ill. App.
Ct. Aug. 1, 2005). While these bare facts may have been
insufficient to render Mahaffey’s petition meritorious,
they enabled it to be cognizable. See Holiday v. Johnston, 313
U.S. 342, 350 (1941) (finding that pleadings in habeas
petitions “ought not be scrutinized with technical nicety”);
Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)
(holding that habeas petitions must, for a federal court
to address them, “provide some evidence beyond con-
clusory and speculative allegations”) (emphasis in origi-
nal); Perruquet v. Briley, 390 F.3d 505, 512-13 (7th Cir. 2004)
(explaining the difference between cognizability and
sufficiency of a habeas petition); Lloyd v. Van Natta, 296
F.3d 630, 633 (7th Cir. 2002) (noting that habeas petitions
“need not be pleaded with particularity”) (citation omit-
ted). Therefore, Mahaffey’s motion to reinstate con-
stituted his substantive habeas petition.
Given when Mahaffey filed his new habeas petition in
the form of his motion to reinstate, we hold that the
district court erred when it denied Mahaffey’s petition for
failure to meet the statute of limitations. So we need not
No. 08-3916 7
reach Mahaffey’s alternative argument that the district
court should have equitably tolled the statute of limita-
tions in his favor.
B. Merits of Batson Claim
At this point we could remand Mahaffey’s case to the
district court. But instead we proceed with the merits
here, because they were fully briefed by both parties and
we are equally positioned with the district court to evalu-
ate Mahaffey’s Batson claim based solely on the state
record. See Cone v. Bell, 129 S.Ct. 1769, 1792 (2009) (Alito, J.,
concurring in part and dissenting in part).
We do not consider denying Mahaffey’s petition on the
ground that the prosecution’s claimed errors were harm-
less—i.e., that any juror, black or white, would have
convicted Mahaffey by attending to the overwhelming
horrific evidence against him—because the State of
Illinois failed to pursue this argument. Although the
State noted that “it is unlikely in the extreme that race
played a role in [Mahaffey’s] conviction,” Respondent-
Appellee’s Br. at 54, it devoted only one paragraph to
the harmless-error argument and cited, against a signifi-
cant amount of contrary authority, no potentially helpful
authority. Perfunctory, undeveloped arguments without
discussion or citation to pertinent legal authority are
waived. United States v. Haynes, 582 F.3d 686, 704 (7th
Cir. 2009); United States v. Hook, 471 F.3d 766, 775 (7th
Cir. 2006).
So we are left to determine whether the Illinois trial
court’s determination that the prosecution’s race-neutral
8 No. 08-3916
explanations were true was “an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding.” Miller-El, 545 U.S. at 240 (quoting
28 U.S.C. § 2254(d)(2)). We presume the Illinois court’s
factual findings to be sound unless Mahaffey rebuts the
“presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). Under this deferential
standard of review, we will not reverse the state trial
court’s decision “simply because we would have
decided the case differently, . . . and instead will reverse
only if, after reviewing the evidence, we are left with a
definite and firm conviction that a mistake has been
committed.” United States v. Stephens, 514 F.3d 703,
712 (7th Cir. 2008) (citations omitted). Accordingly,
“there is no basis for reversal on appeal unless the
reason given is completely outlandish or there is other
evidence which demonstrates its falsity.” Tinner v. United
Ins. Co. of Am., 308 F.3d 697, 703 (7th Cir. 2002) (citation
omitted).
As we discussed above, the numbers describing the
prosecution’s use of peremptories are remarkable. How-
ever, while happenstance may be “unlikely to produce
this disparity,” Miller-El, 545 U.S. at 241, more than
“bare statistics” is required to prove purposeful discrimi-
nation. Id. at 241-66. Accordingly, Mahaffey argues addi-
tionally that local prosecutors had a historic policy of
systematically excluding blacks from juries. He explains
that the Illinois Appellate Court recognized, in 1983, “an
open secret that prosecutors in Chicago and else-
where have been using their peremptory challenges to
systematically eliminate all Blacks, or all but token
No. 08-3916 9
Blacks, from juries in criminal cases where the defendants
are Black.” People v. Gilliard, 445 N.E.2d 1293, 1299 (Ill.
App. Ct. 1983). But Mahaffey’s jury selection occurred
in 1985, almost two years later. That it occurred before
Batson may be of some import. Nevertheless, Mahaffey
bears the burden of persuasion, which “never shifts,”
United States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000), to
identify a specific Illinois policy that was in place when
his jury was selected, such as the discriminatory manual
entitled “Jury Selection in a Criminal Case,” available to
the prosecutor in Miller-El, 545 U.S. at 264. Mahaffey
identifies no such specifics contemporaneous with his
case. Without more, he must show that the prosecution’s
proffered race-neutral justifications were pretextual, in
order to meet his burden of persuasion on clear-
error review.
Indeed, Mahaffey devotes most of the merits portions
of his briefs in arguing that the prosecution’s explana-
tions are pretextual for four of the black jurors it
dismissed (Mahaffey has abandoned any claims
regarding the remaining three): Angela Mack, Nathaniel
Howard, Bea Marshburn, and Catherine Taylor. The
prosecutor offered the following race-neutral explana-
tions for dismissing these four jurors: (1) Mack worked
for a police department; (2) Howard would suffer hard-
ship because he cared for his invalid mother-in-law,
including lifting her from bed “like a baby”; (3) Marshburn
had a background in psychology; and (4) Taylor had poor
communication skills. These race-neutral reasons are
unquestionably valid. See Purkett v. Elem, 514 U.S. 765, 769
(1995) (finding the growing of long, unkempt hair a valid
10 No. 08-3916
nondiscriminatory reason for dismissing a juror). So for
Mahaffey to prove purposeful discrimination, he would
need to show that the reasons were pretextual. Id. He
seeks to show pretext first by showing disparate treat-
ment, i.e., that the prosecution failed to peremptorily
dismiss white jurors similarly situated to the four
black jurors. See, e.g., Miller-El, 545 U.S. at 248 (finding
pretext where the prosecution dismissed black juror,
but not white jurors, who were ambivalent on imposing
the death penalty). But Mahaffey fails on this score
because he cannot show that any serving white juror
was similarly situated to the four jurors whose
dismissals he challenges. Specifically, he claims that one
white juror was related to police department employees,
not an actual police department employee like Mack,
who would have developed personal preconceptions
about how police reports should look. Mahaffey claims
that another white juror shopped and shoveled snow
for his elderly parents, not that he would suffer hard-
ship from jury service comparable with Howard, who
cared for an invalid. He claims that another white juror
taught and coached special needs children, not had a
background in psychology like Marshburn. Finally, he
claims that other white jurors were similarly situated to
Taylor, because they did not subscribe to periodicals. But
the prosecution was entitled to credit additional factors
beyond Taylor’s non-subscription to periodicals, such as
Taylor’s monosyllabic responses to questions and the
prosecutor’s “instincts,” Batson, 476 U.S. at 106 (Marshall,
J., concurring), and “experienced hunches and educated
guesses,” J.E.B. v. Alabama ex re. T.B., 511 U.S. 127, 148
No. 08-3916 11
(1994) (O’Connor, J., concurring), in finding that Taylor
lacked communications skills.
Nor does Mahaffey show pretext by showing that
other explanations by the prosecution were inconsistent.
Specifically, the prosecution said it also excluded Taylor
because she equivocated about the weight she would
give police testimony, about whether she would follow
the court’s instructions, and about whether she would set
aside what she previously knew about the case. But the
prosecution gave all its proffered reasons when required
to do so at the second Batson hearing, and gave these
reasons second, after emphasizing the primacy of
Taylor’s lack of communication skills. 8 Supplement to
R. on Appeal at 13-15. Nothing in the record suggests that
these explanations were pretextual, as opposed to “sec-
ondary reasons” as the State of Illinois contends.
Respondent-Appellee’s Br. at 49; cf. Miller-El, 545 U.S.
at 246.
The prosecution also added secondarily that it
excluded Taylor because “she had a preconceived notion
that under certain circumstances certain crimes should
be punished by the death penalty,” and excluded Mack
because she stated that “the defendant should prove his
own innocence.” Id. at 15, 22. Mahaffey finds these
reasons “obviously pretextual,” Reply Br. at 20, 22,
because “a prosecutor would clearly desire to have a
person with these views on the jury.” Mahaffey’s Br. at 36;
see also id. at 31. But this argument assumes that prosecu-
tors in general do not want fair trials—a proposition we
do not accept. Indeed, the prosecution explained that it
12 No. 08-3916
wanted jurors who would “follow the law.” 8 Supple-
ment to R. on Appeal at 15, 22. Anyway, we find this
reason not so clearly “improbable” as to discredit the
Illinois trial court’s determination that this or the other
more primary race-neutral justifications offered by the
prosecutor were credible. Miller-El v. Cockrell, 537 U.S.
322, 339 (2003).
Finally, Mahaffey urges that the prosecution’s explana-
tions changed over time, and that the prosecutor’s
opening statement and closing argument took advantage
of the racial sensitivity of the case and the racial composi-
tion of the jury. We find no support for these arguments
in the record.
For the reasons discussed above, we hold that the
Illinois Court did not clearly err in finding that Mahaffey
failed to meet his burden of proving purposeful discrimi-
nation.
III. CONCLUSION
Mahaffey’s petition for a writ of habeas corpus was
timely but unmeritorious. We therefore A FFIRM the
district court’s denial of the writ.
12-21-09