UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 89-3831 and 90-3855
THOMAS LEE WARD, Petitioner-Appellant,
versus
JOHN P. WHITLEY, Warden, Louisiana State Penitentiary, Angola, Louisiana, ET AL., Respondents-Appellees.
Appeals from the United States District Court for the Eastern District of Louisiana
(May 17, 1994)
Before POLITZ, Chief Judge, KING and GARWOOD, Circuit Judges.
POLITZ, Chief Judge:
Thomas Lee Ward, convicted of first degree murder and
sentenced to death, appeals the denial of his petition for a writ of habeas corpus. We affirm.
Background
Upon his release from a California jail Ward boarded a bus for
New Orleans. He drank vodka and shot cocaine throughout the
three-day trip and slept little, if at all. Arriving late in the
evening of June 22, 1983, he went directly to the Hagan Street
address of Lydia and John Spencer, where his wife, Linda, and their children were living. Lydia Spencer was Linda's mother.
Explaining that he was on his way to New York and wanted to see his
children, Ward was admitted. His wife informed him that she would
not accompany him. Ward departed. He testified that he spent the
night drinking vodka and beer and injecting cocaine. Around
5:30 a.m., he returned to the Hagan Street house, asking to see his
children again. Once again he was admitted. According to his
wife, Ward left an address and phone number at which he could be
reached in New York and then walked into the Spencers' bedroom.
Pulling a gun, he said, "John, I'm sorry I have to shoot you," and
fired once at close range, killing John Spencer. He then shot
Lydia Spencer five times as she tried to escape. She survived.
A jury convicted Ward of the first degree murder of John
Spencer, La. R.S. 14:30. At the penalty phase of the trial, Linda
Ward testified that she first had sexual relations with Ward when
she was ten years old. She further testified that she saw him have
sexual relations with her sister Ramona, aged 14 at the time, and
their daughter Tasha, then aged nine. Ernest Scott, Linda's
brother, testified to witnessing a sexual encounter between Ward
and his sister Lorraine when she was seven. The prosecution
introduced a 1975 complaint charging sexual relations with the
minor Linda and two of her minor sisters; Ward pleaded guilty to
having relations with Linda. The prosecution also offered a 1983
complaint charging Ward with sexual abuse of his daughter Tasha;
Ward pleaded guilty to the misdemeanor of cruelty to a minor.
The jury found two statutory aggravating factors and sentenced
2 Ward to death under Article 905.3 of the Louisiana Code of Criminal
Procedure. The conviction and sentence were affirmed on appeal and
the Supreme Court denied certiorari.1
Efforts to obtain post-conviction relief began. The trial
court denied Ward's first petition but the Louisiana Supreme Court
remanded for an evidentiary hearing, which was conducted over the
course of three days. The trial court again denied relief and the
Louisiana Supreme Court denied Ward's application for supervisory
writs. Ward filed a federal habeas petition under 28 U.S.C. § 2254
which was dismissed for failure to exhaust state remedies on a
mental retardation claim. Repairing to state court for another
application for post-conviction relief, Ward obtained a second
evidentiary hearing at the direction of the Louisiana Supreme
Court. Again the trial court denied the petition. In the wake of
the Supreme Court's decision in Penry v. Lynaugh,2 the Louisiana
Supreme Court denied the application for supervisory writs. Ward
then returned to federal court with the instant habeas petition.
The district court denied relief; Ward timely appealed and we
granted a certificate of probable cause. While his appeal was
pending, Ward filed a Fed.R.Civ.P. 60(b) motion seeking the
admission of newly discovered evidence. The district court denied
that motion but granted a certificate of probable cause. Ward
timely appealed that ruling and we consolidated the two appeals for
1 State v. Ward, 483 So.2d 578 (La.), cert. denied, 479 U.S. 871 (1986). 2 492 U.S. 302 (1989).
3 disposition.
Analysis
At the threshold, Ward asks us to remand his case to district
court so that he might amend his petition to add a claim that the
"reasonable doubt" instruction given to his jury was invalid under
Cage v. Louisiana.3 We stayed disposition of his appeal pending
exhaustion of that issue in the Louisiana courts, which denied him
relief. We deny the motion to remand to the district court. A
habeas petitioner may not add new constitutional claims to a
petition after the district court has entered judgment.4 We
express no opinion whatever on the Cage issue.
Ward seeks habeas relief on six grounds: (1) the state
withheld Brady material; (2) he did not receive effective
assistance of counsel; (3) the prosecutor made improper argument;
(4) one of the two aggravating circumstances found by the jury has
been invalidated; (5) the prosecution eliminated African-American
jurors because of their race; and (6) racial discrimination
infected the selection of the jury pool and venire. We address
these contentions seriatim.
1. Brady material.
Ward contends that his due process rights under Brady v.
3 498 U.S. 39 (1990). 4 Kyles v. Whitley, Nos. 92-3310, 92-3542 (5th Cir. Aug. 7, 1992) (unpublished) (a habeas petitioner may not use Rule 60(b) to raise new constitutional claims after judgment).
4 Maryland5 were violated by the prosecution's failure to produce
police documents tending to show that he killed John Spencer and
shot Lydia Spencer under the emotional stress of an argument about
whether his wife and children would accompany him to New York.
These documents, he maintains, contradicted testimony by Lydia
Spencer, his wife Linda, and Ernest Scott that no such argument
occurred and corroborated his testimony in the penalty phase.
To succeed on a Brady claim the petitioner must show, inter
alia, a reasonable probability that the suppressed material would
have changed the outcome of the proceedings.6 Ward has not done
so. The police reports reflect that Ward argued with the Spencers
when he returned to the Hagan Street residence on the morning of
June 23 and that he believed they were preventing a reconciliation
with his wife. That is not sufficient provocation to cause a
reasonable person to kill in the heat of passion, as required for
a responsive verdict of manslaughter.7 Nor would the documents
have affected the sentencing determination, even if they had
convinced the jury to believe Ward's testimony at the penalty
phase. Ward testified that he was upset by his wife's refusal to
accompany him because that meant the children would stay behind as
well. "Something snapped," he stated, when John Spencer said that
Linda "was doing all right" in New Orleans. The prospect that the
5 373 U.S. 83 (1963); see also Giglio v. United States, 405 U.S. 150 (1972). 6 United States v. Bagley, 473 U.S. 667 (1985). 7 La. R.S. 14:31; State v. Tompkins, 403 So.2d 644 (La. 1981); State v. Johnson, 613 So.2d 746 (La.App. 1993).
5 jury might have found reduced culpability because of John Spencer's
support of his step-daughter's decision not to accompany her
husband to New York is remote at best. There is no reasonable
possibility that the jury would have reached a different result at
either phase of the trial had the police documents been produced.
Ward also asserts a Brady violation in connection with
possibly missing portions of the prosecutor's files sought in
connection with post-conviction proceedings. He has not shown that
any of these documents contained Brady material nor a reasonable
probability that they were outcome-determinative. The prosecutor
was uncertain what portion of the file, if any, was missing and
merely speculated that the file was incomplete because it was
relatively thin. This assignment of error is without merit.
2. Ineffective assistance of counsel.
Ward asserts multiple ways in which his trial counsel
allegedly failed to provide adequate representation. To prevail on
a claim of ineffective assistance, he must show that (1) counsel's
performance was so deficient as to fall below an objective standard
of reasonableness and (2) there is a reasonable probability that,
but for the unprofessional errors, the result of the proceeding
would have been different.8 Ward has succeeded on neither prong.
Counsel's overall performance9 was not "outside the wide range of
8 Strickland v. Washington, 466 U.S. 668 (1984); Sharp v. Puckett, 930 F.2d 450 (5th Cir. 1991). 9 Kimmelman v. Morrison, 477 U.S. 365 (1986).
6 professionally competent assistance"10 and his errors, viewed
separately and cumulatively, did not render the result of either
the guilt or penalty phase unreliable.
At the heart of the ineffectiveness complaint is counsel's
failure to present evidence of Ward's good character at the penalty
phase. Counsel testified at the state post-conviction hearing that
this omission was a matter of trial strategy. During his initial
investigation of Ward's background counsel discovered the sexual
abuse of the minors. While it was settled law that those instances
of sexual misconduct for which Ward had been convicted were
admissible at the penalty phase of the trial, defense counsel
believed the law unsettled as to whether evidence of unadjudicated
incidents was admissible. By bringing in good character evidence
defense counsel feared that he would open the door to such
evidence. He therefore limited his case at the penalty phase to
the presentation of a report of a psychologist who evaluated Ward
in California, which could not be cross-examined, and a 1965 order
obtained by Ward's previous wife. Ward unexpectedly decided to
testify, changing the dynamics of the defense.
Louisiana law was unsettled as to the admissibility of
unadjudicated acts of misconduct at the time of Ward's trial in
August 1984.11 Ward argues, however, that once the trial court
overruled his objection to the admission of bad acts evidence, his
trial attorney could have introduced good character evidence
10 Strickland, 466 U.S. at 690. 11 See State v. Brooks, 541 So.2d 801 (La. 1989).
7 without waiving his objection. That argument is misplaced. The
issue is not waiver of the objection but rather a removal of the
grounds for the original objection. As explained by Professors
Wright and Graham:
It is important to distinguish . . . between action of a party that is asserted to estop him from objecting and action that makes admissible evidence that would otherwise be inadmissible. For example, in a prosecution for sale of heroin, the fact that the defendant's mother-in-law died two years before the date of the sale would be irrelevant. But if the defendant takes the stand and testifies, by way of alibi, that at the time of the crime he was taking tea with his mother-in-law, evidence that she was then mouldering in the grave is admissible to impeach him and to disprove the alibi. . . . What the defendant has done is to introduce evidence that changes irrelevant evidence to relevant evidence.12
Trial counsel had objected to evidence of sexual molestation on the
grounds of relevance. Had he introduced good character evidence,
the objectionable evidence would have become relevant. We cannot
say that trial counsel's strategy, although ultimately
unsuccessful, was unsound.
Ward also charges that trial counsel did not adequately
investigate his case and therefore did not have sufficient
information to form a sound strategy. We find no evidence in the
habeas record that would have changed trial counsel's strategy had
it been garnered, or changed the outcome of the proceedings had it
been presented. Dr. Robert Guthrie, the California psychologist,
testified that Ward placed great importance on keeping his family
12 21 C. Wright and K. Graham, Jr., Federal Practice and Procedure: Evidence, § 5039 at 199-200 (1977 and 1994 Supp.); see also King v. Puckett, 1 F.3d 280 (5th Cir. 1993).
8 together, had a good relationship with his children and provided
well for them. His examination of Ward's daughter indicated that
Ward had not molested her. Llewellyn Gedge, an attorney who
represented Ward in efforts to regain custody of his children from
the state, and Dennis Burden, a friend, submitted affidavits
attesting to Ward's devotion as a parent; neither had observed
indications of child abuse. Ward's eldest son's affidavit declared
that he would have testified that his father was a good parent.
Ward himself testified about his childhood in Long Island and his
work history, denying sexual relations with anyone but his wife.
We cannot conceive, as a matter of law, how such testimony could
have outweighed the overwhelming eyewitness testimony of sexual
abuse.13
Ward complains of trial counsel's failure to obtain the
transcript of the trial of the 1975 sexual misconduct charges.
That transcript, Ward maintains, would have shown that Lydia
Spencer had suborned perjury, supporting his claim that she
maliciously concocted the sexual abuse charges against him. Trial
counsel tried to obtain the transcript but was unable to do so for
lack of funds. Ward did not produce the transcript on collateral
review; the record before us contains no showing of prejudice.
Another aspect of Ward's failure-to-investigate complaint is
that defense counsel did not interview Lydia Spencer, Linda Ward,
13 Ward also complains of counsel's failure to contact Cecil Travis, a wealthy friend. Counsel testified that he tried to telephone Travis but the woman who answered the call would not talk to him and his call was not returned. Travis died before the habeas hearing.
9 or Ernest Scott prior to trial. Counsel testified that they had
moved and that he was unable to locate them. This impacted his
cross-examination. With no knowledge of how she would respond, he
asked Linda Ward whether she wanted Ward executed. Her response
was in the affirmative.
It obviously is preferred trial preparation that an attorney
or someone on his behalf interview witnesses before trial. We
cannot say, however, that defense counsel's unsuccessful efforts to
locate these three witnesses fell below prevailing professional
norms to the point of constitutional implication. Utility and
telephone company records were reviewed without success. Funds
were limited and counsel's investigators could suggest no further
practical measures.
It is a basic rule of cross-examination: Never ask a question
for which you do not know the answer. Every experienced trial
lawyer realizes that that rule is honored more in the breach than
the observance. We do not perceive a reasonable possibility of a
different result but for defense counsel's blunder, given the
prosecution's evidence. "[T]he purpose of the effective assistance
guarantee of the Sixth Amendment is not to improve the quality of
legal representation, although that is a goal of considerable
importance to the legal system. The purpose is simply to ensure
that criminal defendants receive a fair trial."14
Ward also criticizes his trial counsel for not interviewing
employees at Champs, the liquor store where he bought vodka and
14 Strickland, 466 U.S. at 689.
10 beer after his first visit to the Hagan Street house; had he done
so, Charles Washington, a store clerk, attested that he would have
confirmed that Ward had purchased alcohol. Trial counsel decided
that a visit to Champs would be futile because Ward told him that
he had not seen anyone there that he knew. Further, he had found
Champs personnel singularly uncooperative in past efforts to elicit
information. Although another attorney might have decided
differently, we are not prepared to say that trial counsel's
decision not to investigate at Champs was unreasonable under these
circumstances.15
Ward himself bears the blame for some of the deficiencies in
his defense. He criticizes his lawyer's failure to obtain a
toxicologist. The toxicologist whom his lawyer consulted, however,
withdrew at the eleventh hour, stating that he could not help.
Trial was continued for two weeks while counsel scrambled to find
another. Counsel finally located a forensic psychiatrist but Ward
refused to speak with him. Ward also faults his trial attorney for
failing to prepare him to testify. In the critical weeks preceding
trial, however, Ward grew increasingly hostile and ultimately
refused to speak with trial counsel or the lawyer who joined the
defense team shortly before trial. Ward gave no indication of a
change in this posture at trial; he sat as far as possible from
15 See Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.").
11 counsel and rejected counsel's advice to testify at the guilt
phase. Ward's decision to testify at the penalty phase was his
unilateral last-minute choice. Finally, Ward complains that his
attorney committed the cardinal sin of not producing the evidence
that he promised in his opening statement. That failure was due in
large part to Ward's refusal to testify at the guilt phase.
Whatever the reason for Ward's refusal to cooperate, he cannot now
blame the consequences on his trial attorneys.
Finally, Ward claims ineffectiveness in the conduct of voir
dire, complaining that counsel did not request individual
examination and did not ask "open-ended" questions. Again, while
these may be better trial practices, they are not mandated by the
sixth amendment; counsel's deviations did not place his performance
outside the wide range of professional competence. Ward also
complains that his attorney did not rehabilitate "scrupled" jurors.
Counsel testified that it is his practice to take a "soft" approach
with potential jurors and preserve his objections for appeal. Ward
has shown no prejudice from this strategy.
3. Improper prosecutorial argument.
Ward challenges multiple aspects of the prosecution's closing
argument. None of the assigned errors warrant issuance of the
Great Writ.
Ward maintains that the prosecutor urged the jury to impose
the death penalty partly as punishment for prior sexual offenses,
thereby subjecting him to double jeopardy. We do not so interpret
the challenged comments.
12 The prosecution closed its argument with the plea "Come back
with a proper penalty for this man and for his actions over the
last twenty to thirty years." That statement standing alone is
problematic but in rebuttal the prosecution explained further.
You give him life, he wins. You give him life and you walk out of here and he wins, and I will tell you why. Look at his criminal history. He should not only have been sentenced to life imprisonment, he ought to be doing about twenty life sentences and in the state of Louisiana, not the revolving doors of California and New York. In the state of Louisiana he would have gone to jail for life imprisonment ten years ago the first time he fooled with one of his children who was under age twelve or one of those children who was under age twelve. Life imprisonment, he would have gone for here. If you add up all the times, all the crimes he has committed on those children, he should be doing a thousand years right now for all that, and what has he done? Nothing, he is out, essentially he is out and he is facing this charge. You give him life he wins, but what you are giving him is what he deserved ten years ago, fifteen years ago, twenty year ago when he was convicted of rape in New York. That's not what he deserves now.
That was not an urging to execute Ward as punishment for his prior
offenses. The prosecution was contending that life imprisonment
would have been appropriate for Ward's prior violations, but the
murder called for a more severe punishment. We do not lightly
attribute an improper meaning to ambiguous prosecutorial comment.16
The prosecution did not urge the jury to punish Ward a second time
for his prior offenses; it sought what it considered appropriate
punishment for the offense at issue.
Next Ward contests the prosecutor's references to John
Spencer's good character. The prosecution may argue the human cost
16 Boyde v. California, 494 U.S. 370 (1990), quoting Donnelly v. De Christoforo, 416 U.S. 637 (1974).
13 of the charged offense unless its statements are so inflammatory as
to deprive the defendant of a fundamentally fair trial.17 The
portrayal of John Spencer as a good provider for his
step-daughter's children was not improper.
We agree with Ward's contention, however, that the
prosecutor's argument that intoxication was not a mitigating factor
was improper. Among the mitigating circumstances which Louisiana
juries must consider is impairment of a defendant's capacity "to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law . . . as a result of . . . 18 intoxication." Despite this legal requirement, the prosecution
argued:
[E]ven if he was high on cocaine and he had been drinking booze, [defense counsel] says that because of that, that's mitigation. You shouldn't feel as badly towards him because of that; that makes this better. Think of the message you send to this community if you are going to buy that theory and buy that line of nonsense. It makes it pretty convenient that if I want to go kill somebody the best thing for me to do is go out and get a pint of booze first, drink it down and then I can come to Court and say I was drunk. Don't put me in the electric chair because I had a pint of booze before I did it, or I did a line of cocaine before I did it. That's absolutely absurd. No one pinned him down and poured booze down his throat, no one pinned him down and stuffed cocaine up his nose, he did it to himself. Y'all shouldn't feel bad about that, not one bit, not one bit.
There is a fine line between the argument that a statutory
mitigating circumstance merits no weight in the jury's ultimate
decision and the argument that the mitigating circumstance should
17 Payne v. Tennessee, 501 U.S. 808 (1991); Black v. Collins, 962 F.2d 394 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992). 18 La. Code Crim. P. 905.5(e).
14 not be considered or is not mitigating. The former is permissible
under Louisiana law;19 the latter is not.20 The prosecution crossed
the line in making this argument.
An improper prosecutorial argument that does not implicate a
specific constitutional provision, however, is not cognizable on
collateral review unless the defendant shows an abridgment of due
process, that is, that the improper argument rendered the
proceeding fundamentally unfair.21 Ward has not done so. The trial
court correctly instructed the jury that impairment of mental
capacity due to intoxication was a statutory mitigating factor.
The court also gave the jury the standard charge that statements by
the lawyers were not to be taken as evidence and that it was bound
to apply the law as given by the court. In light of the court's
charge it is reasonable to conclude that the jury viewed the
prosecutor's erroneous and excessive comments as no more than the
prosecutor's exhortation to accord that circumstance little or no
weight.
Finally, Ward complains that the prosecutor violated his
privilege against self-incrimination by commenting during the
sentencing phase about his failure to testify at the guilt phase.
The offending comments were:
19 Sawyer v. Whitley, 945 F.2d 812 (5th Cir. 1991), aff'd, 112 S.Ct. 2514 (1992). 20 Cf. Boyde. 21 Bagley v. Collins, 1 F.3d 378 (5th Cir. 1993); Rogers v. Lynaugh, 848 F.2d 606 (5th Cir. 1988).
15 You know what ought to be the most offensive thing of all this, you know what ought to infuriate you and I'm sure it does, he's a stinking liar `cause he gets up here on the witness stand [during the sentencing phase] and he lies to you. He lies, he is not going to be a man and get up here and say, alright, you found me guilty. I didn't testify at my trial because of that criminal record that I knew would come out under cross examination by the D.A., y'all know that's why he didn't take the stand at the trial, `cause all that would have come out. He doesn't say you found me guilty, I did it. Please, don't sentence me to death. Please have mercy on me. Does he do that? No, he gets up there and he is indignant, he is a horrible man, and he is going to get up there and he defies you to sentence him to death.
The prosecution's attempt to use Ward's election of his right not
to testify at the guilt phase of his trial to argue bad character
at the penalty phase was improper. That error warrants reversal on
collateral review only if it had a substantial and injurious effect
or influence on the outcome.22 This it decidedly did not have. The
argument that Ward was a bad person deserving of death because he
did not inculpate himself before the jury pales beside the other
evidence of bad character, to-wit, his attempt to kill Lydia
Spencer after killing John Spencer and his sexual encounters with
the children in his family. We perceive no gain for the
prosecution in the prosecutor's improper comments in this instance.
4. Invalid aggravating circumstance.
Louisiana law requires the jury to find at least one
aggravating circumstance before it may consider the death penalty.23
22 Brecht v. Abrahamson, 113 S.Ct. 1710 (1993). 23 Article 905.3 of the Louisiana Code of Criminal Procedure provides: "A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be
16 Ward's jury found two: (1) knowing creation of a risk of death or
great bodily harm to more than one person and (2) a significant
prior history of criminal activity. Before the disposition of
Ward's appeal the Louisiana Supreme Court invalidated the latter as
unconstitutionally vague.24 Nevertheless, it affirmed Ward's
sentence, reasoning that one valid aggravating circumstance
supported the verdict and that the evidence offered to show
criminal history was otherwise admissible as proof of character.
Ward claims prejudice on the grounds that a second aggravating
factor was improperly on the scales when the jury chose between
life and death.
The Louisiana capital punishment statute does not direct the
jury to weigh aggravating against mitigating circumstances. After
the threshold finding of at least one aggravating factor, the
statute does not structure the jury's deliberations other than to
require that it consider all mitigating circumstances. Addressing
a substantially similar death penalty statute in Zant v. Stephens,25
the Supreme Court expressly rejected the argument now urged by Ward
and held that the erroneous classification of otherwise admissible
evidence as an aggravating circumstance does not invalidate a death
sentence where the jury also finds a valid aggravating
circumstance. That is substantially the same analysis applied by
imposed." 24 State v. David, 468 So.2d 1126 (La. 1984), supplemented, 468 So.2d 1133 (1985), cert. denied, 476 U.S. 1130 (1986). 25 462 U.S. 862 (1983).
17 the Louisiana Supreme Court to Ward's claim on direct appeal and
approved by this court on collateral review of Louisiana death
penalty sentences.26
Stephens, however, reserved the question of the impact of an
invalid aggravating circumstance in a statutory scheme in which the
factfinder must weigh aggravating against mitigating circumstances.
According to Ward, that is the question presented here because the
prosecutor urged the jury to engage in weighing. Ward misframes
the issue.
The prosecutor misstated the law when he exhorted the jury to
weigh aggravating against mitigating circumstances. The trial
court, however, correctly instructed the jury:
You are required to consider the existence of aggravating and mitigating circumstances in deciding which sentence should be imposed. . . . Before you decide that a sentence of death should be imposed, you must unanimously find beyond a reasonable doubt that at least one aggravating circumstance exists. If you find beyond a reasonable doubt that any of the statutory aggravating circumstances existed you are authorized to consider imposing a sentence of death. . . . Even if you find the existence of an aggravating circumstance, you must also consider any mitigating circumstances before you decide a sentence of death should be imposed.
The arguments of counsel perforce do not have the same force as an
instruction from the court.27 Here, where the prosecutor's
reference to weighing was cursory, there is no reasonable
likelihood that the jury disregarded or misconstrued the court's
26 See, e.g., James v. Butler, 827 F.2d 1006 (5th Cir. 1987), cert. denied, 486 U.S. 1046 (1988). 27 Boyde.
18 specific instructions.28
5. Batson claim.
Ward contends that the state exercised seven of its ten
peremptory challenges against African-American venirepersons
because of their race, in violation of the equal protection clause.
He did not object at trial. We repeatedly have held that as a
matter of federal law, a contemporaneous objection is a necessary
element of a Batson29 claim.30 Ward argues that the Supreme Court
impliedly rejected that position in Ford v. Georgia.31 We disagree.
Ford was tried before the Supreme Court decided Batson. In
accordance with the prevailing evidentiary burden of Swain v.
Alabama,32 the defendant filed a pretrial motion claiming that the
prosecution routinely exercised its peremptory challenges to strike
African-Americans in cases with black defendants and asked that it
be prohibited from doing so in the case at bar. The district court
denied the motion. The case proceeded to trial; the prosecution
exercised nine of its ten peremptories to strike African-American
jurors. On the second day of trial the court called a conference
28 Ward did not object to the prosecutor's statement at trial. Nor did he allege a misstatement of the law on direct or collateral review. Accordingly, we do not address it. 29 Batson v. Kentucky, 476 U.S. 79 (1986). 30 Wilkerson v. Collins, 950 F.2d 1054 (5th Cir. 1992), cert. denied, 113 S.Ct. 3035 (1993); Jones v. Butler, 864 F.2d 348 (5th Cir. 1988) (on petition for rehearing), cert. denied, 490 U.S. 1075 (1989). 31 498 U.S. 411 (1991). 32 380 U.S. 202 (1965).
19 in chambers to put that fact on the record. The prosecutor asked
the court whether he needed to explain the justifications for his
challenges and the judge said he did not. After he was convicted
and sentenced to death Ford moved for a new trial, claiming the
racial exercise of peremptory challenges. The motion was denied.
On appeal the Supreme Court of Georgia refused to reach Ford's
claim on the grounds of procedural bar. The court interpreted a
case decided after Ford's trial to establish a rule that an equal
protection challenge must be lodged after the jurors are selected
and before they are sworn. Because that was not done in Ford's
case, the court rejected his Batson argument.
The Supreme Court reversed. It found that Ford had raised a
Batson claim prior to trial and held that a state may not
retroactively bar litigation of a federal constitutional right.
Ward contends that the applicability of the state procedural bar
would have been moot if there was a federal requirement of a
contemporaneous objection. To the contrary, the Court's inquiry
whether the state properly found Ford's objection untimely was
premised on the fact that he had complained of the racial use of
peremptories in time for the trial court to require an explanation
from the prosecution. As the Court in Ford recognized, Batson
required a "timely objection" but left the definition of "timely"
to the trial courts. The opinion in Ford addresses the latter
issue only. In the matter sub judice, Ward raised no Batson
objection in the trial court. He has not satisfied the requisites
for a Batson claim.
20 6. Racial discrimination in the selection of the jury pool and venire.
Ward contends that the Orleans Parish jury commissioners
excluded blacks from his jury pool and venire, in violation of his
sixth and fourteenth amendment rights. The district court rejected
this claim. Ward maintains that he was entitled at least to
discovery and an evidentiary hearing. We are not persuaded.33
A federal habeas court must allow discovery and an evidentiary
hearing only where a factual dispute, if resolved in the
petitioner's favor, would entitle him to relief and the state has
not afforded the petitioner a full and fair evidentiary hearing.34
Conclusionary allegations are not enough to warrant discovery under
Rule 6 of the Federal Rules Governing Section 2254 Petitions; the
petitioner must set forth specific allegations of fact.35 Rule 6,
which permits the district court to order discovery on good cause
shown, does not authorize fishing expeditions.36
The short answer to Ward's assignment of error is that he had
the opportunity to present evidence at his state post-conviction
hearing. We do not dispose of Ward's argument on these grounds,
33 While his appeal was pending Ward moved the district court for admission of newly discovered evidence pertinent to this claim. The district court denied the motion. In the interesets of justice we consider the evidence. 34 Harris v. Nelson, 394 U.S. 286 (1969); Young v. Herring, 938 F.2d 543 (5th Cir. 1991) (on remand), cert. denied, 112 S.Ct. 1485 (1992); Mayberry v. Petsock, 821 F.2d 179 (3d Cir.), cert. denied, 484 U.S. 946 (1987). 35 Willie v. Maggio, 737 F.2d 1372 (5th Cir.), cert. denied, 469 U.S. 1002 (1984); Mayberry. 36 Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir. 1993).
21 however, because the state trial court denied discovery and he
later obtained additional evidence.
Factual development will not help Ward's sixth amendment
claim. He informs that his venire was half black and half white
and does not dispute the prosecution's contention that the eligible
population had essentially the same racial composition.
Accordingly, Ward cannot prove underrepresentation, a necessary
element of a fair cross-section claim.37
Ward's fourteenth amendment claim fares no better. He alleges
that the jury commissioners knew the race of each member of the
venire before directing the members to criminal or civil district
court and that blacks were underrepresented in criminal court
venires.38 That does not constitute a specific factual allegation
of intentional discrimination. Ward attempts to bolster his
petition with a hearsay affidavit in which one of his attorneys
attests that the former director of the jury commission told him
that he had heard that the district attorney wanted more whites on
criminal court juries. Unlike Amadeo v. Zant,39 on which Ward
relies, there is no indication that the commission heeded the
district attorney's purported preferences. In another affidavit,
Ward's paralegal attests that a jury commissioner told her that she
37 Duren v. Missouri, 439 U.S. 357 (1979). 38 Because African-Americans were present on Ward's venire in proportion to their representation in the population, we can only presume that alleged underrepresentation in the instant context refers to the appearance of proportionately fewer black persons on criminal court venires generally than on civil court venires. 39 486 U.S. 214 (1988).
22 selected more whites than blacks from the jury wheel to compensate
for differing appearance rates.40 That is the only specific factual
allegation of intentional discrimination presented by Ward but it
cuts against his charge that blacks were steered onto civil and
away from criminal venires.
As our colleagues on the First Circuit have succinctly stated,
"Habeas corpus is not a general form of relief for those who seek
to explore their case in search of its existence."41 Ward's
discrimination claim falls within that proscription.
The judgment of the district court is AFFIRMED.
40 In a counter-affidavit, the commissioner denies the statement. In addition, her tenure in office ended before the selection of Ward's venire. 41 Aubet v. Maine, 431 F.2d 688, 689 (1st Cir. 1970).