Habeas Corpus — equal protection

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U.S. Court of Appeals for the Seventh Circuit

Criminal

Habeas Corpus — equal protection

Even though a defendant was tried before the U.S. Supreme court decision in Batson v. Kentucky (1986), he failed to show a valid excuse for not challenging the prosecution’s allegedly discriminatory use of peremptory challenges.

“To be sure, Batson did overrule Swain with respect to the evidentiary burden placed on a defendant claiming unconstitutional use of peremptories. Swain created a presumption, rooted in the history of peremptory strikes at common law, that the prosecution was using those strikes properly. 380 U.S. at 222. The presumption could only be overcome with evidence that the peremptory strike system was being perverted, which proved to be an exceedingly difficult standard to meet. See Batson, 476 U.S. at 91–93.Batson changed the quantum of proof necessary to make out a prima facie case of discrimination, laying out the now-familiar burden-shifting framework and making it possible to prove discrimination with evidence intrinsic to a single case. But none of that means Batson created a new claim that was not available to Richardson at the time of his trial. It simply means Batson made his pre-existing constitutional claim substantially less difficult to prove. According to the Supreme Court, that is not cause. Smith v. Murray, 477 U.S. 527, 537 (1986) (‘the question is not whether subsequent legal developments have made counsel’s task easier, but whether at the time of the default the claim was “available” at all.’). Thus, Richardson’s default is not excused.”

Affirmed in part and Reversed in part.

12-1619 & 12-1747 Richardson v. Lemke

Appeals from the United States District Court for the Northern District of Illinois, Kennelly, J., Kanne, J.