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Clausell v. Sherrer

February 5, 2010

JAMES DOUGLAS CLAUSELL, APPELLANT,
v.
LYDELL SHERRER; THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY



Appeal from the United States District Court for the District of New Jersey (No. 04-cv-03857) District Court Judge: Honorable Noel L. Hillman.

The opinion of the court was delivered by: Garth, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a) November 09, 2009

Before: AMBRO, GARTH and ROTH, Circuit Judges.

OPINION

Appellant James Douglas Clausell appeals for a new trial from the order of the United States District Court for the District of New Jersey which denied his 28 U.S.C. § 2254 petition for writ of habeas corpus. Clausell claims that his counsel was constitutionally ineffective in failing to object to the prosecutor's peremptory challenges to Afro-American and/or Hispanic venirepersons. We will affirm.

I.

On October 31, 1984, the Burlington County Grand Jury indicted Clausell for first degree capital murder of Edward Louis Atwood.*fn1 At the ensuing trial, a jury convicted Clausell of, inter alia, first-degree capital murder, in violation of N.J.S.A. §§ 2C:11-3(a)(1)&(2).*fn2 During the penalty phase of the trial, Clausell was sentenced to death pursuant to N.J.S.A. 2C:11-3(c). Clausell appealed to the New Jersey Supreme Court, and in 1990 Clausell's conviction was reversed and the case was remanded for a new trial.

In October 1995, jury selection commenced for Clausell's retrial. During the process of jury selection, Clausell did not object to the prosecutor's use of peremptory challenges to excuse five of the eight Afro-American and/or Hispanic members of the venire.

Clausell was retried from December 4, 1995, to January 19, 1996. At the conclusion of the trial, the jury found Clausell guilty of, inter alia, first-degree murder.*fn3 He was sentenced to life imprisonment with a thirty-year parole disqualifier.

Clausell appealed his conviction and sentence, but did not raise any claims regarding the prosecutor's use of peremptory challenges during jury selection. On April 1, 1999, the New Jersey Superior Court, Appellate Division, denied his appeal. Clausell thereafter filed a pro se petition for post-conviction relief on September 24, 1999, wherein he alleged for the first time that he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel "by his attorneys [sic] . . . [f]ailure to object to [sic] Batson violation . . . ." App. at 172. In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that "racially discriminatory exercise of peremptory challenges by a prosecutor is a violation of the Equal Protection Clause . . . ." Jones v. Ryan, 987 F.2d 960, 965 (3d Cir. 1993).

On April 11, 2002, the New Jersey Superior Court denied Clausell's petition for post-conviction relief. Clausell appealed, and the New Jersey Superior Court, Appellate Division, affirmed the denial of Clausell's petition in a decision dated December 10, 2003. The New Jersey Supreme Court denied certification on April 26, 2004.

Clausell then filed a petition for writ of habeas corpus to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 2254, wherein he raised, inter alia, the claim that his constitutional rights were violated as a result of his trial counsel's failure to raise a Batson objection in response to the State's use of peremptory challenges during jury selection for his retrial. The District Court denied Clausell's petition. Clausell v. Sherrer, 2006 WL 2846283 (D.N.J. Sept. 29, 2006).

Clausell subsequently submitted a request to this Court for a certificate of appealability under 28 U.S.C. § 2253(c)(1), which was granted with respect to two independent claims-(1) a substantive Batson claim; and (2) a Sixth Amendment ineffective assistance of counsel claim premised upon the failure of Clausell's counsel to raise a Batson objection. Order, Clausell v. Sherrer, No. 06-4606 (3d Cir. Apr. 5, 2007).

II.

In Batson, the Supreme Court reaffirmed the fundamental principle that "racial discrimination in jury selection offends the Equal Protection Clause," 476 U.S. at 85, and further held that "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. The Court then addressed the now-familiar three-step analysis guiding trial courts' constitutional review of peremptory challenges, which places the initial burden on the defendant to come forward with a prima facie case indicating discriminatory purpose by the prosecution in the exercise of its challenges, id. at 96-97, then shifts the burden to the prosecution, which ...


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