Ford v. Georgia

tor for Coweta County had “over a long period of time” excluded black persons from juries “where the issues to be tried involved members of the opposite race.” The motion stated that petitioner “anticipated” the prosecutor would continue the pattern of racial exclusion in this case because of the different races of the accused and the victim. Petitioner requested an order forbidding the State to use “its peremptory challenges in a racially biased manner that would exclude members of the black race from serving on the Jury.” App. 3-4.

At a pretrial hearing on the motion, petitioner’s counsel said that his experience had been, “and the Court is aware[,] that the district attorney and the other assistant district attorneys have a history and a pattern when you have a defendant who is black, of using their per-emptory [sic] challenges to excuse potential jurors who are also black.” Petitioner’s counsel asked the trial judge to discourage further resort to this alleged practice by requiring “the district attorney, if he does use his peremptory challenges to excuse potential black

referred to the Sixth Amendment concept of a “fair cross-section of the community,” see, e. g., Taylor v. Louisiana, 419 U. S. 522 , 526-533 (1975), it also found that petitioner had failed to prove the “‘systematic exclusion of black jurors’” from service, and thus alluded to the standard for establishing an equal protection violation first described in Swain v. Alabama, supra. Ford v. State, 255 Ga. 81 , 83, 335 S. E. 2d 567 , 572 (1985) (quoting Moore v. State, 254 Ga. 525 , 529, 330 S. E. 2d 717 , 721 (1985)). The court found no error and affirmed petitioner’s conviction.

Petitioner filed his first petition for certiorari with this Court on January 22, 1986. While it was before us, we held in Batson v. Kentucky, 476 U. S. 79 (1986), that a black criminal defendant could make a prima facie case of an equal protection violation with evidence that the prosecutor had used peremptory challenges in that case to strike members of the defendant’s race from the jury. Although we soon held in Allen v. Hardy, 478 U. S. 255 (1986), that Batson’s new evi-dentiary standard would not be applied retroactively on collateral review of convictions that had reached finality before Batson was announced, we subsequently held in favor of the new standard’s retroactive application to all cases pending on direct review or not yet final when Batson was decided. Griffith v. Kentucky, 479 U. S. 314 , 328 (1987). We then granted Ford’s petition for certiorari and vacated and remanded for further consideration in light of Griffith. Ford v. Georgia, 479 U. S. 1075 (1987).

On remand, the Supreme Court of Georgia held sua sponte, without briefing or arguments from the parties, that petitioner’s equal protection claim was procedurally barred. 257 Ga. 661 , 362 S. E. 2d 764 (1987). The court concluded that before his trial petitioner had raised a Swain claim that was “decided adversely to him on appeal, [and] cannot be reviewed in this proceeding.” 257 Ga., at 663 , 362 S. E. 2d, at 766 . The court then suggested that a Batson claim was “never raised at trial,” 257 Ga., at 662 , 362 S.

(emphasis omitted), but went on to consider whether any such claim raised either in petitioner’s pretrial motion or during the chambers conference on the second day of the trial could be treated as timely. The court applied the state procedural rule announced in State v. Sparks, 257 Ga. 97 , 98, 355 S. E. 2d 658 , 659 (1987), that a Batson claim must “be raised prior to the time the jurors selected to try the case are sworn.” Reading Sparks as requiring a contemporaneous objection to a defendant’s jury “after it was selected and before the trial commenced,” the court concluded that petitioner had failed to make such an objection, with the result that any Batson claim was barred by a valid state procedural rule. 257 Ga., at 663-664, 362 S. E. 2d, at 766 . A dissenting opinion took issue with the court’s conclusion that petitioner “never raised a Batson-type claim,” and with the court’s application of a state procedural rule that had not been announced when petitioner’s motion was filed in 1984. Id., at 664 , 362 S. E. 2d, at 767 .

We granted certiorari to decide whether the rule of procedure laid down by the Supreme Court of Georgia in Sparks was an adequate and independent state procedural ground that would bar review of petitioner’s Batson claim. 495 U. S. 903 (1990).

A

The threshold issues are whether and, if so, when petitioner presented the trial court with a cognizable Batson claim that the State’s exercise of its peremptory challenges rested on the impermissible ground of race in violation of the Equal Protection Clause of the Fourteenth Amendment. We think petitioner must be treated as having raised such a claim, although he certainly failed to do it with the clarity that appropriate citations would have promoted. The pretrial motion made no mention of the Equal Protection Clause, and the later motion for a new trial cited the Sixth Amendment, not the Fourteenth.

The pretrial motion did allege, however, that the prosecution had engaged in a pattern of excluding black persons from juries “over a long period of time,” and petitioner argued to this effect at the hearing on this motion as well as at the hearing on his motion for a new trial. This allegation could reasonably have been intended and interpreted to raise a claim under the Equal Protection Clause on the evidentiary theory articulated in Batson’s antecedent, Swain v. Alabama, 380 U. S. 202 (1965). The Court in Swain recognized that an equal protection violation occurs when the State uses its peremptory challenges for the purpose of excluding members of a black defendant’s race from his petit jury, id., at 209 ; Batson v. Kentucky, supra, at 90; but Swain also established a rigorous standard for proving such a violation, holding it “permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying . . . .” 380 U. S., at 223 . That assumption could not be overcome, and the State required to justify its use of peremptory challenges in a particular case, without proof that the prosecutor, “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim . . . [, was] responsible for the removal of Negroes who ha[d] been selected as qualified jurors by the jury commissioners and who ha[d] survived challenges for cause, with the result that no Negroes ever serve on petit juries.” Id., at 223-224 .

Our interpretation of petitioner’s reference to a pattern of excluding black venire members “over a long period of time” as the assertion of a Swain claim was, in fact, adopted in the Georgia courts. The prosecutor himself cited Swain to the trial court in opposing the pretrial motion; the trial judge clearly implicated Swain in ruling that petitioner had failed to prove the systematic exclusion of blacks from petit juries; and the second opinion of the Supreme Court of Georgia in this case explicitly stated that petitioner had raised a Swain

B

We now face the question whether Georgia can bar consideration of that Batson claim as untimely raised. If we were to focus only on the fact of the state court’s conclusion that petitioner had raised a Swain claim, the issue of the Batson claim’s timeliness under state law could be resolved with the simplicity of a syllogism. • Under Georgia’s precedent, its Supreme Court will review a constitutional claim on the merits only if the record is clear that the claim “was directly and properly made in the court below and distinctly passed upon by the trial judge.” Atlanta v. Columbia Pictures Corp., 218 Ga. 714 , 719, 130 S.

The imposition of this rule is nevertheless subject to our standards for assessing the adequacy of independent state procedural grounds to bar all consideration of claims under the national Constitution. A review of these standards reveals the inadequacy of Georgia’s rule in Sparks to foreclose consideration of the Batson claim in this case.

The appropriateness in general of looking to local rules for the law governing the timeliness of a constitutional claim is, of course, clear. In Batson itself, for example, we imposed no new procedural rules and declined either “to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges,” or to decide when an objection must be made to be timely. 476 U. S., at 99-100 . Instead, we recognized that local practices would indicate the proper deadlines in the contexts of the various procedures used to try criminal cases, and we left it to the trial courts, with their wide “variety of jury selection practices,” to implement Batson in the first instance. Id., at 99, n. 24 . Undoubtedly, then, a state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected.

In any given case, however, the sufficiency of such a rule to limit all review of a constitutional claim itself depends upon the timely exercise of the local power to set procedure. “Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 , 457-458 (1958). In the NAACP case, we declined to apply a state procedural rule, even though the rule appeared “in retrospect to form part of a consistent pattern of procedures,” because the defendant in that case could not be “deemed to have been apprised of its existence.” Id., at 457 . In James v. Kentucky, 466 U. S. 341 (1984), we held that only a “firmly established

and regularly followed state practice” may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim. Id., at 348-351 ; see also Barr v. City of Columbia, 378 U. S. 146 , 149 (1964) (state procedural rules “not strictly or regularly followed” may not bar our review); NAACP v. Alabama ex rel. Flowers, 377 U. S. 288 , 297 (1964) (procedural rule no bar to our review when state court had never applied it with the “pointless severity shown here”).

The Supreme Court of Georgia’s application of its decision in Sparks to the case before us does not even remotely satisfy the requirement of James that an adequate and independent state procedural bar to the entertainment of constitutional claims must have been “firmly established and regularly followed” by the time as of which it is to be applied. At the time of petitioner’s trial, Georgia’s procedural law was just what it was when the Sparks defendant was tried, for Sparks was decided more than two years after petitioner in this case filed his motion on the prosecution’s use of peremptory challenges and long after petitioner’s trial was over. When petitioner filed his pretrial motion, he was subject to the same law that had allowed the defendant in Sparks to object even after the jury had been sworn. The very holding in Sparks was that the defendant was not procedurally barred from raising a Batson claim after the jury had been sworn and given preliminary instructions, and after the trial court had held a lengthy hearing on an unrelated matter. The court entertained the claim as having been raised “relatively promptly” because no prior decision of the Supreme Court of Georgia had required an earlier objection.

To apply Sparks retroactively to bar consideration of a claim not raised between the jurors’ selection and oath would therefore apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground within the meaning of James. Indeed, the Georgia court itself in Sparks disclaimed any such effect for