Moore v. Warden, Lebanon Correctional Institution
REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition herein be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealabilit y and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/10/2017. Signed by Magistrate Judge Michael R. Merz on 1/27/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
- vs -
Case No. 3:17-cv-22
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
TOM SCHWEITZER, Warden,
Lebanon Correctional Institution,
REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to notify the petitioner.”
Mr. Moore was convicted of murder with enhancing specifications in the Montgomery
County Common Pleas Court and sentenced to imprisonment for twenty-eight years to life
(Petition, ECF No. 1, PageID 1). He raises one ground for relief:
Ground One: A party who engages in racial discrimination, in
challenging a prospective juror during jury selection, forfeits that
Id. at PageID 14.
Moore presented this claim on direct appeal to the Second District Court of Appeals
which decided the claim as follows:
[*P24] Moore's second assignment of error states:
The trial court's allowance of an additional peremptory
challenge or "do over" following Appellant's successful Batson
challenge, was error.
[*P25] At the conclusion of voir dire, the trial court, counsel,
Moore, and the State's representative met in chambers to discuss
the selection of jurors. One prospective juror was excused for
cause, and another was excused due to financial hardship. The
State dismissed prospective jurors with its first, second, and third
peremptory challenges, without objection. Defense counsel used
his first and second peremptory challenges, but passed on his third.
Citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.
2d 69 (1986), defense counsel objected to the State's use of its final
peremptory challenge. The trial court sustained the objection, and
the prospective juror at issue was not removed from the jury.
[*P26] The court entertained discussion about whether the State
could exercise a peremptory challenge on another prospective juror
or whether the State had, instead, forfeited its ability to select
another individual with its fourth peremptory challenge. After
hearing from both parties, the trial court determined that it would
allow the State to exercise a peremptory challenge on another
individual. The court reasoned that it was "invalidating the
exercise of that fourth peremptory as to [Prospective Juror #7] not
because the State has lost that peremptory challenge, but because
I'm finding that the use of the peremptory challenge as to that
particular individual juror on the basis of race based criteria is
improper[.] I believe it would be appropriate for me to go ahead
and allow the State to have a fourth peremptory provided that it
obviously cannot be used as to [Prospective Juror #7]." (Tr. 199200.)The trial court invited defense counsel to make a record
regarding its ruling. Defense counsel objected to the trial court's
ruling, arguing that since the State's fourth peremptory challenge
was invalid, the State should not be given a "do over" with another
peremptory challenge. The court noted the objection, and the State
proceeded to dismiss another prospective juror. Defense counsel
passed on his final peremptory challenge.
[*P28] Moore claims that the trial court violated Crim.R. 24(D)
when it allowed the prosecutor to exercise a peremptory challenge
after sustaining his Batson challenge. Under Crim.R. 24(D), in
felony cases other than capital cases, each party may peremptorily
challenge four prospective jurors. In general, a prospective juror
who is peremptorily challenged is excused. Crim.R. 24(E).
[*P29] In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), the United States Supreme Court held that the
Equal Protection Clause forbids the State from exercising a
peremptory challenge to excuse a juror solely because of that
juror's race. See also State v. Murphy, 91 Ohio St.3d 516, 2001
Ohio 112, 747 N.E.2d 765 (2001) (applying Batson). "The Equal
Protection Clause guarantees the defendant that the State will not
exclude members of his race from the jury venire on account of
race, or on the false assumption that members of his race as a
group are not qualified to serve as jurors[.]" (Citations omitted.)
Batson, 476 U.S. at 86. The Supreme Court has extended Batson to
criminal defendants who are not of the same race as the excluded
jurors. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d
411 (1991). Neither the effectiveness of Batson nor the wisdom of
allowing peremptory challenges is before us. Compare, e.g., State
v. Saintcalle, 178 Wash.2d 34, 309 P.3d 326 (2013) (discussing
racial discrimination in jury selection and the shortcomings of
[*P30] Moore relies on State v. Holloway, 129 Ohio App.3d 790,
719 N.E.2d 70 (10th Dist.1998), to support his contention that the
State was improperly provided a fifth peremptory challenge after
the court sustained his Batson objection. In Holloway, a capital
murder case, the defense exercised all six [footnote omitted] of its
peremptory challenges to strike white males from the panel, and
the prosecution used four of its peremptory challenges to strike
three white females and one Hispanic female from the panel; the
State waived its last two peremptory challenges. The court excused
the jurors who had been challenged. During the selection of
alternate jurors, each side was permitted two peremptory
challenges. The State used its first on a black female; the defense
struck another white male. At this juncture, the State raised the fact
that the defense had used all of its peremptory challenges on white
males. The trial court reviewed with counsel how the peremptory
challenges had been exercised, but it did not make any ruling. The
court permitted the parties to use their final challenges; the State
passed, and the defense used its last challenge on a white male.
[*P31] After the peremptory challenges had been used, but before
the challenged alternates were excused, the trial court asked the
parties to state on the record their reasons for striking the jurors.
During this discussion, the State asked that one of the prospective
alternate jurors, who had been peremptorily excused by the
defense, be reinstated under Batson. The trial court never ruled on
the Batson issue, apparently believing that it was an issue for an
appellate court. However, it allowed the State to exercise a
peremptory challenge against another prospective alternate juror.
On review, the Tenth District concluded that the trial court violated
Crim.R. 24(D) when it permitted the State to exercise a peremptory
challenge after it had previously waived its final peremptory
[*P32] Holloway provides little guidance to the case before us.
The trial court in Holloway allowed the State to exercise an
additional peremptory challenge after the completion of the
peremptory challenge process; all peremptory challenges had been
used or waived. In fact, after the State waived its last challenge, the
defense exercised its final peremptory challenge on a prospective
alternate juror. Jury selection should have been complete at that
time. Nevertheless, the court then granted the State another
peremptory challenge to remedy a perceived error in the jury
[*P33] The critical issue here is whether the State actually used its
last peremptory challenge when the trial court ruled, under Batson,
that the peremptory challenge was invalid and the prospective juror
at issue could not be dismissed. This court has not faced this
question before, and Holloway does not answer it. If the answer is
yes, then Moore would be correct that the State was improperly
granted a fifth peremptory challenge, as in Holloway. We conclude
the answer is no. Although the State attempted to use a peremptory
challenge to remove a prospective juror, the court prevented its use
by ruling that the challenge was invalid. In our view, the State
continued to have that peremptory challenge available to it.
[*P34] The United States Supreme Court did not mandate a
particular procedure to follow upon a successful Batson challenge.
See Batson, 476 U.S. at 99, fn.4. It stated, "In light of the variety of
jury selection practices followed in our state and federal trial
courts, we make no attempt to instruct these courts how best to
implement our holding today. For the same reason, we express no
view on whether it is more appropriate in a particular case, upon a
finding of discrimination against black jurors, for the trial court to
discharge the venire and select a new jury from a panel not
previously associated with the case, or to disallow the
discriminatory challenges and resume selection with the
improperly challenged jurors reinstated on the venire[.]" (Citations
omitted.) Id. In Moore's case, the exercise of peremptory
challenges was conducted in chambers, and the prospective juror at
issue was retained (i.e., "reinstated") on the jury.
[*P35] Some courts have held the trial court may order a
peremptory challenge that was unlawfully used under Batson to be
forfeited. See People v. Luciano, 10 N.Y.3d 499, 890 N.E.2d 214,
860 N.Y.S.2d 452 (2008). After finding that New York statutes
governing peremptory challenges neither required nor barred
forfeiture, the Court of Appeals of New York balanced "the
tradition of exercising peremptory challenges without explanation,
and a potential juror's right to be free from discrimination" to
determine whether forfeiture was permissible. Luciano, 890
N.E.2d at 218. The court noted that "disallowing forfeiture may be
seen as indifference to discriminatory challenges; if caught, the
litigant would be in the same position as if there had been no
Batson violation." Id. The Luciano court further found that
allowing forfeiture "promotes the spirit of Batson, signaling to
litigants — and to the jury — that discrimination will not be
tolerated." Id. at 219.
[*P36] However, the Luciano court further recognized that
forfeiture was not always required. It stated:
In holding that forfeiture is a permissible remedy, we note
that the free exercise of peremptory challenges is a
venerable trial tool that should be denied only in rare
circumstances. In fashioning the proper remedy, a trial
judge may consider, among other factors, whether the
challenged juror is available to be reseated, whether the
litigant appears to be engaging in a pattern of
discrimination, and the number of peremptory challenges
that remain to be exercised. While even a single instance
of discriminatory conduct may warrant forfeiture, where
the finding of discrimination is close, forfeiture may not
be an appropriate remedy (see e.g. United States v.
Ramirez-Martinez, 273 F.3d 903 [9th Cir.2001], overruled
on other grounds by United States v. Lopez, 484 F.3d
1186 [9th Cir.2007]).
Luciano, 890 N.E.2d at 219. The Court of Appeals of New York
thus concluded that the trial court must exercise its discretion in
determining whether forfeiture, while permitted, was required.
[*P37] Other courts have also considered forfeiture of a
peremptory challenge to be a permissible remedy available to trial
courts, at their discretion. See State v. Andrews, 216 N.J. 271, 78
A.3d 971 (2013) (discussing a variety of permitted remedies to
address Batson violations). And many courts grant trial judges
flexibility in fashioning remedies for Batson violations, based on
factors related to the nature of the peremptory challenge process
(such as whether challenges are exercised in the presence of the
jury) and the egregiousness of the conduct. Id., citing cases.
[*P38] We find these cases persuasive and conclude that a bright
line, while perhaps helpful to trial courts, is not appropriate under
Batson and its progeny. In our view, it was within the trial court's
discretion to determine, based on the circumstances before it,
whether the peremptory challenge that was invalidated under
Batson was forfeited or, alternatively, the State could re-exercise
the challenge, provided that it does not exercise it in a
discriminatory fashion. We therefore conclude that the trial court
did not abuse its discretion in finding that the State did not exercise
its peremptory challenge when the trial court ruled that the
challenge was unlawful under Batson and reinstated the challenged
prospective juror. Accordingly, the State was not improperly
provided a fifth peremptory challenge, in violation of Crim.R.
[*P39] Moore's second assignment of error is overruled.
State v. Moore, 2015-Ohio-1327, 2015 Ohio App. LEXIS 1294 (2nd Dist., Apr. 3, 2015),
appellate jurisdiction declined, 143 Ohio St. 3d 1542 (2015).
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
Mr. Moore’s Second Assignment of Error in the Second District Court of Appeals did not
argue that forfeiting the peremptory challenge was required by the United States Constitution. In
deciding the assignment of error, Judge Froelich noted that the United States Supreme Court in
Batson, supra, had discussed the question of a remedy for Batson violations and intentionally
declined to require one. Therefore the court found the trial judge had discretion in the matter.
Because the trial judge had been careful in the manner in which challenges were exercised, he or
she was able to prevent the intended racial discrimination from having its intended effect: the
improperly challenged juror was allowed to serve.
In her dissent, Judge Mary Donovan also relied on the language of the relevant Ohio
criminal rule. While she cited a federal district court decision from 1871, it was not directly in
point about racial discrimination in jury selection, but about the more general question of what it
means to exercise a right.
Neither the majority nor Judge Donovan suggested that there was any rule from the United
States Supreme Court that controlled the result, with Judge Froelich noting how the Batson court
left a remedy to the trial judge’s discretion.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, ___,
131 S.Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S.
685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000); Bell v. Howes, 703
F.3d 848 (6th Cir. 2012).
Because the Second District’s decision is not an objectively
unreasonable application of clearly established Supreme Court precedent, it is entitled to
deference from this Court.
Based on the foregoing analysis, the Magistrate Judge respectfully recommends
Petition herein be DISMISSED WITH PREJUDICE. Because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a certificate of appealability and the
Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and
therefore should not be permitted to proceed in forma pauperis.
January 27, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
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