Malcolm Rent Johnson v. Gary L. Gibson, Warden, 169 F.3d 1239, 10th Cir. (1999)
Malcolm Rent Johnson v. Gary L. Gibson, Warden, 169 F.3d 1239, 10th Cir. (1999)
3d 1239
1999 CJ C.A.R. 1303
ORDER
1
This matter is before the court on petitioner Malcolm Rent Johnson's Petition
for Rehearing. The petition is denied. Mr. Johnson correctly maintains,
however, that the opinion of December 28, 1998, did not correctly address one
issue raised in his appeal. The accompanying amended opinion addresses that
issue.
The suggestion for rehearing en banc was transmitted to all of the judges of the
court who are in regular active service as required by Fed. R.App. P. 35. As no
member of the panel and no judge in regular active service on the court
requested that the court be polled, the suggestion is also denied.
The opinion filed on December 28, 1998, is withdrawn and reissued. A copy of
Malcolm Rent Johnson filed an amended petition for habeas corpus pursuant to
28 U.S.C. 2254 in February 1994, in which he raised thirty-one grounds of
constitutional error in his conviction and death sentence. The United States
District Court for the Western District of Oklahoma denied this petition in its
entirety on August 12, 1996, finding some of the asserted claims procedurally
barred and the rest meritless. Johnson now appeals the district court's denial of
the writ, raising thirteen claims of error, alleging violations of the Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In
addressing his claims, we hold, inter alia, that a party challenging as
discriminatory the exercise of peremptory challenges pursuant to Batson v.
State. of Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has the
burden of production in seeking to rebut as pretextual facially neutral
justifications proffered by the party exercising the challenges. We have
jurisdiction pursuant to 28 U.S.C. 1291, and affirm.
* On the evening of October 27, 1981, Frank Thompson found his aunt, Ura
Alma Thompson, an elderly white woman, deceased on the floor of her
Oklahoma City apartment. Following an autopsy, the medical examiner found
evidence of forcible sexual intercourse before death. He concluded that
although Thompson was not strangled, she died of asphyxiation either because
of pressure on her chest during the intercourse or because her assailant covered
her mouth and nose.
At the first stage of trial, Joyce Gilchrist, a state forensic chemist, testified that
semen found on the bed coverings in Thompson's apartment matched Johnson's
blood type. She also testified that several strands of hair found at the scene of
the crime were "consistent microscopically" with petitioner's hair. Trial Tr. at
1033, 1038-39. The defense did not present any witnesses. Petitioner was found
guilty on March 22, 1982.
At the second stage of trial, the state introduced evidence about Johnson's prior
Illinois convictions for raping two different women, two separate charges of
armed robberies, and one burglary. Four women testified that petitioner had
raped or attempted to rape them or attempted to rob them with a firearm. These
latter offenses were unadjudicated at the time of trial.
10
Sixteen of Johnson's relatives testified that he came from a broken and abusive
home, and that at the age of two he spent two months, often under restraint, in
the hospital for an undiagnosed debilitating illness. They also testified that
Johnson, the oldest of four children, was responsible for his siblings' care and
for other household duties. His girlfriend testified that he assumed a parental
role with her five-year old son. Neither side offered psychiatric testimony.
11
II
12
III
13
Johnson alleges that the trial court unconstitutionally denied him, an indigent
defendant, the "basic tools of an adequate defense" in violation of his rights
under the Due Process Clause. See Ake v. Oklahoma, 470 U.S. 68, 77, 105
S.Ct. 1087, 84 L.Ed.2d 53 (1985) (quoting Britt v. North Carolina, 404 U.S.
226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971)). He alleges three specific
violations of Ake: denial of funds for psychiatric assistance; denial of funds for
a forensic chemistry expert; and denial of funds for counsel to travel to Chicago
to help prepare mitigation evidence. "In reviewing the district court's denial of
[the Ake ] claim, we review the court's factual findings under the clearly
15
Due process requires that "when a defendant demonstrates to the trial judge that
his sanity at the time of the offense is to be a significant factor at trial, the State
must, at a minimum, assure the defendant access to a competent psychiatrist
who will conduct an appropriate examination and assist in evaluation,
preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S.Ct.
1087. The defendant must, however, show more than "general allegations" and
"undeveloped assertions." See Liles v. Saffle, 945 F.2d 333, 336 (10th
Cir.1991). The question in a case such as this, where "Ake was decided after
trial but while direct appeal was pending," is "whether, upon review of the
entire record, the habeas petitioner could have made a threshold showing under
Ake that his sanity at the time of the offense was to be a significant factor at
trial." Moore v. Reynolds, 153 F.3d 1086, 1109 (10th Cir.1998).
16
We agree with the district court that petitioner does not make the threshold
showing with respect to the guilt phase. He simply fails to present, upon
consideration of the entire record, evidence that his sanity at the time of the
offense was likely to be a significant factor at trial. Cf. Castro, 71 F.3d at 151314. Although petitioner offers an expert neuropsychological evaluation as
evidence of the type of psychiatric testimony he would have presented, this
report presents no evidence tending to demonstrate that he was incompetent at
the time of the crime. See Moore, 153 F.3d at 1109.
2. Sentencing Phase
17
Johnson further contends that the denial of funds for psychiatric assistance was
We conclude that Johnson has met the threshold showing of a likelihood that
mental condition could have been a mitigating factor at the sentencing stage.
See Moore, 153 F.3d at 1110. He presents us with a "neuropsychological
evaluation" stating he "could be treated ... in the prison setting" in a way that
"would control his behavior and especially remove the risk of further
dangerous behavior." Appellant's Br., App. 1, at 1-2. This statement, although
general and conclusory, nevertheless rises to the level of evidence that
"arguably suggests if [Johnson] were to receive proper psychiatric treatment for
his mental disorders, he would be less likely to commit future crimes and, in
short, would be less dangerous to society." Moore, 153 F.3d at 1110. Thus, we
conclude that Johnson has established his constitutional entitlement to mental
health expert assistance at the sentencing phase of trial. See Castro, 71 F.3d at
1515.
19
The denial of this entitlement leads us to harmless error analysis, and, in this
particular context, to the following inquiry: "Do [we] harbor a significant doubt
that this evidence would have caused at least one juror to choose life rather than
death?" Moore, 153 F.3d at 1110 (quoting Brecheen, 41 F.3d at 1373). In this
case, we can see no such doubt. Unlike in Castro, the jury's only question
during deliberations shows no confusion in determining whether Johnson's
crime merited the death penalty. Compare Castro, 71 F.3d at 1516, with Moore,
153 F.3d at 1110-11. Nor are we presented with a situation, where reversal of
the "especially heinous, atrocious, and cruel" aggravating circumstance left the
jury with only the continuing threat circumstance. Cf. Castro, 71 F.3d at 1516.
The jury in Johnson's case rejected the "heinous, atrocious, and cruel"
circumstance, but found the aggravating circumstances of both continuing threat
and previous violent felony convictions. As in Moore, "most, if not all, of the
evidence presented at the sentencing phase could ... have been properly
considered by the jury," 153 F.3d at 1111, including Johnson's previous rapes
and other violent crimes, as well as the manner of Thompson's death. Against
the weight of that evidence, the mental health evidence Johnson presents to us
now--none of which explains his murder of Thompson--fails to raise a
significant doubt that it would have persuaded even one juror to choose the
alternative sentence. See id.
B. Forensic Expert
20
At trial, petitioner's counsel sought funds for a forensic expert to rebut the
testimony of forensic chemist Joyce Gilchrist, a prosecution witness who
presented evidence that hair, fiber, and semen samples found on the victim
match those of petitioner. The trial court denied the request, and the district
court, on two grounds, rejected petitioner's Ake challenge to the trial court's
decision.
21
First, the district court found that "defense counsel effectively cross-examined
the [forensic] witnesses to fully develop the limitations of the tests performed
on the evidence." Johnson v. Reynolds, No. CIV-94-121-C (W.D. Okla. Aug
12, 1996) at 31 (hereinafter Mem. Op.). Second, it concluded that "in light of
the entire record and the nature of the evidence presented by the prosecution at
trial, petitioner has failed to establish the denial of expert assistance in
developing affirmative evidence, such as testing by electrophoresis, resulted in
a fundamentally unfair trial." Mem. Op. at 32 (citing Yohey v. Collins, 985
F.2d 222, 227 (5th Cir.1993)). These are legal conclusions that we review de
novo. See Castro, 71 F.3d at 1510. Without deciding the issue of whether
defense cross-examination of an expert witness can be an adequate substitute
for the testimony of an expert not beholden to the prosecution, we agree with
the district court that the denial of expert assistance ultimately did not result in
a fundamentally unfair trial.
22
23
The first and second prongs of this test are easily satisfied because as the
Supreme Court has held, "[t]he private interest in the accuracy of a criminal
proceeding that places an individual's life or liberty at risk is almost uniquely
compelling," and although the State's interest in financial economy may weigh
against the provision of experts to indigent defendants, its "interest in prevailing
25
In Moore, which involved a petition for habeas corpus in a state death penalty
case, we rejected a due process claim based on the denial of a forensic expert,
and held that the petitioner's "arguments as to what the requested experts might
have said [were] entirely speculative," Moore, 153 F.3d at 1112, because he
had "offered little more than undeveloped assertions that the requested
assistance would be beneficial." Id. (quoting Caldwell v. Mississippi, 472 U.S.
320, 324 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)).
26
C. Travel Funds
27
Petitioner alleges that by denying his requests for funds to travel to Chicago,
Illinois, to gather mitigating evidence for the second stage of trial, the trial
court deprived him of his right to an adequate defense. We agree with the
district court that petitioner fails to show how this ruling substantially
Petitioner claims that the prosecutor's use of peremptory challenges to strike all
three black jurors on the venire, resulting in the selection of an all-white jury,
violated Batson v. State. of Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986). Petitioner exhausted this claim in the state courts; it is not
procedurally defaulted.
29
Johnson's conviction was on direct appeal when the Supreme Court issued
Batson.2 Accordingly, the Oklahoma Court of Criminal Appeals (OCCA)
remanded the Johnson proceeding for an evidentiary hearing on his claim that
race discrimination tainted the jury selection process. At the hearing, petitioner
established that the prosecution exercised its peremptory challenges in a
manner that gave rise to the inference that it "exclude[d] the [black] venire
members from the petit jury on account of their race." United States v. Johnson,
941 F.2d 1102, 1107 (10th Cir.1991). The defendant therefore made a prima
facie case of a Batson violation. See Batson, 476 U.S. at 97, 106 S.Ct. 1712.
The burden then shifted to the prosecutor to present a "neutral explanation for
his action." Id. at 100, 106 S.Ct. 1712. Following the prosecutor's explanations,
the trial judge concluded that "the State has met its burden of proof and ... there
was no purposeful discrimination in the exercise of [ ] peremptory challenges
against black persons." Tr. of Hr'g Nov. 13, 1986, at 34 (hereinafter Batson
Tr.).3
30
31
support for petitioner's pretext argument, we cannot reverse the state court's
factual findings at this stage. To do so would require us to hold that the Batson
inquiry imposes an independent duty on the trial court to pore over the record
and compare the characteristics of jurors, searching for evidence of pretext,
absent any pretext argument or evidence presented by counsel. We cannot
reconcile such an approach with the Supreme Court's directive that "the
ultimate burden of persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the strike." Purkett v. Elem, 514 U.S. 765, 768,
115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).
V
32
33
First, we address the district court's finding of procedural bar. "On habeas
review, we do not address issues that have been defaulted in state court on an
independent and adequate state procedural ground, unless cause and prejudice
or a fundamental miscarriage of justice is shown." Steele v. Young, 11 F.3d
1518, 1521 (10th Cir.1993) (citations omitted). Johnson's claims stemming
from the prosecutor's comments about the State's forensic evidence and
Johnson's failure to put on medical testimony in support of mitigation are not
procedurally barred. The district court, however, found that the remaining
alleged instances of misconduct, save one, had been procedurally barred by
Oklahoma's application of a contemporaneous objection rule. At trial,
Johnson's counsel failed to object to all of the alleged instances of misconduct
except for a disparaging reference to defense counsel. Johnson raised
allegations of prosecutorial misconduct on direct appeal, but the OCCA did not
address the claim. He raised the claim again in his application for postconviction relief, and the OCCA ruled on it, stating: "We have reviewed the
alleged erroneous comments and find that defense counsel failed to object to all
of the remarks except one, and that when he objected to the one comment the
trial court sustained the objection and admonished the jury to disregard it.
Consequently, this assignment is without merit." Johnson v. State, No. PC-8890, slip op. at 1 (Okla.Crim. Mar. 16, 1988). The OCCA's language appears to
support the inference that it barred all the claims save one under a
Johnson, however, alleges that the OCCA did not in fact apply a
contemporaneous objection rule, but instead actually reviewed all of the
allegedly erroneous comments under a "fundamental error" standard of review.
Fundamental error review implicates the merits of federal constitutional claims
and as such is not an independent state ground for decision. Johnson cites
Oklahoma cases standing for the proposition that prosecutorial misconduct is
reviewed on appeal for fundamental error even absent contemporaneous
objection. The fundamental error exception does not apply, however, to claims
raised for the first time in post-conviction proceedings. See Brecheen v.
Reynolds, 41 F.3d 1343, 1354 n. 10 (10th Cir.1994).
35
Johnson's argument that the Oklahoma court in fact reviewed the claims of
misconduct on the merits is not supported by the court's language. Moreover,
the court stated that the prosecutorial claim was "[t]he one new assignment"
raised by petitioner, further suggesting that it treated the claim as one raised for
the first time in post-conviction proceedings and thus not subject to
fundamental error review.
36
Consequently, given that the court applied a procedural bar, the question then is
whether that bar was an adequate state ground for the denial of relief. If
Oklahoma does not consistently apply a contemporaneous objection rule to
claims of prosecutorial misconduct, then this cannot be an adequate state
ground for barring the claim. See Steele, 11 F.3d at 1522. However, the cases
cited by Johnson as permitting "fundamental error" review, even absent
contemporaneous objection, all arise on direct appeal and not in post-conviction
proceedings. See, e.g., Paxton v. State, 867 P.2d 1309, 1330
(Okla.Crim.App.1993) (direct appeal); McCarty v. State, 765 P.2d 1215, 1220
(Okla.Crim.App.1988) (same); Hammer v. State, 760 P.2d 200, 203
(Okla.Crim.App.1988) (same); West v. State, 764 P.2d 528, 529
(Okla.Crim.App.1988) (same); Williams v. State, 658 P.2d 499, 500
(Okla.Crim.App.1983) (same). We have previously noted that the Oklahoma
Court of Criminal Appeals' application of procedural bar in post-conviction
proceedings to "fundamental error" issues not presented on direct review does
not appear to be inconsistent. See Steele, 11 F.3d at 1522 n. 5.
37
Petitioner accurately points out, however, that he did not fail to raise the
numerous alleged instances of prosecutorial misconduct, but rather the OCCA
simply did not address them. See Johnson v. State, 731 P.2d 993, 1001-1002
(Okla.Crim.App.1987) (addressing appellant's arguments C.IV and E.I, but not
discussing appellant's Section D, relating to prosecutorial misconduct).
39
40
Johnson also contends that the district court erred in considering separately the
three surviving allegations of prosecutorial misconduct: exploitation of his
indigence at the first and second phases of trial, and the disparaging remarks
about defense counsel. He additionally claims that the district court erred in
failing to consider, cumulatively with these instances, those instances it found
procedurally barred. We agree that, under these circumstances, application of
the procedural bar rule was inappropriate. Yet even considering the entire
catalog of allegedly prejudicial prosecutorial comments taken as a whole, the
alleged misconduct is similar to that which we held, in Brecheen, not to
constitute a due process violation under Donnelly, 416 U.S. at 643, 94 S.Ct.
1868. See Brecheen, 41 F.3d at 1354-56. Particularly in light of the totality of
the evidence presented at trial, trial counsel's failure to object to all but one of
the comments, and the trial court's immediate admonition to the jury when
counsel did object, we conclude that the allegedly improper remarks at issue do
not, individually or collectively, rise to the level of prejudice that the Supreme
Court has suggested could amount to a due process violation. See Darden v.
Wainwright, 477 U.S. 168, 181-82, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986);
Brecheen, 41 F.3d at 1356.
VI
41
Petitioner insists that the State's failure to prove and the trial court's failure to
properly instruct the jury regarding his intent to kill violated his rights under the
Eighth Amendment. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140 (1982) (holding class of murderers who did not intend to kill
cannot be constitutionally guilty of capital murder). This claim, which appears
to us essentially a challenge to Oklahoma's capital felony murder statute, has
been dispositively answered. The Supreme Court in Tison v. Arizona, 481 U.S.
137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), rejected the claim that Enmund
required felony murder statutes to incorporate a specific "intent to kill
requirement" as prerequisite to a death sentence:
Id. at 157, 107 S.Ct. 1676. See also United States v. McVeigh, 153 F.3d 1166,
1195 (10th Cir.1998) (" '[I]ntent to kill' need not be incorporated into the jury
instructions during the guilt phase of a capital case if it is not an element of the
charged crime."). The jury was instructed that it should find the defendant
guilty if it found beyond a reasonable doubt that he "did .... willfully and
unlawfully kill Ura Alma Thompson, [b]y asphyxiation with his hands
inflicting mortal wounds which caused her death .... [w]hile in the commission
of Forcible Rape in the First Degree." Direct Crim. Appeal, R. at 129. Such an
instruction is sufficient to satisfy the requirements of Tison, and the evidence
presented at trial supports this conclusion. See McVeigh, 153 F.3d at 1196.
VII
44
Johnson claims that his death sentence violated Beck v. Alabama, 447 U.S.
625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), because the trial court failed to
instruct the jury on lesser included offenses of second degree murder and first
degree manslaughter. The district court found this claim procedurally barred,
but Johnson argues that his appellate counsel's failure to raise this ostensibly
dispositive issue amounted to constitutionally ineffective assistance sufficient to
show cause and prejudice to overcome procedural default. See Banks v.
Reynolds, 54 F.3d 1508, 1515 (10th Cir.1995) ("An appellate advocate may
deliver deficient performance and prejudice a defendant by omitting a 'deadbang winner.' ") (quoting United States v. Cook, 45 F.3d 388, 394-95 (10th
Cir.1995)). Thus, the inquiry into cause and prejudice upon an allegation of
ineffective assistance of appellate counsel requires assessment of whether the
omitted claims were indeed "clearly meritorious." See Banks, 54 F.3d at 1515.
45
VIII
46
We consider next whether the trial court lacked subject matter jurisdiction to
try the defendant because he was charged with felony murder by an
information that did not set forth all of the elements of the underlying felony of
rape, and therefore was fatally and jurisdictionally defective under Oklahoma
law. The district court found this claim to be procedurally barred under state
law because petitioner raised it for the first time on application for postconviction relief. See Johnson v. State, 823 P.2d 370, 372
(Okla.Crim.App.1992) (holding claims procedurally barred).
47
IX
49
The claim that the trial court submitted duplicative and cumulative aggravating
circumstances to the jury is meritless. As the federal district court correctly
noted, the aggravating circumstance of future dangerousness and prior felony
conviction are not duplicative. The former is supported by evidence of the
petitioner's potentiality for future dangerous acts, the latter by evidence of
petitioner's past acts. See, e.g., Berget v. State, 824 P.2d 364
(Okla.Crim.App.1991).
50
X
52
XI
53
XII
54
Johnson argues that the district court erred in denying his request for an
evidentiary hearing on the issues raised by the denial of funds for expert
assistance. In support, Johnson states he was prevented from developing and
presenting evidence in support of claims regarding denial of funds for a
forensic expert, denial of funds for a psychiatrist, denial of funds to investigate
mitigating evidence, ineffective assistance of appellate counsel, and ineffective
assistance of trial counsel. More specifically, Johnson alleges that he was
denied the opportunity to present evidence demonstrating ineffective assistance
of trial counsel arising out of the denial of funds for expert assistance and travel
to gather mitigation evidence.
55
XIII
56
briefing was completed on his petition for habeas relief." Mem. Op. at 73.
Shortly thereafter, on August 27, 1996, the district court granted Lahiff's
motion to withdraw, stating that "[t]he Office of the Federal Public Defender
will continue to represent Mr. Johnson." R., Doc. 39, at 1.
57
58
Although it appears that the district court failed to make the required inquiry,
petitioner's claim is moot, as he is now represented by the substitute counsel he
requested. His claims that Lahiff's performance was, essentially, so ineffective
as to violate McFarland v. Scott are too lacking in specificity to support a
conclusion that he was prejudiced by Lahiff's allegedly deficient performance.
Although we agree with petitioner that counsel could have raised his Batson
and subject matter jurisdiction claims in a more comprehensive fashion in his
petition, given our resolution of those issues today, we cannot say he was
prejudiced by the presentation of those issues below.
XIV
59
XV
We have previously rejected the argument that a trial court violates the Eighth
and Fourteenth Amendment by failing to inform the jury that it has the option
of returning a life sentence even upon a finding of an aggravating circumstance.
See Duvall v. Reynolds, 139 F.3d 768, 789-91 (10th Cir.1998). The jury
instruction to which Johnson objects is identical to the instruction upheld
against Eighth and Fourteenth Amendment challenges in Duvall. See 139 F.3d
at 790.
60
The final issue before us is the contention that the prosecution withheld, in
violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), exculpatory evidence corresponding to three items requested in
petitioner's Motion for Discovery:
61 The name of any criminal defendants prosecuted in the last eighteen (18) months
17.
by the Oklahoma County District Attorney's Office for raping women fifty-five (55)
years or older.
62 A list of any alleged suspect to this crime before the apprehension of Malcolm
18.
Johnson.
63 All information regarding any unsolved rapes occurring on the north side of
19.
Oklahoma City from January 1, 1980 to January 15, 1982 involving rapes of women
over fifty-five (55) years old.
64
65
To establish a Brady violation, the petitioner must show that evidence was: (1)
suppressed by the prosecution; (2) favorable to petitioner; and (3) material. See
Stafford v. Ward, 59 F.3d 1025, 1027 (10th Cir.1995). The third element,
materiality, requires "a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different." Id. (quoting United States v. Hughes, 33 F.3d 1248, 1251 (10th
Cir.1994)). We take the district court's view that petitioner has failed to
establish the materiality of the information requested. See Kyles v. Whitley,
514 U.S. 419, 434-37, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (discussing
elements of materiality analysis).
66
67
68
69
Nor are we told of the material relevance of copies of "the crime incident
report, the report from Mr. Johnson's arrest, and the inventory sheet of the
items removed from Mr. Johnson's apartment." Appellant's Supp. Br. at 6.
Brady does not require the prosecution to "make a complete and detailed
accounting to the defense of all police investigatory work on a case." Banks, 54
F.3d at 1517 (quoting Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33
L.Ed.2d 706 (1972)). The district court's determination that petitioner has failed
to show how these items are either favorable or material will not be disturbed.
70
Considering the allegedly suppressed evidence collectively, see Kyles, 514 U.S.
at 436-37, 115 S.Ct. 1555, we conclude that the government in this case did not
fail to disclose known, favorable evidence "rising to a material level of
importance." Id. at 438-39, 115 S.Ct. 1555.
XVI
71
The new Act amended existing habeas provisions in 28 U.S.C. 2244, 2254,
and 2255
Although Batson had not been decided at the time of voir dire in this case, there
is no dispute that it applies here. In Griffith v. Kentucky, 479 U.S. 314, 328,
107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court held that Batson "is
to be applied retroactively to all cases, state or federal, pending on direct review
or not yet final" at the time of the Batson decision
3