US SUPREME COURT DECISIONS

Petitioner, a black man, was convicted in an Illinois state court of attempted murder and other offenses by an all-white jury. During jury selection, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner twice unsuccessfully moved for a mistrial, arguing that he was "entitled to a jury of his peers." The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. After an unsuccessful state court appeal, in which he argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community, petitioner filed a habeas corpus petition in Federal District Court, repeating his fair cross-section claim. He further argued that the opinions of several Justices concurring in and dissenting from the denial of certiorari in McCray v. New York, 461 U.S. 961, had invited a reexamination of Swain v. Alabama, 380 U. S. 202, as to what a defendant must show to establish a prima facie case of discrimination with respect to a peremptory challenge system. He also argued, for the first time, that, under Swain, a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explanation. The District Court held that it was bound by Swain and Circuit precedent, and denied relief. A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross-section requirement that applied to a jury venire also applied to a petit jury, and held that he had made out a prima facie case of discrimination. But the Court of Appeals voted to rehear the case en banc, and postponed rehearing until after this Court's decision in Batson v. Kentucky, 476 U. S. 79. Ultimately, Batson was decided, and overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause of the Fourteenth Amendment with respect to a peremptory challenge system. Batson held that a defendant can establish such a case by showing that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race," and that these

"facts and any other relevant circumstances raise an inference that the prosecutor used that practice to

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exclude the veniremen from the petit jury on account of their race."

476 U.S. at 476 U. S. 96. The Court of Appeals then held that petitioner could not benefit from the Batson rule because, in the meantime, Allen v. Hardy, 478 U. S. 255, had held that Batson could not be applied retroactively to cases on collateral review. The Court of Appeals also held that petitioner's Swain claim was procedurally barred and, in any event, meritless, and that the fair cross-section requirement was limited to the jury venire.

Held: The judgment is affirmed.

820 F.2d 832, affirmed.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:

1. Allen v. Hardy prevented petitioner from benefiting from the rule announced in Batson, since his conviction became final before Batson was decided. The opinions filed in McCray -- which involved the question whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they would be biased in favor of other members of the same group -- did not destroy Swain's precedential effect, as petitioner urges they did, since a denial of certiorari imports no expression of opinion on the merits of the case, and, concomitantly, opinions accompanying such denial cannot have the same effect as decisions on the merits. Pp. 489 U. S. 294-296.

2. Petitioner is procedurally barred from raising the claim that he has established a violation of the Equal Protection Clause under Swain, and that Swain did not preclude an examination of the prosecutor's stated reasons for his peremptory challenges to determine the legitimacy of his motive. Since petitioner did not raise the Swain claim at trial or on direct appeal, he forfeited review of the claim in collateral proceedings in the state courts. Under Wainwright v. Sykes, 433 U. S. 72, he is barred from raising the claim in a federal habeas corpus proceeding, since he made no attempt to show cause for his default and the Illinois Appellate Court, contrary to his contention, did not address the Swain claim. Pp. 489 U. S. 297-299.

JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded in Parts IV and V that a decision extending to the petit jury the Sixth Amendment requirement that the jury venire be drawn from a fair cross-section of the community would not be applied retroactively to cases on collateral review, and therefore petitioner's fair cross-section claim will not be addressed. Pp. 489 U. S. 299-316.

(a) Retroactivity is properly treated as a threshold question, for, once a new constitutional rule of criminal procedure is applied to the defendant chanrobles.com-red

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in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross-section requirement should be extended to the petit jury, it should be determined whether such a rule would be applied retroactively to the case at issue. Pp. 489 U. S. 299-305.

(b) Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appropriate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule -- that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe," Mackey v. United States, 401 U. S. 667, 401 U. S. 692, or (2) if it requires the observance of "those procedures that . . . are implicit in the concept of ordered liberty,'" id. at 401 U. S. 693 -- such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 489 U. S. 305-310.

(c) Since petitioner's conviction became final six years ago, the rule he urges would not be applicable to this case, which is on collateral review, unless it falls within one of the above exceptions. The first exception is not relevant here, since application of the fair cross-section requirement to the petit jury would not accord constitutional protection to any primary activity. The second exception should be limited in scope to those new procedures without which the likelihood of an accurate conviction is seriously diminished. An examination of the decision in Taylor v. Louisiana, 419 U. S. 522, applying the fair cross-section requirement to the jury venire, leads inexorably to the conclusion that adoption of the rule petitioner urges would be a far cry from the kind of absolute prerequisite to fundamental fairness that is "implicit in the concept of ordered liberty." Because the absence of a fair cross-section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, a rule requiring that petit juries be composed of a fair cross-section of the community would not be a "bedrock procedural element" that would be retroactively applied under the second exception. Pp. 489 U. S. 311-315.

(d) Were the new rule urged by petitioner recognized, petitioner would have to be given the benefit of that rule even though it would not be applied retroactively to others similarly situated. A new rule will not be announced in a given case unless it would be applied retroactively to the defendant in that case and to all others similarly situated. This not only eliminates any problems of rendering advisory opinions, it also avoids the inequity resulting from an uneven application of new rules to similarly situated defendants. Implicit in the above retroactivity approach is the principle that habeas corpus cannot be used as a vehicle to chanrobles.com-red

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create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two articulated exceptions. Pp. 489 U. S. 315-316.

JUSTICE WHITE concluded that the result as to nonretroactivity of the fair cross-section rule urged by petitioner is an acceptable application in collateral proceedings of the theories embraced in United States v. Johnson, 457 U. S. 537, Shea v. Louisiana, 470 U. S. 51, and Griffith v. Kentucky, 479 U. S. 314, as to retroactivity of new constitutional rules of criminal procedure to all cases pending on direct review. Pp. 489 U. S. 316-317.

JUSTICE BLACKMUN concurred in the result insofar as petitioner's claim based on Swain v. Alabama, 380 U. S. 202, was concerned. P. 489 U. S. 318.

JUSTICE STEVENS concluded in Part I, joined by JUSTICE BLACKMUN, that petitioner had alleged a Sixth Amendment violation and that the Court should decide the question in his favor. Nonetheless, petitioner's conviction should not be set aside for, as a matter of stare decisis, the Court's opinion in Allen v. Hardy, 478 U. S. 255, controls disposition of this retroactivity question. In general, the Court should adopt Justice Harlan's analysis of retroactivity for habeas corpus cases as well as for cases still on direct review, but without the plurality's "modification" of his fundamental fairness exception. JUSTICE STEVENS concluded in Part II that, since petitioner's claim under Swain v. Alabama, 380 U. S. 202, that the prosecutor violated the Equal Protection Clause by using peremptory challenges to exclude black persons from the jury was never presented to the state courts, it should be treated as an unexhausted claim that is not ripe for review on federal habeas corpus until those courts have spoken. Pp. 489 U. S. 318-326.

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, in which REHNQUIST, C.J.,and WHITE, SCALIA, and KENNEDY, JJ., joined, the opinion of the Court with respect to Part II, in which REHNQUIST, C.J.,and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts IV and V, in which REHNQUIST, C.J.,and SCALIA and KENNEDY, JJ., joined. WHITE, J., post, p. 489 U. S. 316, and BLACKMUN, J., post, p. 489 U. S. 318, filed opinions concurring in part and concurring in the judgment. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in Part I of which BLACKMUN, J., joined, post, p. 489 U. S. 318. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 489 U. S. 326. chanrobles.com-red

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