Willie Henry McCoy v. Larry W. Huffman, Warden, 835 F.2d 874, 4th Cir. (1987)
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Scribd Government DocsWillie Henry McCoy v. Larry W. Huffman, Warden, 835 F.2d 874, 4th Cir. (1987)
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Scribd Government Docs835 F.
2d 874
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Willie Henry McCOY, Petitioner-Appellant,
v.
Larry W. HUFFMAN, Warden, Respondent-Appellee.
No. 87-7673.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 21, 1987.
Decided Nov. 23, 1987.
Willie Henry McCoy, appellant pro se.
Before MURNAGHAN and CHAPMAN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
PER CURIAM:
Willie Henry McCoy, a Virginia inmate, brought this 28 U.S.C. Sec. 2254
action seeking review of his convictions for burglary and forcible sodomy on
the following grounds: 1) that the prosecutor used his peremptory challenges in
a racially discriminatory manner during jury selection, and 2) that he was
denied effective assistance of counsel because his lawyer did not immediately
object to the prosecutor's efforts to exclude blacks from the jury and because
his lawyer did not allow him to take the stand in his own defense. The district
court found that McCoy's petition failed to raise new or different grounds from
those presented in earlier habeas corpus petitions and, therefore, dismissed the
present petition pursuant to Rule 9(b), Rules Governing Section 2254 Cases in
United States District Courts.
Having carefully examined the record, including McCoy's earlier habeas
petition, we do not believe that the present petition is either successive or
abusive under Rule 9(b). It does not appear that McCoy has raised these claims
before or, indeed, that he had an opportunity to do so, given that the present
claim is predicated on a recent change in the law. We, therefore, dispose of
McCoy's claims on the merits.
McCoy contends that the constitutional validity of his conviction is called into
question by two recent Supreme Court rulings: Batson v. Kentucky, 476 U.S.
79 (1986) and Griffith v. Kentucky, 55 U.S.L.W. 4089 (U.S. Jan. 13, 1987)
(No. 85-5221). Batson held that criminal defendants may establish a prima facie
case of racial discrimination violative of the Fourteenth Amendment solely on
evidence concerning the prosecutor's use of peremptory challenges. Griffith
held that the Batson ruling applied retroactively to all cases on direct review.
McCoy contends that since his lawyer raised the issue of the prosecutor's use of
challenges in a sentencing hearing, Batson should be applied retroactively to his
cause. However, in Allen v. Hardy, 54 U.S.L.W. 3756 (U.S. June 30, 1986)
(No. 85-6593), the Supreme Court squarely held that Batson is not to be applied
retroactively to a case on federal habeas corpus review. Therefore, McCoy's
claim based on Batson must fail.
McCoy's claim of ineffective assistance of counsel is equally without merit.
Under the standard of Swain v. Alabama, 380 U.S. 202 (1965), which was the
law at the time of McCoy's trial, a prosecutor's use of peremptory challenges
was almost immune from constitutional scrutiny. Batson, 476 U.S. at ---. The
failure of McCoy's lawyer to make what would almost surely have been a futile
objection concerning the prosecutor's behavior was not incompetent or
unreasonable. Therefore, McCoy did not receive ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668 (1984).
Finally, McCoy's last claim, which he makes only in passing, that his lawyer
did not allow him to take the stand certainly could certainly have been raised in
an earlier petition. His attempt to raise it now constitutes abuse of the writ
under Rule 9(b). Miller v. Bordenkircher, 764 F.2d 245 (4th Cir.1985).
Because the dispositive issues recently have been decided authoritatively, we
dispense with oral argument, deny a certificate of probable cause to appeal, and
dismiss the appeal.
DISMISSED
