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Government of Virgin Islands v. Forte

filed: January 6, 1989.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
FORTE, FREDERICK, APPELLANT



On Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John, (D.C. Civil No. 85-00142).

Greenberg, Scirica, and Weis, Circuit Judges.

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge.

This matter is before this court on appeal by movant Frederick R. Forte from an order entered on April 12, 1988 in the District Court of the Virgin Islands denying his motion under 28 U.S.C. § 2255 seeking relief from his conviction and sentence because his trial attorney was ineffective. We have already affirmed Forte's conviction on his direct appeal and thus the facts need only be summarized and the procedural history updated. Government of the Virgin Islands v. Forte, 806 F.2d 73 (3d Cir. 1986).

Forte, a white male from the United States mainland, was convicted in the District Court of the Virgin Islands at a jury trial of rape of Petula Stephens, a black female from the Virgin Islands, and related offenses. 806 F.2d at 74-75. At the trial the prosecutor, without objection of Forte's attorney, used her peremptory challenges to excuse all or almost all of the white jurors called. 806 F.2d 73 n.1. Following the trial, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and held that on the basis of the Equal Protection Clause of the Fourteenth Amendment prosecutors may not use peremptory challenges in a criminal case to exclude members of a defendant's race for racial reasons. The Court established procedures to be followed in trial courts for consideration of objections by defendants to peremptory challenges made on an allegedly racial basis. These procedures require the prosecutor, when a defendant makes a prima facie case of purposeful discrimination in the selection of the jury solely on evidence concerning the prosecutor's exercise of peremptory challenges, to explain why members of the defendant's race have been excused. The trial judge then has the duty to determine if the defendant has established purposeful discrimination. 476 U.S. at , 106 S. Ct. at 1723-24.

Notwithstanding his attorney's failure to object to the prosecutor's challenges to the jury at trial, Forte on his direct appeal contended that the judgment of conviction should be vacated because the government's exercise of its peremptory challenges to remove all white persons from the jury was plain error under Batson. Alternatively, he urged that his trial attorney's failure to challenge the government's exercise of peremptory challenges denied him effective assistance of counsel entitling him to a remand. 806 F.2d at 74. We held that the Batson equal protection analysis was not triggered because Forte had failed to preserve his objections and because we did not find plain error in the trial proceedings. We further held that Forte could raise his contention regarding the ineffectiveness of his attorney only in a collateral proceeding under 28 U.S.C. § 2255. 806 F.2d at 77-78. In response on November 27, 1987 Forte initiated the proceedings under 28 U.S.C. § 2255 leading to this appeal.

In his moving papers Forte set forth that prior to the trial he had retained Alan Ellis, an attorney from Philadelphia, Pennsylvania to consult with his Virgin Islands trial counsel. Ellis advised the trial counsel that Batson was then pending in the Supreme Court and instructed her to object if the prosecutor used her peremptory challenges to strike prospective white jurors. Forte further set forth that he, too, instructed the trial attorney to object to the challenge of the white jurors on the basis of Batson. Nevertheless at trial she did not object when the prosecutor excused the white jurors. The trial attorney later explained that she had not objected as she was "'too embarrassed' to do so.

Forte attached a letter from Ellis to his new attorney which substantiated his claim. In the letter Ellis explained that prior to the trial he discussed the jury composition with the trial attorney who said that the prosecutor would attempt to get an all black jury as the complainant was black and to achieve this end would use peremptory challenges to remove the white jurors. Ellis said he advised the attorney of Batson. The trial attorney indicated to Ellis that she would object when the prosecutor used peremptory challenges to excuse white jurors. After the conviction Ellis returned to the Virgin Islands and discussed the case with the trial attorney who confirmed that the prosecutor had used her challenges to excuse the white jurors and she had not objected. The trial attorney, according to Ellis, attributed her failure to object to the fact "that she was too embarrassed inasmuch as she, herself, used her peremptory challenges in prior cases to exclude Whites from a Black defendant's jury."

Forte's motion was referred to the trial judge who decided the matter by an order dated April 12, 1988. He disposed of Forte's contention that the trial attorney had been ineffective in not objecting to the peremptory challenges by indicating that "[despite the composition of the jury, the court did everything within its power to eliminate any possible bias" and by quoting from our opinion at 806 F.2d at 76 with respect to the jury selection. The judge did not require the United States Attorney to file an answer or other pleading and no hearing was held on the motion. The judge must have therefore concluded from the face of the motion with the exhibits and the prior proceedings that Forte was not entitled to relief. This appeal, in which Forte seeks the vacation of his conviction and sentence or a remand for evidentiary hearing on his motion, followed.*fn1

When a motion is made under 28 U.S.C. § 2255 the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief. Government of the Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.), cert. denied, 469 U.S. 829, 105 S. Ct. 113, 83 L. Ed. 2d 56 (1984). Accordingly, we review this matter to determine if the trial court abused its discretion in not ordering a hearing.

Forte's contention that lie is entitled to relief only indirectly implicates Batson as we are concerned with the trial attorney's performance and not simply whether there was a Batson violation. Under the Sixth Amendment a defendant has the right to effective assistance of counsel which means that he is entitled to adequate representation by an attorney of reasonable competence. Government of the Virgin Islands v. Zepp, 748 F.2d 125, 131 (3d Cir. 1984).

To establish that his representation was constitutionally inadequate a defendant must prove that his attorney's performance was unreasonable under prevailing professional standards and that this performance prejudiced the defense, i.e., "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v, Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984); Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987), cert. denied 485 U.S. 979, 108 S. Ct. 1277, 99 L. Ed. 2d 488 (1988). Only in a rare case can an attorney's performance be considered unreasonable under prevailing professional standards when she does not make an objection which could not be sustained on the basis of the existing law as there is no general duty on the part of defense counsel to anticipate changes in the law. Morse v. Texas, 691 F.2d 770, 772 n.2 (5th Cir. 1982). Thus, it has been held that an attorney at a trial before Batson was not ineffective for failing to raise a Batson type objection because Batson was an explicit and substantial break with the prior precedent of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), which it partially overruled. Poole v. United States, 832 F.2d 561, 565 (11th Cir. 1987), cert. denied, 488 U.S. 817, 109 S. Ct. 54, 102 L. Ed. 2d 33 (1988). See also Easter v. Estelle, 609 F.2d 756, 759-60 (5th Cir. 1980).

Here, however, there are unique circumstances which, taking Forte's averments as true, lead us to conclude that his trial attorney's failure to object to the prosecutor's use of peremptory challenges was unreasonable under prevailing standards. The direction by Forte and Ellis prior to the trial to preserve the Batson issue was hardly unreasonable as making a Batson objection would have required little effort and would not have been a reprehensible or unprofessional act. Indeed, Batson -- like objections were being, made at the time in other cases, including in the Virgin Islands itself. See, e.g, United States v. Canel, 569 F. Supp. 926, 932-33 (D.V.I. 1982), aff'd, 708 F.2d 894 (3d Cir.), cert. denied, 464 U.S. 852, 78 L. Ed. 2d 151 (1983). See also United States v. Clemons, 843 F.2d 741, 743 (3d Cir.), cert. denied, 488 U.S. 835, 109 S. Ct. 97, 102 L. Ed. 2d 73 (1988). The fact is that the attorney was simply asked to object if it appeared that the prosecutor, a public official, was carrying out her duties in a racially prejudicial manner. Furthermore, the Supreme Court had long held that a state denies equal protection of the laws when a black is put on trial before a jury from which blacks are purposefully excluded. See Batson, 476 U.S. at , 106 S. Ct. at 1716. In fact, various states before this trial had applied versions of what became the Batson rule. Batson, 476 ...


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