JANET P. MOORE, PETITIONER V. UNITED STATES OF AMERICA No. 89-6957 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A31-A32) is unreported. The memorandum opinion and order of the district court (Pet. App. A26-A30) is unreported. A prior opinion of the court of appeals is reported at 780 F.2d 425, and an opinion of the court of appeals in a related case is reported at 885 F.2d 143. JURISDICTION The judgment of the court of appeals was entered November 9, 1989. The petition for a writ of certiorari was filed January 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was denied effective assistance of counsel based on her attorney's failure to file a petition for certiorari raising the claim that the government had discriminated in its use of peremptory strikes at her trial. STATEMENT Following a jury trial in the United States District Court for the District of Maryland, petitioner was convicted on one count of conspiracy to violate civil rights resulting in death, in violation of 18 U.S.C. 241, and on one count of witness tampering, in violation of 18 U.S.C. 1512. Petitioner was sentenced to a term of 50 years' imprisonment on the conspiracy count and to a concurrent ten-year term of imprisonment on the witness tampering count. The court of appeals affirmed. Petitioner then filed a motion under 28 U.S.C. 2255, alleging tht her prior counsel had rendered ineffective assistance by failing to file a petition for certiorari from the judgment affirming her convictions on direct appeal. The district court denied the motion, and the court of appeals affirmed in an unpublished, per curiam order. 1. In 1983, petitioner was convicted of conspiracy to violate civil rights resulting in death and witness tampering; those convictions stemmed from the murder of a government witness who was to testify against Anthony Grandison in a federal narcotics case, and the murder of a bystander. Petitioner was tried with three co-defendants: Grandison, Rodney Kelly, and Vernon Evans, Jr. Before the jury was sworn, petitioner and her co-defendants moved for a mistrial based on the claim that the government had improperly used its peremptory strikes to remove blacks from the petit jury. The district court denied the motion, and the court of appeals affirmed that ruling, relying on Swain v. Alabama, 380 U.S. 202 (1965). United States v. Grandison, 780 F.2d 425 (4th Cir. 1985). Each of petitioner's co-defendants (but not petitioner) filed petitions for certiorari, raising, among other matters, the claim that the government had discriminated on the basis of race in its exercise of peremptory challenges. While the petitions were pending, this Court decided Batson v. Kentucky, 476 U.S. 79 (1986), in which the Court overruled Swain and held that a defendant can establish an equal protection violation based on the prosecutor's use of peremptory strikes to remove black jurors in light of the facts and circumstances in his particular case, and Griffith v. Kentucky, 479 U.S. 314 (1987), in which the Court ruled that Batson applied retroactively to cases pending on direct appeal. On February 23, 1987, this Court vacated the convictions of petitioner's co-defendants and remanded to the court of appeals for further consideration in light of Griffith. /1/ The court of appeals, in turn, remanded to the district court for a hearing to determine, under the framework announced in Batson, whether the government had practiced purposeful racial discrimination in its use of peremptory strikes. On remand, the district judge before whom the trial had been conducted held a hearing on the Batson issue and determined that there was no prima facie case of discrimination; accordingly the court reinstated the convictions of petitioner's co-defendants. The court of appeals affirmed. United States v. Grandison, 885 F.2d 143 (4th Cir. 1989), petition for cert. pending, No. 89-6673. 2. On September 4, 1987, petitioner filed a motion under 28 U.S.C. 2255 to vacate her sentence. She alleged that counsel on her direct appeal had rendered ineffective assistance by failing to file a petition for certiorari. She contended that counsel should have done so because this Court had granted review in Batson by the time the court of appeals had rejected her claim of racial discrimination in the government's use of peremptory strikes. /2/ Pet. App. A26-A27. The district court denied petitioner's motion without "ruling on the reasonableness of the representation provided to Moore by her counsel." Instead, the court pointed out that in its ruling in the cases of her co-defendants, who had litigated the identical Batson issue, the court had rejected the claim of discrimination on the ground that there was no prima facie case. The court thus stated: "Even if (Moore's) representation fell below acceptable standards, Moore still could not prevail," because "even if counsel had filed a petition for certiorari in Moore's case, Moore would be in the same position she is in now." Pet. App. A28-A29. 3. On November 9, 1989, the court of appeals affirmed. Citing its prior decision in United States v. Grandison, 885 F.2d 143 (4th Cir. 1989), the court stated that petitioner's counsel "cannot be faulted for not raising a meritless issue before the Supreme Court"; consequently, counsel's representation did not violate Strickland v. Washington, 466 U.S. 688 (1984). Pet. App. A32. ARGUMENT The courts below correctly rejected petitioner's claim of ineffective assistance of counsel. Even if petitioner had obtained a Batson hearing as a result of seeking review in this Court in her direct appeal, pursuit of that claim, which has now been thoroughly litigated and lost by her co-defendants, would not have achieved a reversal of her convictions. We note, however, that petitioner's co-defendants have filed a petition for a writ of certiorari seeking review of the court of appeals' rejection of their Batson claim. Evans, et al. v. United States. No. 89-6673. In our brief in opposition we have explained why that decision does not warrant review by this Court and have urged the Court to deny the petition. /3/ If the Court denies the petition in No. 89-6673, it should also deny the petition here. If the Court grants the petition in No. 89-6673, however, it should hold the instant petition for disposition in light of its disposition of that case. Because the court of appeals relied exclusively on the absence of merit in petitioner's Batson claim in rejecting her motion under Section 2255, if the Court were to reverse the court of appeals' judgment in No. 89-6673 and find that the facts did establish a prima facie case of discrimination, it should vacate the judgment here for the court of appeals to give further consideration to petitioner's motion. /4/ CONCLUSION The petition for a writ of certiorari should be denied; alternatively, if the Court grants review in Evans, et al. v. United States, No. 89-6673, the petition should be disposed of in light of the Court's disposition of that case. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General APRIL 1990 /1/ Evans v. United States, 479 U.S. 1075 (1987); Grandison v. United States, 479 U.S. 1076 (1987); Kelly v. United States, 479 U.S. 1076 (1987). /2/ This Court granted certiorari in Batson on April 22, 1985. 471 U.S. 1052. The court of appeals handed down its opinion rejecting petitioner's claim on December 23, 1985. /3/ We have provided petitioner here with a copy of our brief. /4/ We note, however, that it is by no means clear that petitioner's counsel was ineffective in failing to preserve the Batson claim. Petitioner's counsel may well have made a tactical judgment that petitioner's interests were better served by immediately repairing to the district court with a motion under Fed. R. Crim. P. 35 for reduction of sentence. See Pet. 14. A tactical judgment to pursue such a motion -- before her co-defendants were able to do so -- rather than to continue efforts to reverse her convictions would not constitute ineffective assistance.