author: Justice Souter

text:
    FORD v. GEORGIA
    No. 87-6796.
    Argued November 6, 1990
    Decided February 19, 1991

      SouteR, J., delivered the opinion for a unanimous Court.

      Charles J. Ogletree argued the cause for petitioner. With him on the brief were Bryan A. Stevenson, James E. Coleman, Jr., and Joseph E. Killory, Jr.

      Paula K. Smith, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, William B. Hill, Jr., Deputy Attorney General, and Susan V. Boleyn, Senior Assistant Attorney General.
   Justice Souter

delivered the opinion of the Court.

Petitioner alleges that the State of Georgia applied the impermissible criterion of race to exclude venire members from the petit jury that convicted him. The Supreme Court of Georgia held petitioner’s equal protection claim procedurally barred as untimely under Georgia law, and we are now called upon to review the adequacy of the State’s procedural rule to bar consideration of the constitutional issue raised. We reverse.

I

In September 1984, a grand jury in Coweta County, Georgia, indicted petitioner James A. Ford, a black man, for the kidnaping, rape, and murder of a white woman. The State notified petitioner of its intent to seek the death penalty and identified the statutory aggravating circumstances it would try to prove.

Before trial, petitioner filed a “Motion to Restrict Racial Use of Peremptory Challenges,” alleging that the prosecutor for Coweta County had “over a long period of time” excluded black persons from juries “where the issues to be tried involved members of the opposite race.” The motion stated that petitioner “anticipated” the prosecutor would continue the pattern of racial exclusion in this case because of the different races of the accused and the victim. Petitioner requested an order forbidding the State to use “its peremptory challenges in a racially biased manner that would exclude members of the black race from serving on the Jury.” App. 3-4.

At a pretrial hearing on the motion, petitioner’s counsel said that his experience had been, “and the Court is aware[,] that the district attorney and the other assistant district attorneys have a history and a pattern when you have a defendant who is black, of using their per-emptory [sic] challenges to excuse potential jurors who are also black.” Petitioner’s counsel asked the trial judge to discourage further resort to this alleged practice by requiring “the district attorney, if he does use his peremptory challenges to excuse potential black jurors, to justify on the record the reason for his excusing them.” Any failure of the prosecutor to offer such a justification on the record, petitioner’s counsel argued, “would evidence the fact that he is using [his peremptory challenges] in a discriminatory manner.” App. 10.

The prosecution opposed the motion, denying that petitioner could prove that prosecutors in previous cases had challenged, black jurors impermissibly. “[I]n practically every trial we have in this county,” the prosecutor observed, “there are always blacks on trial juries, and an all white jury is rare in any county.” He directed the judge’s attention to this Court’s decision in Swain v. Alabama, 380 U. S. 202 (1965), and argued that under Swain “it would be an unreasonable burden to require an attorney for either side to justify his use of peremptory challenges.” App. 10-11.

The trial judge responded that on “numerous or several” occasions “I’ve seen cases in which there are, have been black defendants and the district attorney’s office has struck perspective (sic) white jurors and left perspective (sic) black jurors on the jury. ... I have seen it done and I can’t sit here and document them and I have not documented them, but it’s been on more than one occasion.” The trial judge concluded that he was “taking that [observation] into consideration among other things and denying the motion to restrict racial use of peremptory challenges.” Id., at 11-12.

The trial began 10 days later. Although the jury selection on the first day was not transcribed, it is undisputed that the prosecution exercised 9 of its 10 peremptory challenges to strike black prospective jurors, leaving 1 black venire member seated on the jury. A black potential alternate juror was challenged not by the State but by petitioner.

On the second day of the trial, both petitioner and respondent made their opening statements, after which the State presented eight witnesses before the noon recess. At the start of the afternoon session, the trial judge called a conference in chambers to discuss, among other things, petitioner’s prior motion about “the State’s using all their strikes to strike blacks from being on the jury.” Although the judge noted that the State had not used all of its peremptory challenges to strike black venire members and had left a black person on the jury, petitioner’s counsel observed for the record that the State had used 9 of its 10 challenges to strike black venire members. The trial judge concurred: “That’s what happened in the jury selection process. I just think that needs to be put in since that motion was made. Of course, the motion has been denied. ...” The prosecutor asked the court whether he needed to make any showing of the reasons he had exercised the State’s challenges. The trial judge answered that he was not asking for any, and none was made. Id., at 15-16.

After the jury had convicted petitioner on all counts and he had been sentenced to death, his counsel moved for a new trial claiming, inter alia, that petitioner’s “right to an impartial jury as guaranteed by Sixth Amendment to the United States Constitution was violated by the prosecutor’s exercise of his peremptory challenges on a racial basis.” Id., at 7-8. The motion was denied.

On appeal, the Supreme Court of Georgia at one point interpreted petitioner’s claim as one “that the prosecutor's use of peremptory strikes to remove 9 of 10 possible black jurors denied Ford his right to a jury comprised of a fair cross-section of the community.” Although the court thereby referred to the Sixth Amendment concept of a “fair cross-section of the community,” see, e. g., Taylor v. Louisiana, 419 U. S. 522, 526-533 (1975), it also found that petitioner had failed to prove the “‘systematic exclusion of black jurors’” from service, and thus alluded to the standard for establishing an equal protection violation first described in Swain v. Alabama, supra. Ford v. State, 255 Ga. 81, 83, 335 S. E. 2d 567, 572 (1985) (quoting Moore v. State, 254 Ga. 525, 529, 330 S. E. 2d 717, 721 (1985)). The court found no error and affirmed petitioner’s conviction.

Petitioner filed his first petition for certiorari with this Court on January 22, 1986. While it was before us, we held in Batson v. Kentucky, 476 U. S. 79 (1986), that a black criminal defendant could make a prima facie case of an equal protection violation with evidence that the prosecutor had used peremptory challenges in that case to strike members of the defendant’s race from the jury. Although we soon held in Allen v. Hardy, 478 U. S. 255 (1986), that Batson’s new evi-dentiary standard would not be applied retroactively on collateral review of convictions that had reached finality before Batson was announced, we subsequently held in favor of the new standard’s retroactive application to all cases pending on direct review or not yet final when Batson was decided. Griffith v. Kentucky, 479 U. S. 314, 328 (1987). We then granted Ford’s petition for certiorari and vacated and remanded for further consideration in light of Griffith. Ford v. Georgia, 479 U. S. 1075 (1987).

On remand, the Supreme Court of Georgia held sua sponte, without briefing or arguments from the parties, that petitioner’s equal protection claim was procedurally barred. 257 Ga. 661, 362 S. E. 2d 764 (1987). The court concluded that before his trial petitioner had raised a Swain claim that was “decided adversely to him on appeal, [and] cannot be reviewed in this proceeding.” 257 Ga., at 663, 362 S. E. 2d, at 766. The court then suggested that a Batson claim was “never raised at trial,” 257 Ga., at 662, 362 S. E. 2d, at 765 (emphasis omitted), but went on to consider whether any such claim raised either in petitioner’s pretrial motion or during the chambers conference on the second day of the trial could be treated as timely. The court applied the state procedural rule announced in State v. Sparks, 257 Ga. 97, 98, 355 S. E. 2d 658, 659 (1987), that a Batson claim must “be raised prior to the time the jurors selected to try the case are sworn.” Reading Sparks as requiring a contemporaneous objection to a defendant’s jury “after it was selected and before the trial commenced,” the court concluded that petitioner had failed to make such an objection, with the result that any Batson claim was barred by a valid state procedural rule. 257 Ga., at 663-664, 362 S. E. 2d, at 766. A dissenting opinion took issue with the court’s conclusion that petitioner “never raised a Batson-type claim,” and with the court’s application of a state procedural rule that had not been announced when petitioner’s motion was filed in 1984. Id., at 664, 362 S. E. 2d, at 767.

We granted certiorari to decide whether the rule of procedure laid down by the Supreme Court of Georgia in Sparks was an adequate and independent state procedural ground that would bar review of petitioner’s Batson claim. 495 U. S. 903 (1990).

II

A

The threshold issues are whether and, if so, when petitioner presented the trial court with a cognizable Batson claim that the State’s exercise of its peremptory challenges rested on the impermissible ground of race in violation of the Equal Protection Clause of the Fourteenth Amendment. We think petitioner must be treated as having raised such a claim, although he certainly failed to do it with the clarity that appropriate citations would have promoted. The pretrial motion made no mention of the Equal Protection Clause, and the later motion for a new trial cited the Sixth Amendment, not the Fourteenth.

The pretrial motion did allege, however, that the prosecution had engaged in a pattern of excluding black persons from juries “over a long period of time,” and petitioner argued to this effect at the hearing on this motion as well as at the hearing on his motion for a new trial. This allegation could reasonably have been intended and interpreted to raise a claim under the Equal Protection Clause on the evidentiary theory articulated in Batson’s antecedent, Swain v. Alabama, 380 U. S. 202 (1965). The Court in Swain recognized that an equal protection violation occurs when the State uses its peremptory challenges for the purpose of excluding members of a black defendant’s race from his petit jury, id., at 209; Batson v. Kentucky, supra, at 90; but Swain also established a rigorous standard for proving such a violation, holding it “permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying . . . .” 380 U. S., at 223. That assumption could not be overcome, and the State required to justify its use of peremptory challenges in a particular case, without proof that the prosecutor, “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim . . . [, was] responsible for the removal of Negroes who ha[d] been selected as qualified jurors by the jury commissioners and who ha[d] survived challenges for cause, with the result that no Negroes ever serve on petit juries.” Id., at 223-224.

Our interpretation of petitioner’s reference to a pattern of excluding black venire members “over a long period of time” as the assertion of a Swain claim was, in fact, adopted in the Georgia courts. The prosecutor himself cited Swain to the trial court in opposing the pretrial motion; the trial judge clearly implicated Swain in ruling that petitioner had failed to prove the systematic exclusion of blacks from petit juries; and the second opinion of the Supreme Court of Georgia in this case explicitly stated that petitioner had raised a Swain claim, upon the merits of which he had lost on his first appeal. 257 Ga., at 663, 362 S. E. 2d, at 765-766.

The State, indeed, concedes that petitioner properly raised a Swain claim in his pretrial motion, Tr. of Oral Arg. 40, but in proceeding to argue that the motion was insufficient to raise a claim under Batson, the State assumes a distinction between the holdings in those two cases that does not exist. Both Swain and Batson recognized that a purposeful exclusion of members of the defendant’s race from the jury selected to try him would work a denial of equal protection. To prevail on such an equal protection claim under Swain, as just noted, this Court indicated that a defendant must show a pattern of racial discrimination in prior cases as well as in his own. Because the petitioner in Swain had failed to prove purposeful racial discrimination in prior instances of jury selection, we held that he had “not laid the proper predicate for attacking the peremptory strikes as they were used in [his] case.” 380 U. S., at 226. Batson dropped the Swain requirement of proof of prior discrimination, holding it possible for a defendant to make out a prima facie equal protection violation entirely by reference to the prosecution’s use of peremptory challenges in the circumstances of the defendant’s own case. 476 U. S., at 92-98.

Because Batson did not change the nature of the violation recognized in Swain, but merely the quantum of proof necessary to substantiate a particular claim, it follows that a defendant alleging a violation of equal protection of the law under Swain necessarily states an equal protection violation subject to proof under the Batson standard of circumstantial evidence as well. Thus, from the determination by the Supreme Court of Georgia that petitioner raised a claim under Swain, it follows that he raised an equal protection claim subject to the more lenient burden of proof laid down in Batson.

B

We now face the question whether Georgia can bar consideration of that Batson claim as untimely raised. If we were to focus only on the fact of the state court’s conclusion that petitioner had raised a Swain claim, the issue of the Batson claim’s timeliness under state law could be resolved with the simplicity of a syllogism. • Under Georgia’s precedent, its Supreme Court will review a constitutional claim on the merits only if the record is clear that the claim “was directly and properly made in the court below and distinctly passed upon by the trial judge.” Atlanta v. Columbia Pictures Corp., 218 Ga. 714, 719, 130 S. E. 2d 490, 494 (1963) (emphasis added). The fact that the court reviewed petitioner’s Swain claim on the merits, as noted in the court’s second opinion, therefore presupposes the claim’s timeliness. Because Bat- son merely modified the allegations and evidence necessary to raise and prove the equal protection claim in question, it would be reasonable to conclude that the state court’s concession of timeliness under Swain must govern its treatment of the Batson claim as well.

The Supreme Court of Georgia, nonetheless, rested its contrary conclusion on the rule announced in State v. Sparks, that “hereafter, any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn.” 257 Ga., at 98, 355 S. E. 2d, at 659. Although this language clearly sets the time after which a Batson claim would be too late, it did not so clearly set a time before which such a claim would be premature. The second Georgia opinion in this case, however, makes it obvious that the court understood Sparks to require an objection to be raised after the jurors are chosen. Thus, the court noted that petitioner made “no contemporaneous objection to the composition of the jury as selected,” 257 Ga., at 663, 362 S. E. 2d, at 766, and “no objection to the composition of the jury after it was selected and before the trial commenced.” Id., at 664, 362 S. E. 2d, at 766. We assume that these observations by the court announced no new refinement of Sparks, but merely reflected the better reading of its opinion as originally written. In any event, the Georgia court regarded Sparks as so interpreted to be a “valid state procedural bar” to petitioner’s claim, citing our decision in Wainwright v. Sykes, 433 U. S. 72 (1977), thus apparently deciding the federal question whether the Sparks procedural rule bars federal review of petitioner’s claim.

The requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule. The imposition of this rule is nevertheless subject to our standards for assessing the adequacy of independent state procedural grounds to bar all consideration of claims under the national Constitution. A review of these standards reveals the inadequacy of Georgia’s rule in Sparks to foreclose consideration of the Batson claim in this case.

The appropriateness in general of looking to local rules for the law governing the timeliness of a constitutional claim is, of course, clear. In Batson itself, for example, we imposed no new procedural rules and declined either “to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges,” or to decide when an objection must be made to be timely. 476 U. S., at 99-100. Instead, we recognized that local practices would indicate the proper deadlines in the contexts of the various procedures used to try criminal cases, and we left it to the trial courts, with their wide “variety of jury selection practices,” to implement Batson in the first instance. Id., at 99, n. 24. Undoubtedly, then, a state court may adopt a general rule that a Batson claim is untimely if it is raised for the first time on appeal, or after the jury is sworn, or before its members are selected.

In any given case, however, the sufficiency of such a rule to limit all review of a constitutional claim itself depends upon the timely exercise of the local power to set procedure. “Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 457-458 (1958). In the NAACP case, we declined to apply a state procedural rule, even though the rule appeared “in retrospect to form part of a consistent pattern of procedures,” because the defendant in that case could not be “deemed to have been apprised of its existence.” Id., at 457. In James v. Kentucky, 466 U. S. 341 (1984), we held that only a “firmly established and regularly followed state practice” may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim. Id., at 348-351; see also Barr v. City of Columbia, 378 U. S. 146, 149 (1964) (state procedural rules “not strictly or regularly followed” may not bar our review); NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 297 (1964) (procedural rule no bar to our review when state court had never applied it with the “pointless severity shown here”).

The Supreme Court of Georgia’s application of its decision in Sparks to the case before us does not even remotely satisfy the requirement of James that an adequate and independent state procedural bar to the entertainment of constitutional claims must have been “firmly established and regularly followed” by the time as of which it is to be applied. At the time of petitioner’s trial, Georgia’s procedural law was just what it was when the Sparks defendant was tried, for Sparks was decided more than two years after petitioner in this case filed his motion on the prosecution’s use of peremptory challenges and long after petitioner’s trial was over. When petitioner filed his pretrial motion, he was subject to the same law that had allowed the defendant in Sparks to object even after the jury had been sworn. The very holding in Sparks was that the defendant was not procedurally barred from raising a Batson claim after the jury had been sworn and given preliminary instructions, and after the trial court had held a lengthy hearing on an unrelated matter. The court entertained the claim as having been raised “relatively promptly” because no prior decision of the Supreme Court of Georgia had required an earlier objection.

To apply Sparks retroactively to bar consideration of a claim not raised between the jurors’ selection and oath would therefore apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground within the meaning of James. Indeed, the Georgia court itself in Sparks disclaimed any such effect for that decision. It was only as to cases tried “hereafter [that] any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn.” 257 Ga., at 98, 355 S. E. 2d, at 659 (emphasis added). This case was not tried “hereafter,” and the rule announced prospectively in Sparks would not, even by its own terms, apply to petitioner’s case. Since the rule was not firmly established at the time in question, there is no need to dwell on the further point that the state court’s inconsistent application of the rule in petitioner’s case and Sparks would also fail the second James requirement that the state practice have been regularly followed.

Ill

The Supreme Court of Georgia erred both in concluding that petitioner’s allegation of an equal protection violation under Swain failed to raise a Batson claim, and in apparently relying on Wainwright v. Sykes, 433 U. S. 72 (1977). The Sparks rule, adopted long after petitioner’s trial, cannot bar federal judicial review of petitioner’s equal protection claim. The judgment below is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       The indictment included five counts: murder (count 1); rape (count 2); kidnaping (count 3); armed robbery (count 4); and burglary (count 5).

       Petitioner’s motion, filed on October 9, 1984, reads:
      “Now comes JAMES FORD, the Defendant in the above styled action, and moves the Court to restrict the Prosecution from using its peremptory challenges in a racially biased manner that would exclude members of the black race from serving on the Jury. In support of this Motion, the Defendant shows:
      “1.
      “The Prosecutor has over a long period of time excluded members of the black race from being allowed to serve on the Jury where the issues to be tried involve members of the opposite race.
      “2.
      “This ease involves a black accused and the victim is a member of the white race.
      “3.
      “It is anticipated that the Prosecutor will continue his long pattern of racial discrimination in the exercise of his peremptory strikes.
      “4.
      “The exclusion of members of the black race in the Jury when a black accused is being tried is done in order that the accused will receive excessive punishment if found guilty, or to inject racial prejudice into the fact finding process of the jury. See McCray vs. New York, [461 U. S. 961 (1983)]. Taylor vs. Louisana (sic), 419 U. S. 522 (1975).” App. 3-4.

       By statute, Georgia allots 20 peremptory challenges to “[e]very person indicted for a crime or offense which may subject him to death or to imprisonment for not less than four years.” Ga. Code Ann. § 15-12-165 (1990). The State is allotted 10 peremptory challenges in such cases. Ibid.

       Petitioner and respondent disagree on whether, at the time of jury selection, petitioner renewed his motion alleging the prosecution’s use of racially discriminatory peremptory challenges. Its renewal during jury selection is not a fact necessary to our decision, and we therefore assume for purposes of discussion that petitioner did not press the motion again.

       The Supreme Court of Georgia’s second opinion includes the statement that petitioner’s “pre-trial motion was not an objection to the jury as selected.” 257 Ga. 661, 663, 362 S. E. 2d 764, 766 (1987). This suggests the possibility that the state court did not read Swain v. Alabama, 380 U. S. 202 (1965), as requiring an objection to the particular jury selected to try the objecting defendant, and raises the question whether the Supreme Court of Georgia might now hold that petitioner’s objection was insufficiently specific to his own jury to raise either a Swain or a Batson v. Kentucky, 476 U. S. 79 (1986), claim. We think such a reading of petitioner’s motion and the proceedings below would be as impermissible as a reading of Swain without the requirement of proving discrimination in the selection of an objecting defendant’s own jury. Swain described a defendant’s burden to prove systematic discrimination as a predicate to attacking the use of peremptory challenges in his own case, 380 U. S., at 226, and the anticipation of unconstitutional challenges in his own case was the focus of petitioner’s pretrial motion. What petitioner did not, and could not, do by anticipatory objection was allege the exact number of impermissible challenges or any other details of the jury selection that might support an inference of discriminatory purpose. But the State has never argued that the pretrial motion, which correctly anticipated challenges to a substantial proportion of the black venire members, was inadequate for either or both of these reasons. The State has, in fact, conceded that the trial judge was not misled into thinking that petitioner objected to anything other than the use of racially discriminatory peremptory challenges in the selection of the jury in this case. Tr. of Oral Arg. 31-32.

       We do not read the opinion of the Supreme Court of Georgia as announcing a refusal to entertain the Batson claim in the Georgia courts in the event of our holding that a claim was raised and is open to federal consideration.

       The defendant in State v. Sparks, 257 Ga. 97, 355 S. E. 2d 658 (1987), was in an even less compelling posture than petitioner in this case because the Sparks defendant did not raise his claim before trial as did petitioner here. Thus, petitioner asserted his objection more promptly than the defendant in Sparks at a time when there was no special rule in Georgia on when a Batson-type claim must be raised.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FREEPORT-McMoRAN INC. v. K N ENERGY, INC.
    No. 90-655.
    Decided February 19, 1991
   Per Curiam.

Petitioners seek review of a decision of the United States Court of Appeals for the Tenth Circuit, holding that a Federal District Court lacked jurisdiction to entertain their diversity action because they added a nondiverse party after filing their complaint. We grant certiorari and reverse the decision of the Court of Appeals.

Petitioners, McMoRan Oil and Gas Company (McMoRan) and its parent company, Freeport-McMoRan Inc. (Freeport), sued respondent K N Energy, Inc. (K N) for breach of contract in the United States District Court for the District of Colorado. Petitioners claimed that respondent had failed to pay the price for natural gas agreed upon in their contract, and sought both declaratory relief to establish the contract price and damages for past underpayments. Petitioners based federal jurisdiction upon diversity of citizenship. At all times up to and including the filing of the complaint, Free-port and McMoRan were Delaware corporations with their principal places of business in Louisiana. K N was and is a Kansas corporation with its principal place of business in Colorado.

After suit was filed, petitioner McMoRan transferred its interest in the contract with respondent to a limited partnership, FMP Operating Company (FMPO), for business reasons unrelated to the instant litigation. FMPO’s limited partners included citizens of Kansas and Colorado. Accordingly, before trial commenced, petitioners sought leave to amend their complaint to substitute FMPO as a plaintiff under Rule 25(c) of the Federal Rules of Civil Procedure. The District Court permitted petitioners to add FMPO as a party but did not remove McMoRan as a party. After a bench trial, the District Court held in favor of petitioners, and respondent appealed. The Court of Appeals reversed and directed that the suit be dismissed for want of jurisdiction. The court held that “although complete diversity was present when the complaint was filed,” the addition of FMPO as a plaintiff destroyed jurisdiction. 907 F. 2d 1022, 1024 (1990). The court based its holding upon our decision in Carden v. Arkoma Associates, 494 U. S. 185 (1990). The court explained that “Carden establishes that [FMPO’s] addition as the real party in interest destroys the district court’s diversity jurisdiction.” 907 F. 2d, at 1025.

Our decision last Term in Carden considered whether the citizenship of limited partners must be taken into account in determining whether diversity jurisdiction exists in an action brought by a limited partnership. The original plaintiff in Carden was the limited partnership; diversity jurisdiction, then, depended upon whether complete diversity of citizenship existed at the time the action was commenced. But nothing in Carden suggests any change in the well-established rule that diversity of citizenship is assessed at the time the action is filed. We have consistently held that if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events. Mollan v. Torrance, 9 Wheat. 537 (1824); Clarke v. Mathewson, 12 Pet. 164, 171 (1838); Wichita Railroad & Light Co. v. Public Util. Comm’n of Kansas, 260 U. S. 48, 54 (1922) (“Jurisdiction once acquired ... is not divested by a subsequent change in the citizenship of the parties. Much less is such jurisdiction defeated by the intervention, by leave of the court, of a party whose presence is not essential to a decision of the controversy between the original parties” (citations omitted)).

The opinions of the District Court and the Court of Appeals establish that the plaintiffs and defendant were diverse at the time the breach-of-contract action arose and at the time that federal proceedings commenced. The opinions also confirm that FMPO was not an “indispensable” party at the time the complaint was filed; in fact, it had no interest whatsoever in the outcome of the litigation until sometime after suit was commenced. Our cases require no more than this. Diversity jurisdiction, once established, is not defeated by the addition of a nondiverse party to the action. A contrary rule could well have the effect of deterring normal business transactions during the pendency of what might be lengthy litigation. Such a rule is not in any way required to accomplish the purposes of diversity jurisdiction.

Respondent relies on our decision in Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978), to support the result reached by the Court of Appeals. There we held that the ancillary jurisdiction of a District Court did not extend to the entertaining of a claim by an original plaintiff in a diversity action against a nondiverse third-party defendant im-pleaded by the original defendant pursuant to Federal Rule of Civil Procedure 14(a). Owen casts no doubt on the principle established by the cases previously cited that diversity jurisdiction is to be assessed at the time the lawsuit is commenced.

The motion of American Mining Congress for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is

Reversed.

Justice Souter took no part in the consideration or decision of this motion and case.


text:
    LOZADA v. DEEDS, WARDEN
    No. 90-5393.
    Decided February 19, 1991
   Per Curiam.

Petitioner Jose M. Lozada was convicted in Nevada state court in 1987 of four crimes arising out of the possession and sale of a controlled substance in violation of the laws of that State. Lozada filed no direct appeal. After exhausting state postconviction remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Nevada. Lozada contended that ineffective assistance of counsel had deprived him of the opportunity to appeal his state-court convictions. In particular, he alleged that his attorney failed to inform him of his right to appeal, of the procedures and time limitations for an appeal, and of his right to appointed counsel. The habeas petition alleged further that the attorney had failed to file a notice of appeal or to ensure that Lozada received appointed counsel on appeal. It also implied that Lozada had been misled when the attorney told Lozada’s sister that his case had been forwarded to the public defender’s office.

Without holding a hearing on Lozada’s claims, a federal Magistrate recommended that the petition be dismissed. The District Court agreed and dismissed the petition, rejecting the ineffective-assistance claim on the ground that petitioner’s allegations failed to satisfy the standard set forth in our decision in Strickland v. Washington, 466 U. S. 668 (1984). The court acknowledged that trial counsel’s alleged failure to inform petitioner of his right to appeal might constitute conduct below constitutional standards. It reasoned, however, that Lozada had not indicated what issues he would have raised on appeal and had not demonstrated that the appeal might have succeeded. As a result, the court concluded that petitioner had not shown prejudice under the Strickland test. The District Court later denied Lozada a certificate of probable cause to appeal the denial of habeas relief, see 28 U. S. C. § 2253, again stating that Lozada had failed to show any prejudice from counsel’s alleged errors. The United States Court of Appeals for the Ninth Circuit also denied a certificate of probable cause in a one-sentence order. Lo-zada filed the instant petition for a writ of certiorari, which we now grant along with his motion for leave to proceed in forma pauperis.

In Barefoot v. Estelle, 463 U. S. 880, 892-893 (1983), we delineated the standards for issuance of a certificate of probable cause. We agreed with the Courts of Appeals that had ruled that “a certificate of probable cause requires petitioner to make a ‘substantial showing of the denial of [a] federal right.’” Id., at 893 (quoting Stewart v. Beto, 454 F. 2d 268, 270, n. 2 (CA5 1971), cert. denied, 406 U. S. 925 (1972)). We also quoted with approval Gordon v. Willis, 516 F. Supp. 911, 913 (ND Ga. 1980) (citing United States ex rel. Jones v. Richmond, 245 F. 2d 234 (CA2), cert. denied, 355 U. S. 846 (1957)), which explained that in order to make a substantial showing of the denial of a federal right a petitioner who has been denied relief in a district court “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are “adequate to deserve encouragement to proceed further.’”” 463 U. S., at 893, n. 4.

We conclude that the Court of Appeals erred in denying Lozada a certificate of probable cause because, under the standards set forth in Barefoot, Lozada made a substantial showing that he was denied the right to effective assistance of counsel. The District Court rested its analysis on the prejudice prong of the Strickland inquiry, and that was presumably the basis for the Court of Appeals’ decision to deny a certificate of probable cause. We believe the issue of prejudice caused by the alleged denial of the right to appeal could be resolved in a different manner from the one followed by the District Court. Since Strickland, at least two Courts of Appeals have presumed prejudice in this situation. See Abels v. Kaiser, 913 F. 2d 821, 823 (CA10 1990); Estes v. United States, 883 F. 2d 645, 649 (CA8 1989); see also Rodriquez v. United States, 395 U. S. 327, 330 (1969). The order of the Court of Appeals did not cite or analyze this line of authority as reflected in Estes, which had been decided before the Ninth Circuit issued its ruling.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Rehnquist and Justice O’Connor would deny the petition for a writ of certiorari.


text:
    BURDEN v. ZANT, WARDEN
    No. 90-5796.
    Decided February 19, 1991
   Per Curiam.

Petitioner argues that the Court of Appeals, in rejecting his conflict-of-interest claim, improperly failed to give a presumption of correctness to a state-court factual finding, in violation of 28 U. S. C. § 2254(d). We agree, and accordingly the motion for leave to proceed informa pauperis and the petition for a writ of certiorari are granted.

On August 1, 1981, petitioner was arrested on a charge of burglarizing his sister’s house. Kenneth Kondritzer, a local public defender in a two-attorney public defender’s office, was appointed soon thereafter to represent petitioner. While petitioner was awaiting trial on the burglary charge, his nephew, Henry Lee Dixon (the son of the alleged burglary victim), gave a statement to the police implicating petitioner in the unsolved 1974 murders of a woman and her three children. Based upon Dixon’s statement, the police obtained warrants on or about September 15, 1981, charging both petitioner and Dixon with the murders. Kondritzer began representing Dixon at about that time, while continuing to represent petitioner. Dixon, however, was never indicted for the murders. At a preliminary hearing on November 19, 1981, in which Kondritzer appeared on Dixon’s behalf, the judge ruled that although the State had sufficient evidence to hold Dixon as a material witness against Burden, it did not have sufficient evidence to hold him for the murders.

Petitioner was indicted for the murders on December 7, 1981, while he was still represented by Kondritzer. Kondritzer, however, left the public defender’s office at the end of December 1981, and the other public defender in the office, Michael Moses, assumed responsibility for representing petitioner.

After a trial in March 1982, petitioner was convicted of four counts of murder and was sentenced to death. Dixon’s testimony at trial provided the sole evidence directly linking petitioner to the murders. 903 F. 2d 1352, 1356-1357 (CA11 1990). In addition, both Dixon on cross-examination and the prosecutor in his closing argument acknowledged that Dixon was testifying under a grant of immunity, a fact expressly credited by the trial court in its mandatory post-trial report, see Record, Respondent’s Exh. 1, p. 54.

After exhausting his state remedies, petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, alleging, inter alia, that he did not receive effective assistance of counsel because his counsel labored under a conflict of interest. Although the District Court credited petitioner’s contention that Dixon had received immunity in exchange for his agreement to testify against petitioner, 690 F. Supp. 1040, 1045 (1988), it nevertheless denied relief because petitioner had not shown an adverse impact on the representation of his trial counsel, Moses. Ibid.

On appeal, the United States Court of Appeals for the Eleventh Circuit determined that the record was not sufficient for it to evaluate petitioner’s conflict-of-interest claim, and therefore remanded to the District Court for an eviden-tiary hearing on that issue, while retaining jurisdiction over the case. 871 F. 2d 956 (1989). At the hearing, Kondritzer testified that while he was representing both petitioner and Dixon on the murder charges, he reached “an understanding” with the district attorney that “as long as [Dixon] testified [against petitioner] nothing would happen to him.” Civ. Action No. 88-6-3-MAC (MD Ga., Sept. 20, 1989), p. 4. The District Court nevertheless concluded that petitioner had received representation free from a conflict of interest.

The case then returned to the Court of Appeals, which affirmed the District Court’s denial of habeas relief. Although the court recognized the potential conflict of interest in Kondritzer’s simultaneous representation of petitioner and Dixon, it held that “the conflict never became actual in the sense that Kondritzer’s representation of Dixon’s interests required him to compromise [petitioner’s] interests.” 903 F. 2d, at 1359. In addressing petitioner’s argument that the dual representation adversely affected petitioner’s interests because Kondritzer negotiated an immunity agreement for Dixon, the Court of Appeals stated:

“[T]he assumption that Dixon received a grant of transactional immunity, negotiated by Kondritzer and the prosecutor in exchange for Dixon’s testimony against [petitioner], is without factual support. . . . There is no documentary evidence of any sort that attests to Dixon’s having received immunity .... Thus, [petitioner] can no longer base his conflict-of-interest claim on the mistaken assumption that the attorney representing him obtained or attempted to obtain immunity for one client in exchange for testimony that was instrumental in the conviction of another.” Id,., at 1359-1360.

As petitioner argues, the Court of Appeals’ finding that Dixon did not testify under an immunity agreement is contrary to the express finding in the state trial court’s report that “Dixon was granted immunity from prosecution.” Record, Respondent’s Exh. 1, p. 54. This finding, made pursuant to statutory directive, see n. 2, supra, and based on Dixon’s testimony and the prosecutor’s closing argument at trial, see n. 1, supra, is a determination of historical fact “presumed to be correct” for purposes of a federal habeas corpus proceeding. See 28 U. S. C. § 2254(d). A habeas court may not disregard this presumption unless it expressly finds that one of the enumerated exceptions to § 2254(d) is met, and it explains the reasoning in support of that conclusion. See Sumner v. Mata, 449 U. S. 539, 549, 551 (1981). The Court of Appeals did not even mention the trial court’s finding that Dixon received immunity, much less explain why that finding is not entitled to a presumption of correctness.

Respondent maintains that petitioner “waived” reliance on § 2254(d) in the Court of Appeals by failing sufficiently to emphasize the trial court’s finding that Dixon received immunity. This contention mischaracterizes the record. In his first brief to the Court of Appeals, before remand, petitioner repeatedly stated, in support of his conflict-of-interest argument, that Dixon had testified under a grant of immunity. See Brief for Petitioner-Appellant in No. 88-8619, pp. 5, 6, 8, 11, 13-14, 15, 17, 22, 23. Indeed, that factual assertion was the crux of petitioner’s argument. In his supplemental letter memorandum, after remand, the immunity agreement was again the central fact supporting his conflict-of-interest claim. The brief began by stating that petitioner did not understand why there was a dispute over Dixon’s immunity, since the state trial judge had specifically found that Dixon had testified under a grant of immunity. Letter Memorandum for Petitioner-Appellant in No. 88-8619 (CA11), p. 1; see also id., at 9. Petitioner then asserted that the state court’s finding was “entitled to the presumption of correctness.” Ibid. Thus, it seems clear that petitioner adequately raised the argument below.

Consequently, we reverse and remand so that the Court of Appeals may consider petitioner’s conflict-of-interest claim free from its erroneous failure to credit the state trial court’s finding that Dixon testified under a grant of immunity.

It is so ordered.

       In response to the question, “[H]ave you been promised anything for your testimony today?” Dixon stated, “Immunity.” Record, Respondent’s Exh. 1G, p. 649 (trial transcript). The prosecutor likewise acknowledged to the jury, “[W]e may have offered [Dixon] immunity. I think you realize that we did. I’ll tell you that we did.” Record, Respondent’s Exh. II, p. 911 (trial transcript).

       Under Ga. Code Ann. § 17-10-35(a) (1990), the trial court must file a report in every case in which the death penalty is imposed. Designed to facilitate review by the Georgia Supreme Court, this report must include, inter alia, the trial judge’s assessment of the prosecution’s case at trial. See generally Gregg v. Georgia, 428 U. S. 153, 167-168 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). The report in petitioner’s ease notes that Dixon was “[t]he witness most damaging to the defendant’s case.” Record, Respondent’s Exh. 1, p. 54. It also states that “Dixon was granted immunity from prosecution and the jury was properly informed of this fact and an appropriate charge was given by the court to the jury.” Ibid.

      Section 2254(d) provides in pertinent part:
      “In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct. . . .”