UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-20720

_______________________

TERRY WASHINGTON,

Petitioner-Appellant,

versus

GARY JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

July 25, 1996

Before GARWOOD, JONES, EMILIO M. GARZA, Circuit Judges

EDITH H. JONES, Circuit Judge:

Terry Washington was convicted of capital murder and

sentenced to death for the murder of Beatrice Huling. With all

direct appeals and collateral state reviews exhausted, Washington

now seeks federal habeas relief. Following an evidentiary hearing,

the district court denied Washington’s application for writ of

habeas corpus and refused to grant a certificate of probable cause

for appeal. Washington seeks from this court a certificate of

probable cause, based inter alia on the contentions that he was

incompetent to stand trial and that his counsel was ineffective.
 These facts are summarized from the unpublished opinion affirming the

conviction. Washington v. State, No. 69,937 (Tex. Crim. App. Dec. 23, 1992),

cert. denied, 508 U.S. 927, 113 S. Ct. 2388 (1993).

2

Because Washington has made a substantial showing of the denial of

a federal right with respect to the ineffectiveness claim, this

court grants CPC but, after briefing and oral argument, has

concluded that all of his claims lack merit. 

I. BACKGROUND

Beatrice Huling and Terry Washington worked at Julie’s

Place, a restaurant in College Station, Texas. Huling was the

restaurant’s night manager, and Washington worked as a dishwasher.1

As part of her duties, Huling would count the night’s receipts at

the close of business, place cash in the register for the next day,

deposit the surplus cash in the office safe, wait for the

dishwasher to finish cleaning, set the security alarm, and lock the

restaurant.

During the evening of January 14, 1987, Huling, Tuan

Nguyen, Kim Tarr, and Washington were working together at Julie’s

Place. When Nguyen and Tarr left the restaurant at 1:00 a.m.,

Huling had completed her duties and was waiting for Washington to

finish. Tarr recalled that Huling locked the back door behind them

as they left the restaurant.

At 2:30 a.m. that same morning, Michael Jennings was in

the parking lot next to Julie’s Place. He heard an object hit the

ground and went to investigate. Jennings found a purse and

immediately called the police. The police arrived shortly
3

thereafter and found Beatrice Huling’s name and address in the

purse and her car in the parking lot. The restaurant was closed

and locked. The police ultimately entered the restaurant and

discovered Huling’s dead body ten to fifteen feet from the back

door, lying in a pool of blood, with her head next to the base of

the office safe. She had multiple stab wounds.

The investigation of the crime scene and the autopsy

showed that Huling’s hands had been tied with apron strings and

that she had suffered eighty-five stab wounds, seven of which were

fatal. The medical examiner testified at trial that the murder

weapon had a five-and-a-half inch blade and that he believed it

took Huling ten to fifteen minutes to die. The investigation

further found no signs of forced entry into the restaurant, and

that $628.00 had been stolen.

The evidence at trial overwhelmingly implicated

Washington as the murderer. The State produced evidence linking

Washington’s boots to an impression made in a pool of Huling’s

blood. Willie Hemphill, Washington’s neighbor, testified that on

January 15 he went with Washington to buy some beer and noticed

Washington had a lot of money. Additionally, Hemphill saw

Washington with a hunting knife which had a blade consistent with

the type of wounds inflicted upon Huling. Maud Swanson also saw

Washington on January 15 and testified that he had a lot of money

in his billfold when he took it out, and that when she asked him

about the murder at the restaurant, Washington said “to hell with
4

Bea, or something like that.” Scott Milton, the manager of the

restaurant, testified that when Washington picked up his paycheck

on the day of the murder he told Milton, “The police are hassling

me about this, but I’m too smart for them.” Billy and Mary Sandles

testified that they heard Washington say, “I killed the bitch.” A

teller at a local bank testified that sometime within a week of the

murder, Washington changed $450.00 of small bills and coins for

larger bills. An employee of J&J Bail Bond testified that shortly

after the murder, Washington paid $468.00 in cash for a bond

relating to traffic citations, paying with three hundred dollar

bills and the rest in twenties and change.

The jury found Washington guilty of the capital offense

of intentional murder during the course of a robbery. Following a

separate punishment hearing, the jury affirmatively answered two

special issues submitted pursuant to the Texas Criminal Code. In

accordance with Texas law, the trial court imposed a death sentence

Washington’s conviction was affirmed by the Texas Court

of Criminal Appeals. Washington v. State, No. 69,937 (Tex. Crim.

App. Dec. 23, 1992), cert. denied, Washington v. Texas, 508 U.S.

927, 113 S. Ct. 2388 (1993). The trial court then issued a warrant

scheduling Washington’s execution for June 17, 1993. On May 28,

1993, Washington sought a stay of execution in order to allow time

to prepare a state application for writ of habeas corpus. The

motion to stay the execution was denied on June 8, 1993. On June

14, 1993, Washington filed his state application for writ of habeas
5

corpus. The State filed its answer the following day. On June 15,

1993, an evidentiary hearing was held before the same judge which

presided at Washington’s trial to consider the merits of

Washington’s habeas claims. The trial court entered findings of

fact and conclusions of law early the next morning recommending

that the relief sought be denied. Ex Parte Washington, No. 17,726-

361 (361st Dist. Ct., Brazos County, Tex., June 16, 1993). Based

on these findings and conclusions, the Texas Court of Criminal

Appeals denied Washington’s application for a writ of habeas

corpus. Ex Parte Washington, No. 24,922-01 (Tex. Crim. App. June

16, 1993).

Following the decision of the Texas Court of Criminal

Appeals, Washington filed a motion for stay of execution and an

application for habeas relief in federal district court. The

district court entered a stay and referred the case to a magistrate

judge. The magistrate judge issued a memorandum opinion

recommending that the relief sought be denied. The district court,

however, found that material facts had not been adequately

developed at the state habeas proceedings as to three of

Washington’s thirteen claims. The court ordered an evidentiary

hearing as to these claims which concerned Washington’s competency

to stand trial, the trial court’s failure to order a competency

hearing, and ineffective assistance of counsel. As for

Washington’s remaining claims, the district court concluded they

were without merit and would be dismissed at the time of final
6

judgment. Based on the evidentiary hearing, the district court

entered findings of fact and conclusions of law, denied relief on

the three claims not adjudicated in its previous order, entered

final judgment denying Washington’s habeas petition, and denied a

certificate of probable cause and vacated the stay of execution.

Washington v. Scott, No. H-93-1792 (S.D. Tex. July 25, 1995);

Washington v. Scott, No. H-93-1792 (S.D. Tex. Aug. 10, 1995).

II. DISCUSSION

This court lacks jurisdiction to hear Petitioner’s appeal

unless a certificate of probable cause is first granted. Black v.

Collins, 962 F.2d 394, 398 (5th Cir. 1992), cert. denied, 504 U.S.

992, 112 S. Ct. 2983 (1992). To obtain a certificate of probable

cause, Petitioner must “make a substantial showing of the denial of

a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.

Ct. 3383, 3394 (1983)(internal quotations and citations omitted).

This requires that Petitioner “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.” Id. at 893 n.4, 103 S.

Ct. at 3394-95 n.4 (emphasis in original)(internal quotations and

citations omitted). The nature of the penalty in a capital case is

a “proper consideration in determining whether to issue a

certificate of probable cause, but the severity of the penalty does

not in itself suffice to warrant the automatic issuing of a

certificate.” Id. at 893, 103 S. Ct. at 3394-95.
7

Washington’s application for certificate of probable

cause and writ of habeas corpus raises five issues. First,

Washington contends the district court applied an incorrect legal

standard in evaluating his mental competency claim. Second,

Washington argues the district court erred in finding him competent

to stand trial. Third, Washington claims he received ineffective

assistance of trial counsel. Fourth, Washington contends the

prosecutor improperly exercised a peremptory challenge to strike a

black woman from the jury. Last, Washington argues his conviction

and death sentence were obtained as a result of purposeful racial

discrimination. Each of Washington’s claims requires discussion.

A. Mental Competency

It is well settled that due process prohibits prosecution

of a defendant who is not competent to stand trial. Cooper v.

Oklahoma, ___ U.S. ___, 116 S. Ct. 1373, 1377 (1996); Bouchillon v.

Collins, 907 F.2d 589, 592 (5th Cir. 1990). The test for

determining competency is whether the defendant “has sufficient

present ability to consult with his lawyer with a reasonable degree

of rational understanding--and whether he has a rational as well as

factual understanding of the proceedings.” Dusky v. United States,

362 U.S. 402, 403, 80 S. Ct. 788, 789 (1960); see Bouchillon, 907

F.2d at 592. Habeas petitioners claiming incompetency bear a

“threshold burden of proof which must be satisfied before the

habeas court has a duty to investigate the constitutional challenge

further.” Bruce v. Estelle, 536 F.2d 1051, 1059 (5th Cir. 1976),
8

cert. denied, 429 U.S. 1053, 97 S. Ct. 767 (1977); see Enriquez v.

Procunier, 752 F.2d 111, 114 (5th Cir. 1984), cert. denied, 471

U.S. 1126, 105 S. Ct. 2658 (1985). This requires a showing that the

facts are “sufficient to positively, unequivocally and clearly

generate a real, substantial and legitimate doubt as to the mental

capacity of the petitioner to meaningfully participate and

cooperate with counsel during trial.” Bruce, 536 F.2d at 1058-59

(quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973),

cert. denied, 429 U.S. 1053, 97 S. Ct. 767 (1977)). “Once

petitioner has come forward with enough probative evidence to raise

a substantial doubt as to competency, . . . [h]e must then go

further and prove the fact of incompetency, at least by a

preponderance of the evidence.” Bruce, 536 F.2d at 1059; see

Bouchillon, 907 F.2d at 592.

Petitioner asserts that the district court confused the

threshold burden required of habeas petitioners with the

requirement that incompetency be proven by a preponderance of

evidence and thereby incorrectly applied a heightened standard of

proof. We disagree. 

In setting forth the governing standards, the district

court stated:

In the Fifth Circuit, on federal habeas review,

Petitioner has the burden of proving by a preponderance

of the evidence that he was incompetent at the time of

his trial. Petitioner on a collateral attack has a heavy

burden to present facts that positively, unequivocally,

and clearly generate a real, substantial and legitimate

doubt as to the mental capacity of the defendant to stand

trial.
 

2 In Cooper v. Oklahoma, __ U.S. __, 116 S. Ct. 1373 (1996), the

Supreme Court held unconstitutional an Oklahoma statute requiring a criminal

defendant to prove his competency by clear and convincing evidence. Petitioner

contends Cooper requires reversal of his conviction because the district court

imposed a heightened burden of proof. As discussed supra, the district court

properly applied the appropriate preponderance standard. No heightened burden

was required of Petitioner. Cooper, therefore, does not apply to the facts of

this case.

 Petitioner also contends that although current Fifth Circuit law

places the burden of proof on him to establish incompetency, there are sound

reasons why the State should bear the burden. See Bouchillon v. Collins, 907 F.2d

589, 592 n.6 (5th Cir. 1990). Demands of finality and comity support this court’s

decisions to require of Petitioner the same burden of proof in retrospective

9

Washington v. Scott, No. H-93-1792 at 11-12 (S.D. Tex. July 25,

1995)(internal citations and quotations omitted). The district

court then found that Petitioner had

failed to carry his burden and that the preponderance of

the evidence supports a finding that Petitioner was

competent to stand trial in 1987.

Id. at 12. The court further found that

[t]here was evidence presented that Washington suffers

from organic brain damage and was abused and neglected by

his family during childhood. This evidence,

nevertheless, in light of all the rest, failed to

persuade the court by a preponderance that [his] problems

impaired him to the extent of being incompetent to stand

trial.

Id. at 3.

The district court’s opinion properly recognizes both

Petitioner’s threshold burden to create a doubt warranting further

examination in a habeas proceeding and the preponderance standard

required to entitle Petitioner to relief.2 The district court

clearly applied these standards in the correct sequence and

concluded explicitly: “. . . Petitioner was competent to stand

trial in 1987.” Id. at 12.3
federal competency hearings as he must bear on any other habeas issue. Bruce v.

Estelle, 536 F.2d at 1058-59. In any event, the district court’s unhesitating

conclusion that Petitioner was competent in fact to stand trial in 1987

demonstrates that a contrary allocation of burden of proof would not have been

outcome-determinative. The issue is therefore irrelevant to Washington’s

petition.

 

4 There is some inconsistency in this circuit’s review of competency

determinations. Some earlier cases have treated a determination of competency as

a finding of fact reviewable under a “clearly arbitrary or unwarranted standard.”

United States v. Fratus, 530 F.2d 644, 647 (5th Cir.), cert. denied, 429 U.S.

846, 97 S. Ct. 130 (1976); see Bundy v. Digger, 850 F.2d 1402, 1408 n.5 (11th

Cir. 1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 849 (1989)(noting

inconsistency and citing cases). More recent cases, however, have viewed

competency as a mixed question of law and fact with the aforementioned standard

of review. Wheat, 793 F.2d at 631; Lokos, 625 F.2d at 1267; Bruce, 536 F.2d at

1059-60. The Supreme Court has likewise been inconsistent on the issue of

competency. See Thompson v. Keohane, __U.S.__, 116 S. Ct. 457, 464

(1995)(competency to stand trial classified as a factual issue within § 2254(d));

10

Washington also contends the district court erred in

finding him mentally competent. Specifically, Petitioner argues

that his mental retardation, organic brain damage, and abused

childhood rendered him incompetent to stand trial.

The question of competency is treated in our circuit as

a mixed question of law and fact. Wheat v. Thigpen, 793 F.2d 621,

631 (5th Cir. 1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566

(1987); see United States v. Birdsell, 775 F.2d 645, 648 (5th Cir.

1985), cert. denied, 476 U.S. 1119, 106 S. Ct. 1979 (1986).

Whether a Petitioner suffers from a mental disorder or

incapacitating mental illness is a question of fact reviewed under

the clearly erroneous standard. Lokos v. Capps, 625 F.2d 1258, 1267

(5th Cir. 1980); see Wheat, 793 F.2d at 631; Bruce, 536 F.2d at

1059. However, we take a “hard look” at the ultimate competency

finding. Lokos, 625 F.2d at 1267; see Wheat, 793 F.2d at 631;

Bruce, 536 F.2d at 1059-60.4
Maggio v. Fulford, 462 U.S. 116, 118-19, 103 S. Ct. 2261, 2265 (1983)(White, J.,

concurring)(“Our cases have treated the ultimate question whether a defendant is

competent to stand trial as at least a mixed question of law and fact.”); Drope

v. Missouri, 420 U.S. 162, 174-75, 175 n.10, 95 S. Ct. 896, 905, 905 n.10

(1975)(court undertook its own analysis of the facts concerning competency to

assure appropriate enforcement of a federal right). As we have applied an

arguably stricter standard of review than Thompson suggests, the district court’s

findings would be affirmed regardless.

11

The issue of Petitioner’s competency to stand trial was

first raised in his state habeas application. Petitioner’s

evidence of incompetency included his school and parole records,

records from the Texas Department of Protective and Regulatory

Services, and the affidavit of Dr. Philip Murphy, a

neuropsychologist who examined Petitioner and concluded that

Petitioner’s neurological defects, mental retardation, and

delusional episodes prevented Petitioner from rationally and

meaningfully participating in his trial proceedings. In contrast

to Dr. Murphy, Washington’s trial counsel, Tyler Moore, testified

that in his opinion, Washington was able to understand the

proceedings and rationally consult with him concerning the trial.

Although the federal court found that the state habeas

proceeding was too hastily conducted, the state judge’s

observations are useful, because he presided over both the capital

murder trial and the habeas case. See, e.g. Buxton v. Lynaugh, 879

F.2d 140, 146 (5th Cir. 1989), cert. denied, 497 U.S. 1032, 110

S.Ct. 3295 (1990) (since trial judge and habeas judge were the same

person, state judge is ordinarily in a better position to assess

the facts). The state court concluded that Washington was
12

competent to stand trial. In substance, the state court found,

Washington knew he was on trial for his life, was able to consult

with trial counsel and assist with his defense, discussed with

counsel the relevant facts and procedures of the trial, and asked

relevant questions of trial counsel and understood counsel’s

explanations. Further, the court found Petitioner had a rational

and factual understanding of the trial proceedings.

At the federal evidentiary hearing, testimony concerning

Washington’s competency was fully developed. Petitioner called

five witnesses, Dr. Philip Murphy, a neuropsychologist, Dr. Denis

Keyes, a specialist in mental retardation, Leona Maxey,

Petitioner’s mother, Tyler Moore, Petitioner’s trial counsel, and

Edward Mallet, a criminal defense attorney. The State called Dr.

George Parker, a psychologist, and Rita Watkins and Larry Johnson,

police officers who participated in interrogations of Petitioner.

Like the state court, the district court concluded that

Washington was competent to stand trial in 1987. The district

court found that although Washington was mildly retarded and

suffered from organic brain damage and an abused childhood, he was

verbal, cooperative, and able to concentrate for periods without

difficulty. Additionally, the court found that at the time of

trial, Washington knew he had been accused of murder and understood

the roles of the district attorney, defense counsel, and the jury.

Further, the court found Washington had a general comprehension of

judicial procedure and that he interacted appropriately with his
13

attorney at trial. The district court explained in detail why she

credited the State’s witness Dr. Parker over Washington’s experts.

Without detracting from the scope of her analysis, we note her

findings that Dr. Parker relied on more sources of data than did

the other experts; conducted a near four-hour interview with

Washington in which he directly questioned Washington on matters

material to the issue of competency, unlike the other experts; and

closely examined pertinent records from the trial and Washington’s

understanding of what occurred there. Also significant to the

court was Dr. Parker’s experience testifying for both the

prosecution and defense, while the other experts always testified

for the defense.

Petitioner contends that the federal court improperly

relied on the testimony of Dr. Parker, the police officers, and his

trial counsel and should instead have relied on his experts, who

found him incompetent. This argument of course implies that the

district court’s findings erroneously weighed the credibility of

the witnesses and misjudged their testimony. The record does not

support this argument.

At the evidentiary hearing, both Dr. Murphy and Dr. Keyes

testified that Washington was incompetent to stand trial. Their

conclusions were based primarily on the results of a series of

tests they administered to Petitioner during extended interviews.

Neither doctor, however, discussed in detail with Washington the
14

events leading up to or at his trial. Both doctors spent the bulk

of their interview time with Washington administering tests.

In contrast, Dr. Parker found Washington competent to

stand trial. Dr. Parker’s interview with Petitioner focused on the

events leading up to and at Petitioner’s trial. Dr. Parker

testified that Washington described in detail the evidence

presented at trial and the trial testimony relating to that

evidence, and observed that no fingerprints or murder weapon were

presented as evidence. Additionally, Dr. Parker testified that

Washington described the role of the judge, district attorney,

defense counsel, and the jury, and that when asked why he was in

prison, Washington responded he was there for murder. Further, Dr.

Parker interviewed three prison guards who had contact with

Washington. In sum, these guards described Washington was “a

little slow” and “low-key,” but also social and competent.

Dr. Parker’s finding of competency is reinforced by the

testimony of Washington’s trial counsel and two police officers who

participated in interrogations of Washington. Trial counsel

testified that he and Washington talked about the evidence and the

trial, and that Petitioner made observations, comments, and

suggestions, including providing information for an alibi defense.

Additionally, trial counsel testified that he believed Washington

had a factual understanding of the proceedings and that he was able

to assist in his defense. The testimony of the interrogating

officers further showed that Washington was able to answer
15

questions during the interrogations and that his answers made

logical sense.

The record supports the decision of the district court.

The district court properly credited the testimony of Dr. Parker,

trial counsel, and the police officers. Petitioner has failed to

establish incompetency by a preponderance of the evidence.

B. Ineffective Assistance of Counsel

Washington contends he received ineffective assistance of

counsel because of trial counsel’s failure to investigate his

mental health, and failure to develop evidence of his mental

condition and family background at the punishment phase of trial.

Both the state and district courts rejected Petitioner’s claim of

ineffective assistance of counsel. We likewise reject the claim.

A claim of ineffective assistance of counsel is governed

by the familiar standards set forth in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail on this claim,

Petitioner must show both deficient performance by counsel, and

prejudice to the defense as a result of the performance. Id. at

687, 104 S. Ct. at 2064. Counsel’s performance is deficient if it

falls below an objective standard of reasonableness. Id. at 688,

104 S. Ct. at 2064. Our review of counsel’s performance is highly

deferential, with a strong presumption that performance was

reasonable. Id. at 689, 104 S. Ct. at 2065. Deficient performance

is prejudicial only upon a showing that but for trial counsel’s

errors, there is a reasonable probability that the ultimate result
16

would have been different and that confidence in the reliability of

the verdict is undermined. United States v. Faubion, 19 F.3d 226,

228 (5th Cir. 1994).

Washington has shown neither deficient performance nor

prejudice. His trial counsel Moore made a reasonable strategic

decision not to investigate Washington’s mental health by retaining

a mental health expert or to present evidence of Washington’s

mental health and family background at the punishment stage of

trial. This case was tried before the Supreme Court’s Penry

decision, and we have not previously held counsel incompetent for

failing to anticipate Penry. Moore was aware of Petitioner’s

school records, juvenile records, adult probation records, low IQ,

slow manner of speech, and deprived family background. Moore,

however, was also aware that Washington was communicative,

responsive, and helpful to the defense, and appeared to understand

the nature of the proceedings. To develop mitigating evidence,

counsel interviewed Washington’s mother, girlfriend, younger

brother and former teachers and retained an investigator to

discover positive information concerning Washington. But Moore

feared that evidence of Washington’s troubled family and emotional

problems could backfire at the punishment stage. For instance,

counsel reasonably feared that obtaining a mental health expert to

evaluate Washington could lead to the discovery of additional

negative information concerning Petitioner, or result in repeated

emphasis on Petitioner’s past acts of violence, such as his sexual
17

assault on his younger brother and incidents in which Washington

buried his younger brother in a grave, cut off the heads of puppies

with a lawnmower, and treated his family violently. Moore’s

strategy was to portray the murder as an aberration rather than

part of a pattern of random violence. Under these circumstances,

the decisions made by Petitioner’s trial counsel were reasonable.

Trial counsel’s failure to investigate and present

allegedly mitigating mental health and family background evidence

was also not prejudicial. The federal district court’s conclusion

that Washington was in fact competent to stand trial dispels any

claim of prejudice for failure to hire or request expert evaluation

of that question.

More significantly, the evidence presented to the jury

both at trial and at the punishment hearing persuades us that

Petitioner has not met his burden of demonstrating a reasonable

probability that, had the mitigating evidence been introduced, he

would not have been sentenced to death. The jury had just

convicted Washington of a brutal murder involving over eighty stab

wounds. He showed no remorse for his actions. His past history

showed he had sexually molested his younger brother, was violent

toward family members and others, belligerent in jail, and had

informed his parole officer before committing this crime that the

next time he went to prison it would be for murder. Against this

evidence, Washington’s claimed physiological and social excuses for
18

his conduct are weak. The jury’s sentence was reliable; therefore,

there was no prejudice.

C. Batson Violation

Washington contends the State improperly exercised a

peremptory challenge to exclude veniremember Martha Patman, a black

woman, from the jury panel in violation of Batson v. Kentucky, 476

U.S. 79, 106 S. Ct. 1712 (1986). Additionally, Petitioner asserts

that the trial court’s finding of no discrimination in the State’s

challenge of Patman should not be afforded a presumption of

correctness. We disagree.

Under Batson, when a defendant makes a prima facie

showing of racial discrimination in the state’s use of peremptory

challenges, the state must provide a race-neutral explanation for

the challenge. If the state provides a race-neutral explanation,

the trial court must then decide whether the defendant has

established purposeful discrimination. Purkett v. Elem, __ U.S. __,

115 S. Ct. 1769, 1770-71 (1995). A trial court’s contemporaneous

ruling on issues of fact satisfies the hearing requirement of 28

U.S.C. § 2254(d). Wainwright v. Witt, 469 U.S. 412, 426-30, 105 S.

Ct. 844, 854-55 (1985). Accordingly, the trial court’s finding as

to the state’s offered explanation will not be set aside unless the

finding is “‘not fairly supported by the record.’” Purkett, __ U.S.

at __, 115 S. Ct. at 1771 (quoting 28 U.S.C. § 2254(d)(8)).

During voir dire, the prosecutor exercised a peremptory

challenge and moved to strike Patman from the jury panel.
19

Petitioner objected and requested a reason for the challenge. The

prosecutor stated:

Your Honor, the controlling reason was not necessarily

the words that she said, but the way she carried herself,

the way in -- the manner in which she answered those

questions. That is what I perceive to be a very strict,

a very, almost to the point of obstinate in the

deliberateness of her carriage, which I believe would be

contrary to what the State is looking for in a juror,

that is someone that can deliberate with the other eleven

toward reaching a verdict.

I found her independence to be a little too far on

the strong side of independent and rigidity in her

opinions. And sometimes I thought those opinions were

expressed in a manner of almost being, as I said earlier,

obstinate or angry in defense of her feelings and

thoughts. And it’s based on that attitude that we felt

like she will not fit into our perception of what the

jury we’re looking for should consist of. That is the

overwhelming concern the State has.

Tr. 3060-61. Following the prosecutor’s response, the trial court

found that the challenge of Patman was not based upon race. Id. at

3061, 3063.

The prosecutor’s response is race-neutral, and Petitioner

has failed to show purposeful discrimination. The record fairly

supports the trial court’s finding of no discrimination. We defer

to the trial court’s evaluation of the prosecutor’s explanation for

the challenge of Patman. See Troupe v. Groose, 72 F.3d 75, 76 (8th

Cir. 1995). Petitioner has failed to establish a Batson violation.

D. Purposeful Racial Discrimination

Petitioner finally contends his conviction and death

sentence were obtained as a result of purposeful racial

discrimination. Petitioner further argues he was not given a full
20

and fair hearing in his state habeas action, and that the district

court erred in not holding an evidentiary hearing as to the issue

of racial discrimination. These contentions are meritless.

In his state petition for habeas relief, Petitioner

raised the claim of purposeful racial discrimination. The State

responded with an affidavit of Bill Turner, the Brazos County

district attorney, who made the decision to charge Washington with

capital murder. Turner affirmed that race does not play a role in

charging decisions, and that in Washington’s case, capital murder

and the death penalty were sought because of the nature of the

murder, committed in the course of a robbery, and because of

Washington’s past violence and statements warning of possible

future violence. Additionally, the affidavit set forth the capital

murder cases in which Turner had been involved and the sentences

imposed. Washington, though afforded the opportunity to cross

examine Turner at the state habeas hearing on the contents of the

affidavit, declined to question him. Washington also submitted the

affidavit of Kent Tedin, a professor at the University of Houston,

who concluded that based on statistical probabilities, it was

unlikely that there was a small number of blacks in the jury pool

due to chance.

The state court concluded that

[t]he decision to charge Applicant with capital murder,

and the decision to seek the death penalty were not

racially motivated.
21

Ex Parte Washington, No. 17,726-361 (361st Dist. Ct., Brazos

County, Tex., June 16, 1993). Further, the court found

[t]here is no evidence that race is a factor upon which

the Brazos County District Attorney’s office bases the

decision to seek or not to seek the death penalty, or any

other decision in the prosecution of any criminal case.

To the contrary, race is not a factor that is considered

by the Brazos County District Attorney’s Office when

making any decision on how to proceed in a case.

Id.

The decision of the state court is supported by the

record and is afforded a presumption of correctness. 28 U.S.C. §

2254. Petitioner has failed to establish a claim of purposeful

racial discrimination. McCleskey v. Kemp, 481 U.S. 279, 292-93, 107

S. Ct. 1756, 1767 (1987). The district court did not err in

rejecting this claim without an evidentiary hearing.

CONCLUSION

For the foregoing reasons, the district court’s denial of

federal habeas relief is AFFIRMED.