IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10540

JUSTIN S. WHITE,

Petitioner-Appellant

v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

 USDC No. 2:09-CV-40

Before STEWART, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit 

Judges.

PER CURIAM:*

A Texas jury convicted Justin S. White of murder and sentenced him to 

30 years of incarceration. After exhausting state direct and collateral review, 

White sought federal habeas relief in the district court, arguing, inter alia, that 

he state trial court violated his constitutional rights by overruling his Batson1

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 Batson v. Kentucky, 476 U.S. 79 (1986) (striking members of a jury based solely on 

their race is a violation of the equal protection clause).

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2014

Lyle W. Cayce

Clerk

 

 Case: 12-10540 Document: 00512616353 Page: 1 Date Filed: 05/02/2014
No. 12-10540

challenge to the racial composition of his jury. The district court denied habeas 

relief, and we granted a Certificate of Appealability (“COA”). We AFFIRM.

I

Following a fight, Davis S. Berliner was murdered outside a night club. 

A police investigation linked Justin S. White to the murder. White had been 

involved in the fight at the nightclub, had been seen waiving a handgun in the 

air, and was thrown out of the club by the manager and bouncer shortly before 

the shooting. Shortly after the shooting, White approached a vehicle leaving 

the club with a handgun, and told the occupants that he thought he had just 

shot either the club’s bouncer or manager.

A Texas state jury convicted White and sentenced him to 30 years in 

prison. White timely appealed the conviction and sentence to the Texas 

Seventh Court of Appeals, which affirmed the conviction and sentence by 

unpublished opinion.2

On August 29, 2007, White filed a state habeas application, alleging 

ineffective assistance of appellate counsel. In this application, White 

requested that he be permitted to file an untimely petition for discretionary 

review. The Texas Court of Criminal Appeals (“CCA”) granted permission, and 

White filed the petition asserting legal and factual insufficiency grounds for 

reversal. The CCA then refused the petition.

On August 14, 2008, White filed a second state habeas application,

alleging (i) that he was denied a fair trial because five of the jurors were biased 

and prejudiced against him; (ii) that the state trial court violated his 

constitutional rights by overruling his Batson challenge to the racial 

composition of the jury; (iii) that there was insufficient evidence to support the 

2 White v. Texas, No. 07-05-0271-CR, 2006 WL 2612642 (Tex. App.—Amarillo 2006, 

pet. ref’d).

2

 

 Case: 12-10540 Document: 00512616353 Page: 2 Date Filed: 05/02/2014
No. 12-10540

murder conviction; (iv) that he was denied effective assistance of appellate 

counsel; and, (v) that the trial court erred by dismissing the wrong juror when 

it dismissed the alternate juror prior to deliberations. On November 5, 2008, 

the CCA denied White’s application without written order.

On February 6, 2009, White filed a timely application for federal habeas 

relief in the federal district court. Over White’s objections, the district court 

adopted the Report and Recommendation issued by the United States 

Magistrate Judge, and denied White’s application for a federal writ of habeas 

corpus. The district court then denied a COA. We granted a COA solely on the 

Batson issue. White timely appeals.

II

We review the district court’s findings of fact for clear error and its legal 

conclusions de novo.3

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 

mandates deference to state court proceedings. Accordingly, if “a state court 

has adjudicated a habeas petitioner’s claims on the merits, he may receive 

relief in the federal courts only where the state court decision ‘resulted in a 

decision that was contrary to, or involved an unreasonable application of 

clearly established federal law,” or “resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence presented in 

the State court proceeding.”4 In determining whether the state court’s decision 

was reasonable, our consideration is limited to the record before the state court 

at the time of the ruling.5

3 Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (citing Woods v. 

Quarterman, 493 F.3d 580, 584 (5th Cir. 2007)).

4 Rivera, 505 F.3d at 355 (quoting 28 U.S.C. § 2254(d)).

5 See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011); Blue v. Thaler, 665 F.3d 647, 

656 (5th Cir. 2011) (Pinholster prohibits “a federal court from using evidence that is [first]

3

 

 Case: 12-10540 Document: 00512616353 Page: 3 Date Filed: 05/02/2014
No. 12-10540

To determine whether a decision is “contrary to” or an “unreasonable 

application” of clearly established federal law involves two distinct inquiries: 

(i) “[a] state-court decision is ‘contrary to’ established law when a court ‘applies 

a rule that contradicts the governing law’ or ‘confronts a set of facts that are 

materially indistinguishable from a decision of [the Supreme Court] and 

nonetheless arrives at a result different from [Supreme Court] precedent;”6

and (ii) “ a state-court decision is an ‘unreasonable application’ of established 

law when it ‘correctly identifies the governing legal rule but applies it 

unreasonably to the facts of a particular prisoner’s case.’”7 The touchstone of 

the reasonableness inquiry is “whether the state court’s application was 

‘objectively unreasonable;’” accordingly, “clear error is insufficient.”8 Thus, if 

“fairminded jurists could disagree about the correctness of the state court’s 

decision, that decision was not unreasonable.”9

III

With the AEDPA framework firmly in mind, we turn to the merits. 

Under Batson, courts must engage in a three-step framework to evaluate 

claims that a prosecutor used peremptory challenges in violation of the Equal 

Protection Clause: (1) “a defendant must first make a prima facie showing that 

the prosecutor used a peremptory challenge to strike a juror on the basis of 

race;” (2) “if the defendant made such a showing, the prosecution must then 

offer a race-neutral basis for the strike;” and, (3) “the district court must 

determine whether the defendant has carried his burden of proving purposeful 

introduced in [a federal habeas proceeding] as the basis for concluding that a state court’s 

adjudication is not entitled to deference under § 2254(d).”).

6 Coleman v. Thaler, 716 F.3d 895, 901 (5th Cir. 2013) (quoting Williams v. Taylor, 

529 U.S. 362, 406 (2000)).

7 Id. at 901–02 (quoting Williams, 529 U.S. at 407–08)).

8 Id.

9 Id.

4

 

 Case: 12-10540 Document: 00512616353 Page: 4 Date Filed: 05/02/2014
No. 12-10540

discrimination.”10 This ultimate conclusion of discriminatory intent is a 

finding of fact.11

As the Supreme Court has explained, “the critical question in 

determining whether a prisoner has proved purposeful discrimination at step 

three is the persuasiveness of the prosecutor’s justification for his peremptory 

strike. At this stage, implausible or fantastic justifications may (and probably 

will) be found to be pretexts for purposeful discrimination.”12 The “ultimate 

inquiry for the judge is not whether counsel’s reason is suspect, or weak, or 

irrational, but whether counsel is telling the truth in his or her assertion that 

the challenge is not race-based.”13 And “these determinations of credibility and 

demeanor lie peculiarly within a trial judge’s province, and . . . in the absence 

of exceptional circumstances, we would defer to the trial court.”14

Here, White argues that at step 3, the state court impermissibly erred in 

denying his Batson challenge to the State’s exercise of a peremptory challenge 

to venire member Gerry Don Glass, an African-American male. The State 

offered two reasons for challenging Glass: (i) his demeanor “during the course 

of questioning, and in response to answers, was both belligerent and 

reluctant[,]” and (ii) “his brother or somebody . . . had some legal problems or 

something like that.”15 With respect to Glass’ demeanor, the State explained 

10 United States v. Thompson, 735 F.3d 291, 296 (5th Cir. 2013) (citing Batson, 476 

U.S. at 93–98).

11 Thompson, 735 F.3d at 296.

12 Miller-El v. Cockrell, 537 U.S. 322, 338–39 (2003).

13 United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993).

14 Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

15 State Trial Transcript, Vol. 4, at 120. When asked by the court to give “a racially 

neutral reason . . . for you . . . exercising your preemptory [sic] challenge[,]” the State 

explained as follows:

With respect to Mr. Glass, his demeanor during the course of 

questioning, and in response to answers, was both belligerent 

and reluctant. He was sitting there with his arms crossed the

whole time—the physical characteristic indication of someone 

5

 

 Case: 12-10540 Document: 00512616353 Page: 5 Date Filed: 05/02/2014
No. 12-10540

that “[h]e was sitting there with his arms crossed the whole time—the physical 

characteristic indication of someone who is closed off to you. We didn’t like his 

demeanor in that behalf.” White argues that these reasons were pretextual. 

First, White explains that the record does not convey Glass’s demeanor, and 

thus, the state trial court’s failure to make any findings as to Glass’s demeanor 

means that we cannot presume that the state trial court credited the 

prosecutor’s assessment of demeanor; indeed, there are only a couple instances 

of Glass’ testimony during voir dire in the record, and neither reflects his 

demeanor.16 Second, White argues that the State’s second race-neutral reason 

was pretext, as he claims that white jurors who had relatives in jail were 

allowed to serve on the jury.

We disagree. A review of the record makes clear that the state court’s 

decision was not an unreasonable application of federal law. To begin with, 

Snyder does not require trial courts to make record findings regarding a juror’s 

demeanor.17 This is because “unlike the attorneys, [the trial court] may not 

always be [in] a position to observe and record a potential juror’s demeanor.”18 

Although it might be “better practice for the court to put its findings on the 

record[,] . . . Synder does not require that.”19 Yet, because the State offered 

who is closed off to you. We didn’t like his demeanor in that 

behalf. Additionally . . . there was some reason—his brother or 

somebody, I believe, had been—had some legal problems or 

something like that. And that’s our reasons on Mr. Glass.

16 First, when the State asked the jurors whether they understood reasonable doubt, 

Glass answered “You are for sure of it, there’s no doubt . . . You’ve got all your evidence, 

there’s no doubt.” Second, when White asked whether Glass could acquit even if the guilty 

party was never found, he nodded affirmatively, and when White asked whether Glass had 

served on a grand jury before, he answered yes.

17 Thompson, 735 F.3d at 301; see also Thaler v. Haynes, 559 U.S. 43, 48 (2010) 

(“Batson plainly did not go further and hold that a demeanor-based explanation must be 

rejected if the judge did not observe or cannot recall the juror’s demeanor. Nor did we 

establish such a rule in Snyder.”).

18 Id.

19 Id.

6

 

 Case: 12-10540 Document: 00512616353 Page: 6 Date Filed: 05/02/2014
No. 12-10540

two explanations for the strike, and the state trial judge did not specify on 

which explanation he relied, “we cannot presume that the trial judge credited 

the [State’s] assertion” regarding Glass’s demeanor.20 Accordingly, we next

examine whether the State’s second reason—that Glass’ brother in law is in 

prison—is pretextual.

Here, we cannot conclude that the prosecutor’s second reason is 

pretextual. First, we note that it is impossible to tell from the record whether 

Glass was the unidentified veniremember who answered that he had a brotherin-law in jail. The trial transcript only identifies an “unidentified prospective 

juror” with a brother-in-law in jail.21 Although the State makes a persuasive 

argument that the answer can be attributed to him, a conclusive determination 

is impossible, because the record does not disclose the identity of that juror. 

But, given the deferential standard of review of AEDPA, we cannot say that 

the attributing the answer to Glass is an unreasonable determination of the 

facts.

Second, White argues that this rationale must be mere pretext for 

discrimination because three empanelled jurors also had relatives in jail. And 

White argues that at least two of these jurors, unlike Glass, were white. But 

there is no record evidence identifying the racial composition of the empaneled 

jurors. Additionally, the three empanelled jurors with incarcerated relatives 

are distinguishable from Glass; all three believed that it is better that their 

relatives are in jail. Juror 19, Deborah Baker, whose cousin was in jail, stated 

that “[h]e probably needs to be there.”22 Juror 32, Julia Buckstead, whose 

brother was in jail, explained that she felt “like he needs to be there, and I hope 

20 Snyder, 552 U.S. at 479.

21 State Trial Transcript, Vol. 4, at 43.

22 Id. at 42.

7

 

 Case: 12-10540 Document: 00512616353 Page: 7 Date Filed: 05/02/2014
No. 12-10540

it will turn his life around.”23 Similarly, Juror 38, Terri Mix, whose daughter’s 

father was in jail, explained, “[h]opefully it will change his ways and he’ll be 

able to straighten up and be able to come home and see her.”24 In contrast to 

these views, the views of the unidentified veniremember who is likely Glass

were ambivalent at best. When asked about his feelings about his brother-inlaw being incarcerated, he stated “I really don’t know. You know, I talk to him. 

I really don’t know.”25 The State followed up with that question by asking 

whether he was close to the incarcerated relative, and he answered “Yeah. We 

grew up together, pretty much.”26 These answers reflect an ambivalence about 

his relative’s incarceration not present in the answers of the empanelled jurors. 

Because there are meaningful differences between Glass and the empanelled 

jurors, and because the race of these comparator jurors cannot be determined 

from the record, we cannot conclude that this explanation for the preemptory 

strike was pretextual. Accordingly, because “fairminded jurists could disagree 

about the correctness of the state court’s decision, that decision was not 

unreasonable.”27

For these reasons, we AFFIRM.

23 Id. at 48.

24 Id. at 49–50.

25 Id. at 43.

26 Id. at 43–44.

27 Coleman, 716 F.3d at 901–02.

8

 

 Case: 12-10540 Document: 00512616353 Page: 8 Date Filed: 05/02/2014