* 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.

REVISED JANUARY 27, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-70028

WILLIE TERION WASHINGTON,

Petitioner - Appellant 

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee 

Appeal from the United States District Court 

for the Southern District of Texas

4:99-CV-140 & 4:07-CV-721

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Willie Terion Washington, a black Texas death row inmate, was convicted

of murder in 1986. At voir dire, the prosecutor struck all the minority jurors to

United States Court of Appeals

Fifth Circuit

F I L E D

January 26, 2012

Lyle W. Cayce

Clerk
No. 09-70028

1 The TCCA has previously summarized the facts of this case:

The record reflects that on December 19, 1985, Yemane Kidane and

Kifelmariam Tareh were working in Mike’s Food Market of which Kidane was

a part owner. At approximately 8:30 p.m. that evening, [Washington] entered

the store and went to the back where Tareh was stocking the cooler with beer.

HoldingTarehat gunpoint,[Washington] approached the register where Kidane

was working and said, “Give me all the money. I’m going to hurt you.” Kidane

gave [Washington] between seventy and one hundred dollars in cash and some

food stamps. [Washington] allegedly then moved Tareh to the right one step,

shot Kidane in the jaw, shot Tareh in the head killing him and then left the

store. Kidane, who was not killed by the shot to his jaw, then ran out of the

store and fired two shots into the air from a gun that he had in his pocket.

Kidane then went to a lounge next to the food market to ask for help in getting

the police and an ambulance. Kidane later identified [Washington] as the

alleged perpetrator. Kidane stated he did not know [Washington’s] name, but

he recognized him because he came into the food market on a daily basis. 

See Washington v. State, 771 S.W.2d 537, 539 (Tex. Crim. App. 1989).

2

empanel an all-white jury. Washington filed a state petition for writ of habeas

corpus which was denied. Some years later, Washington received copies of the

prosecutor’s notes from voir dire which he claims prove racial discrimination in

the seating of his jury. He then filed a subsequent petition for habeas which was

denied under Texas’s abuse ofthe writ statute. The United States District Court

rejected his appeal. Before this court is whether the Texas Court of Criminal

Appeals (“TCCA”) based its decision on the independent and adequate state

ground contained within the procedural rule, or whether the decision was

intertwined with federal law. Also before this court is an application for a

Certificate of Appealability (“COA”). We AFFIRM the ruling of the District Court

and DENY Washington’s application for a COA.

FACTS AND PROCEEDINGS

A. Washington’s Habeas Corpus Claims

Washington was convicted of capital murder and sentenced to death in

November of 1986. The facts of his crime are not before this court.1 At voir dire,

the prosecutor peremptorily excused five minority jurors and an all-white jury

was empaneled without a Batson challenge from Washington’s attorney. (Blue
No. 09-70028

2 Section 5 of the Texas Code of Criminal Procedures, Article 11.071 sets forth the

limited circumstances in which the court may consider a subsequent habeas application. See

Tex. Code Crim. Proc. Art. 11.071. 

3

Br. 18). During voir dire, the prosecutor wrote down letters next to the names

of venire members on jury questionnaires to indicate the potential juror’s race

(such as a ‘b’ for a black venire person). (Blue Br. 16). Washington’s direct

appeal to the Texas Court of Criminal Appeals was denied, as was certiorari to

the United States Supreme Court. (Blue Br. 1-2). He filed a petition for writ of

habeas corpus in state court in 1990. In 1997, the 180th District Court of Harris

County, Texas denied relief. Washington filed a second supplemental petition

which was denied by the TCCA in early 1998. (Blue Br. 2).

Following denial of relief, Washington filed a federal habeas petition and

an amendment to the petition in 1999. (Blue Br. 3). In 2001, Texas provided

Washington with copies of the juror questionnaires used in voir dire as well as

evidence of “criminal records of key prosecution witnesses.” (Blue Br. 3).

Washington alleges the notations on the questionnaires are “racist notations”

which establish that Washington’s attorney rendered ineffective assistance by

not raising a Batson challenge. (Supp. Br. 24-25). Based on this newly

discovered evidence, Washington filed a second amended petition for a writ of

habeas corpus. (Blue Br. 3). The District Court for the Southern District of

Texas dismissed the petition in 2001 so that Washington could pursue these two

claims in state court. (Blue Br. 3).

Washington’s successive habeas application based on ineffective assistance

was dismissed by the TCCA in 2002 stating, “[t]he remaining claims fail to

satisfy the requirements of Sec. 5 and are accordingly dismissed.” (TCCA Order

No. 35,410-02).2 The TCCA denied a subsequent application for a writ of habeas

corpus in February of 2007. Washington then filed a petition for writ of habeas

corpus in federal court. (Blue Br. 4).
No. 09-70028

4

The district court explained “the TCCA dismissed the claim under Texas’s

abuse of the writ statute.” (Opinion 3). The question was thus whether the

dismissal was based on a rejection of Washington’s constitutional ineffective

assistance argument, or whether it was based on an independent and adequate

state ground, namely the abuse of the writ by successive petitions. The district

court concluded “[t]here is thus no reason to believe that this dismissal by the

TCCA, like the dismissal at issue in Hughes, rested on anything other than an

independent and adequate state ground.” (Opinion 7). However, because

“reasonable jurists could disagree whether the TCCA decision in this case

[finding Washington’s state habeas claim procedurally defaulted under Tex.

Crim. Pro. art. 11.071 § 5], in light of Washington’s later-discovered evidence,

was intertwined with federal law,” the district court granted a certificate of

appealability on the independent and adequate state ground issue. (Opinion 8).

B. Section 5 of Texas Rules of Criminal Procedure

The Texas Code of Criminal Procedure, article 11.071 Section 5 permits

subsequent application for a writ of habeas corpus in three limited

circumstances.

(a) If a subsequent application for a writ of habeas corpus is filed

after filing an initial application, a court may not consider the

merits of or grant relief based on the subsequent application unless

the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could

not have been presented previously in a timely initial

application or in a previously considered application filed

under this article or Article 11.07 because the factual or legal

basis for the claim was unavailable on the date the applicant

filed the previous application;

(2) by a preponderance of the evidence, but for a violation of

the United States Constitution no rational juror could have

found the applicant guilty beyond a reasonable doubt; or
No. 09-70028

5

(3) by clear and convincing evidence, but for a violation of

the United States Constitution no rational juror would have

answered in the state’s favor one or more of the special issues

that were submitted to the jury in the applicant’s trial under

Article 37.071, 37.0711, or 37.072.

Tex. Code Crim. Proc. Art. 11.071 § 5. Under each subsection, the plaintiff must

allege specific facts to establish that (1) the factual or legal basis for the claim

were not previously available; (2) a United States Constitutional violation was

the but-for cause ofthe jury’s guilty finding; or (3) a Constitutional violation was

the but-for cause of the jury’s answers to the special issues which resulted in the

death penalty. Id. Barring these exceptions, the TCCA will dismiss a petition

as procedurally defaulted.

STANDARD OF REVIEW

The parties dispute the nature of the case. Washington claims this case

raises a review of a claim for ineffective assistance of counsel. Texas correctly

articulates that this is a review of a denial of habeas corpus. (Red Br. 15). The

district court made no findings of fact or conclusions of law regarding the

effectiveness of Washington’s trial counsel but concluded “that the TCCA found

Washington’s claim procedurally defaulted under an independent and adequate

state rule of procedure.” (Opinion 8). The only legal conclusion of the district

court was that the Texas abuse of the writ statute contained an adequate and

independent state ground on which the TCCA based its dismissal of

Washington’s subsequent petition. 

This court reviews facts found by the district court for clear error and the

district court’s legal conclusions de novo. Virgil v. Dretke, 446 F.3d 598, 604-05

(5th Cir. 2006); Ward v. Dretke, 420 F.3d 479, 486-87 (5th Cir. 2005); Busby v.

Dretke, 359 F.3d 708, 713 (5th Cir. 2004) (“In a habeas corpus appeal, we review

the district court’s findings of fact for clear error and its conclusions of law de
No. 09-70028

6

novo, applying the same standards to the state court’s decision as did the district

court.”).

DISCUSSION

1. TCCA Dismissal

The issue before us is whether the TCCA dismissed Washington’s petition

based on an adequate and independent state law ground. If so, we are barred

from reviewing the state court’s judgment. See Coleman v. Thompson, 501 U.S.

722, 750 (1991). The TCCA dismissed Washington’s claim because it did not

“satisfy the requirements of Sec. 5 [of Art. 11.071].” (Order 2). Washington

raises two contentions. First, he contends that the TCCA’s order does not clearly

indicate that the decision was based on an adequate and independent state law

ground and thus the presumption should be that it was not. Second, he alleges

that the TCCA did not base its opinion on whether the facts underlying a

potential Batson challenge were unavailable at the time of his first habeas

petition, but rather on a finding that his application did not make out a Batson

violation claim that was prima facie meritorious.

a. State or Federal Law Presumption

Washington contends that the TCCA failed to include a plain statement

that its dismissal under §5 was based on adequate and independent state

grounds. He reads Michigan v. Long and its progeny to require state courts

explicitly to state their decisions rest on adequate and independent state law

ground in order to avoid a presumption thatthe decision is either based or relied

on federal law. See Michigan v. Long, 463 U.S. 1032 (1983); (Blue Br. 18). Texas

correctly points outthat Washington’s brief was filed before Rocha v.Thaler, 626

F.3d 815 (5th Cir. 2010), and thus argues that in the absence of a clear

statement that the state court relied on federal law, this court should presume

that an adequate and independent state law ground was the basis for the

decision. (Red Br. 23-24).
No. 09-70028

7

This courtis procedurally barred from hearing appeals from denial of state

habeas where the state court based its decision on an adequate and independent

state law ground. This rule is derived from the Supreme Court’s opinion in Long

which held: 

when, as in this case, a state court decision fairly appears to rest

primarily on federal law, or to be interwoven with the federal law,

and when the adequacy and independence of any possible state law

ground is not clear from the face ofthe opinion, we will accept as the

most reasonable explanation that the state court decided the case

the way it did because it believed that federal law required it to do

so. 

Long, 463 U.S. at 1040-1041. Long has been refined by this circuit in the context

of the Texas abuse of the writ doctrine, most recently in Rocha. See also

Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010). 

In Rocha, this court explained that if the TCCA’s decision was based on

unavailability, the procedural bar for federal review would hold. 626 F.3d at

835. If, however, “the CCA determines that the claim was unavailable but that

the application does not make a prima facie showing of merit, a federal court can

review that determination.” Id. We have held that a claim was procedurally

barred when the TCCA issued a boilerplate abuse-of-the-writ order dismissing

a successive habeas application because “no application or interpretation of

federal law is required to determine whether a claim has, or could have, been

presented in a previous habeas application.” Hughes v. Quarterman, 530 F.3d

336, 342 (5th Cir. 2008). Further, there was “nothing in [the TCCA’s]

perfunctory dismissal of the claims that suggest[ed] that it actually considered

or ruled on the merits.” Id. Thus, “we are required to presume that a state-court

habeas decision does not rest on an independent state-law ground only if we first

determine that the state-court decision we are reviewing ‘fairly appears to rest

primarily on federal law, or to be interwoven with the federal law.’” Rocha, 626

F.3d at 836 (quoting Coleman, 501 U.S. at 735). “A CCA decision fairly appears
No. 09-70028

8

to rest on state law if it dismisses a subsequent habeas application under

§ 5(a)(1) because the application does not raise a claim that was factually or

legally unavailable.” Id. at 837. Thus, our presumption that the TCCA

dismisses claims on state law grounds is only undermined ifthe opinion actually

implicates federal law.

The TCCA order did not specify whether its dismissal was based on state

law or had some relationship to federal law. The presumption that the order

rests on adequate state law thus stands subject to our consideration of whether

the TCCA’s decision “fairly appears to rest primarily” on a determination that

Washington’s Batson challenge was not prima facie meritorious.

b. Availability of Batson at First Habeas Application

Washington claims that the TCCA necessarily dismissed his claim based

on the merits of his Batson challenge because the evidence of racial

discrimination by the prosecutor at voir dire was not available at the time of his

first habeas petition. (Blue Br. 30-31). He claims he “first became aware of the

prosecutor’s invidious discriminatory intent when the state’s jury questionnaires

were provided for the first time in 2000.” (Blue Br. 30). Because this specific

evidence was not previously available, Washington alleges that his Batson

challenge was unavailable at the time of his first habeas petition. (Blue Br. 30-

32). Texas claims Washington’s ineffective assistance claim was previously

available even without the jury questionnaires. (Red Br. 33-35). Texas quotes

the district court to argue that the facts necessary to raise an ineffective

assistance claim for failure to allege a Batson violation–thatthe prosecutor used

peremptory challenges to remove black venire members and that his trial

counsel did not object–were available at the time of Washington’s initial state

habeas application. (Red Br. 34).

We have held that a determination of whether a TCCA decision was based

on the unavailability or merits of the claim follows a sequential pattern. 
No. 09-70028

9

[T]he two requirements of § 5(a)(1) should be applied sequentially.

The CCA first examines whether the factual or legal basis of the

claim was unavailable at the time of the original application. Only

if the applicant can surmount the unavailability hurdle does the

CCA proceed to ask whether the application makes out a claim that

is prima facie meritorious . . . If an applicant fails to satisfy the

unavailability requirement, the § 5(a)(1) inquiry is over, and no 

merits determination takes place.

Rocha, 626 F.3d at 834. “No application or interpretation of federal law is

required to determine whether a claim has, or could have, been presented in a

previous habeas application.” Hughes, 530 F.3d at 342. Thus, we must

determine whether Washington’s claim of ineffective assistance for failure to

raise a Batson challenge at voir dire was available prior to the discovery of the

jury questionnaires–whether the TCCA dismissed Washington’s claim for

unavailability (state law) or on its merits (federal law). 

Such analysis does not require checking “our common sense at the door

when we read an opinion of the CCA with an eye toward ascertaining its

decisional basis. . . . When the CCA dismisses a successive habeas application

on the ground that it does not satisfy § 5(a)(1), we can–and should–read its order

of dismissal to determine which of the two elements of § 5(a)(1) was the basis of

the court’s dismissal.” Rocha, 626 F.3d at 837. We may consider arguments or

theories that support or could support the state court’s decision. Harrington v.

Richter, 131 S. Ct. 770, 786 (2011); (Red Br. 17).

Batson challenges require a three part test to determine if peremptory

challenges were used in a discriminatory manner.

First, the defendant must make a prima facie showing that the

prosecutor’s use of peremptory challenges excluded members of a

certain race from serving on the jury. Second, once the defendant

makes that prima facie showing, the burden shifts to the state to

provide a neutral explanation for the strikes related to the

particular case being tried. Once the state offers an explanation for

its challenges, the trial court must determine whether the
No. 09-70028

10

defendant has established purposeful discrimination in the jury

selection process. The ultimate burden of persuasion stays with the

defendant throughout.

Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (internal citations omitted).

Washington alleges that he was not able to establish a prima facie case prior to

the discovery of the jury questionnaires. (Blue Br. 30-31). To establish a prima

facie case: 

a defendant: (1) must show that . . . the prosecutor has exercised

peremptory challenges to remove members of [a cognizable racial

group] from the venire; (2) is entitled to rely on the fact that

peremptory challenges constitute a jury selection practice that

permits those to discriminate who are of a mind to discriminate; and

(3) must show that these facts and circumstances raise an inference

that the prosecutor exercised peremptory challenges on the basis of

race. 

Price v. Cain, 560 F.3d 284, 286 (5th Cir. 2009). This court has held that the

facts required to raise an inference are a “light burden.” Id. at 287. Thus, we

must determine whether, but for the evidence that the prosecutor indicated

potential jurors’ race on the questionnaires, Washington could have established

a prima facie case.

At Washington’s jury selection, the prosecutor exercised peremptory

challenges to remove black and Hispanic venire members which resulted in an

all-white jury. (Blue Br. 18). The questionnaires were not necessary to make

this showing. Second, the prosecutor’s behavior in removing black and Hispanic

venire members to leave a completely white jury could certainly “constitute[] a

jury selection practice that permits ‘those to discriminate who are of a mind to

discriminate.’” Price, 560 F.3d at 286 (quoting Batson v. Kentucky, 479 U.S. 79,

96 (1986)). Finally, the removal of non-white jurors from the venire raises “an

inference that the prosecutor exercised peremptory challenges on the basis of

race.” Id. The actions at voir dire, even without the questionnaires would

constitute the time Washington “first became aware ofthe prosecutor’s invidious
No. 09-70028

11

discriminatory intent,” (Blue Br. 30), and thus provided sufficient evidence to

raise a Batson challenge. Even assuming, arguendo, that the jury

questionnaires strengthen Washington’s prima facie case, they are unnecessary

to overcome the light burden this circuit requires a party to show a prima facie

case for the first step of a Batson claim.

The TCCA based its dismissal on the fact that Washington’s attorney did

not need the questionnaire evidence which tends to show racial discrimination

at voir dire, but could have raised a Batson challenge based on the race-based

strikes at the trial. The failure to raise a Batson challenge at voir dire may have

been ineffective assistance. However, Washington’s failure to raise the

ineffective assistance claim in his first habeas application cannot be excused for

lack of the necessary evidence to raise the Batson claim. Thus, there was no

“factual or legal basis” “unavailable on the date the applicant filed the previous

application,” Sec. 5(1), and we hold that the TCCA’s dismissal was based on the

prior availability of his ineffective assistance claim.

2. Certificate of Appealability

Washington also seeks a COA from the district court’s denial of habeas

corpus relief on two issues. “A COA will be granted only if the petitioner makes

‘a substantial showing of the denial of a constitutional right.’” Shishinday v.

Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (quoting 28 U.S.C. § 2254(c)(2)).

“To make such a showing, a petitioner ‘must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the issues [in a

different manner]; or thatthe questions are adequate to deserve encouragement

to proceed further.’” Id. (alterations in original) (quoting Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983)). Because Washington has failed to make a substantial

showing of a denial of a constitutional right or otherwise meet the qualifications

for his application, we deny his application for a COA.

a. Ineffective Assistance
No. 09-70028

12

Washington argues that a COA should issue on whether the district court

properly analyzed his claims of ineffective assistance attrial. He argues his trial

counsel rendered ineffective assistance because (1) counsel’s fee arrangement

created a conflict of interest, (2) counsel executed a second affidavit regarding

his representation of Washington after discussions with the judge and assistant

district attorney, and (3) counsel’s trial preparation and court performance were

deficient. These claims lack sufficient merit to warrant a COA, and that

application is denied for essentially the same reasons recited by the district court

in its order filed August 3, 2009.

Washington first claims his trial counsel’s fee agreement which assigned

the $5,000 proceeds from Washington’s pending workers’ compensation

settlement to counsel in addition to a $3,000 payment from Washington’s family

created an unethical conflict of interest. The state court concluded there was no

conflict of interest and the district court found no established law to support

granting a COA. The claim was rejected by the district court because

Washington lacked evidence that any deficiency in his trial counsel’s

performance was caused by the fee arrangement and there is no presumption

that an alleged conflict of interest is prejudicial. Washington does not make

additional arguments before this court. The fee arrangement, even if

questionable, does not prove that Washington’s trial counsel had a conflict of

interest which prejudiced Washington. His arguments on appeal, without more,

do not show he was prejudiced by the fee arrangement and thus a COA is not

appropriate on this issue.

Second, Washington alleges that his trial counsel’s filing of two affidavits

regarding the actions taken in Washington’s defense, including one influenced

by ex parte communications with the trial judge and prosecutor, show

Washington’s case was treated in a cursory and unfair manner in state court.

However, Washington was permitted to cross examine his trial counsel before
No. 09-70028

13

the district court and fails to identify any specific constitutional rights affected

by the hearing or the affidavits and thus a COA is not appropriate on this issue.

Third, Washington alleges that his trial counsel was inadequate, but

generally fails to allege facts to support the allegations. As the district court

noted, Washington failed to identify any non-defaulted instance of ineffective

assistance which resulted in prejudice. By failing to provide reasons for relief,

Washington cannot show he was prejudiced by his trial counsel’s decisions at

trial and thus a COA is inappropriate.

b. Criminal Records of Government Witnesses

Washington also seeks a COA on whether the district court properly

analyzed his claims regarding the state’s failure to provide defense counsel the

criminal records of punishment-phase witnesses. He contends evidence of Ella

Miller and Linda Desso’s prior convictions was improperly withheld during the

penalty phase, prejudicing Washington. These claims lack sufficient merit to

warrant a COA, and that application is denied for essentially the same reasons

recited by the district court in its order filed August 3, 2009.

The district court concluded thatthe possible evidence to impeach Miller’s

testimony was inadmissible evidence and therefore could not be material. It also

concluded that Washington could not identify any perjured testimony from

Desso. Thus, Washington cannot show he was prejudiced by the state’s failiure

to provide the criminal records of the witnesses at sentencing and a COA is

inappropriate.

CONCLUSION

Washington raised a successive petition for a writ of habeas corpus in

Texas state court which was dismissed for abuse of the writ. The TCCA

dismissed his claim under Section 5. The TCCA was not required to explicitly

state its basis for dismissal was an adequate and independent state law ground.

Further, we can consider the arguments that support the TCCA’s decision and
No. 09-70028

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recognize the basis for any Batson challenge was sufficiently present at voir dire

and thus Washington’s failure to raise the ineffective assistance claim in his first

habeas corpus petition triggered the procedural bar of Section 5. We AFFIRM

the district court’s holding that the TCCA found Washington’s claim

procedurally defaulted under an independent and adequate state rule of

procedure and DENY Washington’s application for a COA.