IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30665

BOBBY SMITH,

Petitioner – Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent – Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This federal habeas appeal arises from underlying proceedings in the state

courts of Louisiana, in which Bobby Smith was convicted in a 2001 jury trial of

armed robbery and conspiracy to commit armed robbery. He was sentenced by

the Louisiana court to 58 years in prison without the possibility of probation,

parole, or suspension of sentence. After exhausting his habeas claims in the

state courts, he seeks federal habeas relief. Smith argues that the jury that

convicted him was tainted by racial prejudice through the prosecution’s

discriminatory use of peremptory strikes in violation of Batson v. Kentucky, 476

U.S. 79 (1986). The district court determined that the state courts legally erred

in addressing his Batson claim, granted him a federal evidentiary hearing on the

United States Court of Appeals

Fifth Circuit

F I L E D

February 11, 2013

Lyle W. Cayce

Clerk

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merits of his habeas claim, and ultimately denied relief on his substantive claim. 

We granted Smith a Certificate of Appealability (“COA”) on the limited issue of

comparative juror analysis required by Miller-El v. Dretke, 545 U.S. 231 (2005). 

After the COA was granted, the Supreme Court decided Cullen v. Pinholster, 131

S. Ct. 1388 (2011), which called into question whether the district court could

properly grant Smith an evidentiary hearing on his Batson claim–a major issue

in this appeal.

We hold that Pinholster’s restriction does not bar the federal evidentiary

hearing conducted in this case because the district court first concluded, solely

on the basis of the state court record, that the state courts committed legal error,

as required under 28 U.S.C. § 2254(d)(1), through the state courts’s

“unreasonable application of, clearly established Federal law.” Thus, the

evidentiary hearing was committed to the district court’s discretion, subject to

section 2254(e)(2). Because the district court did not abuse its discretion in

conducting the hearing, we will review Smith’s substantive Batson claim in the

light of the federal evidentiary record. After reviewing the record, we hold that

Smith has failed to carry his burden of proving that the prosecutor’s race-neutral

explanations for striking the two black panelists at issue were a pretext for

purposeful discrimination, and thus AFFIRM the judgment of the district court.

I.

A.

Smith’s Batson claim is premised on the state’s use of peremptory strikes

on black members of the third jury panel in his armed robbery trial before the

Louisiana state court. During voir dire, the prosecutor struck three black

panelists in a row. Although defense counsel did not raise a Batson objection 1

 Smith asserts error with respect to the peremptory strike used on Flowers, but she 1

was not included in the COA.

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to the prosecutor’s peremptory challenges, Smith himself engaged in an 2

extended colloquy with the trial judge, who treated the discussion as a Batson

challenge. In response to Smith’s remarks, the trial judge stated: 3

Well, I understand what you are saying and we have made a record

of your objection. And that is the best that we can do. If you’re

objecting that the state has attempted to exclude blacks from[,]

systematically attempted to exclude blacks from the jury[,] I will

accept that as a Batson challenge, and I will do what I am supposed

to do. And what I am supposed to do is first determine whether or

not I believe there has been a systematic exclusion by race or

gender. I do not believe there is any showing of a systematic

exclusion based upon the order in which the strikes were made, and

who was left on the jury at which time. . . . Because of that I am

going to deny the motion.

Neither party disputes that the trial judge incorrectly applied the Batson test. 

The trial judge also did not ask the prosecutor to explain her use of peremptory

strikes or otherwise expand the record on the Batson issue.

The voir dire record, however, is informative with respect to the questions

posed to the struck panelists and the breakdown in both sides’ use of peremptory

strikes. The venire initially was composed of 48 individuals, of which 37

appeared for voir dire. Of the 37 potential jurors, 27 were white and 10 were

black. Each side was allocated 12 peremptory strikes. Smith used his to strike

two white males, nine white females, and one black female. The state struck five

white females, four black males, and three black females. The jury was

empaneled with 11 white jurors and one black juror.

When the state exercised its peremptory challenge against the three black panelists,

2

defense counsel stated, “That doesn’t surprise me,”to which the prosecutor replied, “I wouldn’t

think.”

During his extended conversation with the trial judge, Smith stated: “We got one 3

black juror on [the jury]. Out of all the juries [sic] you got you got one black juror of my peers

only that you kept and you went through at least five blacks and you just discriminated all of

them.”

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Specifically at issue in this appeal are Ethel Norman and Ben Williams,

two of the three black panelists that the state struck from the third panel. With

respect to Williams, the trial judge, during the initial questioning of the third

panel, asked if anyone knew a member of law enforcement. Williams raised his

hand signaling that he did. The judge then questioned Williams, who stated

that he had been friends with, coached the son of, and served as an honorary pall

bearer for a murdered Louisiana police officer. Williams, however, said that he

did not associate that event with Smith’s case.

At the conclusion of the trial judge’s questions to the third panel, the

prosecutor began questioning Norman. Norman did not self-identify as having

a problem with the law, but the prosecutor stated that Norman had been sitting

in the courtroom throughout voir dire and that she “happen[ed] to be sitting

first.” As such, the prosecutor proceeded to question Norman on the law that

would be applicable to Smith’s case. With respect to armed robbery, Norman

stated she did not understand the law, even after the prosecutor defined it for

her again. When asked about conspiracy, Norman expressly acknowledged that

she did not know the legal concept. After the prosecutor provided her an

example and asked if she then understood the concept, Norman replied, “Uhhuh.” Lastly, the prosecutor gave Norman an example involving the law of

principals and asked her if she understood the example, to which Norman

stated, “No.” Further conversation between Norman and the prosecutor

demonstrated that Norman had an issue with convicting a defendant under the

law of principals.

The prosecutor then questioned Williams, because he self-identified as

having an issue with the law of principals. When asked whether he had

difficulty with the law of principals, Williams stated, “Yes. I have a problem

with it because it’s – to me it seems like it is clustered with everybody in it. And

it is just one guilty party, the one that committed the murder. Whether he acted

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with someone or not[,] the one that did the crime should pay the penalty.” After

further discussion, Williams said that his disagreement was not “instilled,” and

that he could follow the judge’s instructions. But, he also stated that he

disagreed in principle with multiple murder convictions for individuals involved

in the death of his friend, the police officer, since not all of the convicted

individuals actually shot her. Williams also noted that he understood the

concepts of armed robbery and conspiracy.

B.

Following his conviction,Smith unsuccessfully pursued state habeas relief;

the courts of Louisiana denied relief. Once his state remedies were exhausted,

he sought a writ of habeas corpus in federal district court under 28 U.S.C. §

2254. Smith raised seven issues as part of his federal habeas claim, including

his Batson challenge. The magistrate judge’s report, which was adopted by the

district court, denied six of the claims, but recommended appointing Smith

counsel for an evidentiary hearing on the Batson issue. At the hearing, the

district court concluded that Smith had made the initial prima facie showing of

racial discrimination in the voir dire. The court then heard testimony from the

state prosecutor on the reasons for her use of peremptory strikes.

The prosecutor stated that she struck Norman because she did not

understand or agree with the law of principals. In addition, the prosecutor noted

that she takes account of many factors in her use of peremptory strikes, and that

Norman further troubled her because she had been sitting in the courtroom all

day during the questioning of prior panels but appeared not to have listened or

understood what was previously discussed. The prosecutor also testified that

the record reflected Norman’s confusion over the various legal issues. With

respect to Williams, the prosecutor simply noted that, “He thought that if you

held a gun during the robbery you should be much more culpable than – than if

you had not. So that was the reason that I had struck him.”

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Upon completion of the evidentiary hearing, the parties filed memoranda

with the district court based on the now-expanded record. Smith argued that

any race-neutral reasons for the peremptory challenges were negated by

evidence that the two black panelists had been subjected to more extensive and

in-depth questioning on their understanding of the law than any white panelists. 

The district court, however, concluded that Smith did not carry his burden of

proving purposeful discrimination and denied his application for a writ of habeas

corpus. Smith then applied to this court for a COA in order to appeal the district

court’s judgment. We granted the COA, but limited it to the specific question:

whether the district court erred in finding that Smith had failed to carry his

burden of showing that the prosecutor’s race-neutral explanations for striking

venire panel members Norman and Williams were a pretext for purposeful

discrimination, in the light of the comparative juror analysis of Miller-El v.

Dretke, 545 U.S. 231, 240-41 (2005).

After the COA was granted, but before oral argument was presented in the

case, the Supreme Court decided Pinholster. Because Pinholster addressed

evidentiary hearings in section 2254(d) cases, we ordered supplemental briefing

on whether the Pinholster limitation applied to Smith’s case.

II.

We first addressPinholster, and its potential application to the evidentiary

hearing held by the district court. In Pinholster, the Supreme Court discussed

whether federal district courts are permitted to hold supplementary evidentiary

hearings when evaluating habeas claims under 28 U.S.C. § 2254(d)(1). Section

2254(d) states:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim--

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(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) 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.

Based on the statutory text, the Court held “that review under § 2254(d)(1) is

limited to the record that was before the state court that adjudicated the claim

on the merits.” Pinholster, 131 S. Ct. at 1398. The Court found this result

compelled because the “backward-looking language requires an examination of

the state-court decision at the time it was made.” Id. Cognizant of the deference

traditionally given to state court decisions in habeas proceedings, the Court

further concluded that, “It would be contrary to . . . allow a petitioner to

overcome an adverse state-court decision with new evidence introduced in a

federal habeas court and reviewed by that court in the first instance effectively

de novo.” Id. at 1399.

Smith argues that the district court erred in conducting an evidentiary

hearing because Pinholster limits federal habeas review to the evidence at the

disposal of the state court. Under his argument, although the state court did not

reach the second and third Batson prongs, or develop an evidentiary record on

the issue, Pinholster limited the district court to the evidence that was in the

state court record. But Smith recognizes, of course, that the state trial court did

not reasonably apply Batson when it ruled against him at the prima facie stage

of his claims; thus, in his view, he should be entitled to federal habeas relief in

the form of a remand to the state trial court.

His argument, however, fails because we think that the district court did

what section 2254(d)(1) allows, and what Pinholster does not forbid. The

magistrate judge determined on the basis of the state court record that the state

courts’s Batson analysis “was contrary to, or at least involved an unreasonable

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application of, clearly established Federal law.” After making this finding, the

magistrate judge recommended to the district judge that relief be granted in the

form of an evidentiary hearing on Smith’s Batson claim. The district court

adopted the magistrate judge’s recommendation. The Batson test is clearly

established federal law, as determined by the Supreme Court, for the purpose

of addressing claims of racial discrimination in jury selection. Smith was

entitled to have the proper legal standard applied in determining whether his

jury was the product of a racially discriminatory voir dire process. Because the

district court appropriately and correctly concluded that the state court had

unreasonably applied Batson under section 2254(d)(1) based solely on the state

court record, Pinholster is inapplicable. Thus, the hearing was in error only if

Smith failed to develop the basis of his claim as required under 28 U.S.C. §

2254(e)(2), or if the district judge otherwise abused his discretion in conducting

the hearing.

Section 2254(e)(2) states: “If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless . . . .” Here, it was not Smith who failed

to develop the factual record; Smith made a Batson objection, but the state court

failed to provide him the opportunity to develop the factual basis of his claim

through its misapplication of the Batson standard. Under the circumstances,

section 2254(e)(2) does not bar a federal evidentiary hearing. And, when section

2254(e)(2) does not preclude the hearing, we review the district court’s decision

to conduct one for an abuse of discretion. See Clark v. Johnson, 202 F.3d 760,

765 (5th Cir. 2000) (“[T]he district court retains discretion over the decision to

grant an evidentiary hearing once a petitioner overcomes the barriers presented

by § 2254(e)(2).”); see also McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th

Cir. 1998). Based on this record, the district court did not abuse its discretion.

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This analysis follows our recent holding in Blue v. Thaler, in which we

addressed Pinholster in the Atkins v. Virginia context. 665 F.3d 647 (5th Cir. 4

2011). In Blue, the appellant challenged the district court’s refusal to conduct

an evidentiary hearing, requiring us to discuss the application of Pinholster to

evidence introduced for the first time at the federal level. See id. at 655-57. We

stated:

[I]f a state court dismisses a prima facie valid Atkins claim without

having afforded the petitioner an adequate opportunity to develop

the claim, it has run afoul of the Due Process Clause, and that due

process violation constitutes an unreasonable application of clearly

established federal law that is sufficient to deprive the state court’s

decision of AEDPA deference.

Id. at 657. Under those circumstances, “a district court abuses its discretion if

it does not conduct an evidentiary hearing on an Atkins claim.” Id. We thus

found that Pinholster’s limitation on federal evidentiary hearings does not apply

once the district court concluded, solely on the basis of the state court record,

that the state trial court unreasonably applied federal law. Because the state

court decision is no longer entitled to deference, the federal court is free to

properly address the claim and grant appropriate relief. See id.; see also Wiley

v. Epps, 625 F.3d 199, 207 (5th Cir. 2010) (“When a state court’s adjudication of

a claim is dependent on an antecedent unreasonable application of federal law,

the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then

resolve the claim without the deference AEDPA otherwise requires.” (quoting

Panetti v. Quarterman, 551 U.S. 930, 944 (2007)) (internal quotation marks

omitted)).

Consequently, the district court did not err in any respect in conducting

the evidentiary hearing.

536 U.S. 304 (2002). Atkins held thatthe Eighth Amendment prohibits the imposition

4

of the death penalty against any individual who is mentally retarded. Id. at 321.

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III.

A.

We turn now to the merits of Smith’s Batson claim. There are three steps

in the Batson analysis. E.g., Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir.

2009). “First, a defendant must present a prima facie case that the prosecution

exercised its peremptory challenges on the basis of race.” Id. “Second, if the

defendant meets this initial burden, the burden shifts to the prosecutor to

present a race-neutral explanation for striking the jurors in question.” Id.

Third, “the court must determine whether the defendant has carried his burden

of proving purposeful discrimination.” Id. “Implausible or fantastic

justifications may (and probably will) be found to be pretexts for purposeful

discrimination.” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)) (internal

quotation marks omitted). “The ultimate burden of persuasion lies with the

defendant.” Woodward v. Epps, 580 F.3d 318, 335 (5th Cir. 2009). We will only

reverse the district court’s factual findings if they are clearly erroneous. See

Wright v. Harris Cnty., 536 F.3d 436, 438 (5th Cir. 2008); United States v.

Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988).

It is Batson’s third step that is the focus of this appeal. “When the process

reaches this step, the ‘defendant may rely on all relevant circumstances to raise

an inference of purposeful discrimination.’” Fields v. Thaler, 588 F.3d 270, 274

(5th Cir. 2009) (quoting Miller-El, 545 U.S. at 240) (internal quotation marks

omitted). We ask whether the state’s proffered, race-neutral explanations are

a pretext for purposeful discrimination based on a comparative analysis of

prospective jurors. See Miller-El, 545 U.S. at 240-41. In conducting the required

comparative analysis, we are guided by the Supreme Court’s decision in MillerEl. See 545 U.S. at 241, 246-47, 252; see also Reed, 555 F.3d at 376. “If the State

asserts that it struck a black juror with a particular characteristic, and it also

accepted nonblack jurors with that same characteristic, this is evidence that the

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asserted justification was a pretext for discrimination.” Reed, 555 F.3d at 376. 

In addition, “if the State asserts that it was concerned about a particular

characteristic but did not engage in meaningful voir dire examination on that

subject, then the State’s failure to question the juror on that topic is some

evidence that the asserted reason was a pretext for discrimination.” Id. Lastly,

“we must consider only the State’s asserted reasons for striking the black jurors

and compare those reasons with its treatment of the nonblack jurors.” Id.

B.

The district court heard the state prosecutor’s testimony firsthand and

concluded that the reasons offered were not a pretext for purposeful

discrimination. The court reviewed the voir dire record and found that it

supported the race-neutral reasons given for striking the panelists at issue: (1)

Norman had an issue with the law of principals, and she had been sitting in the

courtroom all day but remained confused about the legal issues discussed indepth by prior panels; and (2) Williams self-identified his issue with the law of

principals, even maintaining his disagreement in the context of the murder of

his close friend. Furthermore, the district court conducted a comparative

analysis of white and black jurors to ascertain any disparities in their treatment. 

The court determined that there had been no purposeful discrimination in the

voir dire; the record showed that prior panels also had discussed and been

questioned on the legal concepts at issue. Lastly, the district court noted that

Smith had failed to specify panelists who were similarly situated but were not

questioned or struck like Norman and Williams.

C.

Based on our own review of the record, we hold that the district court did

not clearly err in its factual determinations, and that Smith has not carried his

burden of proving purposeful discrimination. On appeal, Smith has asserted

essentially the same arguments that he advanced before the district court. His

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main argument remains that the voir dire was tainted by an undercurrent of

racial bias, demonstrated by the exchange between defense counsel and the

prosecutor after she struck Norman and Williams. Defense counsel stated,

“That doesn’t surprise me,” and the prosecutor responded, “I wouldn’t think.” 

His specific argument with respect to Norman and Williams is that other jurors

were not subject to the same, in-depth questioning that they were required to

undergo. As to Williams, Smith states that he was close friends with a police

officer, and that he was able to grasp the legal concepts as the questioning went

on. With respect to Norman, Smith argues that she was the only juror subjected

to a “pop quiz” on the law of armed robbery, conspiracy, and principals. He

concludes that the use of peremptory strikes on both individuals was racially

motivated.

But this argument fails because Smith has not pointed to any similarly

situated jurors for the purpose of comparative analysis. Although the prosecutor

struck three black panelists in a row from the third panel, the use of peremptory

strikes over all three panels demonstrates that there is no evidence of general

racial bias at work during the voir dire. From the first panel, the state exercised

seven peremptory challenges, striking four white panelists and three black

panelists. From the second panel, the state struck one white panelist and one

black panelist. Lastly, the state struck three black panelists from the third

panel. The defense, however, struck four white panelists and one black panelist

from the first panel, six white panelists from the second panel, and one white

panelist from the third panel. Thus, the actual use of peremptory strikes does

not support a showing of the prosecutor’s general racial bias.

Nor does a comparison of jury selection show that the prosecutor had one

script for white panelists and another for black panelists. During voir dire, the

panels initially were questioned by the trial judge about their basic personal

information: name; occupation; marital status; number and ages of children;

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race; and gender. The trial judge also asked questions designed to reveal

possible bias: familiarity with the parties, witnesses, attorneys, or law

enforcement; past arrests of panelists or family members; and past encounters

with the police. The prosecutor, who questioned each panel before defense

counsel, would then follow up with each panel member individually, filling in

gaps and asking additional questions where needed. After her initial

questioning, the prosecutor then would discuss the law of armed robbery,

conspiracy, and principals, all of which were applicable in Smith’s case. The

prosecutor only deviated from this process with the third panel, where she

combined her questioning to ask both personal and legal questions of each

panelist individually. Instead of racial motivation for the truncated questioning,

however, the record indicates that the voir dire of the third panel occurred late

in the day–questioning began after 7:15p.m.–and that all parties were

attempting to shorten the process.

Furthermore,in the jury selectionprocess,the prosecutor routinely singled

out individuals, both black and white, when they self-identified in response to

her open-ended question. For example Ms. Tynes, who is white and was on the

first panel, was asked additional questions when she acknowledged that she

watched legal television shows. The prosecutor also singled out individuals like

Mr. Rathcke, a white male, when they gave visual signs of confusion or

disagreement, such as having a puzzled look on their face or furrowing their

brow. Thus, the singling out of Williams over an issue was not restricted to him

or to black panelists generally; it was a common characteristic of the prosecutor’s

voir dire technique.

To put a fine point on the questioning of Norman, however, it was different

when compared specifically to other panelists who sat first on their respective

panels. The prosecutor began with the same questions clarifying Norman’s

personal information, but she then deviated from her prior practice and asked

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Norman to state the legal concepts in her own words. The district court credited

the prosecutor’s testimony that she struck Norman, in part, because she was

confused even after the prosecutor offered further explanation. Indeed, our

review of the record demonstrates that after Norman answered the question, the

prosecutor restated the concepts in legal terms and asked her if she understood. 

Providing an explanation, and then asking whether the panelist understood, is

in line with the prosecutor’s approach during the earlier panels. The record also

shows that other members of the third panel were asked to state applicable legal

concepts in their own words. For example, Mr. Brown, a white male, was asked

to restate the concept of reasonable doubt. Additionally, Norman had been

present in the courtroom all day, and the prosecutor was concerned that she had

failed to understand any of the legal concepts relevant to the case, despite all the

preceding discussions. In short, the district court did not commit clear error in

crediting the prosecutor’s testimony with respect to Norman.

Finally, we should note that the COA we granted was, in fact, limited to

the issue of a comparison of white and black jurors who were struck or who were

not struck, and, although Smith did not point to specific jurors for comparative

analysis, we have conducted an in-depth review of the record, as indicated above. 

It is clear to us that he has not carried his burden of proving a case of purposeful

discrimination.

IV.

In this opinion, we have concluded that the evidentiary hearing was not

barred by Pinholster because the court determined that the state courts had

violated clearly established federal law through the misapplication of Batson,

based solely on the state court record; the district court therefore acted

appropriately in granting Smith relief in the form of an evidentiary hearing to

develop his claim, and then in determining in a federal forum the substantive

merits of Smith’s federal claim. Furthermore, in the light of the federal

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evidentiary record, the district court did not err in holding that Smith failed to

prove purposeful discrimination in the selection of the jury, as required under

Batson’s third step. The judgment of the district court, therefore, is

AFFIRMED.

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