IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30191

AMY HEBERT, 

 Petitioner - Appellant

v.

JAMES ROGERS, WARDEN, LOUISIANA CORRECTIONAL INSTITUTE 

FOR WOMEN, 

 Respondent - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges.

EDITH BROWN CLEMENT, Circuit Judge: 

This habeas case is about a woman who, awaking in the night to an 

alleged voice telling her to kill her children, grabbed several kitchen knives 

and repeatedly stabbed her young children, leaving them to bleed to death. 

Upon being charged with first degree murder, she pled not guilty by reason of 

insanity. The jury found her guilty but did not sentence her to death. After 

exhausting all forms of direct or collateral relief in Louisiana, Amy Hebert filed 

a petition for habeas relief in federal court. The district court denied relief but 

granted a certificate of appealability. Hebert raises two issues before us: (1) 

United States Court of Appeals

Fifth Circuit

FILED

May 10, 2018

Lyle W. Cayce

Clerk

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defense counsel provided ineffective assistance by failing to object to the State’s 

allegedly discriminatory peremptory strikes; and (2) a rational jury could not

have found that Hebert was sane at the time of the killings. We affirm.

Facts and Proceedings

Amy Hebert had two children, a nine-year old girl named Camille and a 

seven-year old boy named Braxton. In 2005, Hebert and her husband, Chad, 

separated. In 2006, they divorced after she learned about Chad’s affair with a 

woman from work, Kimberly. Over the next year, Chad’s relationship with 

Kimberly became more serious, and they started to plan a wedding, which was 

set for 2008. The children also had been developing a closer relationship with 

Kimberly, a fact that Hebert observed and resented. Chad began building a 

new home, where both children would have their own room. 

In the late summer of 2007, Hebert stabbed both of her children to death 

at their home in Matthews, Louisiana. Both children suffered dozens of stabs 

wounds in the chest, back, and scalp, and ultimately bled to death. After killing 

both children, Hebert placed their bodies in her bed. She then killed the family 

dog, made a pot of coffee, wrote two notes, and attempted to take her own life. 

She slashed her wrists until she exposed her tendons; punctured her lungs, 

collapsing them; and inflicted cuts to her legs, skull, neck, and eyelids. Then, 

Hebert lay down in her bed to die beside her children. 

Hebert’s former father-in-law discovered this grisly scene the next 

morning, and he summoned the police. When the authorities arrived and 

entered the master bedroom, Hebert lifted a large knife and yelled, “Get the f-

-- out.” The police subdued her with a taser. The authorities’ attempts to

resuscitate the children were unsuccessful. Hebert was taken to the hospital.

The police discovered the two notes that Hebert had written. The first 

note was addressed to Chad. It stated:

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 Monday 8-20-07

Chad,

You wanted your own life. You got it. I'll be damned if you get the 

kids, too. Your ambition & greed for money won out over your love 

for your family. The hell you put us through & I do mean all of us 

because you don’t know what the kids used to go through because 

of course you weren’t here. This is no kind of life for them to live. 

I sure hope you two lying alduttering [sic] home wrecking whores 

can have more kids because you can’t have these. Actually I hope 

you can’t because then you’ll only produce more lying 

homewrecking adultering [sic] whores like yourselves. Maybe you 

can buy some with all of your money you will make from this house 

& the life insurance benefits you’ll get from the kids.

The second note, which was addressed to Hebert’s former mother-in-law, 

stated:

Monday 8-20-07

Judy,

You run from the very thing you support! Monica pairs up with a 

married man, becomes a kept woman & your response is maybe 

she is in love with him—so that makes it okay? How stupid! Your 

sons have affairs bring these whores home & you welcome them 

all in. I guess its okay for them to hurt the family as long as it is 

not you. Well when you started delivering my kids to that whore, 

Kimberly, that was the last straw! To all my friends thanks for all 

the help & support you tried to give me. I love you all, 

Sorry Daddy, Celeste & Renee I love you all too.

Upon her arrival at the hospital, Hebert received treatment for her 

physical wounds along with mental treatment from Dr. Alexandra Phillips, a 

psychiatrist. Initially, Hebert was unresponsive. A few days after the children’s 

deaths, Hebert informed Dr. Phillips that she had been hearing “the words of 

Satan for a long time.” In response to a question from Dr. Phillips, Hebert said 

that “Satan was in the room and was laughing at her.” Hebert then proceeded 

to scream, and Dr. Phillips concluded that Hebert was “completely psychotic” 

and prescribed anti-psychotic medicine for her. 

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The State of Louisiana charged Hebert with first-degree murder of her 

children. Hebert pled not guilty by reason of insanity. A trial was held in 

Lafourche Parish, Louisiana. 

The jury venire comprised 200 people, 112 of whom were women. Both 

parties received 12 peremptory strikes and two alternate juror peremptory 

strikes. Before the final jury was selected, 23 women and 10 men were 

randomly selected to sit on the jury. The court struck four men for cause or 

hardship, and Hebert used four peremptory strikes on men, which left just two 

men on the panel. The State used 11 peremptory strikes and one alternate 

peremptory strike against women. Hebert’s counsel did not object. The final 

jury included 10 women and two men, together with three men and one woman 

as alternate jurors. 

The jury heard testimony from six experts during the guilt phase of the 

trial. The defense called four experts: Dr. Alexandra Phillips, Dr. David Self, 

Dr. Glenn Ahava, and Dr. Phillip Resnick. Dr. Phillips prescribed antipsychotic medication for Hebert after concluding that she was “completely 

psychotic” when she claimed that she saw and heard Satan in the hospital 

room. Dr. Resnick opined that Hebert was psychotic1 when she killed her 

children because she was having auditory hallucinations in which she heard 

the voice of Satan commanding her to kill the children and then commit suicide 

to keep the family together. The voice, according to Hebert, then instructed her 

to write the notes left at the scene of the crime. Dr. Ahava, an expert in forensic 

psychology, testified that Hebert was psychotic and likely could not distinguish 

right from wrong on the day of the offense based on her history of mental health 

problems and the excessive number of stabs wounds on the children. Dr. Self, 

an expert in forensic psychiatry, diagnosed Hebert as suffering from major 

 

1 Dr. Resnick defined “psychosis” as being out of touch with reality. 

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depression with recurrent and severe psychosis. He further concluded that 

Hebert must have been psychotic because “only the most psychotic people 

attack their own eyes.” 

In response, the State called two rebuttal experts: Dr. Rafael Salcedo and 

Dr. George Seiden. Dr. Salcedo, an expert in clinical and forensic psychology, 

conceded at trial that Hebert suffered from a psychotic disorder but concluded 

that Hebert was still able to distinguish right from wrong. In reaching this 

conclusion, Dr. Salcedo relied on Hebert’s notes, which he opined revealed the 

logical mental process of someone seeking revenge through a retribution 

killing. Dr. Seiden, an expert in general and forensic psychiatry, opined that 

Hebert was capable of telling right from wrong because there was no evidence 

that Hebert exhibited psychosis before killing her children. He also relied on 

the notes as evidence of Hebert’s mental state, and he opined that the line 

“Sorry Daddy, Celeste & Renee” showed Hebert understood the wrongfulness 

of her actions.

The jury returned a verdict of guilty. The jury was unable to reach a 

unanimous verdict on the death penalty, and the court sentenced Hebert to life 

imprisonment. Hebert filed a direct appeal to the Louisiana First Circuit Court 

of Appeals, which affirmed her conviction and sentence. Hebert then 

unsuccessfully pursued habeas relief in state court. In response to a claim that 

its peremptory strikes discriminated against women, the State provided 

gender-neutral reasons for using its peremptory strikes. After exhausting all 

other avenues of relief, Hebert filed a habeas corpus petition in the United 

States District Court for the Eastern District of Louisiana. The district court 

denied her petition for relief, but it granted a COA on all issues raised. Hebert 

timely appealed. 

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Standard of Review

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

a federal court from granting habeas relief unless the decision of the state court 

“(1) . . . 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) . . . was based on an unreasonable determination of the facts in 

light of the evidence presented in the state court proceeding.” 28 U.S.C. 

§ 2254(d). A state court’s decision is contrary to clearly established precedent 

if the rule it applies “contradicts the governing law set forth in the [Supreme 

Court’s] cases,” or if the state court confronts facts that are materially 

indistinguishable from a decision of the Supreme Court yet reaches a different 

result. Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (quoting Wallace v. 

Quarterman, 516 F.3d 351, 354 (5th Cir. 2008)). A state court commits an 

unreasonable application of Supreme Court precedent if it identifies the correct 

legal rule but unreasonably applies that rule to the facts. Id. (citing Williams 

v. Taylor, 529 U.S. 362, 407 (2007)).

“Determining whether a state court’s decision resulted from an 

unreasonable legal or factual conclusion does not require that there be an 

opinion from the state court explaining the state court’s reasoning.” 

Harrington v. Richter, 562 U.S. 86, 98 (2011). A state court’s decision does not

even “require awareness of [the Supreme Court’s] cases, so long as neither the 

reasoning nor the result of the state-court decision contradicts them.” Early v. 

Packer, 537 U.S. 3, 8 (2002).

In an appeal from the denial of habeas relief, we review legal conclusions 

de novo and factual findings for clear error. Perez v. Cain, 529 F.3d 588, 593 

(5th Cir. 2008). We presume the state court’s factual findings are correct unless 

rebutted by the petitioner with clear and convincing evidence. Wooten, 598 

F.3d at 218.

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Discussion

I. Ineffective Assistance of Counsel

Hebert argues that her counsel provided ineffective assistance because 

he failed to object to the State’s use of its peremptory strikes against qualified 

female venire members in a manner that she alleges was discriminatory. We 

apply the legal standard articulated in Strickland v. Washington when 

evaluating the effectiveness of Hebert’s trial counsel. 466 U.S. 668 (1984). 

Under Strickland, a petitioner must prove both deficient performance and 

prejudice. 466 U.S. at 697. To prove deficient performance, petitioner must 

show that her counsel’s performance “fell below an objective standard of 

reasonableness.” Id. at 688. For prejudice, petitioner “must show that there is 

a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 694. The issue is whether 

defense counsel’s representation “amounted to incompetence under ‘prevailing 

professional norms,’ not whether it deviated from best practices or most 

common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting 

Strickland, 466 U.S. at 690)). 

In the habeas context, attorney performance is scrutinized under a 

“doubly” deferential standard. Id. (quoting Knowles v. Mirzayance, 556 U.S. 

111, 123 (2009)). There is a strong presumption that defense counsel’s strategic 

and tactical decisions fell “within the wide range of reasonable professional 

assistance.” Strickland, 466 U.S. at 689. “A fair assessment of attorney 

performance requires that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s perspective at the time.” 

Id. Even if the petitioner proves deficient performance, prejudice is not 

presumed. See Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006). 

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The Equal Protection Clause prohibits a prosecutor from intentionally 

discriminating against a potential juror based on race or gender. J.E.B. v. 

Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) (prohibiting discrimination in 

jury selection based on gender); Batson v. Kentucky, 476 U.S. 79, 86 (1991) 

(prohibiting discrimination in jury selection based on race). Hebert contends 

that her counsel’s failure to object amounted to deficient performance that 

prejudiced her because the State’s alleged intentional discrimination 

undermined the confidence in the proceedings and caused structural error. If 

Hebert fails to show that a J.E.B. violation occurred, however, then she also 

fails to show that her attorney’s performance was deficient or that she was 

prejudiced thereby. 

Hebert raised her allegation of ineffective assistance of counsel for failing 

to object to gender discrimination on state post-conviction review. The state 

trial court denied her claim without performing an analysis under J.E.B. v. 

Alabama ex rel. T.B., instead simply citing the State’s proffered gender-neutral 

explanations for striking the female jury members:

Of the jurors stricken, there were many sufficiently gender-neutral 

explanations for the use of peremptory challenges including: 

religious, moral or ethical considerations, self-employed business 

owners, jurors with medical or psychiatric problems, jurors with 

family members that had psychiatric problems, one juror who 

knew the defendant, and those jurors that had misgivings about 

imposing the death penalty.

The state court concluded that “[t]he record in this matter reflects that 

petitioner’s counsel used their experience and training in the most skillful 

manner to properly defend petitioner against the charges.” The Louisiana 

Supreme Court adopted the trial court’s reasons when denying Hebert’s 

petition. 

Acknowledging that the state court addressed her ineffective assistance 

of counsel claim on the merits, Hebert contends that it—and the district 

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court—failed to articulate the J.E.B. legal framework, failed to consider 

relevant facts, and unreasonably applied the law and facts. As previously 

noted, a state court’s decision does not need to be thorough or directly address 

Supreme Court’s cases, “so long as neither the reasoning nor the result of the 

state-court decision contradicts them.” Early, 537 U.S. at 8. Thus, the brevity 

of a state court’s opinion is immaterial. 

To determine whether the reasoning and result of the state court’s 

opinion comport with Supreme Court precedent, we undertake the J.E.B. 

analysis as it is relevant to Hebert’s ineffective assistance of counsel claim. The 

J.E.B. framework employs the same analysis as a Batson claim. See J.E.B., 

511 U.S. at 144. The petitioner must present a prima facie case that the state 

discriminated on the basis of gender during the jury selection. See Reed v. 

Quarterman, 555 F.3d 364, 368 (5th Cir. 2009). This step becomes “moot,”

however, “[o]nce a prosecutor has offered a [gender]-neutral explanation for 

the peremptory challenges and the trial court has ruled on the ultimate 

question of intentional discrimination[.]” Hernandez v. New York, 500 U.S. 352, 

359 (1991). If the State articulates a gender-neutral reason for striking the 

jurors in question, the court must determine if the petitioner has met her 

burden to prove purposeful discrimination. See Reed, 555 F.3d at 368. “[A] 

finding of pretext as to a single juror requires that a conviction be vacated . . . .” 

Murphy v. Dretke, 416 F.3d 427, 434 (5th Cir. 2005). 

Hebert argues that the State violated her constitutional rights when it

exclusively used its peremptory strikes to remove qualified women from the 

jury. In support of this argument, Hebert observes that the State used 11 of its 

primary peremptory strikes against women and then used one of its alternate 

peremptory strikes against another woman. Hebert then concludes that the 

State acted discriminatorily because 100% of the peremptory strikes used by 

the State were against qualified women. 

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Of all the venire members randomly selected before a final jury was 

chosen, there were only two men left on the jury after four men were dismissed 

for cause and Hebert struck the other four men with her peremptory strikes. 

Thus, as the district court noted, the State’s strikes against qualified women 

is hardly surprising or alarming. The State also provided gender-neutral 

reasons for its strikes, and thus the initial step requiring proof of a prima facie 

case is moot. See Hernandez, 500 U.S. at 359.

When the State offered gender-neutral reasons for its strikes, the 

primary question became whether the reasons were plausible. See Miller-El v. 

Cockrell, 537 U.S. 322, 338–39 (2003); Miller-El v. Dretke, 545 U.S. 231, 252

(2005) (“Miller-El II”) (“[A] prosecutor simply has got to state his reasons as 

best he can and stand or fall on the plausibility of the reasons he gives.”). At 

the third step of the J.E.B./Batson analysis, courts consider whether the 

State’s “proffered reason for striking a [female] panelist applies just as well to 

an otherwise-similar [male] who is permitted to serve [because] that is 

evidence tending to prove purposeful discrimination.” Miller-El II, 545 U.S. at

241. In Miller-El II, the Supreme Court held that the state used its peremptory 

strikes in a racially discriminatory manner when the state struck black jurors 

for reasons that applied equally well to white jurors retained on the jury. See

545 U.S. at 266. The Court also found it significant that the final jury only 

included one black juror: “[t]he numbers describing the prosecution’s use of 

peremptories are remarkable. Out of 20 black members of the 108–person 

venire panel for Miller-El’s trial, only 1 served. Although 9 were excused for 

cause or by agreement, 10 were peremptorily struck by the prosecution.” Id. at 

240–41. 

We have previously drawn three principles from the Supreme Court’s 

analysis in Miller-El II. Reed, 555 F.3d at 376. First, the struck juror and the 

comparator-juror do not need to “exhibit all of the exact same characteristics.” 

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Id. Second, if the state presents a particular reason for striking a juror without 

“engag[ing] in meaningful voir dire examination on that subject,” that is “some 

evidence” that the asserted reason for the strike was pretext for discrimination. 

Id. Third, we must confine our inquiry to the reasons provided by the state for 

its strikes. Id.

Hebert argues that “the preemptively offered gender-neutral reasons 

provided by the State were demonstrably implausible.” She specifically 

identifies the following female potential jurors as examples where the State 

discriminated based on gender: J.L., M.M., H.P., E.U., F.R., A.O., C.L., and 

T.F. She compares these women to B.J., J.O., and T.G.—three men who sat on 

the final jury. 

During voir dire, the State asked each member of the venire to rate their 

views on the death penalty using a 1-5 scale. The prosecutor described how this 

1-5 scale worked: “[1], death is the only appropriate sentence for first degree 

murder. [2], you favor death but can impose life. [3], you’re equally open to 

either. [4], you favor life but could impose death. And, [5], life is the only 

appropriate sentence for first degree murder.” To help view the relevant 

individuals’ answers to this question side-by-side, here is a chart:

PERSON DEATH 

PENALTY REASON FOR STRIKE

WOMEN

J.L. 4, favored life bipolar, suffered depression

M.M. 4, favored life brother was schizophrenic

H.P. 4, favored life believed Hebert mentally ill

E.U. 4, favored life sympathetic to mental illness

F.R. 3, neutral more friendly with defense

A.O. 3, neutral more friendly with defense

C.L. 4, favored life strongly opposed death penalty

T.F. 4, favored life concerned about mental illness

MEN

B.J. 2, favored death served as an alternate juror

J.O. 4, favored life served on the jury

T.G. 3, neutral served on the jury

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While a comparator-juror is not required to be identical in all regards, 

the comparator-juror must be similar in the relevant characteristics. Hebert 

argues that male juror B.J. “had moral objections to imposing the death 

penalty, and he was never rehabilitated by the State.” It is true that, in his 

questionnaire, B.J. indicated a moral opposition to the death penalty. But the 

State asked him about this during voir dire. In response to the State’s 

questioning, B.J. admitted he had misunderstood the questionnaire because 

he actually favors the death penalty. (“I guess I understood it the opposite 

way.”) Furthermore, when asked during voir dire about his views on the death 

penalty, B.J. said “correct” to the statement that he “favor[ed] imposing the 

death penalty but [he] could consider life.” This directly contradicts Hebert’s 

argument that B.J. was not rehabilitated. As someone who favored the death 

penalty, B.J. was an ideal juror for the State. 

More importantly for the issue presented on appeal, B.J. was not a 

proper comparator for the women struck from the jury because he favored the 

death penalty, unlike all of the women struck from the jury panel who 

indicated they were either neutral or against it. Thus, the comparison to B.J. 

is not valid because he is dissimilar to all the women on perhaps the most 

important factual point, views on the death penalty. 

Hebert’s comparison to male juror J.O. is similarly unpersuasive. Hebert 

argues that J.O. indicated that he could not impose the death penalty on his 

questionnaire and in his voir dire answers. Near the end of the voir dire 

questioning, however, J.O. admitted in response to a question about whether 

he could impose the death penalty that “[i]n the most extenuating 

circumstances, I could, if it came down to it, but I do favor life.”

More importantly, J.O. is also distinguishable as a comparator in light 

of another highly relevant fact. Unlike all of the women who were struck from 

the panel, the State had a personal connection to J.O. because his aunt was an 

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Assistant District Attorney, a fact disclosed and explored during voir dire. 

Thus, the comparison to J.O. is also not appropriate because he is factually 

distinguishable on a highly relevant characteristic from the women who were 

struck from the panel. 

That leaves T.G. as the only remaining male comparator-juror identified 

by Hebert. T.G. indicated that he was neutral on the death penalty. From 

among the women that Hebert identified as victims of gender discrimination, 

F.R. and A.O. were the only ones who were neutral on the death penalty. All 

the other women favored life over death. Thus, T.G. is not a valid comparator 

to those women. 

This leaves two remaining potential comparisons: T.G. to F.R. and A.O. 

The State claims that it struck F.R. and A.O. because they seemed friendlier 

with defense counsel. Unless pretext for gender or racial discrimination, this 

is a completely valid basis for exercising a peremptory strike because “a 

prosecutor ordinarily is entitled to exercise permitted peremptory challenges 

‘for any reason at all, as long as that reason is related to his view concerning 

the outcome’ of the case to be tried.” Batson, 476 U.S. at 89 (quoting United 

States v. Robinson, 421 F. Supp. 467, 473 (D. Conn. 1976)). Hebert does not 

identify any man on the jury with the characteristic of being friendlier to 

defense counsel than the State. Accordingly, Hebert does not show that T.G. is 

an adequate comparator for any of the women the state struck.

We conclude that Hebert has not met her burden to prove that the State 

used its peremptory strikes with the intent to discriminate against women in 

violation of J.E.B. Without showing a violation of J.E.B., Hebert has failed to 

show that her attorney’s representation was prejudicial when he did not object 

to the State’s use of its peremptory strikes. Yet, even if Hebert could show 

prejudice, she fails to show that her attorney’s representation was incompetent 

or objectively unreasonable. On appeal, Hebert acknowledges that “the State’s 

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delay in using all of its strikes made it more difficult to decipher that the 

strikes were not supported by legitimate reasons.” This acknowledgement 

supports the conclusion that her counsel provided effective assistance. 

Although the state court did not mention J.E.B. in its analysis of her claim, its

rejection of her ineffective assistance of counsel claim was not contrary to 

Supreme Court precedent and was not objectively unreasonable. The district 

court was correct to deny habeas relief on this ground.

II. Insanity 

Hebert claims that she overcame the presumption that she was sane so 

convincingly that that no rational jury could have found her guilty. In 

Louisiana, there is a rebuttable presumption that the defendant is sane at the 

time the offense is committed. State v. Roy, 395 So. 2d 664, 665 (La. 1981); see 

also Perez v. Cain, 529 F.3d 588, 594 (5th Cir. 2008). The defendant may rebut 

this presumption by proving insanity by a preponderance of the evidence. LA.

CODE CRIM. PROC. ANN. ART. 652. The test for insanity is whether a mental 

disease or defect has made the defendant “incapable of distinguishing between 

right and wrong with reference to the conduct in question.” LA. STAT. ANN. § 

14:14. Although the state is not required to prove sanity in all criminal cases, 

the state must prove all essential elements of the crime beyond a reasonable 

doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (holding that evidence 

is insufficient and a habeas applicant is entitled to relief if no rational trier of 

fact could have found proof of guilt beyond a reasonable doubt); Roy, 395 So. 

2d at 665.

As we have previously held, “the question under the Jackson sufficiency 

standard is whether . . . any rational trier of fact could have found beyond a 

reasonable doubt that [the defendant] did not prove by a preponderance of the 

evidence that he was insane at the time of the offense.” Perez, 529 F.3d at 594 

(emphasis added). Moreover, under our precedent, “[t]he credibility of the 

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witnesses and the weight of the evidence is the exclusive province of the jury.” 

United States v. Garcia, 995 F.2d 556, 561 (5th Cir. 1993). Hebert 

acknowledges on appeal that “the state court correctly identified the general 

legal standard,”2 but she contends that the state court’s “application of the 

preponderance standard to the facts of this case was unreasonable.” We 

disagree. 

Hebert argues that no rational juror could have found beyond a 

reasonable doubt that she failed to prove insanity by a preponderance of the

evidence because she presented twice as many experts as the State, and there 

was more than enough evidence from those experts for the jury to conclude she 

was insane. She further argues that the factual basis the State’s experts relied 

upon was incomplete. She contends that “[i]f a suicidal and clinically depressed 

person’s belief that two children with promising futures would be better off

dead does not represent an ‘inability to distinguish right from wrong due to 

mental disease or defect,’ then legal insanity under Louisiana law has little 

meaning at all.” 

The State responds that the evidence was sufficient for a rational juror 

to find that Hebert failed to prove by a preponderance of evidence that she was 

insane. Contending that this court cannot sit as a “thirteenth juror,” the State 

 

2 The district court phrased the inquiry as being whether “any rational trier of fact 

could have found that Hebert had not proven by a preponderance of the evidence that she 

was insane at the time of the offense” with all evidence viewed in the light most favorable to 

the state. This interpretation conflicts with our precedent stating that “the question under 

the Jackson sufficiency standard is whether . . . any rational trier of fact could have found 

beyond a reasonable doubt that [the defendant] did not prove by a preponderance of the 

evidence that he was insane at the time of the offense.” Perez, 529 F.3d at 594 (emphasis 

added). The key point missing from the district court’s opinion is that the entire inquiry 

requires proof that the evidence of sanity was “beyond a reasonable doubt.” We owe no 

deference to the district court’s misstatement of the state court’s articulation of the legal 

standard. 

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argues this court should not “substitute [its] analysis of the evidence for that 

of the jury.”

The leading case in our circuit on this issue is Perez v. Cain. 529 F.3d 

588 (5th Cir. 2008). There, all of the experts to testify agreed that the 

defendant was insane, yet the jury disregarded the expert testimony and found 

the defendant guilty, a verdict that was affirmed on appeal. Id. at 595. We held 

that the state court’s conclusion that a rational jury could have found the 

defendant was sane despite unanimous expert testimony to the contrary was 

an “objectively unreasonable application of federal law.” Id. at 599. In reaching 

that holding, we analyzed whether there was any objective reason for the jury 

to reject the expert testimony. Id. at 595. The expert testimony could have been 

rebutted with evidence that the expert’s factual assumptions were incorrect, 

the reasoning was inadequate, the expert had an interest or bias, the opinion 

was inconsistent or contradictory, or there was contrary expert testimony. Id.

Yet, the state did not offer anything to rebut the unanimous expert testimony, 

and thus there was no objective reason for the jury to reject the expert 

testimony. Id. at 597. 

Perez stands for the proposition that a rational jury cannot reject 

unanimous expert testimony if there is no objective reason to reject it. It does 

not follow from this holding, of course, that—when the jury had objective 

reasons to reject expert testimony—a federal habeas court may discard the 

findings of the jury merely because it disagrees with the jury’s conclusion. 

Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995) (“[D]ifferences in opinion go 

to the weight of the evidence . . . and such disputes are within the province of 

the jury to resolve.”).

After reviewing the record, we conclude that the jury had objective 

reasons to reject the expert testimony from the four defense experts. A rational 

juror could have found the testimony of Dr. Salcedo and Dr. Seiden, the State’s 

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expert witnesses, to be more credible. That determination, as we stated in 

Garcia, is the exclusive province of the jury and should not be disturbed on 

appeal. 995 F.2d at 561. 

The jury also could have found that the factual assumptions underlying 

the defense experts’ opinions were inadequate. For example, Dr. Phillips 

admitted that she reached her opinion without knowing about Hebert’s 

religious beliefs. Furthermore, there is evidence in the record and argument 

on appeal that Hebert’s statement about hearing Satan was fabricated and 

self-serving. The record indicates that Hebert did not mention hearing a voice 

tell her to kill her children until several weeks after the killings. Hebert also 

did not initially “ascribe an identity to th[e] voice” and only concluded 

retrospectively that it must have been Satan that spoke to her that night. At 

trial, the prosecution argued in closing that Hebert lied about hearing Satan 

when she killed her children. This evidence and argument provided the jury 

with an objective reason to conclude that Hebert was sane when she killed her 

children.

Dr. Resnick testified that Hebert was insane, in part, because the 

number of stab wounds on the children was excessive, but he admitted that 

there was no evidence that Hebert continued to stab the children after they 

died. The trial record also indicates that Hebert went into the children’s room 

twice and was unable to stab them, which the jury could have found as evidence 

that Hebert knew her actions were wrong. The jury could have found that the 

defense experts improperly dismissed the significance of the notes Hebert 

wrote and the indications from those notes that Hebert knew her actions were 

wrong. The jury also could have found it significant that there was no evidence 

Hebert was psychotic prior to when she killed the children, a fact at least one 

of the defense experts acknowledged in his testimony. (“Q. But you’ve not seen 

anything in any medical records where prior to August, 20, 2007, defendant 

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was diagnosed as being psychotic? A. That’s correct.”) The jury could have 

understood Dr. Resnick as testifying that Hebert had only had one auditory 

hallucination—the night she killed her children—and found that her theory of 

insanity was implausible given the rest of the record. 

Dr. Ahava, another expert for the defense, testified that a “central” 

factual basis for his opinion was information Hebert provided. The jury could 

have found that Dr. Ahava relied too much on Hebert’s characterization of the 

facts, which may have been skewed because she had been charged with first 

degree murder at the time she relayed those facts to him. For example, he 

relied on Hebert’s statement that she had a history of mental issues to conclude 

that she was psychotic when she killed her children. But he also admitted that 

there were no records of mental health providers treating Hebert for mental 

health problems from twenty years prior, as she originally claimed.

Dr. Self, also a defense expert, admitted that it gave him pause when 

Hebert told him that she had never had any hallucinations before the night 

she killed her children. Although Dr. Self. followed up on that admission with 

an explanation, a juror could have found that it seemed implausible for a 

person who had never previously had a hallucination to suddenly have one on 

such a tragic night. Dr. Self admitted that a factual basis for his opinion was 

Hebert’s own statements about her history of depression, which could have led 

a juror to disregard Dr. Self’s opinion because it was based on a self-serving 

factual basis provided by Hebert. Dr. Self also stated that Hebert’s weight loss 

from July to August 2007 indicated a major depression, but her medical records 

indicated that her weight remained nearly the same throughout that entire 

period. Although the record does show that the night Hebert killed her children 

and attempted suicide she weighed about twenty pounds less than her last 

previous medically-observed weight, a juror could have found that Hebert’s 

weight loss was more likely from a loss of blood than major depression. 

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In sum, this case is distinguishable from Perez, where there was no 

objective reason to disregard the expert testimony. 529 F.3d at 593–95. Here, 

there is contradictory expert testimony from the State. Furthermore, the 

factual basis for the defense experts’ testimony is arguably unreliable, and 

there are arguably inconsistencies in some of the opinions expressed. Any of 

these could have served a rational juror as an objective reason to disregard the 

testimony of the defense experts and find beyond a reasonable doubt that 

Hebert failed to prove she was insane by a preponderance of the evidence. 

Thus, the state court’s decision was not an objectively unreasonable 

application of the law, and habeas relief is not warranted on this ground.

Conclusion

For the reasons stated above, we AFFIRM the district court.

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CARL E. STEWART, Chief Judge, specially concurring:

The majority opinion accurately identifies the two issues before us on 

appeal: (1) whether Hebert received ineffective assistance of counsel; and (2) 

whether the evidence sufficiently supported the jury’s finding that Hebert was 

not insane. I agree with the majority opinion’s well-reasoned analysis 

regarding Hebert’s insanity claim. However, I write separately to express my 

view that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and 

the record support a different ineffective assistance of counsel analysis. 

The majority opinion concluded that Hebert’s counsel’s performance was 

not deficient. However, before doing so, it conducted a comparative juror 

analysis to determine that the State did not discriminate in using all of its 

peremptory strikes against women. Using the reasons the State proffered five 

years after voir dire in its response to Hebert’s post-conviction Strickland 

claim, the majority opinion holds that Hebert failed to prove intentional 

discrimination because there were sufficient differing characteristics to render 

the men who served as jurors as inadequate comparators to the stricken 

women. These reasons were not a part of the trial record because Hebert did 

not object to the State’s strikes at voir dire. As a result, the State did not have 

the opportunity to provide a contemporaneous nondiscriminatory explanation. 

Instead, it offered the reasons five years later when Hebert first raised 

ineffective assistance of counsel in her application for post-conviction relief, 

arguing a Batson violation as the basis. 

Without thoroughly analyzing the substance of her discrimination 

argument, the state court found that Hebert’s ineffective assistance of counsel 

claim should be denied because her counsel’s performance was not 

unconstitutionally deficient. Instead of evaluating whether this decision was 

an erroneous application of the law or was based on an erroneous 

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determination of the facts, the majority opinion undertakes a J.E.B./Batson

analysis because it is “relevant.” I, however, would follow the path AEDPA

requires of us and evaluate the actions of the state court without conducting a 

Batson analysis because the State’s nondiscriminatory explanations were 

proffered five years after voir dire and because the state court correctly

determined the substantive claim: Hebert’s counsel was not ineffective.

I.

After her conviction on May 14, 2009, Hebert unsuccessfully filed a direct 

appeal with the Louisiana First Circuit Court of Appeal. State v. Hebert, No. 

2010-KA-0305, 2011 WL 2119755, *1 (La. App. 1st Cir. Feb. 2, 2011). The 

Louisiana Supreme Court denied her cert petition without opinion. State v. 

Hebert, No. 2011-K-0864, 73 So. 3d 380 (La. 2011). Hebert then filed an 

application for post-conviction relief on January 16, 2013, claiming for the first 

time that her trial counsel was ineffective for failing to make an objection to 

the state’s use of its peremptory challenges under Batson v. Kentucky, 476 U.S. 

79 (1986). The trial court ordered the State to file an answer to Hebert’s habeas 

application. It was in this answer, filed September 12, 2014, that the State—

more than five years after voir dire—proffered explanations for only using its 

strikes against women. 

Following a hearing, the state trial court found “there were many 

sufficiently gender-neutral explanations for the use of peremptory challenges . 

. . .” Ultimately, the trial court determined Hebert’s claim had no merit because 

the record showed her “counsel used their experience and training in the most 

skillful manner to properly defend [her] against the charges.” Hebert sought 

writ of review which was denied without written opinion by the Louisiana First 

Circuit Court of Appeal. State v. Hebert, No. 2015-KW-0289, 2015 La. App. 

Lexis 783, at *1 (La. App. 1st Cir. April 20, 2015). In the last-reasoned state 

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court opinion, the Louisiana Supreme Court denied Hebert’s claim because she 

“fail[ed] to show she received ineffective assistance of trial counsel.” State v. 

Hebert, No. 2015-KP-0965, 182 So. 3d 23, 23 (La. 2015). In a well-reasoned

opinion that accorded AEDPA deference to the state court decision, the 

magistrate judge conducted an analysis under Strickland v. Washington, 466 

U.S. 668 (1984), to find Hebert’s ineffective assistance claim was undermined 

by the record and she failed to make a prima facie showing of intentional 

discrimination. Hebert v. Rogers, No. 15-cv-4950-LMA, 2016 WL 8291110, at 

*14–16 (E.D. La. Nov. 10, 2016). The district court adopted the report and 

recommendations. Hebert appealed.

II.

A federal habeas court cannot disturb a state court’s decision denying 

habeas relief unless the state court’s adjudication of the claim 

(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. 

28 U.S.C. § 2254(d). This court does “not function as a superior state court, 

reviewing challenges to convictions as if we were part of the state appellate 

review system.” Woodfox v. Cain, 609 F.3d 774, 818 (5th Cir. 2010) (Southwick, 

J., dissenting). Our responsibility at this level is to evaluate “not whether [we] 

believe[] the state court’s determination was incorrect but whether that 

determination was unreasonable.” Chamberlin v. Fisher, 885 F.3d 832, 837 

(5th Cir. 2018) (en banc). 

In order to prevail on a claim for ineffective assistance of counsel, a party 

must prove—by a preponderance of the evidence—her counsel performed 

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deficiently and that deficient performance caused her prejudice. See 

Strickland, 466 U.S. at 687; see also Montoya v. Johnson, 226 F.3d 399, 408 

(5th Cir. 2000). To prevail on deficient performance, petitioner “must show that 

counsel’s representation fell below an objective standard of reasonableness.” 

Strickland, 466 U.S. at 688. Our “scrutiny of counsel’s performance must be 

highly deferential.” Id. at 689. We must indulge and petitioner must rebut “a 

strong presumption that counsel’s conduct falls within the wide range of 

professional assistance.” See id. To prevail on prejudice, petitioner must show 

that “there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Id. at 694. The 

petitioner must prove there is a substantial likelihood of a different result. See 

Harington v. Richer, 562 U.S. 86, 112 (2011). Because Strickland is a 

conjunctive test, petitioner must prove both deficient performance and 

prejudice. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995). Failure to prove 

either is fatal. See id. Thus, a court may dispose of a claim if the petitioner fails 

to meet either prong. Id.

III.

The state court did not conduct a Batson analysis. It instead disposed of 

Hebert’s substantive claim employing the Strickland framework and 

determining her counsel’s performance was not deficient. This was a 

reasonable application of Strickland. As determined by the state court, 

Hebert’s claim has no merit because her counsel’s decision not to object was 

not marred by incompetence so serious she was effectively denied her Sixth 

Amendment right to counsel. See Strickland, 466 U.S. at 687. Hebert failed to 

overcome the “presumption that, under the circumstances, the challenged 

action ‘might be considered sound strategy.’” Id. at 689 (quoting Michel v. 

Louisiana, 350 U.S. 91, 101 (1955)). This determination is supported by the 

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record. As the magistrate judge pointed out, many of the women who the State 

allegedly struck because they were women also could have been seen as 

undesirable jurors by her counsel. Hebert’s side-by-side comparison illustrated 

that some of the women who were stricken were more supportive of the death 

penalty than the men who were seated. This illustrates that Hebert’s counsel 

did not necessarily fail to object because they were incompetent, but they could 

have strategically chosen not to object to avoid the death penalty. The jury 

voted unanimously to convict but could not agree to sentence Hebert to death. 

Given the requirement to be “doubly deferential” to both the trial counsel’s 

strategic decisions and the state court’s determinations, Burt v. Titlow, 571 

U.S. 12, 15 (2013), the state court did not act unreasonably when it rejected 

Hebert’s ineffective assistance of counsel claim, without determining prejudice.

IV.

In this circuit, a failure to lodge a Batson challenge is fatal. See United 

States v. Skilling, 554 F.3d 529, 562 (5th Cir. 2009) (citing Dawson v. Wal-Mart 

Stores, 978 F.2d 205, 208–09 (5th Cir. 1992). If a petitioner’s counsel fails to 

object on Batson grounds, that challenge is procedurally defaulted. See id. 

However, “[a] prisoner may obtain federal review of a defaulted claim by 

showing cause for the default and prejudice from a violation of federal law.” 

See Martinez v. Ryan, 566 U.S. 1, 10 (2012). “[W]hen attorney error amounts 

to constitutionally ineffective assistance of counsel, that error is imputed to the 

State (for the State has failed to comply with the constitutional requirement to 

provide effective counsel), rendering the error external to the petitioner.” See 

id. at 23 (Scalia, J., dissenting). In determining whether Hebert was 

prejudiced, the majority opinion analyzed whether a Batson violation actually 

occurred. However, if counsel was not constitutionally ineffective, there was no 

error to impute to the State. Thus, there was no need to evaluate prejudice. 

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There is little guidance on whether a trial court must evaluate deficient 

performance before prejudice. With good reason, that process is left to the 

discretion of the trial courts. Here, given the facts and circumstances of this 

case, the road to prejudice seems much more arduous: (1) there were no Batson 

objections lodged at voir dire; (2) the State was not given the opportunity to 

proffer contemporaneous reasons and instead developed its explanation five 

years later; and (3) even the State contested the use of the long-delayed reasons 

as juror comparators. Furthermore, Hebert’s Batson argument is not her 

substantive claim. It is evidence of her substantive claim that her counsel 

provided ineffective assistance by failing to object. Logically, the state and 

district courts judiciously took the path of greatest logic and least resistance. 

In order to prevail on an ineffective assistance of counsel claim, a 

petitioner must prove deficient performance and prejudice. See Strickland, 466 

U.S. at 687; see also Amos, 61 F.3d at 348. In this case, in order to prove 

prejudice, the court must evaluate whether the State committed a Batson

violation. Under usual circumstances, in order to raise a Batson violation, the 

defendant must object and “make out a prima facie case of purposeful 

discrimination.” See Batson, 476 U.S. at 93–94. Then the prosecution must 

raise contemporaneous1 nondiscriminatory reasons for its strikes and “stand 

 

1 The timeliness of the reasons are important in analyzing whether the explanation is 

pretextual. Cf. Miller-El, 545 U.S. at 246 (noting that the State’s later proffered explanation 

“reek[ed] of afterthought” and questioning the Fifth Circuit’s willingness to accept the 

reasons, ignoring its “pretextual timing”). In Chamberlin, this circuit also recognized the 

importance of contemporaneous reasons. 

This narrow focus is essential to maintaining the integrity of the Batson 

framework, which requires a focus on the actual, contemporaneous reasons

articulated for the prosecutor’s decision to strike a prospective juror. The 

timely expressed neutral reasons, after all, are what must be tested for veracity

by the trial court and later reviewing courts.

Chamberlin, 885 F.3d at 841 (emphasis added).

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or fall on the plausibility of the reasons he gives.” See Miller-El v. Dretke, 545 

U.S. 231, 252 (2005). The trial court is then responsible for determining if these 

reasons are pretextual. See Chamberlin, 885 F.3d at 837–38.

But here there were no contemporaneous reasons to test for veracity 

because there were no Batson objections. What the state court had—to no fault 

of the State—were reasons mulled over and rendered five years after voir dire, 

“reek[ing] of afterthought.” Cf. Miller-El, 545 U.S. at 246 (noting the difficulty 

in crediting later-developed explanations for striking a juror). The state court 

committed no error in disposing of the case without conducting this analysis.

Notably, Hebert did not make a prima facie showing of discrimination. 

At the state and district courts, in making her substantive ineffective 

assistance claim, Hebert contended prejudice was presumed “[w]here trial 

counsel fails to object to a prima facie case of discrimination” because

discrimination in jury selection is a “structural error that requires automatic 

reversal.”2 Analyzing this argument, the state court found there was no prima 

facie case of prejudice and “petitioner’s counsel used their experience and 

training in the most skillful manner to properly defend petitioner against the 

charges.” Hebert argued that because the State offered reasons for why it may 

have struck the women, her requirement to make a prima facie case of 

discrimination was waived. The majority opinion seems to agree with this 

point. Also citing Hernandez, Hebert argues “once the prosecution has 

proffered gender-neutral reasons, the question of whether a prima facie case 

 

2 This circuit previously refrained from holding that “a structural error alone is 

sufficient to warrant a presumption of prejudice in the ineffective assistance of counsel 

context.” See Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006). However, the error “serves 

as an important guidepost in our evaluation of whether the state court’s denial of 

[petitioner’s] ineffective assistance of counsel claim was ‘objectively reasonable’ under 

AEDPA.” Id. 

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existed becomes moot.” This simplification misinterprets and misapplies 

Hernandez because: (1) the Supreme Court decision in Hernandez illuminates 

the discretionary power the trial court holds in Batson claims; and (2) 

Hernandez is distinguishable from the facts of this case. 

In Hernandez, after nine jury members were empaneled, defense counsel 

objected to the prosecutor’s use of its peremptory strikes against Latino venire 

members. Id. at 355–56. Without (1) waiting for the judge to rule on whether 

the defense established a prima facie showing or (2) arguing that the defense 

did not make a prima facie showing, the prosecutor volunteered reasons for his 

strikes. Id. at 356. The trial court denied defense counsel’s motion. Id. at 357. 

On appeal, after reiterating the three-step process for evaluating a Batson 

claim, the Supreme Court ratified the trial court’s actions. Id. at 359. It held 

there was no error in the not evaluating whether the defense made a prima 

facie case, and under those particular facts and circumstances the “departure 

from the normal course of proceedings” was of no concern. Id. 

The facts and circumstances surrounding this case are completely 

distinguishable, and thus the question whether Hebert presented a prima facie 

case is not moot. Unlike in Hernandez, here, Hebert did not timely object, so 

the State did not offer a contemporaneous explanation. Furthermore, when 

Hebert raised this argument in her post-conviction application, the trial court 

had not yet ruled on intentional discrimination. Thus, she maintained the 

burden of making a prima facie showing of discrimination. Cf. Hernandez, 500 

U.S. at 359 (“Once a prosecutor has offered a race neutral explanation for the 

peremptory challenges and the trial court has ruled on the ultimate question of 

intentional discrimination, the preliminary issue of whether the defendant 

made a prima facie showing becomes moot.” (emphasis added)). The State 

submitted its explanations five years later in briefs responding to Hebert’s 

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Batson argument. Before proffering those reasons, the State argued Hebert 

failed to make a prima facie showing of discrimination. Because of the unusual 

procedural posture, the State did not have the option of waiting until the trial 

court ruled on its prima facie argument before proffering a nondiscriminatory 

explanation. Thus, offering the explanation did not render the question moot 

and Hebert failed to make a prima facie showing of discrimination. Under 

these circumstances, the state court prudently avoided determining whether 

Hebert was prejudiced by a Batson violation by instead making a 

determination on her substantive claim, the effectiveness of Hebert’s counsel. 

This was not an unreasonable application of clearly established law.

V.

As such, I would have accorded deference to this determination and held 

the trial court did not act unreasonably in not reaching the prejudice prong 

and evaluating Hebert’s Batson argument because Hebert failed to prove by 

the preponderance of the evidence that her counsel performed deficiently. 

Nevertheless, I specially concur in the judgment denying relief.

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