### 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 w oman 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 h abeas 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 Case: 17-30191 Document: 00514467377 Page: 1 Date Filed: 05/10/2018No. 17

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2 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 learne d about Chad’s affair wit h 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 p laced their bodies in her bed. She then killed the family dog, made a pot of coffee, wrote two notes, and a ttempted to take h er own life. She slashed her wrists until she exposed her tendons ; punctured her lungs , collapsing them ; and inflicted cuts to her l egs, skull, neck, and eyelids. Then, Hebert lay down in her bed to die beside her children. Hebert’s former father

- in

- law d iscovered 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 a nd yelled, “Get the f

-

-- out.” The police subdued her with a taser

. The authorities’ attempt s to resuscitate the children were unsuccessful

. Hebert was taken to the hospital. T he police discovered the two notes that Hebert had written. The first note was addressed to Chad. It stated: Case: 17-30191 Document: 00514467377 Page: 2 Date Filed: 05/10/2018No. 17

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3 Monday 8

- 20

- 07 Chad, You wanted your own life. You g ot 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 adulterin g [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: Monda y 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 giv e 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 unres ponsive. 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. ” Heb ert then proceeded to scream, and Dr. Phillips concluded that Hebert was “completely psychotic” and prescribed anti

- psychotic medicine for her. Case: 17-30191 Document: 00514467377 Page: 3 Date Filed: 05/10/2018No. 17

- 30191

4 T he State of Louisiana charged Hebert with first

- degree murder of her children

. Hebert pled not guilty by reaso n of insanity. A trial was held i n Lafourche Parish, Louisiana. The jury venire comprised 200 people, 112 of whom were women. Both parties received 12 peremptory strikes and two alter nate juror peremptory strikes. Before the final jury was selected, 23 women and 10 men were random ly selected to sit on the jury

. The court struck four men for cause or hardship, and Hebert used four peremptory strikes on men, which l eft just two men on the panel. The State used 11 peremptory strikes and one alternate
pe remp tory 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 A hava, and Dr. Phillip Resnick. Dr. Phillips prescribed anti

psychotic medication for Hebert after concluding that she was “completely psychotic” when she claimed that she saw and hear d Satan in the hospital

room . Dr. Resnick opined that Hebert was psychotic 1 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 suicid e to kee p the family together. The voice, according to Hebert, then instructed her to write the notes l eft 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. Case: 17-30191 Document: 00514467377 Page: 4 Date Filed: 05/10/2018No. 17

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5 depression with r ecurrent and severe ps ychosis. He further concluded that Hebert must have been psychotic because “only the most psychoti c 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 clin ical and forensic psychology, conceded at trial that Hebert suffered from a psychotic disorder but concluded that Hebert was still able t o distinguish right from wrong. In reaching this conclusion, Dr. Salcedo relied on Hebert’s notes, which he opined reve aled 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 exhibit ed psychosi s 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 th e wrongfulness of her actions. T he jury returned a verdict of guilty

. The jury was unable to reach a unanimous verdict on the death penalty, and the court sentenced H ebert to life imprisonment. Hebert filed a direct appeal to the Louisiana First Circuit Court of Appeals, which affirme d 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 gran ted a COA on all issues raised. Hebert timely appealed. Case: 17-30191 Document: 00514467377 Page: 5 Date Filed: 05/10/2018No. 17

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6 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 fed eral 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 i n the state court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is cont rary to clearly established precedent if the rule it applies “contradicts the governing law set forth in the [ Sup r eme Court’s] cases,” or if the s tate court confronts facts that are materially indistinguishable from a decision of the Supreme Court y et reac hes 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)).

“ D etermining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opin ion 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 conclu sions de novo and fac tual 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. Case: 17-30191 Document: 00514467377 Page: 6 Date Filed: 05/10/2018No. 17

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7 D iscussion I. In effective 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 qu alified 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 an d prejudice. 466 U.S. at 697. To prove deficient performance, petitioner must show that her counsel’s performance “fell below an objectiv e 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 ha ve 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 pra ctices or most common custom.” Harrington v. Richter , 562 U.S. 86, 105 (2011) (quoting Strickland , 466 U.S. at 6 90))

. 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 assista nce.” Stri c kland , 466 U.S. at 689. “A fair assessment of attorney performance re quires 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 def icient performance , prejudice is not presumed

. See Virgil v. Dretke , 446 F.3d 598, 607 (5th Cir. 2006). Case: 17-30191 Document: 00514467377 Page: 7 Date Filed: 05/10/2018No. 17

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8 The Equal Protection Clause prohibits a prosecutor from intentionally discriminating against a potential juror based on race or ge nder. J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 129 (1994) (prohibiting discrimination in j ury 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 failu re 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, ho wever, 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

- convict ion 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 tra ining 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. Ack nowledging that the state court addressed her ineffective assistance of counsel claim on the merits, Hebert contends that it

— and the district Case: 17-30191 Document: 00514467377 Page: 8 Date Filed: 05/10/2018No. 17

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9 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 determ ine 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 ineffecti ve assistance of counsel claim. T he J.E.B

. framework employs the same analysis as a Batson claim. See J.E.B. , 511 U.S. at 144. T he 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 S tate articulate s a gender

- neutral reason for st riking the jurors in question, the court must determine if the petitioner has met her burden to pr ove 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 strike s 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 conclude s that the State acted discriminatorily because 100% of the peremptory strikes used by the State were against qualified women. Case: 17-30191 Document: 00514467377 Page: 9 Date Filed: 05/10/2018No. 17

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10 O f 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 me n 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

- ne utral 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 plau sible. 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 S tate’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 discri mination

. ” 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 significan t 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

ca use or by agreement, 10 were peremptori ly 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 n ot need to “exhibit all of the exact same characteristics.” Case: 17-30191 Document: 00514467377 Page: 10 Date Filed: 05/10/2018No. 17

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11 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 implau sible.” 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

. , an d 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 de ath 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 sent ence for first degree murder.” To help view the relevant individuals’ answers to this question side

- by

- side, here is a chart :

P ERSON D EATH P ENALTY R EASON FOR S TRIKEWOMEN 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 illnessMEN 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 Case: 17-30191 Document: 00514467377 Page: 11 Date Filed: 05/10/2018No. 17

- 30191

12 W hile 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 neve r rehabilitated by the State.” It is true that , i n his questionnaire , B

. J

. indicated a moral op position to the death pen alty. But t he 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, u nlike all of the w omen 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 un persuasive. 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 do wn to it, but I do favor life.” More importantly , J. O

. is also distinguishable as a comparator in light of another highl y 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 Case: 17-30191 Document: 00514467377 Page: 12 Date Filed: 05/10/2018No. 17

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13 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 w ho we re struck from the panel. That leaves T. G

. as the only remaining male comparat or - 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 gend er 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 fr iendlier 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 p ermitted 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)). Heber t does not identify any man on the jury with the characteristic of being friendlier to d efense 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 us e of its peremptory strikes. Yet , even if Hebert could show prejudice , she fails to show that her attorney’s representation was incompeten t or objectively unreasonable. On appeal, Hebert acknowledges that “the State’s Case: 17-30191 Document: 00514467377 Page: 13 Date Filed: 05/10/2018No. 17

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14 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. A lthough the state court d id not mention J.E.B. in its analysis of her claim , its rejection of her ineffective assistance of counsel claim was not cont rary to Supreme Court precedent and was not objectively unreasonable. T he 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 t hat 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 , 3 95 So. 2d 664, 665 (La. 1981) ; see also Perez v. Cain , 529 F.3d 588, 594 (5t h Cir. 2008)

. The defendant may rebut this presumption by proving insanity by a preponderance of the evidence. L A

. C ODE C RIM

. P ROC

. A N N

. 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 referenc e to the conduct in question.” L A

. S TAT

. A NN

. § 14:14. Although the state is not required to p rove 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 gu ilt 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 insan e at the time of the offense.” Perez , 529 F.3d at 594 (emphasis added). Moreover, under our precedent , “[t]he credibility of the Case: 17-30191 Document: 00514467377 Page: 14 Date Filed: 05/10/2018No. 17

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15 witnesses and the weight of the evidence is the ex clusive 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 f acts 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 ju ry to conclude she was insane. She further argues that the factual basis the S tate’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 l aw 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 th at she was insane. Contending that this cou rt 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 ligh t 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 insan e at t he 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

. Case: 17-30191 Document: 00514467377 Page: 15 Date Filed: 05/10/2018No. 17

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16 argues this court should not “substitute [its] analysis of the evidence f or that of the jury.” The leading case in our circuit on this issue is Perez v. Cain

. 529 F.3d 588 (5t h 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 aff irmed 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 unreasonabl e application of federal law.” Id. at 599. In reaching that holding, we analyzed whether there was any objective reason for the jury t o reje ct 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 contrad ictory, 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 t o reject the expert testimony. Id. at 597. Perez stands for the propos ition that a rational jury cannot reject unanimous expert testimony if there is n o 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 ma y 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

reason s 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 Case: 17-30191 Document: 00514467377 Page: 16 Date Filed: 05/10/2018No. 17

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17 expert witnesses, to be more credible. That determination, as we stated in Garcia , is the exclusive province of the jury and shou ld not be disturbed on appeal. 995 F.2d at 561. T he jury also could have found that the factual assumptions underlying the de fense expe rts’ opinions were inadequate. For example, Dr. Phillips admitted that she reached her opinion without knowing abo ut Hebert’s religious beliefs. Furthermore, there is evidence in the record and argument on appeal that Hebert’s statement about hea ring Satan wa s fabricated and self

- serving. The record indicates that Hebert did not mention hearing a voice tell her to kill her children until sev eral 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 t o 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 objecti ve 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 continue d 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 Heber t knew her actions were wrong. The jury could have fo und that the defense experts impr operly dismissed the significance of the notes Hebert wrote and the indications from those notes that Heber t knew her actions were wrong. The jury also could have found it significant that there was no evidence Hebert was p sychotic 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 Case: 17-30191 Document: 00514467377 Page: 17 Date Filed: 05/10/2018No. 17

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18 was diagnosed as being p sychotic? A. That’s correct.”) The jury could have understood Dr. Resnick as testify ing that Hebert had only had one auditory halluci nation

— th e night she killed her children

— and found that her theory of insanity was implausible given the rest of the record. Dr. Ah ava, another expert for the defense, testified that a “central” factual basis for his opinion was information Hebert provided

. T he jury could have found that Dr. Ahava relied too much on Hebert’s characterization of the facts, which may have been skewed be cause she had been charged with first degree murder at the time sh e 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 h e als o 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 t o suddenly ha ve 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

- serv ing fac tual 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 t he 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 blo od than major depression. Case: 17-30191 Document: 00514467377 Page: 18 Date Filed: 05/10/2018No. 17

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19 In sum, t his case is distinguishable from Perez , where there was no objective reason to disregard the expert testi mony. 529 F.3d at 593

– 95 . Here, there is contradictory expert testimony from the State . Furthermore, the factual basi s for the defense experts’ testimony is arguably unreliable, and there are arguably inconsistencies in s ome of the opinions expressed. Any of these could have served a rational juror as an objective reason to disregard the testimony of the defense expe rts 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 gr ound. Conclusion For the reasons stated above, we AFFIRM the district court

. Case: 17-30191 Document: 00514467377 Page: 19 Date Filed: 05/10/2018No. 17

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20 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 th e 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 coun sel 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 d iffering 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 Batso n 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 Case: 17-30191 Document: 00514467377 Page: 20 Date Filed: 05/10/2018No. 17

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21 determination of the facts, the majority opinion undertakes a J.E.B./Batson analysis because it is “relevant.” I , however, would fol low the path AEDPA requires of us and evaluate the actions of the state court without conducting a Batson analysis b ecause 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 th e 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 applic ation. 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 gen der

- 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 defe nd [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 th e last

- reasoned state Case: 17-30191 Document: 00514467377 Page: 21 Date Filed: 05/10/2018No. 17

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22 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. 201 5

- K P

- 0 9 6 5 , 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 can not 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 determi nation 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.” C hamberlin 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 Case: 17-30191 Document: 00514467377 Page: 22 Date Filed: 05/10/2018No. 17

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23 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 reasonablene ss.” 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 substa ntial 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 incompetenc e 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 Case: 17-30191 Document: 00514467377 Page: 23 Date Filed: 05/10/2018No. 17

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24 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 j urors 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 be cause 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 Ba tson 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 (201 2). “[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

er ror to impute to the State. Thus, there was no need to evaluate prejudice. Case: 17-30191 Document: 00514467377 Page: 24 Date Filed: 05/10/2018No. 17

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25 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 devel oped 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
p rovided 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 defi cient 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 contemporaneous 1 nondiscri minatory 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 reas ons. 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 r easons, 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). Case: 17-30191 Document: 00514467377 Page: 25 Date Filed: 05/10/2018No. 17

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26 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 aft erthought.” 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 argue d 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 see ms to agree with this point

. Also c iting 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. Case: 17-30191 Document: 00514467377 Page: 26 Date Filed: 05/10/2018No. 17

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27 existed becomes moot.” This simplification misinterprets and misapplies Hernandez becau se: (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 cou nsel 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, a fter reiterating the three

- step process for evaluating a B atson 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 th o se particular facts and circumstances the “departure from the normal c ourse 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 . Further more , 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 prelim inary 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 Case: 17-30191 Document: 00514467377 Page: 27 Date Filed: 05/10/2018No. 17

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28 Batson argument

. Before proffering those reasons, the State argued Hebe rt 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. Th us, 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 judgme nt denying relief. Case: 17-30191 Document: 00514467377 Page: 28 Date Filed: 05/10/2018