1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-70053

PAUL EVERETTE WOODWARD,

Petitioner - Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS,

Respondent - Appellee

Appeal from the United States District Court 

for the Southern District of Mississippi

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Paul Woodward was convicted of capital murder and sentenced to death.

After exhausting state court proceedings, Woodward filed a petition for habeas

relief in the federal district court. The district court denied the requested relief,

but it issued a certificate of appealability (“COA”) as to three issues: whether

Woodward’s constitutional rights were violated (i) when his trial counsel

conceded guilt to the jury without first securing Woodward’s consent; (ii) by his

attorney’s failure to object to the State’s use of other bad acts in its closing

arguments; and (iii) by the trial court’s refusal to provide Woodward with funds

to secure an independent psychiatrist to (a) help prepare a mitigation defense

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2009

Charles R. Fulbruge III

Clerk
No. 06-70053

 Woodward also appeals the district court’s denial of his request for funds to retain 1

an expert under 21 U.S.C. § 848. As we discuss infra Part III.C., we will also consider this

claim.

2

and (b) help prepare defense counsel for cross-examination of the state’s mental

health experts. The district court denied, but this court granted, Woodward’s

request for a COA on a fourth issue, whether the State’s use of peremptory

challenges at Woodward’s resentencing violated his Fourteenth Amendment

right to equal protection under Batson v. Kentucky, 476 U.S. 79 (1986). For the 1

foregoing reasons, we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On appeal, Woodward does not dispute the facts of the crime as recounted

by the Mississippi Supreme Court in Woodward v. State, 843 So. 2d 1 (Miss.

2003) (“Woodward IV”): 

Around noon on July 23, 1986, Rhonda Crane, age twenty-four, was

traveling on Mississippi Highway 29 south of New Augusta in Perry

County, Mississippi to join her parents on a camping trip. A white

male driving a white log truck forced her car to stop in the middle

of the road. The white male then exited the truck with a pistol in

his hand and forced Crane to get into his truck. The man then

drove the victim to an isolated area, forced her out of his truck and

into the woods at gunpoint and forced her to have sexual relations

with him. Rhonda Crane was shot in the back of her head and died.

Crane’s automobile was left on the highway with the engine

running, the driver’s door open and her purse on the car seat. A

motorist traveling in a vehicle on the same highway saw a white

colored, unloaded, logging truck moving away from the Crane

vehicle, and notified the authorities. Additionally, a housewife

residing on a bluff along the highway at the location of the Crane

car noted a logging truck with a white cab stop in front of her

driveway. A white male exited and walked toward the back of his

truck and returned with a blonde haired woman wearing yellow

clothing. As he held her by her arm, the male yelled sufficiently

loud for the housewife to hear the words “get in, get in,” and forced
No. 06-70053

He was also sentenced to two thirty-year sentences on the kidnapping and oral sexual 2

battery charges, to run consecutively.

3

the blonde woman into the driver’s door of the truck and then drove

off. The housewife investigated the scene on the highway in front

of her house, discovered the abandoned Crane car, and notified the

authorities.

Law enforcement officers began an investigation to locate Crane.

The officers discovered that Paul Everette Woodward unloaded logs

at a pulp mill and departed the yard at 11:36 a.m. in a white Mack

log truck. Woodward arrived at his wood yard at approximately

12:45 to 1:00 p.m. The yard manager noted that he was late arriving

at the yard and was wet from sweating. A drive from the mill to the

wood yard takes approximately thirty minutes. A sheriff’s deputy

stopped Woodward, who was driving a white Mack logging truck,

around 2:00 p.m. on the afternoon of July 23, to ask if he had seen

anything that would assist in the investigation of Rhonda Crane’s

disappearance. Woodward replied that he had not seen anything.

Through the investigation, it was ascertained that Woodward was

the only driver of a white logging truck operating at the nearby

timber yards on that date. On the following day, Crane’s body was

located in the nearby wooded area by her father and a friend.

Woodward was arrested, and ultimately he made both written and

videotaped confessions. Woodward also confessed to his employer

over the telephone. 

Id. at 4-5.

Woodward was charged with kidnapping, oral sexual battery, and capital

murder with an underlying crime of rape. He was tried before a jury and

convicted of all counts. In a separate sentencing hearing, the jury sentenced

Woodward to death for the capital murder conviction. Woodward appealed, 2

raising numerous issues regarding the guilt-innocence phase and the sentencing

phase of the trial. The Mississippi Supreme Court affirmed the conviction and

sentence. Woodward v. State, 533 So. 2d 418 (Miss. 1988), cert. denied, 490 U.S.

1028 (1989), reh’g denied, 490 U.S. 1117 (1989) (“Woodward I”). 
No. 06-70053

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Woodward then filed his first application for post-conviction relief to the

Mississippi Supreme Court, and the court vacated his death sentence and

remanded for a new sentencing. See Woodward v. State, 635 So. 2d 805 (Miss.

1993) (“Woodward II”). On remand, the court again imposed the death sentence,

which was affirmed on direct appeal. Woodward v. State, 726 So. 2d 524 (Miss.

1997), cert. denied 526 U.S. 1041 (1999) (“Woodward III”). Woodward filed

another petition for post-conviction relief, which the Mississippi Supreme Court

denied. Woodward IV, 843 So. 2d at 21. 

Woodward filed his federal habeas petition in March 2004, and the district

court denied relief. Woodward sought a COA on four issues, relating to (1) his

counsel’s concession of guilt without securing his consent; (2) his counsel’s failure

to object to the introduction of other bad acts; (3) the trial court’s refusal to fund

an independent psychiatrist on re-sentencing; and (4) an alleged violation of

Batson, based on the State’s use of peremptory challenges to strike every black

juror. The district court granted a COA on issues 1, 2, and 3, and denied a COA

for issue 4; and we granted a COA for that issue: whether Woodward was

entitled to habeas relief under Batson.

II. STANDARD OF REVIEW

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

our review in this case. See Penry v. Johnson, 532 U.S. 782, 792 (2001); Wood

v. Quarterman, 491 F.3d 196, 201 (5th Cir. 2007). 28 U.S.C. § 2254(d) prohibits

a federal court from granting a petition for a writ of habeas corpus with respect

to a claim adjudicated on the merits in state court unless that adjudication 

(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
No. 06-70053

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

State court proceeding.

28 U.S.C. § 2254(d)(1)-(2); see Penry, 532 U.S. at 792. The state court’s decision

is contrary to the Supreme Court’s clearly established precedent if the state

court either “applies a rule that contradicts the governing law set forth in

[Supreme Court] cases,” or “confronts a set of facts that are materially

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

arrives at a [different result].” Penry, 532 U.S. at 792 (internal quotations and

citations omitted). The state court’s decision is an unreasonable application of

the Supreme Court’s clearly established precedent if it “correctly identifies the

governing legal rule but applies it unreasonably to the facts of a particular

prisoner’s case.” Id. (internal quotations and citations omitted). 

“We must presume that the state court’s factual findings are correct unless

[Woodward] meets his burden of rebutting that presumption by clear and

convincing evidence.” Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir. 2009)

(citing 28 U.S.C. § 2254 (e)(1)). “In reviewing the district court’s application of

§ 2254(d) to the state court decision, the district court’s findings of fact are

reviewed for clear error; [the district court’s] conclusions of law, de novo.”

Pondexter v. Quarterman, 537 F.3d 511, 519 (5th Cir. 2008) (citing Foster v.

Johnson, 293 F.3d 766, 776 (5 Cir. 2002)). th

III. DISCUSSION

A. Ineffective Assistance of Counsel: Concession of Guilt

“In all criminal prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” U.S. CONST. amend VI. Under the

well-established Strickland test, Woodward must show (1) that his counsel’s

performance was deficient, and (2) that the deficient performance prejudiced his
No. 06-70053

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defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984). Under the first

prong, “[t]o establish deficient performance, a petitioner must demonstrate that

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

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citation omitted). Counsel “is

strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690. 

“[T]o establish prejudice, a defendant must show that there is a reasonable

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

proceeding would have been different.” Wiggins, 539 U.S. at 534 (citation

omitted). There are, however, “some egregious circumstances . . . ‘so likely to

prejudice the accused that the cost of litigating their effect in a particular trial

is unjustified.’” Burdine v. Johnson, 262 F.3d 336, 344 (5th Cir. 2001) (quoting

United States v. Cronic, 466 U.S. 648, 658 (1984)). Prejudice is presumed where

(1) there is a complete denial of counsel, or (2) counsel entirely fails to subject

the prosecution’s case to meaningful adversarial testing. Cronic, 466 U.S. at

659. 

During the guilt-innocence phase of trial, Woodward’s counsel divided

responsibility for the closing arguments. First, Jeff Bradley argued reasonable

doubt as to each of the crimes upon which the jury was instructed. Next,

Woodward’s other attorney, Rex Jones, concluded the defense’s closing

arguments. Seconds into his argument, Jones made the following statement to

the jury:

I think – I’m going to say something, I’ve never lied to Juries and

I’m not going to start now, I think Paul Woodward is guilty of

kidnapping Rhonda Crane, and I think Paul Woodward is guilty of

the murder of Rhonda Crane. Now, we do have a problem, I think

legally, in regard to the charges he’s guilty of. The Court has

instructed you that you’ve got to take the version of the Defendant
No. 06-70053

 Glenn White was counsel for the State.

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as true if and unless it is contradicted by eyewitnesses or by other

evidence. I don’t know what happened out there that day, and I’m

not going to stand here and try to convince you one way or the other.

You’ve heard the same thing I’ve heard. 

Almost immediately, the State objected that “the defense attorney has just

interjected that the Defendant is guilty of the charge of kidnapping and murder.”

The State requested that the court give Woodward an opportunity to express

whether he was in agreement with his counsel’s tactics. The following exchange

ensued:

COURT: Well, I certainly feel like this Defendant has been

afforded a fair trial.

Do you have any problems with this proceeding, Mr.

Woodward?

WOODWARD: No, sir.

COURT: You’ve had a fair trial, hadn’t you?

WOODWARD: Yes, sir.

COURT: All right. Thank you.

MR. WHITE: Does he understand what – 

3

COURT: Do you understand what Mr. Jones said?

WOODWARD: Yes, sir.

COURT: All right.

MR. WHITE: Does he agree with it?

MR. BRADLEY: Your honor, he said that– 

MR. WHITE: I ask that that be noted in the record that he is in

agreement with the trial proceedings.

COURT: All right. Let that so be noted.
No. 06-70053

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Jones then continued his summation. In addressing the rape charge, he stated:

The thing that is troubling me in regards to the rape – I’m not

saying that he raped her at some point – he said in the statement

that it wasn’t, but I’m not saying he didn’t, but the thing that’s

troubling to me, at the time of the killing, at the time of the killing,

she was fully clothed, no clothing was torn, and I realize you say to

me – I know what they’re going to say, “Well you know, if you had

a gun on you, you would submit” and certainly I would and I don’t

deny that, but I don’t know at what point in time that occurred. . .

. So, what I am trying to say is that while I think that maybe what

he did is turned and ran and fired, and that’s the only reason I say

that, and if he killed her in that regard, then I think the charge

would be murder.

The case proceeded to the jury, which reached a guilty verdict, stating that

“[w]e, the jury, find the Defendant, Paul Everette Woodward, guilty of Capital

Murder.” The capital murder conviction was based on the jury’s finding that

“the capital murder of Rhonda Crane was committed while Paul Woodward was

engaged in the commission of rape.” 

The State argues that Woodward’s counsel’s strategy was to admit that

Woodward kidnapped and murdered the victim, while attacking the proof of the

underlying rape in an attempt to get the jury to settle on a verdict of simple

murder and kidnapping, without a finding of capital murder. Woodward

contends that the concession of guilt resulted in the complete breakdown of the

adversarial process and, thus, prejudice should be presumed. 

Woodward presented this claim to the Mississippi Supreme Court in his

petition for post-conviction relief from his original trial. Woodward II, 635 So.

2d at 805. The court analyzed Woodward’s claim under the two-prong

Strickland analysis. It noted that it had “previously faced similar allegations in

other cases, and found that the attorney’s strategic decision to admit to a lesser

crime than that charged in the indictment did not amount to deficient

performance.” Id. at 808 (citing Wiley v. State, 517 So. 2d 1373 (Miss. 1987) and
No. 06-70053

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Faraga v. State, 514 So. 2d 295 (Miss. 1987)). The court found that even

assuming that Woodward’s counsel was deficient in the guilt phase, Woodward

did not show that he satisfied the prejudice prong of Strickland because “[t]he

proof in this case does not present reasonable probability sufficient to

‘undermine confidence in the outcome.’” Id. at 809 (quoting Strickland, 466 U.S.

at 694)). 

Woodward urges this court to apply Cronic’s presumption of prejudice.

“An attorney undoubtedly has a duty to consult with the client regarding

‘important decisions,’ including questions of overarching defense strategy.”

Florida v. Nixon, 543 U.S. 175, 187 (2004). Here, however, the trial judge

afforded Woodward an opportunity to express disagreement with his counsel’s

tactics on the record, which he did not. Had Woodward expressed disagreement

with his counsel’s strategy, this might present a closer question as to whether

Cronic’s presumption of prejudice applies. Cf. id. (acknowledging that defense

counsel “was obliged to, and in fact several times did, explain his proposed trial

strategy” to defendant, but given defendant’s “constant resistance to answering

inquires,” defense counsel “was not additionally required to gain express consent

before conceding . . . guilt”). But see United States v. Thomas, 417 F.3d 1053,

1057 (9th Cir. 2005) (refusing to apply Cronic’s presumption of prejudice where

counsel conceded guilt without consulting defendant, and denying relief because

defendant failed to establish prejudice under Strickland). We find that

Strickland’s standard applies here. 

In this case, we assume that Woodward’s counsel was deficient in failing

to secure Woodward’s consent to the defense strategy. Nonetheless, Woodward

cannot establish that the state court’s findings were unreasonable in light of the

evidence presented. 28 U.S.C. § 2254(d). The evidence of guilt was

overwhelming, as the Mississippi Supreme Court recounted:
No. 06-70053

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In addition to separate written and videotaped confessions, which

were properly admitted, the State presented a mountain of evidence.

A housewife near the scene of the crime saw a white logging truck

stopped in front of her house and a white man forcing a blonde

woman in a yellow dress into his truck. After the truck drove off, the

housewife found the victim’s car on the highway, with the door open

and the motor still running. A motorist reported to law enforcement

officers that he saw a white logging truck moving away from a car

with an open door on the highway. Woodward unquestionably was

in the area that day, driving his white logging truck. His white

logging truck was the only white logging truck at the logging mill.

Law enforcement found a fountain pen at the crime scene matching

pens found in Woodward’s truck. Tests of Woodward’s blood showed

that he could not be excluded as the perpetrator.

Woodward II, 635 So. 2d at 809. “Attorneys representing capital defendants face

daunting challenges in developing trial strategies, not the least because the

defendant’s guilt is often clear. Prosecutors are more likely to seek the death

penalty, and to refuse to accept a plea to a life sentence, when the evidence is

overwhelming and the crime heinous.” Nixon, 543 U.S. at 191 (citation omitted).

In this case, involving written and video confessions and corroborating evidence,

“avoiding execution [may have been] the best and only realistic result possible.”

Id. (citation omitted); accord McNeill v. Polk, 476 F.3d 206, 217-218 (4th Cir.

2007) (rejecting, under Strickland, defendant’s claim of ineffective assistance

where counsel conceded defendant’s guilt without consent); Stenson v. Lambert,

504 F.3d 873, 891 (9th Cir. 2007) (“When the evidence against a defendant in a

capital case is overwhelming and counsel concedes guilt in an effort to avoid the

death penalty, ‘counsel cannot be deemed ineffective for attempting to impress

the jury with his candor.’”) (citation omitted). Woodward is not entitled to

habeas relief on this ground.

B. Ineffective Assistance of Counsel: Evidence of Bad Acts
No. 06-70053

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Woodward argues that during resentencing, his attorneys were

constitutionally ineffective for “opening the door” to allow in evidence of

Woodward’s prior bad acts and for failing to object to the State’s invocation of

prior bad acts in its closing statement. During resentencing, defense counsel put

Woodward’s father on the stand. He testified that Woodward stole a car as a

young Marine so he could return home for his grandfather’s funeral and that

Woodward had been arrested in Louisiana for attempted murder. Defense

counsel also called Dr. Thurman, a private clinical psychologist retained by

Woodward’s family, to testify. Included in Dr. Thurman’s report, which was

entered into the record, was a description of Woodward’s past convictions and

arrests, including the attempted murder charge from Louisiana, the stolen car

conviction, as well as allegedly unfounded charges of misdemeanor rape and

unlawful oral sex. The prosecution used the prior arrests and bad acts to

impeach defense witnesses. In addition, during his closing argument, the

prosecutor commented on Woodward’s history of bad acts, and the defense did

not object to this argument.

Woodward contends that the admission of the evidence of bad acts was the

reason the jury did not list “lack of serious criminal history” as a mitigating

factor in its verdict. The state court found that Woodward’s counsel presented

the bad acts evidence in the context that these acts were examples of

Woodward’s long battle with mental illness. It found that his counsel made

strategic choices regarding the mitigation case, showing sound trial strategy

rather than deficient performance. The state court also found that Woodward

had not shown any prejudice to his defense.

The district court agreed with this assessment. It found that because the

prosecution would have been able to introduce the bad acts because they were

referred to in Dr. Thurman’s report, the defense counsel were not objectively
No. 06-70053

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unreasonable for preemptively introducing the evidence in order to best fit it into

their trial strategy. Moreover, the district court found Woodward could not

demonstrate that he had been prejudiced by counsel’s alleged deficiency because

the balancing test which the jury was to employ to determine whether

Woodward should receive the death penalty was unaltered by the introduction

of the bad acts evidence.

The question under the first Strickland prong is whether Woodward

demonstrated “that counsel’s representation fell below an objective standard of

reasonableness.” Wiggins, 539 U.S. at 521. There is a “strong presumption that

counsel’s conduct falls within a wide range of reasonable professional

assistance.” Romero v. Lynaugh, 884 F.2d 871, 879 (5th Cir. 1989) (internal

quotation and citation omitted). “A conscious and informed decision on trial

tactics and strategy cannot be the basis for constitutionally ineffective assistance

of counsel unless it is so ill chosen that it permeates the entire trial with obvious

unfairness.” Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005) (quoting

United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002)). 

Woodward argues that the bad act evidence in question could not have

been admitted by the prosecution and therefore, it was not a reasonable trial

strategy to open the door to it and to fail to object to the State’s use of the

evidence during closing arguments. Mississippi Rule of Evidence 705 states:

The expert may testify in terms of opinion or inferences and give his

reasons therefor without prior disclosure of the underlying facts or

data, unless the court requires otherwise. The expert may in any

event be required to disclose the underlying facts or date on crossexamination. 

MISS. R. EVID. 705. The Mississippi Supreme Court, in reviewing this claim,

held that: “[S]ince Woodward’s prior criminal history was included in Dr.

Thurman’s report as part of the information which formed the basis for his
No. 06-70053

 As discussed in depth in the district court’s opinion, there is some inconsistency 4

between this holding and the Mississippi Supreme Court’s prior treatment of this matter.

Despite this inconsistency, Woodward IV is clear that under Mississippi law, the prosecution

would have been entitled to introduce these prior bad acts.

13

opinions, Woodward’s trial counsel could not have been successful in any

objection raised regarding the contents of the report.” Woodward IV, 843 So. 2d

at 9. Therefore, Woodward’s counsel was not deficient in preemptively 4

introducing the evidence or in failing to object to the evidence during closing

arguments.

Woodward also argues that both the district court and the state court

failed to take into account that “regardless of Mississippi evidentiary law, the

way in which the prosecution was permitted to lead the jury to return a death

sentence based on inaccurate or unreliable information runs afoul of the Eighth

Amendment.” Woodward cites to three Supreme Court cases in support of this

argument: Zant v. Stephens, 462 U.S. 862, 887, nn. 23, 24 (1983), Eddings v.

Oklahoma, 455 U.S. 104 (1982), and Locket v. Ohio, 438 U.S. 586 (1978).

Importantly, Woodward presents no evidence that Dr. Thurman’s report actually

contained “inaccurate or unreliable” information. Woodward reported to the

psychologist during his evaluation that he committed those crimes, and beyond

bare allegations, he presents no evidence that his statements were untrue or

otherwise unreliable.

Even assuming that Woodward’s counsel was deficient, both the

Mississippi Supreme Court and the district court found that Woodward failed to

demonstrate that he was prejudiced by such deficiency. In the context of capital

resentencing, the standard is “whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.” Strickland,

466 U.S. at 695. Woodward argues that he was prejudiced because once the
No. 06-70053

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prosecutor was able to delve into Woodward’s bad acts, he was able to subvert

the mitigating factor “lack of prior criminal history” into an unenumerated

aggravating factor.

Juries are presumed to follow the law. See United States v. Musquiz, 45

F.3d 927, 931 (5th Cir. 1995). Under Mississippi law, a death sentence cannot

be based on non-statutory aggravating factors. See MISS. CODE ANN. § 99-19-

101. In accordance with this rule, the jury was instructed to recommend the

death sentence only if it found that the presence of the statutorily-provided

aggravating factors outweighed the presence of the statutorily-provided

mitigating factors. Here, the jury listed three aggravating factors: (1) that the

capital murder occurred during the commission of rape; (2) that the murder was

particularly heinous; and (3) that the offense was committed for the purpose of

avoiding arrest or effecting escape from custody. Evidence of Woodward’s

alleged prior bad acts would have no bearing on the jury’s findings regarding

these three aggravating factors. Thus, even assuming arguendo that

Woodward’s counsel was deficient, the state court’s findings are not

unreasonable in light of the evidence presented. Woodward is not entitled to

habeas relief on this claim.

C. Request for Independent Psychiatric Expert

Woodward’s counsel made efforts to obtain an independent psychiatric

evaluation at the first trial in 1987, and again at resentencing in 1995. They

sought assistance to have Woodward examined by a psychiatrist regarding his

mental and emotional state and to determine Woodward’s competency at the

time of the crime, sought evaluation by a psychiatrist versed in sexual

psychopathic behavior, and sought assistance of a mental health expert to assist

Woodward in his defense. They also argued that a psychiatric evaluation would

allow the defense team to assess the presence of mitigating circumstances. At
No. 06-70053

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the motion hearing, the trial court suggested that Woodward be examined by

Whitfield State Hospital (“Whitfield”). Defense counsel argued that this would

be insufficient and requested funds to hire their own psychiatric expert. The

trial court denied their requests and ordered Woodward to be taken to Whitfield

to receive a psychiatric examination. The order required the hospital to report

its findings to defense counsel, the prosecutors, and the court. Later, after

Woodward’s family paid for an initial consultation with Dr. Thurman, Woodward

filed a motion to obtain additional funds to secure Dr. Thurman’s attendance at

trial and for additional evaluation. This request was granted.

After remand, Woodward was represented by Attorneys Rushing and

Adelman at his 1995 resentencing. Rushing and Adelman sought, before the

resentencing, funds to hire an independent psychiatrist. The funding motion

was supplemented with two affidavits, one from Dr. Thurman and one from Dr.

Ritter, a psychiatrist willing to assist defense counsel. Dr. Thurman’s affidavit

stated that 

[g]iven the severity of Mr. Woodward’s emotional problems, I believe

that his request for examination and assistance by a forensic

psychiatrist is reasonably necessary to his defense. Such an

examination would complement my own interviews and provide a

different perspective regarding his emotional problems. I believe

such further examination by a medically licensed psychiatrist would

not be cumulative and would contribute substantially and

significantly to Mr. Woodward’s defense. 

The court granted and denied the motions in part. It sustained the part of the

defense motion requesting Dr. Thurman’s continued assistance, but denied the

part of the motion requesting funds for Ritter. The court also ordered that “the

defendant be allowed evaluation at [Whitfield] if he so desires psychiatric

examination.” Woodward was not examined at Whitfield. 
No. 06-70053

16

Woodward argues that the Mississippi Supreme Court’s decision to deny

funds for an independent psychiatrist was an unreasonable application of Ake

v. Oklahoma, 470 U.S. 68 (1985). He contends that the opportunity to be

examined by a psychiatrist at the state mental hospital was insufficient and that

his rights were violated when he was not provided with an independent

psychiatrist at resentencing. This issue was presented to, and rejected by, the

Mississippi Supreme Court. Thus, as discussed above, for Woodward to be

entitled to relief he must demonstrate that the Mississippi Supreme Court’s

decision was “contrary to, or an unreasonable application of, clearly established

federal law” or was “based on an unreasonable determination of the facts in light

of the evidence presented.” 28 U.S.C. § 2254(d).

In Ake, the Supreme Court held that, upon request, a trial court must

appoint a psychiatrist for an indigent defendant if a defendant demonstrates to

the trial judge that his sanity at the time of the offense is to be a significant

factor at trial and, in the context of a capital sentencing proceeding, when the

state presents psychiatric evidence of the defendant’s future dangerousness.

Ake, 470 U.S. at 82-83. The Court explained that “when the State has made the

defendant’s mental condition relevant to his criminal culpability and to the

punishment he might suffer, the assistance of a psychiatrist may well be crucial

to the defendant’s ability to marshal his defense.” Id. at 80.

The state court found Woodward’s rights were not violated because the

order allowing Woodward to be examined at Whitfield satisfied Ake. Under Ake,

a criminal defendant is not entitled “to choose a psychiatrist of his personal

liking or to receive funds to hire his own.” Woodward III, 726 So. 2d at 529

(citing Ake, 470 U.S. at 83). Rather, the defendant must be afforded access to a

“competent psychiatrist.” Id. The district court agreed, holding that the courtauthorized psychiatrists that would have performed his evaluation were
No. 06-70053

 The Supreme Court denied certiorari in Granviel v. Texas, 495 U.S. 963 (1990). 5

Justices Marshall and Brennan dissented from the denial of certiorari, arguing that the Texas

procedure is unconstitutional because Ake was “directed at providing a defendant with the

tools necessary to present an effective defense within the context of our adversarial system,

in which each party marshals evidence favorable to its side and aggressively challenges the

evidence presented by the other side.” Id. at 964 (Marshall, J., dissenting). The dissent

argued that Texas’s provision of a “disinterested” expert does not satisfy Ake, because the

function of the psychiatrist is to assist the defendant in preparing and presenting his defense.

This position has not been adopted by the Supreme Court, and therefore, AEDPA’s limitations

apply.

17

“neutral,” and thus satisfied Ake’s requirements. In accord with this circuit’s

interpretation of Ake, we also agree.

In Granviel v. Lynaugh, 881 F.2d 185, 191 (5th Cir. 1989), an indigent

defendant challenged Texas’s practice of allowing a trial judge to appoint an

expert to evaluate the defendant and provide a report to both the prosecution

and the defense. Relying on Ake, we upheld the procedures, stating:

Granviel’s ability to uncover the truth concerning his sanity is not

prejudiced by a court-appointed, neutral expert. Availability of a

neutral expert provides defendants with “the raw materials integral

to the building of an effective defense.” Ake, 105 S. Ct. at 1093. The

state is not required to permit defendants to shop around for a

favorable expert. . . . He has no right to the appointment of a

psychiatrist who will reach biased or only favorable conclusions.

Granviel, 881 F.2d at 192. Instead, the Court’s “concern [was] that the indigent 5

defendant have access to a competent psychiatrist for the purpose we have

discussed, and . . . [it left] to the State the decision on how to implement this

right.” Ake, 470 U.S. at 83; accord Smith v. Mitchell, 348 F.3d 177, 208 (6th Cir.

2003) (holding that Ake does not entitle a defendant to an independent

psychiatrist of his choosing, only a competent psychiatrist). But see Starr v.

Lockhart, 23 F.3d 1280, 1290-91 (8th Cir. 1994) (stating that Ake “expressly

disavows” the theory that due process is satisfied by the appointment of a

neutral expert); Smith v. McCormick, 914 F.2d 1153, 1158-59 (9th Cir. 1990)
No. 06-70053

18

(“Under Ake, evaluation by a ‘neutral’ court psychiatrist does not satisfy due

process. . . . [The defendant] was entitled to his own competent psychiatric

expert.”); United States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985) (finding that

a state’s duty under Ake “cannot be satisfied with the appointment of an expert

who ultimately testifies contrary to the defense on the issue of competence”). 

Ake does not clearly provide a constitutional right to an “independent”

psychiatrist. Given the lack of a clear Supreme Court holding that a defendant

is entitled to independent psychiatric assistance and the different circuit

interpretations of Ake on this point, the decision of the Mississippi Supreme

Court was not “contrary to” or an “unreasonable application of” clearly

established federal law. See Williams v. Taylor, 529 U.S. 362, 381 (2000) (relief

precluded if the Supreme Court has not “broken sufficient legal ground” on a

constitutional principle advanced by a petitioner). 

It is undisputed that Woodward refused to be examined at Whitfield for

the resentencing. Woodward therefore does not argue that the examination

provided for him was inadequate; rather, he argues that it would have been

inadequate. In support, he points to his previous Whitfield examination,

obtained in 1987. He argues that this examination contained grave deficiencies,

including that no tests were given to evaluate the possibility of organic brain

damage. However, Whitfield limited the scope of the 1987 examination to

establish whether Woodward was competent to stand trial and whether he was

capable of distinguishing right from wrong at the time of the crime. Given the

different scope of the resentencing proceedings, it is entirely possible that the

Whitfield examination for purposes of resentencing would have been different

in nature and may have been more focused on identifying and developing other
No. 06-70053

 Alternatively, and as the district court stated, “[h]ad Woodward gone to the State 6

Hospital for another evaluation, he may have actually been supplied with evidence to support

his theory that the psychiatrists there were predisposed to favor the State’s position.”

 This provision was repealed by Public Law 109-77, 120 Stat. 231, Title II, Sec. 222

7

(March 9, 2006). Such funding is now governed by 18 U.S.C. § 3599 (f) and (g)(2).

Although Woodward did not request a COA on this claim, a COA is not necessary to 8

appeal the denial of funds for expert assistance. See Smith v. Dretke, 422 F.3d 269, 288 (5th

Cir. 2005). 

19

mitigating evidence. Woodward provides no evidence establishing that the 6

hospital would not have provided the tests or was unable to provide the tests.

Woodward therefore is not entitled to habeas relief on this claim.

D. District Court’s Denial of Woodward’s § 848 Request for Funding

In the district court, Woodward applied for expert funds pursuant to 21

U.S.C. § 848 (q)(4) and (q)(9), contending that the assistance of a psychiatrist 7

was needed to determine whether, at the resentencing, a comprehensive forensic

evaluation would have revealed mitigating factors for defense counsel to present

at the resentencing. The district court denied the motion, finding that

“Woodward’s application is not clear as to why the evaluations of the state

hospital and Dr. Thurman did not comply with Ake.” The district court therefore

concluded that Woodward had not established that granting him the funds to

retain Dr. Summers was “reasonably necessary” to pursue his habeas petition.8

The State argues that this court lacks jurisdiction over this claim because

Woodward failed to include the order denying expert assistance in his notice of

appeal. Woodward argues that the interim order denying funding merged into

the final judgment; therefore, his notice of the appeal of the final judgment also

noticed the appeal of the order denying funding. It is undisputed that

Woodward’s notice of appeal does not specifically reference the order; instead it
No. 06-70053

20

states that Woodward “now provides notice of his appeal . . . from the final

judgment entered in this action on August 3, 2006.”

A notice of appeal is required to “designate the judgment, order, or part

thereof being appealed.” FED. R. APP. P. 3(c)(1)(B). The general rule is that

“[w]here the appellant notices the appeal of a specified judgment only or a part

thereof . . . this court has no jurisdiction to review any other judgments or issues

which are not expressly referred to and which are not impliedly intended for

appeal.” Lockett v. Anderson, 230 F.3d 695, 699 (5th Cir. 2000) (quoting Capital

Parks, Inc. v. Se. Advert. & Sales Sys., Inc., 30 F.3d 627, 630 (5th Cir. 1994)).

However, “[a]n appeal from a final judgment preserves all prior orders

intertwined with the final judgment.” New York Life Ins. Co. v. Deshotel, 142

F.3d 873, 884 (5th Cir. 1998) (internal quotation and citation omitted). 

An appellate court’s consideration of the denial of § 848 funding will often

implicate the merits of a petitioner’s habeas claim. See Smith, 422 F.3d at 288.

Even if there was a mistake in designating the judgment, a mistake in

designating orders to be appealed should not bar review “if the intent to appeal

a particular judgment can be fairly inferred, and if the appellee is not prejudiced

or misled by the mistake.” Friou v. Phillips Petroleum Co., 948 F.2d 972, 974

(5th Cir. 1991) (citation omitted). Woodward’s intent to appeal this issue is clear

from an examination of Woodward’s request for a COA in the district court and

his opening appellate brief, both of which explicitly reference the § 848 denial.

See Deshotel, 142 F.3d at 884. Also, the State has not demonstrated that it was

in any way prejudiced by Woodward’s failure to designate the § 848 denial in his

notice of appeal. Id.

Pursuant to 21 U.S.C. § 848(q)(9), a district judge, in a capital case, “upon

a finding that investigative, expert, or other services are reasonably necessary

for the representation of the defendant,” may authorize funding for such
No. 06-70053

21

services. Foster v. Johnson, 293 F.3d 766, 775 n.8 (5th Cir. 2002). We review for

an abuse of discretion the denial of § 848 funding. Smith, 422 F.3d at 288. The

denial of such funding has been upheld “when a petitioner has (a) failed to

supplement his funding request with a viable constitutional claim that is not

procedurally barred, or (b) when the sought-after assistance would only support

a meritless claim, or (c) when the sought after assistance would only supplement

prior evidence.” Id. (citations omitted). In light of our holding on the merits of

Woodward’s Ake claim, we hold that the district court did not abuse its discretion

in denying the funding request. 

E. Batson Claim

The Supreme Court has made clear that the Equal Protection Clause of

the Fourteenth Amendment prohibits prosecutors from striking prospective

jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89 (1986);

Moody v. Quarterman, 476 F.3d 260, 266 (5th Cir. 2007). In Miller-El v. Dretke,

545 U.S. 231 (2005), the Supreme Court explained some of the effects of racial

discrimination in jury selection:

[P]rosecutors drawing racial lines in picking juries establish statesponsored group stereotypes rooted in, and reflective of, historical

prejudice . . . . When the government’s choice of jurors is tainted

with racial bias, that overt wrong casts doubt over the obligation of

the parties, the jury, and indeed the court to adhere to the law

throughout the trial. That is, the very integrity of the courts is

jeopardized when a prosecutor’s discrimination invites cynicism

respecting the jury’s neutrality, and undermines public confidence

in adjudication[.] So, for more than a century, this Court

consistently and repeatedly has reaffirmed that racial

discrimination by the State in jury selection offends the Equal

Protection Clause.

Miller-El, 545 U.S. at 237-38 (internal citations, quotations, and alterations

omitted). “[T]he Constitution forbids striking even a single prospective juror for
No. 06-70053

22

a discriminatory purpose.” Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008)

(quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

In Batson, the Court delineated a three-step analysis for evaluation of a

defendant’s claim that a prosecutor used a peremptory strike in a racially

discriminatory manner: (1) a defendant must make a prima facie showing that

the prosecutor exercised his peremptory challenges on the basis of race; (2) the

burden then shifts to the prosecutor to articulate a race-neutral reason for

striking the juror in question; and (3) the trial court must determine whether the

defendant carried his burden of proving purposeful discrimination. See

Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (plurality opinion) (citing

Batson, 476 U.S. at 96-98); Moody, 476 F.3d at 266-67. This analysis “permits

prompt rulings on objections to peremptory challenges without substantial

disruption to the jury selection process.” Hernandez, 500 U.S. at 359. The

ultimate burden of persuasion lies with the defendant. See Purkett v. Elem, 514

U.S. 765, 768 (1995).

Upon remand, the trial court conducted jury selection for Woodward’s

resentencing. The State peremptorily challenged six jurors, including three

black members of the venire panel. At this point, Woodward raised a claim

under Batson. The court requested that the State offer reasons for striking the

three black jurors, numbers 7, 12, and 22, to which the following colloquy

ensued:

MR. WHITE: If it please the Court, the State’s reasons on No. 7[,]

[Ms.] Proctor, she is unemployed and on a previous case was unable

to reach a verdict. Juror No. 12, [Ms.] McAbree, was unresponsive.

Mr. Klein and Mr. Callahan both indicated to me that she was very

hostile when the State was on voir dire and open to the defense.

Further that her relative works in Leakesville with the prison

system and we struck her on that basis. We didn’t want her to have

any affiliations with that. . . .
No. 06-70053

23

. . . [Ms.] Steele [Juror No. 22] . . . That’s the lady with the

orange hair that gave unresponsive answers.

COURT: And that’s the one that you proffered for cause but the

Court did not allow.

MR. ADELMAN: But as far as Proctor goes, I’d say that the fact

that she was unable to reach a verdict in some prior jury is not a

racially neutral reason. It’s a non-race and it’s an irrelevant reason.

MR. WHITE: It doesn’t have to be a relevant reason as long as it’s

race neutral.

COURT: Are there others?

MR. ADELMAN: McAbree, No. 12. He said something about that

she was hostile. I remember her as being very cooperative.

MR. WHITE: That’s exactly what we’re saying, she was cooperative

with you.

MR. ADELMAN: No, she was cooperative with everybody. I don’t

remember her being hostile.

COURT: The Court is of the opinion that the strikes were not

racially motivated and was not being done to constitute members of

a certain race on the jury panel. . . .

Woodward then offered his strikes. During the next series of strikes, the

State struck four additional jurors, among these jurors was one black juror,

Juror 56. Woodward objected, stating that “[t]hey struck the only black in that

group, who was [Ms.] Griffin. They have now struck every black available.”

The State responded:

MR. WHITE: . . . [Ms.] Griffin on S-10.

MR. ADELMAN: She’s black.

MR. WHITE: Yes. We talked to Jerry Gardner. She is related to

another potential juror, No. 67, on the panel, but her husband has

had law enforcement problems at a trailer park, according to Jerry

Gardner. And we struck her on that basis. We thought there might

be some empathy with that particular case. She lives in the Sand

Ridge Trailer Park here in New Augusta.
No. 06-70053

24

The trial court denied the objection and struck her from the panel. 

Two more series of strikes followed, and the State struck Ms. Williams,

Juror 67, who is black. The State offered as an explanation the fact that she was

a psychology major and that they did not have a written response from her. The

trial court ruled that the strike was not made for a racially motivated reason,

and struck Ms. Williams from the panel.

The court then moved to the selection of the alternates. Woodward struck

the first alternate, and the State struck the next alternate, Juror 72, who is

black. The State said that its strike was based on his response to the rape

question, as well as the fact that his brother-in-law is a convicted felon. The

defense then stated: “For the record, we want to note that [Juror 72] is black.

They have now struck every black juror.” As a result of these challenges, every

black person was removed from the jury panel, and the jury that was eventually

empaneled was composed entirely of white members.

At the resentencing, the State did not dispute whether Woodward made

a prima facie showing that the State exercised its peremptory challenges on the

basis of race, and we need not address the first prong of the Batson analysis.

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 had made a prima facie showing becomes moot.”). For the second

step of the analysis, a prosecutor is not allowed to merely deny that he did not

have a discriminatory motive; he must provide a specific explanation that is

clear and reasonable. Elm, 514 U.S. at 768. The second step, however, “does

not demand an explanation that is persuasive, or even plausible.” Id. 

Woodward’s Batson claim was presented to the Mississippi Supreme Court

on direct review of the resentencing trial. Woodward III, 726 So. 2d at 529-534.
No. 06-70053

25

That court reviewed each peremptory challenge and concluded that the State

had met its burden of offering race-neutral reasons for its peremptory

challenges. Id. at 530-533. The court noted that “[t]he establishment of a raceneutral reason is not a difficult task” and that a “trial judge’s factual findings

relative to a prosecutor’s use of peremptory challenges on minority persons are

to be accorded great deference.” Id. at 530 (citing Stewart v. State, 662 So. 2d

552, 557-58 (Miss. 1995)). Woodward has not demonstrated that the Mississippi

Supreme Court’s decision was based on an unreasonable determination of the

facts in light of the evidence presented. 28 U.S.C. § 2254(d). We find no error

in the state court’s finding that the State satisfied the second prong of the

Batson analysis.

Whether a defendant has carried his burden under Batson’s third step to

prove purposeful discrimination is based on the persuasiveness and credibility

of the prosecutor’s justification for his exercise of the peremptory strike. Id.

Because of the importance of demeanor and credibility evidence in making such

determinations, we give strong deference to the determination of the trial judge,

consistent with AEDPA. See Hernandez, 500 U.S. at 369 (“[W]e decline to

overturn the state trial court’s finding on the issue of discriminatory intent

unless convinced that its determination was clearly erroneous.”). However,

“implausible or fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination.” Elm, 514 U.S. at 768.

Woodward argues that the trial court’s failure to make a finding of

demeanor as to Ms. McAbree establishes a Batson error, relying on Snyder v.

Louisiana, 128 S. Ct. 1203 (2008). Where the peremptory challenge is based on

a potential juror’s demeanor, “the trial court must evaluate not only whether the

prosecutor’s demeanor belies a discriminatory intent, but also whether the

juror’s demeanor can credibly be said to have exhibited the basis for the strike
No. 06-70053

26

attributed to the juror by the prosecutor.” Snyder, 128 S. Ct. at 1208. Factual

findings relating to the juror’s demeanor are essential to our review of a Batson

claim. See id. at 1209. In Snyder, the prosecution offered two race-neutral

reasons for striking a potential juror: the “main reason” was that the juror

“looked very nervous” throughout questioning; the other reason related to the

juror’s commitments as a student teacher. Id. at 1208. The defendant disputed

both explanations. The Supreme Court reversed, based in part on the “absence

of anything in the record showing that the trial judge credited the claim that Mr.

Brooks was nervous.” Id. at 1212.

Rather than making a specific finding on the record concerning Mr.

Brooks’ demeanor, the trial judge simply allowed the challenge

without explanation. It is possible that the judge did not have any

impression one way or the other concerning Mr. Brooks’ demeanor.

. . . Or, the trial judge may have found it unnecessary to consider

Mr. Brooks’ demeanor, instead basing his ruling completely on the

second proffered justification for the strike. For these reasons, we

cannot presume that the trial judge credited the prosecutor’s

assertion that Mr. Brooks was nervous.

Id. at 1209. In this case, as in Snyder, the State offered multiple reasons for

striking McAbree and we cannot presume that the trial court credited the State’s

assertion that McAbree was hostile. Woodward, however, has failed to show

that the state court’s factual findings were unreasonable in light of the evidence

presented.

Woodward did not rebut the State’s race-neutral reason for all the other

challenges. On appeal, however, Woodward nonetheless argues that he is

entitled to relief under Batson because (1) the reasons given by the State for

striking black jurors were not equally applied to white jurors; and (2) both the

district court and the Mississippi State Supreme Court erred by considering each

peremptory challenge individually, rather than examining “the totality of the

relevant facts about a prosecutor’s conduct during the defendant’s own trial.”
No. 06-70053

27

Relying on Miller-El and Snyder, Woodward argues that as long as the relevant

facts were before the trial court, it was not necessary that particular arguments

be made in support of a showing of pretext. Essentially, Woodward would

impose on the state trial court the duty to conduct a comparison analysis to

identify possible instances where the reasons for peremptory challenges are

unequally applied to black and white jurors, regardless of whether a defendant

articulates a rebuttal argument regarding unequal application of reasons for

strikes. Woodward relies heavily on the following language from a footnote in

Miller-El to support his argument:

The dissent contends that comparisons of black and nonblack venire

panelists, along with Miller-El’s arguments about the prosecution’s

disparate questioning of black and nonblack panelists and its use of

jury shuffles, are not properly before this Court, not having been put

before the Texas courts. But the dissent conflates the difference

between evidence that must be presented to the state courts to be

considered by federal courts in habeas proceedings and theories

about that evidence. 

Miller-El, 545 U.S. at 241 n.2 (internal quotations and citations omitted). In the

same footnote, the Court goes on to explain that

[t]here can be no question that the transcript of voir dire, recording

the evidence on which Miller-El bases his arguments and on which

we base our result, was before the state courts, nor does the dissent

contend that Miller-El did not fairly present his Batson claim to the

state courts. Only as to the juror questionnaires and information

cards is there question about what was before the state courts.

Id. (internal quotations and citations omitted). Because a defendant has the

ultimate burden of persuasion, it is important that he “fairly present” his claim

to the state court in seeking to persuade the state court that discrimination

exists.

The State relies heavily on this court’s decisions in Wright v. Harris

County, 536 F.3d 436 (5th Cir. 2008) and United States v. Arce, 997 F.2d 1123,
No. 06-70053

28

1127 (5th Cir. 2008), to argue that Woodward waived his Batson claim by failing

to rebut the State’s race-neutral reasons for striking the black jurors. Wright

was a civil suit where only one black venireman had a “realistic chance” of

serving on the jury. Wright, 536 F.3d at 437. In Arce, a noncapital criminal

case, we held that “[b]y failing to dispute the prosecution’s . . . explanation in the

district court, defendants have waived their right to object to it on appeal.”

Capital cases employ different standards than noncapital cases at times, and our

more recent decision in Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009),

suggests that waiver does not apply in capital cases. 

[T]he trial court stated at the hearing that it was considering only

the voir dire transcripts of the ten African-American jurors that the

prosecution struck, not those of any other jurors. Further, the

prosecutor noted, “[a]t no time has [Miller-El] urged that there are

unchallenged venire persons who did not have these same traits

that the prosecutors testified either at trial or in this hearing that

they relied on in exercising the State’s peremptory challenges.”

Miller-El did not respond to this statement and did not ask the court

to consider any other portions of the voir dire transcript. After

reviewing the voir dire transcript of only the challenged jurors, the

judge accepted the prosecutor’s race-neutral explanations for the

strikes and found that there was “no purposeful discrimination.”

The [Texas Court of Criminal Appeals] affirmed, stating that it had

“carefully reviewed the voir dire examination” of the prospective

black jurors and found “ample support . . . for the prosecutor’s

racially neutral explanations.” Again, it is important to emphasize

that the TCCA never reviewed the entire voir dire transcript or

considered a comparative analysis.

Reed, 555 F.3d at 371. Notwithstanding that “Miller-El’s arguments gave the

state court no reason to go leafing through the voir dire transcript,” the Miller-El

majority “soundly rejected” the dissent’s argument that the state court’s

consideration of evidence supporting a Batson claim is “unrealistic.” Id. at 372

(quoting Miller-El, 545 U.S. at 283 (Thomas, J., dissenting)). Contra Snyder, 128

S. Ct. at 1214 (Thomas, J., dissenting) (“We have no business overturning a
No. 06-70053

 In that case, there were 20 black members of a 108-person venire panel. Miller-El,

9

545 U.S. at 240. One served, 9 were excused for cause, and 10 were peremptorily struck. Id.

at 240-41. The Court stated that “[h]appenstance is unlikely” the cause of the prosecutors use

of peremptory strikes to exclude 91% of black jurors. Id. at 241. 

 The Court described Texas’s jury shuffle procedure as follows: 10

[E]ither side may literally reshuffle the cards bearing panel members’ names,

thus rearranging the order in which members of a venire panel are seated and

reached for questioning. Once the order is established, the panel members

seated at the back are likely to escape voir dire altogether, for those not

questioned by the end of the week are dismissed.

Id. at 253. The Court also noted that the prosecutors noted the race of each panelist on all of

the juror cards. Id. at 250 n.7.

Id. at 261-63.

11

29

conviction, years after the fact and after extensive intervening litigation, based

on arguments not presented to the courts below.”). We therefore decline to find

that Woodward waived any Batson claim based on a comparison analysis.

Woodward nonetheless must carry his burden of proving purposeful

discrimination, and for purposes of our review, he must demonstrate that the

state court’s factual findings were unreasonable in light of the evidence

presented.

In Miller-El, the Court recognized that Miller-El’s evidence was open to

judgment calls “at some points,” but the Court considered substantial evidence

in determining that discrimination existed, including juror comparisons,

statistical data, prosecutors’ use of a procedure known as the jury shuffle, 9 10

contrasting voir dire questions, “manipulative minimum punishment

questioning,” and the Dallas County office prosecutors’ “specific policy of

systematically excluding blacks from juries.” In this case, Woodward relies on 11

statistics and jury comparisons to argue that the state court clearly erred in

finding no discrimination.
No. 06-70053

 Mr. O’Banner was an alternate juror. 12

30

The State used peremptory strikes to exclude 100% of black jurors, but

Woodward has not provided the Court with information regarding the makeup

of the entire jury pool. See Medellin v. Dretke, 371 F.3d 270, 278 (5th Cir. 2004)

(“For the statistical evidence to be relevant, data concerning the entire jury pool

is necessary. The number of strikes used to excuse minority and male jury

members is irrelevant on its own.”); cf. United States v. Alverado, 923 F.2d 253,

255 (2d Cir. 1991) (“[T]he prosecution’s challenge rate against minorities was 50

percent (three of six) in the selection of the jury of 12, and 57 percent (four of

seven) in the selection of the jury of 12 plus alternates. Whether this rate

creates a statistical disparity would require knowing the minority percentage of

the venire; for example, if the minority percentage of the venire was 50, it could

be expected that a prosecutor, acting without discriminatory intent, would use

50 percent of his challenges against minorities.”). For example, if there are only

3 black members of a 100-member venire panel, i.e., 3% black, there is a weaker

argument that exclusion of 100% of the black members evidences purposeful

discrimination. If, however, there were 10 black members of a 40 member venire

panel, i.e., 25% black, the argument strengthens as to purposeful discrimination

if the State strikes 100% of the black members. We know that the peremptory

challenges were used to exclude 100% of the black jury venire members, but this

statistic standing alone does not support a finding of discrimination. 

Woodward also makes a comparison analysis to establish purposeful

discrimination. In total, the State used six peremptory challenges to strike all

available black jurors: Ms. Proctor, Ms. McAbree, Ms. Steele, Ms. Griffin, Ms.

Williams, and Mr. O’Banner. With respect to Ms. Proctor, the State alleged 12

that it struck her because she was unemployed and on a previous case was
No. 06-70053

 The trial judge seemed to agree with the State’s characterization, stating that “[s]he

13

was incoherent at times I thought, and her body language was such that she did appear

nervous.” 

31

unable to reach a verdict. Woodward does not assert that white members of the

panel were similarly situated, but he suggests that the court and the State

should have further explored the reasons for the strike. “[T]he prosecution’s

failure to question a potential juror about a characteristic that the State asserts

is important is evidence that the asserted reason was actually a pretext for

discrimination.” Reed, 555 F.3d at 376 (citing Miller-El, 545 U.S. at 246). A

review of the State’s voir dire reveals that it asked no questions regarding

employment or prior jury service. Because employment and prior jury service

questions were on the juror questionnaire, however, it does not automatically

follow that absence of the questions in voir dire is indicative of pretext. On

habeas review, Woodward had to make a stronger showing to establish that the

state court’s findings were unreasonable in light of the evidence presented. He

has not made that showing.

The State alleged that it struck Ms. McAbree because she was

unresponsive, hostile, and had relatives that work in the prison system. As we

discussed supra, the trial court made no findings regarding Ms. McAbree’s

hostility, and we do not presume that it credited the State’s assertion of that

reason. Woodward still offers no rebuttal to the State’s first race-neutral reason,

that Ms. McAbree was unresponsive. In his brief, Woodward simply ignores this

race-neutral reason, stating that the prosecutor provided only two reasons. We

find no error in the state court’s finding of no race discrimination in the State’s

striking of Ms. McAbree.

The State originally challenged Ms. Steele for cause, stating that she was

incoherent and unresponsive. The trial judge offered to bring her back for voir 13
No. 06-70053

32

dire, but the State declined. Woodward offers no evidence of discriminatory

intent except the fact that Ms. Steele was black. Again, where Woodward fails

to rebut the State’s race-neutral reason for striking a juror, evidence of race

standing alone offers little evidence of discriminatory intent. The state court

was not unreasonable in finding no race discrimination.

Regarding Ms. Griffin, Woodward misinterprets the record as to the

State’s reason for striking her. Woodward asserts that the State struck Ms.

Griffin because she had a relative on the jury and because her husband had law

enforcement problems. Read in context, it is clear that the State struck her

because her husband had law enforcement problems, not because she had a

relative on the jury. Notably, the record does not show the relevance of Jerry

Gardner, but Woodward made no objection to the State’s reliance on Mr.

Gardner’s information relating to Ms. Griffin’s husband’s problem with law

enforcement. A finding of no discriminatory intent in the State’s use of a

peremptory strike to exclude Ms. Griffin is not unreasonable in light of the

evidence presented.

Regarding Ms. Williams, the State based its strike on the fact that she was

a psychology major, and it added that it did not have a written response from

her. Again, Woodward only attempts to challenge the State’s reason based on

the lack of a written response, arguing that others failed to respond. The

primary reason for the State’s strike was based on Ms. Williams studies in

psychology. During voir dire, one of the questions the State asked was “[h]ave

you or a member of your family ever studied psychology or any type of field such

as that?” Ms. Williams indicated that psychology was her major in college, and

the State asked her several questions relating to the topic. The evidence
No. 06-70053

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supports the trial court’s finding that the State did not strike her for a racially

motivated reason, and the decision was not unreasonable.

Finally, Woodward offers no argument on appeal relating to Mr. O’Banner,

other than the fact that he is black. Considering the entire record, Woodward

has not demonstrated that the Mississippi Supreme Court’s denial of his Baton

claim was based on an unreasonable determination of the facts in light of the

evidence presented. 28 U.S.C. § 2254(d). Accordingly, Woodward is not entitled

to habeas relief on this claim.

CONCLUSION

For the reasons discussed above, Woodward’s request for habeas relief is

DENIED.