[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-14421

________________________

D.C. Docket No. 1:10-cv-00587-WS-M

JEFFERY LEE,

Petitioner-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT 

OF CORRECTIONS, 

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(August 1, 2013)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

HULL, Circuit Judge:

Alabama death row inmate Jeffery Lee appeals the district court’s denial of 

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. As to his death sentence, 

the Alabama appellate court held that: (1) Lee’s trial counsel was not ineffective in 

Case: 12-14421 Date Filed: 08/01/2013 Page: 1 of 128 
2

the investigation and presentation of mitigation evidence under Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984); (2) the trial judge’s override of

the jury’s life-sentence recommendation did not violate Ring v. Arizona, 536 U.S. 

584, 122 S. Ct. 2428 (2002); and (3) the State’s peremptory challenges did not 

violate Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). After review and 

oral argument, we affirm because the state courts’ denial of Lee’s claims was not

contrary to or an unreasonable application of clearly established federal law under 

28 U.S.C. § 2254(d). Our opinion is organized as follows:

I. GUILT PHASE

A. State’s Evidence

B. Pretrial Mental Evaluations

C. Defense’s Mental Health Evidence

D. State’s Rebuttal Evidence

II. PENALTY PHASE AND DIRECT APPEAL

A. Sentencing Hearing before Jury

B. Sentencing Hearings before Trial Judge

C. Lee’s Direct Appeal and First Remand

D. Trial Judge’s Amended Sentencing Order

E. State Appellate Court’s Decision on Direct Appeal (Lee I)

III. COLLATERAL REVIEW

A. Lee’s Amended Rule 32 Petition and Supplement

B. State Trial Court’s Rule 32 Decision

C. State Appellate Court’s Rule 32 Decision (Lee II)

D. Lee’s Federal § 2254 Petition

IV. STANDARD OF REVIEW

V. INEFFECTIVE-ASSISTANCE CLAIM

A. Strickland v. Washington Test

Case: 12-14421 Date Filed: 08/01/2013 Page: 2 of 128 
3

B. Prejudice Prong

VI. JURY-OVERRIDE CLAIM

A. Lee’s Ring Claim

B. Direct Appeal Decision

C. Jury’s Guilty Verdict Included Armed Robbery

VII. LEE’S BATSON CLAIM

A. Batson and Its Progeny

B. Jury Selection in Lee’s Trial

C. Direct Appeal Decision

VIII. AEDPA DEFERENCE TO PLAIN-ERROR REVIEW

IX. AEDPA DEFERENCE TO SUMMARY OPINIONS

A. Supreme Court Precedent

B. Our Circuit Precedent

C. Atwater v. Crosby (2006)

D. Hightower v. Terry (2006)

E. Blankenship v. Hall (2008)

F. McGahee v. Alabama Department of Corrections (2009)

G. Greene v. Upton (2011)

H. Adkins v. Warden, Holman CF (2013)

X. BATSON ANALYSIS IN LEE’S CASE

A. Striking Pattern

B. Alleged Racial Discrimination History

C. Venire Member David Gutridge

D. Venire Member Demond Martin

E. Totality of the Evidence

XI. CONCLUSION

I. GUILT PHASE

On December 12, 1998, Petitioner Jeffery Lee shot and killed Jimmy Ellis 

and Elaine Thompson and attempted to kill Helen King during an attempted armed 

Case: 12-14421 Date Filed: 08/01/2013 Page: 3 of 128 
4

robbery of a pawn shop. 

The murder charges against Lee were capital in nature because Lee: (1) 

committed the murders during a robbery or an attempted robbery, see Ala. Code 

§ 13A-5-40(a)(2); and (2) murdered two or more persons by one act or pursuant to 

a single scheme or course of conduct, see id. § 13A-5-40(a)(10). Two capital 

murder counts charged the murders of Ellis and Thompson during a robbery, see

id. § 13A-5-40(a)(2); a third capital murder count charged those two murders 

pursuant to a single course of conduct, see id. § 13A-5-40(a)(10); and a fourth 

count charged the attempted murder of King, see id. §§ 13A-6-2, 13A-4-2. As 

recounted below, the trial evidence of Lee’s guilt was overwhelming. 

A. State’s Evidence

Critically, the State’s evidence included: (1) the eyewitness testimony of the 

surviving victim King; (2) surveillance camera footage from the pawn shop which 

depicted the murders of Ellis and Thompson and the attempted murder of King; 

and (3) Lee’s signed statement confessing to shooting the three victims and 

attempting to rob the pawn shop.1

 

1

Pretrial, the state trial court held an evidentiary hearing concerning Lee’s motion to 

suppress this statement to law enforcement confessing to the crimes and any physical evidence 

obtained in violation of Lee’s constitutional rights. After taking the testimony of Lee and the 

law enforcement officer who took the statement, the state trial court denied Lee’s motion to 

suppress. On direct appeal, the Alabama Court of Criminal Appeals affirmed the trial court’s 

denial of Lee’s motion to suppress. Lee v. State, 898 So. 2d 790, 833 (Ala. Crim. App. 2003).

Case: 12-14421 Date Filed: 08/01/2013 Page: 4 of 128 
5

On the day of the murders, Lee went into Jimmy’s Pawn Shop in Orville, 

Alabama, under the guise of purchasing a wedding ring. Lee spoke with King, an 

employee of the pawn shop. Lee told King that he had no money with him and 

would return to the shop later with money to purchase a ring; Lee provided King 

with a fake name, Chris Williams. Lee left. The pawn shop’s owner, Ellis, and 

another shop employee, Thompson, were also in the pawn shop at that time. 

Not long thereafter, Lee reentered the pawn shop, this time armed with a 

sawed-off 12-gauge shotgun and said, “What’s up, mother[]fuckers?” Without 

another word, Lee began firing. Lee shot Ellis in the left arm and then shot 

Thompson point-blank in the face. Next Lee turned the shotgun to King and shot 

her, hitting King’s hand. King fell to the floor and pretended to be dead. Lee then 

shot Ellis again in the chest. After shooting the pawn shop’s three occupants, Lee 

attempted to open the cash register but could not wrench it open. Lee left the pawn 

shop.

After Lee left, King got up, grabbed the telephone, and dialed emergency 

911. While on the telephone, King locked the shop’s doors. Lee had left his

sawed-off shotgun, used in the murders, on the shop’s counter. Lee attempted to 

reenter the shop but could not. Lee fled the scene, leaving a bloody trail in his 

wake: Ellis lay dead of multiple shotgun blasts, including a fatal shot to the chest; 

Thompson lay dead of a close-range shotgun blast to the face; and King was 

Case: 12-14421 Date Filed: 08/01/2013 Page: 5 of 128 
6

wounded but still alive.

Lee had two associates who were waiting outside the pawn shop during the 

killings. Lee and his two associates fled the scene, visited briefly with family 

members, and then went to Newnan, Georgia, where they rented a motel room. 

While Lee’s associates returned to Alabama later that day, Lee remained in the 

motel in Georgia. Law enforcement officers apprehended Lee in the early morning 

hours of the next day, December 13, 1998. 

Shortly thereafter, Lee signed a written confession admitting that he shot the 

pawn shop occupants in an attempted robbery. In his written statement, Lee 

admitted that he and his two accomplices decided to rob the pawn shop; after 

looking at rings, Lee left but later returned with the sawed-off shotgun; and Lee 

entered the shop with the sawed-off shotgun and told the occupants it was a 

robbery. Lee said his first shot at Ellis was “fired accidentally,” but otherwise Lee 

conceded that the rest were intentional. After shooting the victims, Lee attempted 

to open the shop’s cash register but was unable to do so. Lee left. After realizing 

he had left the shotgun in the shop, Lee attempted to return to the shop to retrieve 

his weapon but the front door was closed. 

At trial surviving victim King described the crimes and positively identified 

Lee as the perpetrator. King verified the pawn shop’s surveillance footage 

corresponded to her recollection of events. The State introduced into evidence 

Case: 12-14421 Date Filed: 08/01/2013 Page: 6 of 128 
7

several photographs of the victims. Objecting, Lee’s counsel argued that the 

photographs were highly inflammatory and prejudicial. Also, well before trial, 

Lee’s counsel filed a motion in limine to preclude the State from introducing

“several gruesome and highly prejudicial photographs of the victims,” photographs 

which depicted “[f]ull-body and close-up head shots of the victims.” The state trial 

court overruled the objection, and the photographs were admitted and exhibited to 

the jury. 

The State also called the medical examiner who performed the autopsies on 

victims Ellis and Thompson. The medical examiner testified that Ellis: (1) 

sustained shotgun wounds in his chest and left arm; and (2) died due to a large 

amount of abdominal bleeding and heart damage caused by the shotgun blasts. As 

to Thompson, the medical examiner testified that Thompson died from a closerange shotgun blast to the face. The jury heard the medical examiner describe 

Thompson’s wound as follows: the shotgun pellets “shattered [her] facial bones 

creating a large fracture across the floor of the inside of the skull where her brain 

resides and also tore greatly the frontal lobes of this lady, areas of the brain in 

front.” 

On cross-examination, Lee’s counsel questioned the medical examiner as to 

whether he could determine if the shooting was accidental or intentional. The 

medical examiner responded that he could not make that determination; he could 

Case: 12-14421 Date Filed: 08/01/2013 Page: 7 of 128 
8

state only that the shotgun wounds were not self-inflicted injuries and the shots 

were fired from a “sufficient range that [he] classified it as homicide.” 

The State also called Maurice Cunningham, Lee’s sister’s boyfriend. 

Cunningham was with Lee the night before the murders along with a larger group, 

first at Cunningham’s house and later at a club. Cunningham testified that a gun 

was present at some point during his evening with Lee, and that Cunningham 

tested the gun “to see how it shot.” Cunningham did not know who brought the 

gun or who left with the gun. Cunningham identified the sawed-off shotgun 

recovered from the pawn shop as the one he test-shot the night before the murders. 

Lieutenant Roy Freine of the Dallas County Sheriff’s Department testified 

that he was one of the officers to pick up Lee in Newnan, Georgia, the day after the 

murders. After obtaining a waiver of Lee’s Miranda rights, Lt. Freine interviewed 

Lee and took a written statement. Lee’s signed written statement, confessing to the 

crimes, was admitted into evidence. Lt. Freine read the statement aloud, in which 

Lee admitted to attempting to rob the pawn shop and shooting the victims, 

although Lee claimed in the statement that the first shot fired at Ellis was 

accidental. 

Through Lt. Freine’s testimony, the State also introduced into evidence and 

played for the jury the surveillance footage from the pawn shop which recorded the 

murders on December 12, 1998. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 8 of 128 
9

On cross-examination of Lt. Freine, Lee’s counsel elicited testimony 

implying that despite the many objects of value in the pawn shop, including $900 

in victim Ellis’s pocket, none of these items were taken by Lee. 

B. Pretrial Mental Evaluations 

Prior to trial, Lee’s trial counsel2had the benefit of three mental health 

evaluations: (1) Dr. Winston Pineda at the jail; (2) the court-appointed expert Dr. 

Kathy Ronan; and (3) the defense’s retained expert Dr. Donald Blanton. Lee 

called Dr. Blanton as a witness in the guilt phase and the State called Dr. Ronan in 

rebuttal. We review their evaluations of Lee. Although neither party called Dr. 

Pineda, we also review the evidence concerning his evaluation of Lee.

1. Dr. Kathy Ronan

At the State’s request, the state trial court ordered a mental evaluation of 

Lee. On July 20, 1999, clinical psychologist Dr. Kathy Ronan evaluated: (1) Lee’s 

present mental condition and competency to stand trial; and (2) Lee’s mental 

condition at the time of the murders. 

In her August 11, 1999 report, filed in the state trial court in September 

1999, Dr. Ronan recounted Lee’s family background. Prior to his incarceration,

 

2

The state trial court appointed criminal defense attorneys Michael Jackson and Joseph 

Hagood III to represent Lee. Lead counsel Jackson was an experienced criminal law attorney, 

who worked several years as a prosecutor in a district attorney’s office in Alabama, and then as a 

criminal defense attorney in private practice for five years. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 9 of 128 
10

Lee lived with his family, and had two sisters, three half-brothers, and one halfsister. Lee told Dr. Ronan that he was “mentally abused” by his mother, and that 

he was cursed and all his life told he “ain’t gonna amount to nothing.” But Lee 

“denied any physical or sexual abuse, or any significant difficulties while growing 

up.” 

As for physical or mental health problems, Lee reported that he once 

suffered a head injury that knocked him unconscious and necessitated a hospital 

visit, although he was not sure if he had sustained a concussion. Lee denied any 

other medical problems. Lee said that he had never received psychiatric services 

until after his incarceration for these murders. 

As to mental capacity, Dr. Ronan observed that Lee exhibited “a few areas 

of below normal functioning . . . but no significant deficits.” Lee’s test results 

“suggested that his overall intellect is probably within the low average to perhaps 

borderline range,” but Dr. Ronan found “no indication of retardation.” Dr. Ronan 

also recounted how Lee had a “fairly significant history of substance abuse, 

including Marijuana Dependence; Alcohol Dependence; and Cocaine 

Dependence.”

Ultimately, Dr. Ronan concluded that Lee was competent to stand trial, as 

Lee did not “have any type of major psychiatric illness,” “[t]here is no indication 

of retardation,” and Lee “demonstrated adequate knowledge in all areas assessed 

Case: 12-14421 Date Filed: 08/01/2013 Page: 10 of 128 
11

related to legal proceedings.” 

Dr. Ronan also evaluated Lee’s mental state at the time of the murders. Lee 

told Dr. Ronan that immediately prior to the murders, he smoked “a blunt” of 

marijuana laced with cocaine and consumed a half pint of whiskey. Lee said that 

earlier that same day: (1) his head was burning and when he awoke that morning, 

he saw what he believed was a dead woman dressed in white who attempted to 

wake him; and (2) he smoked a joint of marijuana. Other than those reported facts, 

Dr. Ronan found “no indication that [Lee] had any type of command hallucinations 

or delusions directing him to be engaged in the behaviors related to the alleged 

offense.” Accordingly, Dr. Ronan’s opinion was that “there were no significant 

mental illness symptoms which interfered with [Lee’s] ability to appreciate the 

consequences of his actions during the time of the alleged offense” and any 

“substance induced perceptual anomalies . . . did not interfere with his ability to 

understand right from wrong during the time of the alleged crime.” 

2. Dr. Donald Blanton

On September 20, 1999, after receiving Dr. Ronan’s report and certain 

school records, Lee’s counsel moved for the appointment of and $5,000 in funds to 

hire a clinical neuropsychologist who would interview, test, evaluate, and present 

trial testimony regarding Lee. Defense counsel asserted that an expert was 

necessary to assist counsel in determining and presenting mitigation evidence, 

Case: 12-14421 Date Filed: 08/01/2013 Page: 11 of 128 
12

including but not limited to “the fact that this Defendant has, through his life, 

functioned with very limited intellectual ability. . . . [and] other factors relating to 

his traumatic upbringing and mental impairments . . . which constitute mitigating 

circumstances.” Lee’s counsel specifically recognized that “[m]ental impairment 

is the most compelling mitigating factor[].” 

After the state trial court granted this motion, Lee’s counsel hired Dr. 

Donald Blanton to evaluate Lee. 

Dr. Donald Blanton has a Ph.D. in counseling and educational psychology

and is an experienced psychometrist with expertise in administering psychological 

and educational tests. Dr. Blanton consulted with Lee on October 29, 1999, and 

conducted his evaluation of Lee on March 31, 2000. 

Dr. Blanton performed a number of psychological tests on Lee. Dr. Blanton 

first gave Lee the full Wechsler Adult Intelligence Scale, Revised (“WAIS-R”). 

Lee scored an IQ of 67, which indicated to Dr. Blanton that Lee was “in the middle 

range of mental retardation.” Dr. Blanton administered the Bender Visual-Motor 

Gestalt Test, on which Lee did “fine.” Dr. Blanton also administered the Wide 

Range Achievement Test-Rephrased III, a reading, spelling, and arithmetic test, on 

which Lee scored at the sixth grade level in reading, the second grade level in 

spelling, and the second grade level in arithmetic. 

Dr. Blanton concluded that Lee “was not psychotic and that he was having 

Case: 12-14421 Date Filed: 08/01/2013 Page: 12 of 128 
13

some depression secondary to his situation.” In his report, Dr. Blanton stated that 

“[t]hroughout testing [Lee] appeared to put good effort into his work and anxiety 

did not appear to be a significant factor.” 

As for Lee’s substance abuse history, Dr. Blanton said that Lee admitted to 

him that he used marijuana on a daily basis and cocaine on a weekly basis. Dr. 

Blanton’s report noted that Lee’s mother and father both allegedly suffered from

“nervous trouble” and had been treated for “nerves.” Additionally, Lee’s “[f]amily 

history . . . reveal[ed] a drug addicted uncle and another alcoholic uncle.” 

3. Dr. Winston Pineda

Although not called at trial, we review what the record states about Dr. 

Pineda’s evaluation of Lee. Following his arrest, Lee was evaluated by Dr. Pineda,

a psychiatrist working for the State, on January 7, 1999. Dr. Pineda’s evaluation 

and treatment are referenced in Dr. Ronan’s report, which both the state trial court 

and Lee’s counsel had.

Dr. Pineda reported that, during his consultation, Lee complained of 

“persecutory auditory hallucinations” starting immediately before the murders and 

that Lee was “quite distraught and remorseful.” Dr. Pineda stated that Lee had an 

unspecified psychiatric disorder, as well as a dependence on marijuana. Dr. Pineda 

prescribed for Lee in jail certain anti-psychotic medications, including Zyprexa, 

Navane, and Congentin. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 13 of 128 
14

C. Defense’s Mental Health Evidence

After the State rested its case in the guilt phase, the defense called Dr. 

Donald Blanton as its sole witness in the guilt phase. The defense offered Dr. 

Blanton as a “certified psychometrist.”3 

Dr. Blanton recounted his findings from his March 31, 2000 evaluation of 

Lee and battery of tests. Dr. Blanton testified that Lee scored an IQ of 67 on the 

WAIS-R, a score “in the middle range of mental retardation which is slightly 

below the second percentile nationally.” Dr. Blanton stated that meant “out of 100 

people, 98 would have a higher I.Q. score than Mr. Lee on average nation[]wide.” 

Dr. Blanton also administered the Bender Visual-Motor Gestalt Test, a test 

performed to determine any “organic disturbances” between Lee’s “eyeballs and 

brain hookup.” On that test Lee did “fine.” 

Dr. Blanton also testified to Lee’s results on the Wide Range Achievement 

Test-Rephrased III, on which Lee scored at the sixth grade level in reading, the 

second grade level in arithmetic, and the second grade level in spelling. Dr. 

Blanton explained that Lee’s reading score indicated that “92 percent of people 

score better than what [Lee] had [scored] on his test.” As for Lee’s arithmetic 

 

3

The State objected to the expert testimony of Dr. Blanton as immaterial. In response, 

Lee’s counsel emphasized that the defense sought to introduce Dr. Blanton’s testimony to “talk 

about his mental retardation” and to address “whether [Lee] knowingly gave the statement” to 

police. The state trial court overruled the State’s objection. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 14 of 128 
15

score, Dr. Blanton stated it was “very low. That would mean that 99.7 percent of 

the people would score higher” than Lee on the same test. 

As for Lee’s significant substance abuse history, Dr. Blanton testified that

Lee admitted to him that he had used marijuana on a daily basis for years, cocaine 

on a weekly basis, and drank alcohol “quite often too.” 

Dr. Blanton also testified that he performed “a number of other tests that 

[Lee] was unable to handle.” Dr. Blanton gave Lee the Beck Depression Inventory 

and Mental Status Examination “which is a psychological test that’s administered 

orally.” From that test Dr. Blanton concluded that Lee “was not psychotic and that 

he was having some depression secondary to his situation.” Dr. Blanton testified, 

though, that he did not believe Lee was malingering: “In this case, I didn’t feel 

[Lee] understood whether it would hurt him or not hurt him [to be deceptive in 

answering the questions].” 

On cross-examination, the State elicited testimony from Dr. Blanton that 

individuals in the “mild range of mental retardation” can function in society, and 

Dr. Blanton agreed to the prosecutor’s statement that these individuals can “[h]ave 

families, jobs, go to work, drive trucks, and that sort of thing.” But Dr. Blanton 

stated that “[l]ess than four percent” of the general population would fit into the 

mildly retarded category. The State also asked whether Lee would be able to 

perform well in school, to which Dr. Blanton replied that it “[d]epend[ed] on the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 15 of 128 
16

school.”4 

D. State’s Rebuttal Evidence

In its rebuttal presentation, the State called Lee’s work supervisor, Howard 

Mitchell, at Taylor Lumber Company. Mitchell testified that Lee had worked for 

him for “a period of time,” and Mitchell found Lee a capable and responsible 

employee with no problems following any instructions.5 

The State next called Van Smith, the principal of Lee’s high school, 

Billingsley High School. Principal Smith described Lee as “a good student.” 

Principal Smith said that the high school had three levels of classes: special 

education, basic level, and advanced track; Lee was “in the advanced track 

preparing for college.” Lee was not in special education and “was never tested for 

special education.” During his time at Billingsley, Lee maintained “average 

grades, Bs and Cs. . . . [j]ust an average student in that particular level.” Lee began 

encountering problems around the eleventh grade, when “[h]is grades turned 

down,” and Lee’s twelfth grade year was “pretty much the worst year.” Lee did 

 

4Based on Dr. Blanton’s testimony about Lee’s mental capacity and Lee’s written 

confession that the first shot was accidental, Lee’s counsel asked for jury instructions on “lesser 

included charges of manslaughter and criminally negligent homicide.” The State objected. 

Ultimately the state trial court agreed to give: (1) a lesser-included manslaughter charge as to the 

capital murder of Jimmy Ellis, Count 1; and (2) a lesser-included charge of assault in the second 

degree as to the fourth count charging the attempted murder of Helen King. 

5Mitchell testified that while he did hire “a lot of special ed people,” Lee was not hired as 

such.

Case: 12-14421 Date Filed: 08/01/2013 Page: 16 of 128 
17

not complete high school, although he did take and pass the high school graduation 

exam in his eleventh grade year. On cross-examination, defense counsel showed 

Lee’s SAT test and Smith agreed that Lee’s scores were “somewhat low.” 

On redirect examination, the State showed Principal Smith a number of 

Lee’s school records. These school records indicated Lee had grades of 90, 60, 90, 

85, and 87 in ninth grade, and grades of 90, 68, 81, 69, 68, and 86 in eleventh 

grade. 

In recross-examination, Lee’s counsel confirmed with Principal Smith that 

Lee had been a high school senior in 1995, and that Smith had had no contact with 

Lee since then and no knowledge of Lee’s substance abuse or whether something 

else may have impacted Lee’s mental abilities. 

The State then called Dr. Kathy Ronan, the clinical psychologist who had 

evaluated Lee. Dr. Ronan testified to her conclusion that Lee suffered from “no 

mental illness or mental retardation that would have impaired his understanding of 

right or wrong during the time of questioning.” 

Prior to her trial testimony, Dr. Ronan reviewed Dr. Blanton’s report. Dr. 

Ronan agreed with some aspects of Dr. Blanton’s report but disagreed with others. 

Dr. Ronan stated that Dr. Blanton’s test results—which measured Lee’s 

intelligence and achievement ability—“were quite low, and they were inconsistent 

with my original findings. They were also inconsistent with the history of Mr. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 17 of 128 
18

Lee’s academic performance.” Dr. Ronan stated that the inconsistencies could be 

attributed to two possibilities: (1) Lee was depressed when Dr. Blanton saw him—

suffering from what she termed “an adjustment reaction” to incarceration—and 

that depression may have impacted Lee’s testing ability; or (2) malingering. 

Dr. Ronan also testified that even a mildly mentally retarded person’s 

condition is “[n]ot so great as to interfere with [his] decision making process or 

ability to understand right from wrong.” She explained that “when you’re talking 

about [a] mental retardation level that interferes with some people to distinguish 

between right and wrong, you’re really talking about an I.Q. level of in the forties, 

we call that moderate to se[vere] . . . retardation.” And here, it was Dr. Ronan’s 

opinion that Lee did not suffer from retardation of any kind. 

On cross-examination, Dr. Ronan admitted that her examination of Lee

lasted for an hour and a half to two hours and that she did not give Lee the entire 

WAIS-R test that Dr. Blanton gave Lee. Dr. Ronan also confirmed that Lee had 

told her that on the day of the crimes, his head was burning and he saw “a dead 

woman dressed in white” who was trying to wake him up. Dr. Ronan agreed that 

drugs might affect a person’s decision-making ability. 

Ultimately, the jury returned a unanimous verdict of guilty against Lee on all 

counts.

II. PENALTY PHASE AND DIRECT APPEAL

Case: 12-14421 Date Filed: 08/01/2013 Page: 18 of 128 
19

A. Sentencing Hearing before Jury

In his opening statement in the penalty phase, Lee’s counsel said that 

counsel would “put on evidence to give you a better picture of Jeff[er]y Lee” and 

“why he shouldn’t die.” Counsel said this “better picture” would include Lee’s 

young age (23), his status as a father of two children, and things the jury had

“already heard” including Lee’s good work record and good school record. 

Counsel also said the defense would talk about Lee’s mental retardation, although 

the defense would not recall Dr. Blanton. 

The State put forth no evidence, resting upon the guilt-phase evidence.

In Lee’s mitigation presentation, Lee’s counsel first invoked Dr. Blanton’s 

guilt-phase testimony concerning Lee’s mental capabilities and Howard Mitchell’s 

guilt-phase testimony concerning Lee’s status as a good worker. The defense then 

called Lee’s father, uncle, aunt, and mother.

Lee’s father, Jessie James Lee,

6

testified that his son was 23 years old and 

the third of six children. Jessie testified that “all [his] other children except [Lee] 

and one of [his] other boys have had seizures,” and that often Jessie had to take

them to “Birmingham at Saint Vincent,” a hospital. 

 

6

The record is not clear as to Lee’s father’s name. In the trial transcript Lee’s father is 

called Lewis Lee. Later, in the sentencing hearing transcript and in the presentence report, Lee’s 

father is identified as Jessie James Lee. For purposes of this appeal, we assume Lee’s father’s 

name is Jessie James Lee.

Case: 12-14421 Date Filed: 08/01/2013 Page: 19 of 128 
20

Jessie said that he was a mechanic and also worked for the State of Alabama. 

Jessie testified that Lee was “good help” until he entered ninth or tenth grade and 

began experimenting with drugs. Specifically, Jessie “would tell [Lee] to get [him] 

such and such a wrench and when [Lee] would come back, [Lee] would have the 

wrong wrench.” After Lee began using drugs, Jessie said that Lee “just wasn’t the 

same,” and that Lee “would get in his bed and go to sleep and just sleep, sleep, 

sleep or either go out there where I worked on cars and just sit out there. Just sit.” 

Jessie said Lee would “just sit” outside until “[t]en or eleven o’clock at night.” 

Jessie testified that Lee exhibited other strange behavior, and as an example 

stated that once Lee painted a dog. Jessie also said that “you could tell [Lee] not to 

do something and sometimes he would do it.” Other times, “[Jessie] would tell 

him to do something and [Lee] wouldn’t do it.” 

Lee’s counsel asked Jessie if his son should receive the death penalty. Jessie

expressed sympathy for the victims’ families, but stated, “I don’t want my son to 

go to no death penalty. I’m the one, I’m the one that carried my son to jail.” Jessie

testified that Lee wanted to turn himself in for the murders. He asked that his son’s 

life be spared, and stated that his son “really need[s] help.” 

On cross-examination, the State confirmed with Jessie that Lee’s problems 

began in ninth or tenth grade and that by Lee’s senior year of high school, Lee had 

stopped attending. Jessie also testified that Lee “probably used to get in fights with 

Case: 12-14421 Date Filed: 08/01/2013 Page: 20 of 128 
21

children . . . , but that’s normal for children, I guess.” 

Jessie said that Lee stayed with Jessie and his wife (Lee’s mother) during the 

week. The State asked Jessie whether he thought Lee had used drugs on the day of 

the crimes. Jessie responded: “It had to be something the matter with him because 

my children would come home every night. The night this happened, they didn’t 

come home. My other son, Andre . . . who was in the car with him, he had called 

my daughter that morning about eight o’clock to come pick him up.” When 

pressed as to whether Lee was on drugs at the time, Jessie responded, “When I 

s[aw] [Lee] that evening, he didn’t look nothing like right.” 

Lee’s uncle, Walter Jackson Lee, testified that he had been around Lee 

throughout Lee’s life. Walter described Lee as “kind of a smart child” growing up 

and an “average child” who did not always “do everything he was supposed to do.” 

Walter stated Lee should not receive the death penalty: “To me and especially to 

the family, . . . I wouldn’t like to see him getting the death row. To the family, I’m 

sorry what he done. But I wouldn’t like to see him get death row.” 

Lee’s aunt, Emmajean Thomas, testified that she had known Lee “ever since 

he was a baby.” Thomas said that growing up, Lee “was a good child. Not saying 

it because he’s my nephew, but I’m saying it because it’s true.” When asked if she 

ever noticed anything unusual about Lee, Thomas responded, “No more than they 

used to like, like my brother said, like to play with dogs. [Lee] went and painted a 

Case: 12-14421 Date Filed: 08/01/2013 Page: 21 of 128 
22

dog.” She confirmed that Lee painted the dog “brown” and “[p]ainted the whole 

dog.” Thomas testified that she knew of Lee’s drug problems, and recalled that 

one time the sheriff was called and apparently found marijuana on Lee. Similarly 

to the other witnesses, Thomas testified that she sympathized with the victims’ 

families but that Lee should not receive the death penalty. 

Finally, Lee’s mother, Betty Jean Lee, testified that while she had sympathy 

for the victims and their families, “I don’t want to lose my child. I love him . . . . 

[H]e’s my third son . . . and I don’t want to lose him.” Betty also noted that Lee 

had two children of his own, aged eight months and one year, respectively, and 

apparently with different mothers. 

After closing arguments, the state trial court instructed the jury. The state 

trial court instructed on one aggravating circumstance: that the capital offense at 

issue was committed while Lee “was engaged in the commission of an attempt to 

commit flight after committing or attempting to commit robbery.” The state trial 

court also instructed that “[t]he fact that Jeff[er]y Lee has been convicted in this 

case in and of itself is not an aggravating circumstance.” 

The jury returned a recommendation, by a vote of seven to five, that Lee be 

sentenced to a term of life imprisonment without parole. 

B. Sentencing Hearings before Trial Judge

The same state trial judge commenced the first sentencing hearing on 

Case: 12-14421 Date Filed: 08/01/2013 Page: 22 of 128 
23

September 22, 2000.7 The state trial court took additional testimony from the 

victims’ family members and friends, from the surviving victim King, and from 

Lee’s family members.

The victims’ children testified. Jimmy Ellis, Jr., victim Jimmy Ellis’s son, 

testified that his father’s death “tore [his] world apart,” and the community 

remained outraged by the crimes. Similarly, Telena Thompson, victim Elaine 

Thompson’s daughter, testified that her mother’s death “pretty much turned [her]

personal life upside down,” her mother had been her “very best friend,” and that 

she suffered nightmares as a consequence of her mother’s murder. 

Surviving victim Helen King testified that: “I still can’t sleep at night. I slap 

at my kids for no reason. I blame my husband for everything because he’s the 

same color [as Lee].

8

 I’m not trying to be prejudiced because I’m not. But it 

turned my life upside down.” King moved away from that community because she 

felt unsafe. 

Larry Nichols, a manager of a service station across the street from victim 

 

7

The State of Alabama employs three phases for the trial and sentencing of persons 

charged with capital offenses: (1) the guilt phase; (2) the penalty phase, during which the jury 

issues an advisory sentencing verdict based on its evaluation of aggravating and mitigating 

circumstances, see Ala. Code § 13A-5-46; and (3) a final phase at which time the trial judge 

orders and receives a presentence report, takes further argument, and may receive additional 

evidence concerning the aggravating and mitigating factors. Thereafter, the trial judge must 

enter written findings as to these factors and impose a sentence. See id. § 13A-5-47; see also

Boyd v. Allen, 592 F.3d 1274, 1284 (11th Cir. 2010).

8King is white and her husband is black. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 23 of 128 
24

Ellis’s pawn shop, testified that he was a lifelong friend of Ellis and that Ellis was 

well-liked in that community. Nichols said the community remained frightened 

and angry in the wake of the crimes. 

The State played a small portion of the pawn shop surveillance tape showing 

Lee entering the pawn shop and shooting Ellis, Thompson, and King. 

After the State’s presentation, the defense presented additional testimony 

from Lee’s family members. 

Lee’s father, Jessie James Lee, testified that Lee was one of six children and 

a young father to two children of his own. Jessie stated that Lee was a good 

worker. He also stated that: “[W]hen [Lee] was small, when he got to be 12 or 13 

or 14 years old, he was one of the smartest and best children I had. Some[]times I 

thought he was too smart. But after he got up to around the eighth or ninth or tenth 

grade, [Lee] started failing, acting funny.” Lee’s counsel confirmed with Jessie

that he meant Lee began acting funny “mentally.” Jessie said that his son was on 

medication. On cross-examination, Jessie stated that: 

What I mean about acting funny, [Lee] would stay in the house 

watching television. I’m a pretty good mechanic and I worked on 

automobiles and he would sit over there by himself while I worked 

until about eleven or twelve o’clock out by himself. I would ask him 

what was wrong. He never would say anything, but he would sit out 

there where I have worked on cars by himself.

Jessie said he did not know if Lee began running with a bad crowd but that he 

Case: 12-14421 Date Filed: 08/01/2013 Page: 24 of 128 
25

knew Lee had “started messing with some dope.” However, Jessie said Lee did 

not get in trouble with the law, and the only problem Jessie could recall was “a 

little argument or fight at a club one night.” 

Jessie also testified about how his son’s troubles had impacted him: 

Since my boy got in trouble, see, I had to take an early retirement on 

account of stress and worry. I had a heart attack and I liked to passed 

myself. I had a good job, I worked for the State of Alabama a long 

time. I had to take an early retirement because I had a heart attack.

Lee’s mother, Betty Jean Lee, testified that she was the grandmother of 

Lee’s children, she loved her son Lee very much, and if Lee were given the death 

penalty, “[i]t would be hard.” Lee’s mother acknowledged that what Lee had done 

was wrong. 

Another of Lee’s uncles, Henry Lanier, Sr., testified that: he was around Lee 

his entire life; Lee was a good worker when he worked; and Lee started having 

problems when he got older: “[h]e just wasn’t the same kid he was.” Lanier stated 

he loved Lee and that if Lee received the death penalty, “[i]t would hurt a lot.” 

After some arguments by the attorneys, the state trial court stated it would 

consider the presentence investigation report and the evidence from the hearing 

and render a decision on October 11, 2000. 

The Alabama Board of Pardons and Paroles prepared a presentence 

investigation report, which recounted Lee’s background as the third child of seven 

Case: 12-14421 Date Filed: 08/01/2013 Page: 25 of 128 
26

born to Jessie James Lee and Betty J. Lee, and Lee was raised in a home with both 

biological parents. The report stated that “Lee denied childhood history of 

physical, emotional [or] sexual abuse” and “denied any specific family history of 

psychological treatment.” Lee admitted that he started using marijuana at age 16 

and regularly drank alcohol. 

The presentence report also reflected that Lee’s parents provided a number 

of character references for Lee, including two pastors who indicated Lee attended 

church services and had been a respectable child. 

On October 11, 2000, the state trial court conducted its second sentencing 

hearing. At that hearing, Lee’s counsel objected that the presentence report did not 

reflect: (1) Lee’s current medications, including Zyprexa, Navane, Cogentin, and 

Remeron; and (2) that Lee was “presently under Doctor Pineda’s care who 

diagnosed the Defendant as Borderline Mentally Retarded.” The state trial court 

indicated it would consider the things counsel listed. 

After allowing the State and defense to make further arguments, the state 

trial court asked Lee if he would like to say anything “as to why the sentence of 

this court should not be pronounced against you.” Lee stated: “I would like to say 

I truly am sorry for what happened. I would like to say to the victims of the 

family, I’m really sorry. I didn’t mean to do all that. I know it’s bad. I truly am 

sorry. That’s all I can say.” 

Case: 12-14421 Date Filed: 08/01/2013 Page: 26 of 128 
27

The state trial court announced on the record its judgment that Lee be 

sentenced to death for his crimes. The trial court carefully reasoned as follows: 

I have considered this case and this is the hardest one I’ve ever 

had to do. I’ve had many. I think it has been foremost in my mind 

since we were here two weeks ago.

. . . .

With that, I will read my conclusions. With cold precision and 

premeditation using a weapon designed for the sole purpose of 

extinguishing human life [Lee] mercilessly gun[ned] down three 

people who were doing nothing more than trying to earn a living. As 

shown individually by surveillance video he opened fire upon entering 

the door. He emptied his weapon firing as quickly as he could, shot 

after shot. Miraculously Helen King was spared and he only snuffed 

out the lives of two[, and] yet, in those few seconds of mayhem, he 

destroyed the lives of many. 

The Court has giv[en] full measure and weight to the 

aggravating circumstance and the statutory and non-statutory

mitigating circumstances.

The Court has further given due consideration to the jury’s 

recommendation and the fact that life without parole is recommended 

by the minimum margin for a verdict.

Based on all that, I find that the aggravating circumstance 

outweighs the mitigating circumstances. Therefore, it is the 

judg[]ment of the Court that the defendant be punished by death for 

the capital offenses for which he was convicted. He is further 

sentenced to life in prison for the attempted murder of Helen King.

In an accompanying written order, the trial court explained that the only 

statutory aggravating factor proven beyond a reasonable doubt was that set forth in 

Alabama Code § 13A-5-49(4), inasmuch as Lee had committed the capital offenses 

while engaged in an attempt to commit robbery. The trial court also considered 

each of seven statutory mitigating factors, finding only two existed in Lee’s case, 

Case: 12-14421 Date Filed: 08/01/2013 Page: 27 of 128 
28

the defendant’s: (1) lack of criminal history; and (2) young age (21) at the time of 

the crimes. 

In its order, the state trial court also considered Lee’s evidence of nonstatutory mitigating circumstances, including Lee’s: (1) limited mental capacity; 

(2) status as a father of two small children; (3) cooperation with law enforcement; 

(4) post-capture remorse for the crimes; (5) status as a good employee; and (6) 

family’s love and support. After consideration of the aggravating circumstance 

and the statutory and non-statutory mitigating circumstances, and after due 

consideration of the jury’s recommendation of life without parole by a seven to 

five vote, the trial court concluded “that the aggravating circumstance 

outweigh[ed] the mitigating circumstances” and sentenced Lee to death for the 

three capital murder convictions. The trial court sentenced Lee to life in prison for 

the attempted murder of King. 

C. Lee’s Direct Appeal and First Remand

Bryan Stevenson, an experienced capital defense attorney with the Equal 

Justice Initiative of Alabama, handled Lee’s direct appeal of his convictions and 

sentences to the Alabama Court of Criminal Appeals (the “state appellate court”). 

Stevenson, with the help of another Equal Justice Initiative attorney, Angie Setzer, 

filed a 161-page appellate brief raising more than 30 grounds for relief. One 

ground asserted that the state trial court’s sentencing order failed to comply with

Case: 12-14421 Date Filed: 08/01/2013 Page: 28 of 128 
29

Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001). 

Before addressing other issues, the state appellate court agreed and

remanded the case so the state trial court could amend its sentencing order and 

delineate the specific reasons it gave the jury’s recommendation the consideration 

it did as required by Taylor. Lee v. State, 898 So. 2d 798, 808 (Ala. Crim. App. 

2003) (“Lee I”) (opinion on return to remand).

D. Trial Judge’s Amended Sentencing Order

On remand, the state trial court entered an amended sentencing order on 

October 31, 2001. In that order, the trial court stated that its “sentencing order 

entered October 11, 2000, shall remain in full force and effect as if set out fully 

herein.” The state trial court amended that order to “provide the specific reasons 

for giving the jury’s recommendation the consideration it did,” including: 

(1) “The Court is and was extremely mindful of the jury’s recommendation 

in this case. The Court considered the fact that the vote was seven for life without 

parole and five for the death penalty, the minimum vote for a life without parole 

recommendation.” 

(2) “It appeared clearly to the Court that the aggravating circumstance 

outweighed the mitigating circumstances beyond a reasonable doubt. It is the 

Court’s opinion that the advisory verdict of the jury should not be followed.” 

(3) Lee, “with cold precision and premeditation, using a weapon designed 

Case: 12-14421 Date Filed: 08/01/2013 Page: 29 of 128 
30

for the sole purpose of extinguishing human life, mercilessly gunned down 3 

people who were doing nothing more than trying to earn a living.” 

(4) “As vividly shown by the surveillance video, [Lee] opened fire upon 

entering the door. He emptied his weapon, firing as quickly as he could, shot after 

shot. Miraculously Helen King was spared and he only snuffed out the lives of 

two yet, in those few seconds of mayhem, he destroyed the lives of many.” 

(5) Lee “planned his crime. He went to the store earlier in the day and 

pretended to shop for a ring. Instead, he was looking it over with an eye to return 

to commit his crime.” 

(6) When Lee returned, “he fired immediately upon entering, with no 

warning and no questions asked. His intent was obvious; to take out the victims 

and steal what he could.” 

The state trial court concluded that Lee’s “case deserves the death penalty,” 

and noted that it had compared Lee’s actions and the surrounding facts to similar 

cases, and that the sentence was proportionate to sentences in other capital 

convictions in Alabama for commission of murder during a robbery. 

E. State Appellate Court’s Decision on Direct Appeal (Lee I)

In his direct appeal, Lee challenged the state trial court’s override of the 

jury’s life recommendation as violating Ring v. Arizona. After jury selection, Lee 

had made a motion under Batson v. Kentucky challenging the prosecutor’s strikes 

Case: 12-14421 Date Filed: 08/01/2013 Page: 30 of 128 
31

of black venire members during jury selection. The state trial court denied Lee’s 

Batson motion, and Lee also raised Batson issues in his direct appeal.

In an 84-page published opinion, the state appellate court affirmed Lee’s 

convictions and sentences, expressly rejecting Lee’s Ring and Batson claims. See

Lee I, 898 So. 2d at 874. Later on, when we discuss these issues, we review the 

state appellate court’s decision in depth.

In a summary, two-sentence order, the Alabama Supreme Court denied 

Lee’s petition for a writ of certiorari, which raised Ring and Batson claims too. Ex 

parte Lee, 898 So. 2d 874 (Ala. 2004). The United States Supreme Court denied 

Lee’s certiorari petition. Lee v. Alabama, 543 U.S. 924, 125 S. Ct. 309 (2004). 

III. COLLATERAL REVIEW

A. Lee’s Amended Rule 32 Petition and Supplement

After Lee’s direct appeal, his appellate counsel Stevenson withdrew, and 

attorneys from the law firm Perkins Coie represented Lee in the state collateral 

proceedings. Lee’s new counsel filed a petition for relief from judgment and 

sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. Lee’s 

amended Rule 32 petition claimed, inter alia, that his trial counsel provided 

ineffective assistance by failing to investigate and present mitigation in the penalty 

phase regarding: (1) his heavy use of drugs and alcohol on the night and day before 

the crime; (2) his lack of sleep on that day; (3) his being upset on the day of the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 31 of 128 
32

crime upon learning his girlfriend (pregnant by Lee) had spent the night with 

another man; (4) his fathering a child at a young age with a second child on the 

way; (5) his extreme poverty and the emotional abuse that shaped Lee’s life; (6) 

his mental health issues; (7) his long history of alcohol and drug abuse; (8) his 

“attempt[s] to lead a positive life,” by being a hard worker, providing some

financial support to his son and other family, and the fact that he “prioritized his 

son’s needs, delaying going out with friends on the night before the crime in order 

to buy diapers for his son as he had promised”; and (9) Dr. Pineda’s diagnosis of 

Lee in jail as having some type of psychosis and his prescribing Lee anti-psychotic 

medications in the jail. Lee also faulted his attorneys for not hiring a 

neuropsychiatric expert or an investigator. 

Subsequently, Lee’s counsel submitted an unverified supplement to that

amended Rule 32 petition that focused more on three “new” mitigating factors: (1) 

Lee came from a poor, broken home in which his parents fought constantly; (2) he 

was addicted to sniffing gasoline starting at a young age; and (3) he may have 

suffered a head injury caused by a collision with an 18-wheeler. According to the 

supplement, Lee was knocked unconscious, had broken teeth, was transported to 

the hospital, had his head injury stitched, and was released four or five hours later. 

After the accident, Lee slept a great deal, lost interest in activities he once enjoyed, 

became easily angered and irritable, and began failing school. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 32 of 128 
33

“Despite his serious drug habit,” the supplement alleged, Lee “made an 

effort to maintain employment to support his child and the one on the way [by his 

girlfriend].” Lee also said, though, that the pressure of being a father drove Lee to 

drink and use drugs more often. 

B. State Trial Court’s Rule 32 Decision

The state circuit court (the “Rule 32 court”) denied Lee’s amended Rule 32 

petition. Having presided at Lee’s trial, the Rule 32 court found “the evidence of 

Lee’s guilt was overwhelming.” The Rule 32 court denied Lee’s petition, first 

stating: (1) Lee’s claims failed to meet the specificity and factual pleading 

requirements of Rule 32.6(b) of the Alabama Rules of Criminal Procedure;

9

and 

(2) Lee’s amended Rule 32 petition failed to state specifically what beneficial 

information a neuropsychiatric expert or investigator would have provided or 

found. 

The Rule 32 court further found that Lee’s allegations of ineffective 

assistance of counsel failed to show prejudice. The Rule 32 court stated that 

 

9Rule 32.6(b) of the Alabama Rules of Criminal Procedure provides that a Rule 32 

petition “must contain a clear and specific statement of the grounds upon which relief is sought, 

including full disclosure of the factual basis of those grounds.” Ala. R. Crim. P. 32.6(b). “A 

bare allegation that a constitutional right has been violated and mere conclusions of law shall not 

be sufficient to warrant any further proceedings.” Id. As discussed more later in our analysis on 

Lee’s Batson claim, an Alabama state court’s rejection of a federal constitutional claim under 

Rule 32.6(b) constitutes a ruling on the merits for purposes of AEDPA deference. See, e.g., 

Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1331 (11th Cir. 2012) (collecting cases).

Case: 12-14421 Date Filed: 08/01/2013 Page: 33 of 128 
34

“[a]fter carefully considering the supplement to Lee’s amended petition, the Court 

is convinced that there is no reasonable probability that had the proffered 

information been presented during Lee’s trial it might have caused more jurors to 

recommend that Lee be sentenced to life imprisonment without parole.” 

Additionally, the Rule 32 court (which had sentenced Lee) stated that had this 

evidence been presented, “it would not have persuaded this Court that the 

aggravating circumstance did not outweigh the mitigating circumstances.” 

C. State Appellate Court’s Rule 32 Decision (Lee II)

The state appellate court affirmed the denial of Lee’s amended Rule 32

petition. Lee v. State, 44 So. 3d 1145 (Ala. Crim. App. 2009) (“Lee II”).

As to Lee’s ineffective-assistance claim, the state appellate court agreed with 

the Rule 32 court that “Lee pleaded mere conclusions without any factual basis”

and thus his amended Rule 32 petition generally failed to satisfy the specificity and 

factual pleading requirements of the Alabama Rules of Criminal Procedure. Id. at 

1153. “For instance, Lee asserted that counsel failed to present evidence of his 

background, but he did not specifically identify what that evidence consisted of or 

what witness or witnesses could have substantiated that evidence.” Id. Thus, the 

Rule 32 court was entitled to dismiss Lee’s amended Rule 32 petition and decline 

to grant an evidentiary hearing, because even if all Lee’s factual assertions were 

assumed to be true, he was not entitled to relief. See id. at 1156. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 34 of 128 
35

Moreover, the Rule 32-state appellate court affirmed because Lee’s 

allegations did not demonstrate the requisite prejudice, citing Wiggins v. Smith, 

539 U.S. 510, 123 S. Ct. 2527 (2003).10 The state appellate court observed that

evidence of Lee’s mental health and substance abuse was actually presented to the 

jury. Lee II, 44 So. 3d at 1160 & n.3. For example, during the guilt phase, the jury 

heard from Dr. Ronan concerning Lee’s mental health, Principal Smith concerning 

Lee’s academic history, and Dr. Blanton concerning Lee’s purported mild mental 

retardation, and this testimony was invoked again in the penalty phase. Id. at 

1160–61. 

Further, in the penalty phase, Lee’s trial counsel presented the testimony of 

four of Lee’s family members, including Lee’s father and mother, with the former 

testifying that: (1) Lee was helpful until he got involved with drugs in the ninth or 

tenth grade; (2) Lee had a drug problem and needed help; and (3) Lee voluntarily 

turned himself in for the crimes. Id. at 1161. All Lee’s family members asked that 

Lee’s life be spared. Id. The state appellate court pointed out that the mitigation 

presentation Lee’s trial counsel did make was “so persuasive that the jury 

recommended by a vote of 7 to 5 that Lee be sentenced to life imprisonment 

 

10In Wiggins, the Supreme Court held that a petitioner had established prejudice when 

trial counsel failed to discover and present “powerful” mitigating evidence of the petitioner’s 

severe privation, homelessness, physical torment, and sexual molestation. 539 U.S. at 534–38, 

123 S. Ct. at 2542–44.

Case: 12-14421 Date Filed: 08/01/2013 Page: 35 of 128 
36

without the possibility of parole.” Id. 

The state appellate court concluded that even if all of Lee’s alleged new 

mitigation evidence had been presented, that new mitigation evidence “was neither 

strong nor compelling.” Id. The state appellate court was “confident that it would 

have had no impact on the penalty phase proceedings.” Id.

D. Lee’s Federal § 2254 Petition

In 2010, Lee filed a 28 U.S.C. § 2254 federal habeas petition, which the

district court denied. The district court granted a certificate of appealability on

Lee’s penalty phase ineffective-assistance, Ring, and Batson claims. Lee timely 

appealed.

IV. STANDARD OF REVIEW

We review de novo the denial of a petition for a writ of habeas corpus. See

Johnson v. Upton, 615 F.3d 1318, 1330 (11th Cir. 2010). Section 2254, as 

amended by the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, provides that federal courts may 

not grant a writ of habeas corpus to a state court prisoner on any claim adjudicated 

on the merits in state court unless the state court’s decision: (1) “was contrary to, 

or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States”; or (2) “was based on an 

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

Case: 12-14421 Date Filed: 08/01/2013 Page: 36 of 128 
37

State court proceeding.” 28 U.S.C. § 2254(d) (emphasis added); see Trepal v. 

Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012). 

A state court decision is “contrary to” clearly established federal law if it 

applies a rule that contradicts the governing law set forth by the United States 

Supreme Court, or arrives at a result that differs from Supreme Court precedent 

when faced with materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 

694, 122 S. Ct. 1843, 1850 (2002). 

A state court decision involves an “unreasonable application” of clearly 

established federal law “if the state court correctly identifies the governing legal 

principle” from the relevant Supreme Court decisions “but unreasonably applies it 

to the facts of the particular case.” Id.; Williams v. Taylor, 529 U.S. 362, 413, 120 

S. Ct. 1495, 1523 (2000). “[A]n unreasonable application of federal law is 

different from an incorrect application of federal law.” Williams, 529 U.S. at 410, 

120 S. Ct. at 1522.

 Further, the phrase “clearly established Federal law” “refers to the 

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time 

of the relevant state-court decision.” Id. at 412, 120 S. Ct. at 1523; see Burns v. 

Sec’y, Fla. Dep’t of Corr., — F.3d —, —, No. 11-14148, 2013 WL 3369145, at *4 

(11th Cir. July 8, 2013). Circuit precedent may not be used “to refine or sharpen a 

general principle of Supreme Court jurisprudence into a specific legal rule that [the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 37 of 128 
38

Supreme] Court has not announced.” Marshall v. Rodgers, 569 U.S. —, —, 133 S. 

Ct. 1446, 1450 (2013). 

In short, AEDPA “imposes a highly deferential standard for evaluating statecourt rulings and demands that state-court decisions be given the benefit of the 

doubt.” Trepal, 684 F.3d at 1107 (quoting Hardy v. Cross, 565 U.S. —, —, 132 S. 

Ct. 490, 491 (2011)). To be entitled to federal habeas relief under § 2254, a 

petitioner must show that the state court’s ruling was “so lacking in justification 

that there was an error well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. —, 

—, 131 S. Ct. 770, 786–87 (2011). “A state court’s application of clearly 

established federal law or its determination of the facts is unreasonable only if no 

‘fairminded jurist’ could agree with the state court’s determination or conclusion.” 

Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) 

(quoting Harrington, 562 U.S. at —, 131 S. Ct. at 780).

V. INEFFECTIVE-ASSISTANCE CLAIM

A. Strickland v. Washington Test

Lee’s ineffective assistance of counsel claim is governed by the Supreme 

Court’s two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052 (1984). See Johnson, 615 F.3d at 1330. Under the Strickland test, 

Lee must show both that: (1) his attorney’s performance was deficient; and (2) the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 38 of 128 
39

deficient performance prejudiced the defense. 466 U.S. at 687, 104 S. Ct. at 2064. 

Because we must view Lee’s ineffective-assistance claim—which is already 

governed by the deferential Strickland test—through the lens of AEDPA 

deference, the resulting standard of review is “doubly deferential.” Digsby v. 

McNeil, 627 F.3d 823, 831 (11th Cir. 2010), cert. denied, 131 S. Ct. 2936 (2011);

see also Harrington, 562 U.S. at —, 131 S. Ct. at 788 (“The standards created by 

Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in 

tandem, review is ‘doubly’ so.” (citations omitted)). 

In this case, we need not reach the performance prong because we are so 

readily convinced Lee has not shown the requisite prejudice. Strickland, 466 U.S. 

at 697, 104 S. Ct. at 2069 (“[A] court need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies.”); Frazier v. Bouchard, 661 F.3d 

519, 531–32 (11th Cir. 2011) (stating we “may decline to reach the performance 

prong of the ineffective assistance test if convinced that the prejudice prong cannot 

be satisfied” (internal quotation marks omitted)); Windom v. Sec’y, Dep’t of Corr., 

578 F.3d 1227, 1248 (11th Cir. 2009) (per curiam); Hall v. Head, 310 F.3d 683, 

699 (11th Cir. 2002). Indeed, the Supreme Court has said that “[t]he object of an 

ineffectiveness claim is not to grade counsel’s performance” and consequently, 

“[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of 

Case: 12-14421 Date Filed: 08/01/2013 Page: 39 of 128 
40

sufficient prejudice, which we expect will often be so, that course should be 

followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. We find that is the 

case here.

B. Prejudice Prong

To establish prejudice under Strickland, Lee “must show that there is a 

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

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 

2068. In assessing prejudice, “we consider the totality of the available mitigation 

evidence—both that adduced at trial, and the evidence adduced in the habeas 

proceeding—and reweigh it against the evidence in aggravation.” Porter v. 

McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 453–54 (2009) (per curiam) (internal 

quotation marks and brackets omitted); Wiggins v. Smith, 539 U.S. 510, 534, 123 

S. Ct. 2527, 2542 (2003) (in determining prejudice from failure to present 

mitigating evidence, “we reweigh the evidence in aggravation against the totality 

of available mitigating evidence”). To satisfy the prejudice prong, the “likelihood 

of a different result must be substantial, not just conceivable.” Harrington, 562 

U.S. at —, 131 S. Ct. at 792.

As to prejudice, the state appellate court concluded that “the evidence that 

Lee states should have been presented in mitigation was neither strong nor 

Case: 12-14421 Date Filed: 08/01/2013 Page: 40 of 128 
41

compelling. We are confident that it would have had no impact on the penalty 

phase proceedings.” Lee II, 44 So. 3d at 1161. Lee has not carried his burden of 

showing the state appellate court’s determination was “contrary to, or involved an 

unreasonable application of, clearly established Federal law.” 28 U.S.C. 

§ 2254(d)(1).

At the outset, much of the alleged “new” mitigation evidence in Lee’s

amended Rule 32 petition and supplement is simply too general and conclusory to 

say there is a reasonable probability that had this alleged evidence been presented, 

it would have changed the outcome of Lee’s proceeding. See Price v. Allen, 679 

F.3d 1315, 1325–26 (11th Cir. 2012) (per curiam). Although Lee alleges, for

example, that his family members “reported that [Lee’s] drug and alcohol use got 

increasingly worse over time,” and that Lee’s trial counsel “failed to fully 

interview [Lee’s] family members” and “failed to interview [Lee’s] friends” who 

had knowledge of his alcoholism and his family history of alcoholism, Lee 

provides no factual allegations or specifics as to what family members or friends 

would have testified to or what more they would have said in addition to the 

substance abuse evidence that was presented at trial. 

Even assuming all the allegations of new mitigation evidence in Lee’s 

supplement are true, including the allegations of childhood poverty, gasoline 

sniffing, and his head injury, Lee still has not shown these facts would have altered 

Case: 12-14421 Date Filed: 08/01/2013 Page: 41 of 128 
42

the outcome of Lee’s penalty-phase proceedings. As the Rule 32 court pointedly 

stated, “[m]any people have grown up in socio-economic conditions far worse than 

those described by Lee and have not committed a double homicide and an 

attempted murder during an attempted robbery.” 

A comparison of Lee’s allegations of childhood poverty and his parents’ 

fights to the types of “powerful” mitigating evidence that the Supreme Court has 

found sufficient to establish prejudice under Strickland is instructive as Lee’s 

evidence pales in comparison. 

For example, in Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456 (2005), 

defense counsel failed to present evidence that: (1) “Rompilla’s parents were both 

severe alcoholics who drank constantly”; (2) “[h]is mother drank during her 

pregnancy with Rompilla”; (3) “[h]is father, who had a vicious temper, frequently 

beat Rompilla’s mother, leaving her bruised and black-eyed, and bragged about his 

cheating on her”; (4) “[h]is parents fought violently, and on at least one occasion

his mother stabbed his father”; (5) Rompilla “was abused by his father who beat 

him when he was young with his hands, fists, leather straps, belts and sticks”; (6) 

“[a]ll of the children lived in terror”; (7) “[h]is father locked Rompilla . . . in a 

small wire mesh dog pen that was filthy and excrement filled”; (8) Rompilla “had 

an isolated background, and was not allowed to visit other children or to speak to 

anyone on the phone”; and (9) “[t]hey had no indoor plumbing . . . , [Rompilla] 

Case: 12-14421 Date Filed: 08/01/2013 Page: 42 of 128 
43

slept in the attic with no heat, and [was] not given clothes and attended school in 

rags.” Id. at 391–92, 125 S. Ct. at 2468–69; see also Wiggins, 539 U.S. at 516–17, 

123 S. Ct. at 2532–33 (Wiggins’s mother left the children home alone for days, 

forcing them to beg for food and to eat paint chips and garbage; she beat the 

children and had sex with men while the children slept in the same bed; in one 

incident, she forced Wiggins to touch a hot stove burner, resulting in 

hospitalization; and Wiggins’s foster father and siblings molested and raped him).

In stark contrast to Rompilla and Wiggins, Lee alleged childhood poverty 

but admitted that his “parents did the best they could” and his father had a steady 

job until he was no longer able to work due to a heart attack. At most Lee claimed 

he was disciplined by both his parents with a switch or a belt, and that once, Lee’s 

father spanked him with a belt at school to show the school principal he was 

“keeping after the boys.” Lee generally alleged that his mother endured abuse

from his father but provided no specific examples of incidents. And yet, in his 

§ 2254 petition, Lee alleged that he “was living with a family that in many respects 

was a loving one.” Taking all of Lee’s allegations as true, we cannot say that the 

state appellate court’s determination—that Lee’s allegations of childhood poverty 

and domestic violence were insufficient to change the outcome of Lee’s case—was 

“contrary to” or “involved an unreasonable application of” Strickland. 

Furthermore, the additional mitigation evidence of Lee’s substance abuse 

Case: 12-14421 Date Filed: 08/01/2013 Page: 43 of 128 
44

was largely cumulative of the substance abuse evidence that the jury did hear at 

trial. Dr. Blanton testified to Lee’s significant drug abuse problems. In the penalty 

phase, Lee’s family members testified that Lee abused drugs. Lee does not explain 

how new and additional facts of substance abuse, such as the fact that he sniffed 

gasoline at a young age, would have changed the outcome, considering the jury 

had already heard that he abused alcohol and marijuana from a relatively young 

age and began performing poorly in school and acting strangely possibly as a 

result. See, e.g., Rhode v. Hall, 582 F.3d 1273, 1287 (11th Cir. 2009) (per curiam) 

(“At best, the evidence would have been cumulative, providing more information 

about [the petitioner’s] . . . early exposure to drugs and alcohol.”); Robinson v. 

Moore, 300 F.3d 1320, 1347 (11th Cir. 2002) (“While the additional mitigation 

witnesses procured by Robinson’s [state postconviction] counsel could have 

presented the resentencing jury and trial judge with more details, or different 

examples, of these aspects of Robinson’s life, these aspects of his life were 

nonetheless known to the resentencing jury and trial judge.”); see also, e.g., Wong 

v. Belmontes, 558 U.S. 15, 22, 130 S. Ct. 383, 387–88 (2009).

Lee also does not allege, much less explain, how his claimed head injury 

reportedly resulting from a collision in 1995 caused any actual mental impairment 

or how this evidence would have changed the balance of mitigating and 

aggravating factors. See Powell v. Allen, 602 F.3d 1263, 1274 (11th Cir. 2010)

Case: 12-14421 Date Filed: 08/01/2013 Page: 44 of 128 
45

(per curiam) (rejecting claim counsel was ineffective for failing to investigate and 

present evidence of Powell’s numerous head traumas because Powell failed to 

present information pertaining to the significance of these injuries, any medical 

evidence to substantiate the injuries, and failed to explain how this would have 

changed the outcome of his penalty phase). Lee does not allege the existence of 

any testimony from a medical professional or the existence of any medical records 

addressing his alleged head injury or mental impairments. In fact, in the Rule 32 

case or even here, Lee has never proffered any information that would lead to any 

evidence that Lee suffers from mental illness or a diminished mental capacity 

beyond what was brought out in Dr. Blanton’s testimony concerning possible mild 

mental retardation.11 

Without any allegations explaining how his so-called “new” mitigating 

evidence affected his actions at the time he committed the crimes, and given the 

horrific and heinous facts of his two premeditated and cold-blooded murders, we 

cannot say that it was unreasonable for the state appellate court to conclude that 

Lee had not shown the requisite prejudice.

 

11Lee does fault his trial counsel for failing to “present evidence of Dr. Pineda’s diagnosis 

of [Lee] as having some type of psychosis and his prescribing to [Lee] of anti-psychotic 

medications.” But as we have previously stated, psychosis is not necessarily evidence jurors 

would look favorably upon and treat as a mitigating factor. See Evans v. Sec’y, Dep’t of Corr., 

703 F.3d 1316, 1332–33 (11th Cir. 2013) (en banc). We conclude that the state appellate court 

did not unreasonably apply Strickland when it determined that Lee was not prejudiced by the 

failure of trial counsel to further investigate and present this evidence in the penalty phase. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 45 of 128 
46

We wholly reject Lee’s attempts to analogize his case to Porter v. 

McCollum, 558 U.S. 30, 130 S. Ct. 447 (2009). The factual differences between 

the two cases on the prejudice prong are so significant that, if anything, Porter

demonstrates how Lee’s alleged “new” evidence does not establish prejudice. In 

Porter, unlike this case, there was evidence of extensive childhood physical abuse

and brain damage. See id. at 33–34, 36, 130 S. Ct. at 449, 451 (noting that Porter’s 

father routinely beat Porter’s mother in Porter’s presence, Porter himself was a 

“favorite target” of his father’s abuse, once Porter’s father shot at him with a gun, 

and expert testimony indicated Porter had brain damage). 

In contrast, Lee’s factual allegations in his amended Rule 32 petition and 

supplement, if true, pale in comparison. As shown above, Lee does not identify 

any significant history of domestic violence involving him, but instead states only 

in generalities that his parents would frequently verbally abuse and berate him and 

sometimes whip him. Further, despite his factual allegations that he may have 

suffered head trauma in a car accident, Lee has never alleged that a physician, 

mental health professional, or other expert has concluded that Lee actually 

sustained a head injury or is otherwise mentally impaired or impacted from the 

accident. Lee also does not have any significant positive new mitigating evidence 

like that of the petitioner’s military service in Porter. See Pooler v. Sec’y, Fla. 

Dep’t of Corr., 702 F.3d 1252, 1276–79 (11th Cir. 2012) (contrasting Pooler’s 

Case: 12-14421 Date Filed: 08/01/2013 Page: 46 of 128 
47

military record with Porter’s exemplary military record and concluding that “Porter

presented a far more mitigating evidentiary profile than this case does”).

Moreover, in Porter, defense counsel only presented one witness and the 

“sum total” of mitigating evidence amounted to “inconsistent testimony about 

Porter’s behavior when intoxicated and testimony that Porter had a good 

relationship with his son.” Porter, 558 U.S. at 32, 130 S. Ct. at 449. Here, Lee’s 

trial counsel invoked the guilt-phase testimony of Dr. Blanton concerning Lee’s 

diminished mental capacity as well as the guilt-phase testimony of Lee’s 

supervisor, who testified that Lee was a competent employee. Lee’s trial counsel 

also presented the testimony of four of Lee’s family members, who testified about 

Lee’s substance abuse, his problems in school, his strange behavior, and that Lee 

was loved and his life should be spared. Lee fails to credit that his trial counsel’s 

mitigation efforts resulted in a jury recommendation of life imprisonment.

Indeed, the fact that the jury recommended life imprisonment counsels 

against a determination that Lee was prejudiced under Strickland. See Parker v. 

Allen, 565 F.3d 1258, 1275 (11th Cir. 2009) (“A petitioner cannot show sentencing 

phase prejudice when the jury recommends a sentence of life instead of death.” 

(citing Routly v. Singletary, 33 F.3d 1279, 1297 (11th Cir. 1994) (per curiam))). 

And the Rule 32 court, the same state court that tried and sentenced Lee, explicitly 

stated that had Lee’s additional mitigation evidence been presented, the court

Case: 12-14421 Date Filed: 08/01/2013 Page: 47 of 128 
48

would not have imposed a sentence of life imprisonment instead of death. Thus, 

Lee cannot show that “there is a reasonable probability that the sentencing judge 

would have arrived at a different conclusion after being presented with the 

additional evidence and reweighing the aggravating and mitigating circumstances.” 

Id. at 1285; see also Ferguson v. Sec’y for Dep’t of Corr., 580 F.3d 1183, 1198–99 

(11th Cir. 2009) (noting that Strickland asks if a different result is “reasonably 

probable,” not if it is “possible” (emphasis omitted)); see also Brown v. United 

States, — F.3d —, —, No. 09-10142, 2013 WL 3455676, at *6 (11th Cir. July 10, 

2013) (quoting same from Ferguson).

In sum, even taking all the alleged new mitigating evidence as true, and 

considering it with the mitigating and aggravating evidence at trial, we conclude 

that Lee has not shown prejudice and the state appellate court’s rejection of Lee’s

ineffective-assistance claim was not contrary to or an unreasonable application of 

Strickland.

VI. JURY-OVERRIDE CLAIM

A. Lee’s Ring Claim

Lee’s next argument is that the state trial court’s death sentence, overriding 

the jury’s recommendation of life without parole, violated Ring v. Arizona, 536 

U.S. 584, 132 S. Ct. 2428 (2002). The Supreme Court in Ring concluded that 

under the Sixth Amendment “[c]apital defendants, no less than noncapital 

Case: 12-14421 Date Filed: 08/01/2013 Page: 48 of 128 
49

defendants, . . . are entitled to a jury determination of any fact on which the 

legislature conditions an increase in their maximum punishment.” Id. at 589, 122 

S. Ct. at 2432. Lee contends that his death sentence is unconstitutional under Ring 

because the state trial judge in his case, not the jury: (1) found the specific 

aggravating fact that authorized the death penalty; and (2) concluded that the

aggravating fact outweighed the mitigating circumstances. 

B. Direct Appeal Decision

The state appellate court rejected Lee’s claim that the trial judge improperly 

overrode the jury’s sentencing recommendation. Lee I, 898 So. 2d at 858. First, 

the state appellate court noted that “[t]hese arguments have previously been 

decided adversely to” Lee in Harris v. Alabama, 513 U.S. 504, 115 S. Ct. 1031 

(1995), which upheld as constitutional Alabama’s sentencing regime permitting the 

trial judge alone to impose a capital sentence. Lee I, 898 So. 2d at 857. 

Second, the state appellate court observed that both it and the Alabama 

Supreme Court had already held in other cases that the Supreme Court’s later 

decision in Ring did not invalidate Alabama’s sentencing law. The state appellate 

court further observed the Alabama courts had recognized “the narrowness” of the 

Ring holding, stating: “[t]he Ring Court held that any aggravating circumstance 

that increased a sentence to death must be proved to a jury beyond a reasonable 

doubt; however, we noted that the Ring Court did not reach the question whether 

Case: 12-14421 Date Filed: 08/01/2013 Page: 49 of 128 
50

judicial sentencing or judicial override was constitutional.” Id. (internal quotation 

marks omitted). 

Third, the state appellate court pointed out that the state trial judge had 

found that one aggravating circumstance existed—Lee committed the capital 

offenses while he was engaged in the commission of an attempted robbery. The 

state appellate court reasoned that “[b]ecause the jury convicted [Lee] of the capital 

offense of robbery-murder, that statutory aggravating circumstance was proven 

beyond a reasonable doubt.” Id. at 858. Therefore, the state appellate court found 

that in Lee’s case “the jury, and not the judge, determined the existence of the 

‘aggravating circumstance necessary for imposition of the death penalty.’” Id. 

Thus, the state appellate court concluded that the judge’s death sentence did not 

violate Ring v. Arizona. Id.

C. Jury’s Guilty Verdict Included Armed Robbery 

We can easily dispose of Lee’s claim in light of the narrowness of the 

Supreme Court’s holding in Ring. As the state appellate court in Lee I concluded, 

the jury’s guilty verdict on the capital offense of robbery-murder established the

existence of an aggravating circumstance sufficient to support a death sentence. In 

Alabama, a statutory aggravating circumstance is that “[t]he capital offense was 

committed while the defendant was engaged or was an accomplice in the 

commission of, or an attempt to commit . . . robbery.” Ala. Code § 13A-5-49(4). 

Case: 12-14421 Date Filed: 08/01/2013 Page: 50 of 128 
51

In the guilt phase, the jury convicted Lee of the capital offense of “[m]urder by the 

defendant during a robbery in the first degree or an attempt thereof committed by 

the defendant.” Ala. Code § 13A-5-40(a)(2). A jury’s guilt-phase finding of 

conviction under § 13A-5-40(a)(2) necessarily includes a finding that the 

aggravating circumstance in § 13A-5-49(4) is present. Alabama statute requires 

interpreting the jury verdict in this manner. See Ala. Code § 13A-5-45(e) (“[A]ny 

aggravating circumstance which the verdict convicting the defendant establishes 

was proven beyond a reasonable doubt at trial shall be considered as proven 

beyond a reasonable doubt for purposes of the sentencing hearing.”). Nothing in 

Ring—or any other Supreme Court decision—forbids the use of an aggravating 

circumstance implicit in a jury’s verdict. Indeed, Ring itself specifically left open 

and did not decide the question of whether the aggravator used to impose a death 

sentence could be implicit in the jury’s verdict. See Ring, 536 U.S. at 609 n.7, 122 

S. Ct. at 2443 n.7 (“We do not reach the State’s assertion that any error was 

harmless because a pecuniary gain finding was implicit in the jury’s guilty 

verdict.”). 

Furthermore, Ring does not foreclose the ability of the trial judge to find the 

aggravating circumstances outweigh the mitigating circumstances. As the Ring

Court also made clear, it was not deciding whether the Sixth Amendment: (1)

required the jury to make findings as to mitigating circumstances; (2) required the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 51 of 128 
52

jury to make the ultimate determination as to whether to impose the death penalty; 

or (3) forbade the state court from reweighing aggravating and mitigating 

circumstances. Id. at 597 n.4, 122 S. Ct. at 2437 n.4. 

The holding of Ring is narrow: the Sixth Amendment’s guarantee of jury 

trials requires that the finding of an aggravating circumstance that is necessary to 

imposition of the death penalty must be found by a jury. That occurred in Lee’s 

case by virtue of the jury’s capital robbery-murder verdict. Ring goes no further, 

and Lee points to no Supreme Court precedent that has extended Ring’s holding to 

forbid the aggravating circumstance being implicit in the jury’s verdict or to 

require that the jury weigh the aggravating and mitigating circumstances. 

Accordingly, we must conclude that the state appellate court’s decision is 

not contrary to or an unreasonable application of Ring, and Lee is not entitled to 

habeas relief on this claim. 

VII. LEE’S BATSON CLAIM

We left Lee’s Batson claim for last because it requires so much more record 

review and legal analysis. Specifically, we: (1) must examine Batson and its 

progeny; (2) review the state trial court record of voir dire, peremptory challenges, 

and state trial court rulings; (3) outline the state appellate court’s decision on Lee’s

Batson claim; (4) discuss whether AEDPA’s deference applies to plain-error

decisions by state courts; (5) review Supreme Court and Circuit precedent holding 

Case: 12-14421 Date Filed: 08/01/2013 Page: 52 of 128 
53

that AEDPA applies to state court opinions that are summary adjudications or that 

contain less than complete discussion of all claims, facts, or arguments; and (6) 

then analyze whether under AEDPA, 28 U.S.C. § 2254(d)(1), the state court’s 

Batson decision in Lee’s case is an unreasonable application of clearly established 

federal law.

A. Batson and Its Progeny

It is clearly established federal law that, under the Equal Protection Clause, a 

criminal defendant has a constitutional “right to be tried by a jury whose members 

are selected pursuant to nondiscriminatory criteria.” Batson v. Kentucky, 476 U.S. 

79, 85–86, 106 S. Ct. 1712, 1717 (1986). In Batson, the Supreme Court 

established a three-step test for evaluating racial discrimination claims in jury 

selection. 

In the first step, the defendant must establish a prima facie case by 

producing evidence sufficient to support the inference that the prosecutor exercised 

peremptory challenges on the basis of race. Johnson v. California, 545 U.S. 162, 

169–70, 125 S. Ct. 2410, 2416–17 (2005); Batson, 476 U.S. at 96, 106 S. Ct. at 

1723. In determining whether the defendant has made a prima facie case, the court 

must consider, inter alia: (1) any pattern of strikes against jurors of one race; and 

(2) “the prosecutor’s questions and statements during voir dire examination” and in 

exercising peremptory challenges. See Batson, 476 U.S. at 97, 106 S. Ct. at 1723; 

Case: 12-14421 Date Filed: 08/01/2013 Page: 53 of 128 
54

see also United States v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007) (“[A] 

pattern of strikes against all venire members of one race or gender is considered 

significant” in establishing a prima facie case.).

“Once the defendant makes a prima facie showing,” in the second step “the 

burden shifts to the State to come forward with a neutral explanation for 

challenging black jurors.” Batson, 476 U.S. at 97, 106 S. Ct. at 1723. The State 

may not rebut the defendant’s prima facie case by simply denying a discriminatory 

motive or “affirm[ing] [his] good faith in making individual selections.” Id. at 98, 

106 S. Ct. at 1723–24 (alterations in original) (internal quotation marks omitted). 

The State’s proffered explanation need not be “persuasive, or even plausible . . . . 

the issue is the facial validity of the prosecutor’s explanation.” Purkett v. Elem, 

514 U.S. 765, 767–78, 115 S. Ct. 1769, 1771 (1995) (internal quotation marks

omitted). 

The Supreme Court has rejected the contention “that the justification 

tendered at the second step be not just neutral but also at least minimally 

persuasive.” Id. at 768, 115 S. Ct. at 1771. “It is not until the third step that the 

persuasiveness of the justification becomes relevant . . . .” Id.

In the third and final step, “[t]he trial court . . . will have the duty to 

determine if the defendant has established purposeful discrimination.” Batson, 476 

U.S. at 98, 106 S. Ct. at 1724. This is “a pure issue of fact, subject to review under 

Case: 12-14421 Date Filed: 08/01/2013 Page: 54 of 128 
55

a deferential standard . . . . [and] ‘peculiarly within a trial judge’s province.’” 

Hernandez v. New York, 500 U.S. 352, 364, 365, 111 S. Ct. 1859, 1869 (1991) 

(plurality opinion). Further, “[i]n deciding whether the defendant has made the 

requisite showing, the trial court should consider all relevant circumstances.” 

Batson, 476 U.S. at 96, 106 S. Ct. at 1723; see also id. at 93, 106 S. Ct. at 1721 

(“In deciding if the defendant has carried his burden of persuasion, a court must 

undertake a sensitive inquiry into such circumstantial and direct evidence of intent 

as may be available.” (internal quotation marks omitted)). Those relevant 

circumstances may include the strength of the defendant’s prima facie case at step 

one. See id. at 97, 106 S. Ct. at 1723 (observing that “a ‘pattern’ of strikes against 

black jurors . . . might give rise to an inference of discrimination”); see also

Hernandez, 500 U.S. at 375, 111 S. Ct. at 1875 (O’Connor, J., concurring in the 

judgment) (“Disproportionate effect may, of course, constitute evidence of 

intentional discrimination. The trial court may, because of such effect, disbelieve 

the prosecutor and find that the asserted justification is merely a pretext for 

intentional race-based discrimination.”).

“In the typical peremptory challenge inquiry, the decisive question will be 

whether counsel’s race-neutral explanation for a peremptory challenge should be 

believed.” Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869 (plurality opinion). 

“[E]valuation of the prosecutor’s state of mind based on demeanor and credibility 

Case: 12-14421 Date Filed: 08/01/2013 Page: 55 of 128 
56

lies peculiarly within a trial judge’s province.” Id. (internal quotation marks 

omitted). An appellate court may not “overturn the state trial court’s finding on the 

issue of discriminatory intent unless convinced that [the trial court’s] determination 

was clearly erroneous.” Id. at 369, 111 S. Ct. at 1871; see also Anderson v. 

Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985) (“Where there are 

two permissible views of the evidence, the factfinder’s choice between them 

cannot be clearly erroneous.”). The determination “on the ultimate question of 

discriminatory intent represents a finding of fact of the sort accorded great 

deference on appeal.” Hernandez, 500 U.S. at 364, 111 S. Ct. at 1868; see also

Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208 (2008).

Ultimately, the burden of persuasion to show purposeful discrimination 

“rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 

768, 115 S. Ct. at 1771. “[A] defendant may rely on ‘all relevant circumstances’ to 

raise an inference of purposeful discrimination” in the third step. Miller-El v. 

Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 2325 (2005). As to “side-by-side 

comparisons,” the Supreme Court has said that “[i]f a prosecutor’s proffered 

reason for striking a black panelist applies just as well to an otherwise-similar 

nonblack who is permitted to serve, that is evidence tending to prove purposeful 

discrimination to be considered at Batson’s third step.” Id. at 241, 125 S. Ct. at 

Case: 12-14421 Date Filed: 08/01/2013 Page: 56 of 128 
57

2325.12

Importantly too, “under Batson, the striking of one black juror for a racial 

reason violates the Equal Protection Clause, even where other black jurors are 

seated, and even when valid reasons for the striking of some black jurors are 

shown.” United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986); see also

Snyder, 552 U.S. at 478, 128 S. Ct. at 1208 (“Because we find that the trial court 

committed clear error in overruling petitioner’s Batson objection with respect to 

[one venire member], we have no need to consider petitioner’s claim regarding [a 

second venire member].”).

With this Supreme Court background, we turn to the jury-selection record.

B. Jury Selection in Lee’s Trial

Initially, the state trial court granted deferrals for hardship and

inconvenience. Then outside the venire’s presence, Lee’s trial counsel moved to 

require the prosecutor to turn over the criminal histories of all venire members.

13

 

The prosecutor replied that he would provide the criminal history of anyone he 

struck on that basis. 

 

12We primarily look to Supreme Court holdings extant at the time of Lee’s 2000 trial and 

2001-2003 direct appeal. Although Johnson, Miller-El, and Snyder were decided after Lee’s trial 

and direct appeal, we find their holdings consistent with principles already set forth by the 

Supreme Court in Batson, Purkett, and Hernandez, which were decided before Lee’s trial and 

direct appeal. See McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1261 n.13 (11th Cir. 2009).

13Lee’s counsel had made a pretrial request for this information too.

Case: 12-14421 Date Filed: 08/01/2013 Page: 57 of 128 
58

The trial court had each potential juror give his or her name, occupation, 

marital status, and if married, his or her spouse’s name and occupation. The court 

asked the venire a series of general questions, after which the attorneys questioned 

the venire. Given the capital murder charges against Lee, the primary focus of voir 

dire was the venire members’ views on the death penalty. That afternoon, the state 

trial court broke the venire into smaller panels, and the court, prosecution, and 

defense asked questions of each panel regarding the death penalty. The defense 

moved once again to receive copies of all venire members’ criminal histories, and 

the prosecution gave them to the defense. 

The parties then exercised strikes. After cause strikes, there were 53 venire 

members remaining, consisting of 32 black persons (60.4%) and 21 white persons

(39.6%). After peremptory challenges, the final jury consisted of 9 black jurors

(75%) and 3 white jurors (25%), with one black alternate and one white alternate. 

The defense used its 20 peremptory strikes on 18 white and 2 black venire 

members. The State used all of its 21 peremptory strikes on black venire members. 

The record indicates that each party’s last strike still sat as an alternate.14 

Before the jury was sworn, Lee’s counsel made a Batson motion, stressing 

 

14We recognize that it is arguably inconsistent to say that a party’s stricken juror still sat 

as an alternate. But that is what the record shows occurred. And as noted later, the State’s last 

strike—alternate juror Kevin Stevens—was ultimately seated on the jury at the end of the guilt 

phase.

Case: 12-14421 Date Filed: 08/01/2013 Page: 58 of 128 
59

the State’s use of all of its peremptory strikes against black venire members. Lee’s 

counsel asserted that this district attorney’s office had a “history of racial 

discrimination in making jury selection[s]” and “many cases overturned with 

Batson problems.” 

The trial court asked, “How long have they had that problem? I don’t ever 

remember [prosecutor Edgar] Greene having one.” Lee’s counsel cited only one 

case, “Robert Thomas v. State,” and stated that “given the fact that the State [h]as 

exercised all of their peremptory challenges striking all Blacks,” the defense had 

made a prima facie case under Batson. The trial court required the State to respond

with reasons for its strikes. 

Prosecutor Greene responded that “[f]irst of all, Judge, there’s no history of 

racial discrimination in striking the jury either in the District Attorney’s Office or 

in this Circuit.” Greene added that “[t]here’s been very few cases, if any, 

overturned on that basis.” Next Greene said, “Secondly, such action has not been 

done in this case. Most of the strikes the State has made in this case are based on 

the opposition of jurors to the death penalty, and we’re trying a death penalty 

case.” 

Although the State did not make its own Batson motion, Greene did point 

out that “the defense, most of its strikes, were striking White jurors. In fact, I think 

all but three or four were exercised to remove White jurors from the panel.” 

Case: 12-14421 Date Filed: 08/01/2013 Page: 59 of 128 
60

Prosecutor Greene then explained his specific race-neutral reasons for each 

of the State’s 21 peremptory strikes. We quote what Greene said to the trial court 

because the state appellate court quoted it too, and we review these reasons later 

on. Prosecutor Greene gave his strike reasons for each venire member:

[A]s to strike number 139, Demond Martin, [he] has a general 

opposition to the death penalty, and does have a bit of an arrest 

record.

The next strike was number 194, Alice Scott who has an arrest 

record of some note. Number 88 was the next strike, David 

Gutridge—no, Johnnie Hall, he opposed the death penalty. Didn’t 

want to answer questions about it, does have an arrest record. Our 

number 17 [Angela Blythe] was strike number four.

. . . .

Mrs. Blythe [was] opposed to the death penalty. Strike number 

five was number 56, Jerry Edwards. Opposed to the death penalty. 

Strike number six was juror number 100, Jessica Howard, opposed to 

the death penalty. Strike number seven was number 23, Mona Brown, 

opposed to the death penalty. Strike number eight was juror number 

five, Sherry Baker. Opposed to the death penalty. Strike number nine 

was Quintin Alexander, juror number one. He has knowledge of the 

defendant. Knew his family. Very uncomfortable about it. Strike 

number 10 was juror number 149, [Ora] Moore. Opposed to the death 

penalty. Didn’t want to serve. Very uncooperative about the 

questions I asked. Strike number 11 was 126 Mary Kelley. Opposed 

to the death penalty. Strike number 12, number 171, Genett Pettway, 

opposed to the death penalty. Strike number 13 was 191, Vernell 

Saterfield. [She] was generally opposed to the death penalty. Has 

been involved in an incident where her spouse was charged with a 

drug offense and been found not guilty, and she was involved in some 

type of altercation with somebody. Strike number 14 was 155, 

Josephine Murry. Opposed to the death penalty. Strike number 15,

was number 123, Towanda Jones. Opposed to the death penalty. 

Strike number 16 was 105, Ethel Hunter. Opposed to the death 

penalty. Strike number 17 was 246, Johnny Wilmer. Opposed to the 

death penalty. Strike number 18 was 146, Mary Mitchell. Opposed to 

Case: 12-14421 Date Filed: 08/01/2013 Page: 60 of 128 
61

the death penalty. Strike number 19 was number 86, David Gutridge. 

Family member involved and convicted of a property crime. Opposed 

to the death penalty. Very uncooperative about answers. He had to 

be struck. Number 20 was number 57, [Annie] Ellis. Opposed to the 

death penalty. Very cooperative [sic] about the answer. Our final 

strike was number 213, Kevin Stevens. Child support hearing this 

week. Wanted to be off for that. I only assume we’re prosecuting 

same. Struck him for that reason.

In summary, the prosecutor’s reasons were: (1) 13 venire members were struck 

because they opposed the death penalty; (2) five venire members were struck for 

being opposed to the death penalty and other reasons, including because the venire 

member had an arrest record, was uncooperative in answering questions, had a 

spouse charged with a drug offense, and/or was involved or had a family member 

involved in a property crime; (3) one venire member was struck because of a 

pending child-support prosecution, probably by the same prosecutor’s office; (4) 

one venire member was struck due to an arrest record; and (5) one venire member

was struck because he knew the defendant.

After prosecutor Greene’s statement of reasons, the state trial court found, 

“It appears you have given factually race valid reasons for striking.” 

The trial court also pointed out the makeup of the impaneled jury, noting 

that only 30% of the selected jury was white. The record confirms that, after cause 

and before peremptory challenges, the jury venire was about 40% white and 60% 

black, and the selected jury with alternates was 30% white and 70% black. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 61 of 128 
62

Without counting the alternates, the 12 member jury was 25% white and 75% 

black.

After the trial court’s comments, Lee’s counsel did not contest, dispute, or 

otherwise object to any of the prosecutor’s reasons for 20 of the 21 struck venire 

members. Instead, he challenged only the prosecutor’s child-support prosecution

reason for striking Kevin Stevens, venire member 213, as follows: 

Judge, for the record, and to preserve the record, we’re going to object 

to the last strike, Kevin Stevens, No. 213. The District Attorney gave 

the reason being he’s going to be in child support court. There’s no 

indication that there’s any problem with him being in child support 

with any animosity towards the District Attorney’s Office or him 

going to court. The mere fact that he’s appeared in court is no reason 

why he should be struck from the jury.

Even as to Stevens, Lee’s counsel did not dispute the truth of the factual premise of 

prosecutor Greene’s stated reason that Stevens was going to be in a child-support 

hearing prosecuted by Greene’s office, but argued only that it was no valid reason 

to strike that venire member. In response, Greene explained that his office 

prosecuted child-support cases and “[u]nfortunately that tends to create some 

difficulty with defendants that come before the Court. They feel somehow we’re 

prosecuting them for a crime.” 

The trial court then stated to the defense: “All right, I’m going to overrule 

your motion.” 

After closing arguments in the guilt phase and outside the jury’s presence, 

Case: 12-14421 Date Filed: 08/01/2013 Page: 62 of 128 
63

the trial court determined that one juror had not appeared for trial that day, Darrell 

Minter, a black juror, and therefore, an alternate juror would be used. The two 

alternate jurors were the last strikes of the State (Kevin Stevens, who is black) and 

the defense (Melinda Poe, who is white). Without objection, the trial court seated 

Stevens. Consequently, even with the use of an alternate, Lee’s jury was still 75% 

black. The trial court observed that “since Kevin Stevens was the only one defense 

objected to on Batson [grounds], I guess that takes care of that too.” 

In his direct appeal, Lee raised several new Batson arguments that were not 

made in the trial court. We focus on the state appellate court’s decision because it 

is the last reasoned decision of the state courts on Lee’s Batson claim. See Greene 

v. Upton, 644 F.3d 1145, 1155 (11th Cir. 2011); Sweet v. Sec’y, Dep’t of Corr., 

467 F.3d 1311, 1317 (11th Cir. 2006).

C. Direct Appeal Decision

The state appellate court’s analysis of Lee’s Batson claim proceeded in the 

following way. The court correctly identified Batson as the applicable test, and 

stated that “[a]fter the appellant makes a timely Batson motion and establishes a 

prima facie showing of discrimination [step one], the burden shifts to the state to 

provide a race-neutral reason for each strike of a minority veniremember [step 

two].” Lee I, 898 So. 2d at 813. Consistent with Batson’s step three, the state 

appellate court observed that it would “reverse the circuit court’s ruling on the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 63 of 128 
64

Batson motion only if it is ‘clearly erroneous.’” Id.

After reviewing these Batson principles, the state appellate court implicitly 

turned to Batson’s first step and stated that Lee’s trial counsel objected on Batson

grounds “after the State used all of its peremptory strikes against black 

veniremembers.” Id. at 812. The court recounted the manner in which Lee’s 

Batson objection was raised and evaluated in the trial court. It noted that after the 

jury was struck, but before it was sworn, Lee’s trial counsel had made a Batson

motion, and the trial court had required the prosecutor to state his reasons for 

exercising the State’s peremptory strikes. Id. The appellate court also noted that 

the prosecutor had first observed that most of the State’s strikes were made based 

on potential jurors’ opposition to the death penalty. Id. But then the prosecutor 

had provided specific reasons for each of the State’s 21 peremptory strikes. Id. at 

812–13. 

Despite the fact that at trial Lee had specifically objected to only the raceneutral reason given for striking venire member 213, Kevin Stevens, the state 

appellate court still evaluated in great detail all of the prosecutor’s strike reasons to 

determine whether each was race-neutral. The court even reproduced in full the 

prosecutor’s statement of the race-neutral reasons, given venire member-by-venire 

member, for each of the State’s 21 peremptory strikes. Id. at 812–13. 

Consistent with step two of Batson, the state appellate court then assessed 

Case: 12-14421 Date Filed: 08/01/2013 Page: 64 of 128 
65

whether the prosecutor’s proffered reasons were race-neutral. See id. at 813–15. 

To begin with, it observed that opposition to or even reservation about the death 

penalty is a “reasonable explanation” for the exercise of a peremptory strike. Id. at 

813. Therefore, according to the state appellate court, the reason stated for striking 

venire members 17 (Angela Blythe), 56 (Jerry Edwards), 100 (Jessica Howard), 23 

(Mona Brown), 5 (Sherry Baker), 126 (Mary Kelley), 171 (Genett Pettway), 155 

(Josephine Murry), 123 (Towanda Jones), 105 (Ethel Hunter), 246 (Johnny 

Wilmer), 146 (Mary Mitchell), and 57 (Annie Ellis), which was their opposition to 

the death penalty, was a valid race-neutral reason. Id. at 813–14. As noted earlier, 

Lee’s trial counsel did not dispute that these 13 venire members’ voir dire answers

indicated that they were opposed to the death penalty.15 Further, it is not surprising 

that the State focused particularly on the venire members’ views of the death 

penalty, because the overwhelming evidence of Lee’s guilt meant the main fight 

would be about the sentence.

The state appellate court then addressed Lee’s challenge to the strike of 

venire member 194, Alice Scott, on the basis of her arrest record. The court agreed 

that an arrest record is a valid race-neutral reason for exercising a peremptory 

 

15In his direct appeal and before this Court, Lee does not dispute that the state trial court 

record showed that during voir dire these 13 black venire members answered at least one 

question by stating that they were opposed to the death penalty. Rather, as discussed later, Lee 

before this Court primarily challenges the State’s reasons for striking two other black venire 

members: David Gutridge and Demond Martin. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 65 of 128 
66

strike. Id. at 814.

The court next turned to the strikes of venire members 139 (Demond 

Martin), 86 (David Gutridge), 88 (Johnnie Hall), 149 (Ora Moore), and 191 

(Vernell Saterfield). See id. The prosecutor had stated that he struck: (1) Demond 

Martin because of his opposition to the death penalty and his arrest record; (2) 

Johnnie Hall because of his opposition to the death penalty, his unwillingness to

answer questions about it, and his arrest record; (3) Ora Moore because she was 

opposed to the death penalty, she did not want to serve, and she was uncooperative 

in answering questions; (4) Vernell Saterfield because she generally opposed the

death penalty, her husband had been charged with a crime and found not guilty, 

and she herself had been in an altercation; and (5) David Gutridge because he had a 

family member who was convicted of a property crime, he was opposed to the 

death penalty, and he was uncooperative in answering questions. The court 

concluded that all those reasons were valid race-neutral reasons. Id. at 813–14.

Turning to venire member 1, Quintin Alexander, the prosecutor had stated 

the reason for that strike was that Alexander knew Lee and his family and 

Alexander was uncomfortable about it. The court agreed this was a valid raceneutral reason. Id. at 814. 

After confirming that each of the prosecutor’s reasons for the State’s 

peremptory strikes was race-neutral, the appellate court turned to other arguments 

Case: 12-14421 Date Filed: 08/01/2013 Page: 66 of 128 
67

Lee raised for the first time on direct appeal: that those race-neutral reasons were 

actually pretexts for racial discrimination. Id. at 815. Proceeding to the Batson

step three inquiry, the court addressed Lee’s arguments concerning each venire 

member for whom Lee, on direct appeal, claimed the State’s specific race-neutral 

reasons were pretextual. In his direct appeal, Lee’s brief argued that all of the 

State’s 21 peremptory strikes were pretextual. As examples of that pretext, Lee’s 

brief primarily discussed the State’s strikes of seven venire members: Kevin

Stevens, Josephine Murry, Johnnie Hall, Ora Moore, David Gutridge, Alice Scott,

and Demond Martin. 

The court first considered Lee’s pretext argument concerning Kevin Stevens, 

which was the only pretext argument actually made before the state trial court. 

Since Stevens was later put on the jury, the court found Lee’s argument moot. Id. 

Because Lee had not raised his other pretext arguments before the trial court, the 

appellate court evaluated the rest of Lee’s pretext challenges for plain error under 

Alabama Rule of Appellate Procedure 45A. Id. Although issues not raised in trial 

courts are usually waived, Alabama’s Rule 45A requires the state appellate court in 

death penalty cases to review such issues for plain error.16 

 

16Alabama Rule 45A provides:

In all cases in which the death penalty has been imposed, the Court of Criminal 

Appeals shall notice any plain error or defect in the proceedings under review, 

whether or not brought to the attention of the trial court, and take appropriate 

Case: 12-14421 Date Filed: 08/01/2013 Page: 67 of 128 
68

The state appellate court then evaluated the plausibility of each of the 

prosecutor’s contested reasons in light of the trial record. Lee I, 898 So. 2d at 

815–17. The court concluded that the record did not support Lee’s contentions that 

the prosecutor’s strike reasons were false and did not demonstrate disparate 

treatment between black and white venire members. See id.

First, the court considered Lee’s argument that the State did not strike white 

venire member Melinda Poe even though she was previously challenged for cause 

based on her opposition to the death penalty. The state trial court had denied the 

State’s challenge of Poe for cause on this basis, stating, “I didn’t have that” she

could not impose the death penalty. Id. at 815. Lee contrasted Poe with the State’s 

strikes against black venire members Josephine Murry and David Gutridge, who 

were struck by the State based on opposition to the death penalty despite the fact 

that their opposition was also disputed in the record. Id.

The appellate court noted the places in the voir dire transcript in which 

Murry wavered on the issue of whether she supported or opposed the death 

penalty. At various points, Murry said the death penalty was “a proper thing,” she 

could “weigh the evidence and make a decision based on the evidence,” but also 

stated she was “realizing [she] wasn’t in favor of the death penalty because people 

 

appellate action by reason thereof, whenever such error has or probably has 

adversely affected the substantial right of the appellant.

Ala. R. App. P. 45A (emphasis added). 

Case: 12-14421 Date Filed: 08/01/2013 Page: 68 of 128 
69

were innocent” and “the reason [she] would say not the death penalty is because if 

[Lee] was innocent and he [was] killed . . . it wouldn’t do any good to kill him.” 

Id. The court concluded that Murry was not similarly situated to white venire 

member Poe, and thus Poe could not serve as a comparator for purposes of Lee’s 

pretext argument as to the strike of Murry. Id.

Considering the other alleged comparator to Poe, black venire member 

Gutridge, the court agreed that the prosecutor was mistaken in stating that Gutridge 

opposed the death penalty. Gutridge had indicated that he could listen to the 

evidence and consider life imprisonment. Id. But the court noted that the 

prosecutor could exercise a peremptory strike based on a mistake, so long as it was 

an honest and race-neutral mistake. Id. “The record does not indicate that the 

prosecutor’s reason was not based on an honest belief,” and moreover, the 

prosecutor had an additional reason for the strike: Gutridge had a family member 

convicted of a property crime. Id. at 816. Thus, the court concluded that Gutridge 

and Poe were also not similarly situated. Id. In sum, the court found no disparate 

treatment with respect to Poe, Murry, and Gutridge, and therefore no plain error.17 

 

17At the time of Lee’s direct appeal, “[i]n considering what constitutes plain error in a 

capital case,” Alabama appellate courts followed “the interpretation given that term by the 

federal courts.” See Hardy v. State, 804 So. 2d 247, 276 (Ala. Crim. App. 1999) (internal 

quotation marks omitted); Bush v. State, 695 So. 2d 70, 87 (Ala. Crim. App. 1995); see also

Davis v. State, 740 So. 2d 1115, 1118 (Ala. Crim. App. 1998) (“The Alabama Supreme Court 

has adopted federal case law defining plain error . . . .” (internal quotation marks omitted) (citing 

Case: 12-14421 Date Filed: 08/01/2013 Page: 69 of 128 
70

Id.

Next, the court addressed Lee’s argument that the prosecutor’s reason for 

striking several black venire members (Scott, Hall, and Martin) due to their arrest 

records was not supported by the record. Id. The court rejected this argument, 

observing that the prosecutor had documentation regarding the venire members’ 

criminal histories and, before the parties made challenges for cause, the State 

provided the defense with “a copy of the criminal history on the venire.” Id. The 

court also pointed out that the state trial court had assured defense counsel that it 

would allow the defense time to review the records before striking the jury. 

Therefore, the court concluded, Lee’s argument that this arrest reason was 

pretextual was not supported by the record, and the court found no plain error. Id.

The court next addressed the prosecutor’s strikes against Johnnie Hall, Ora 

Moore, and David Gutridge based on demeanor. The court noted that: (1) 

demeanor and reluctance to answer questions were race-neutral reasons for 

exercising strikes; (2) Lee did not dispute the prosecutor’s assertions regarding 

 

Ex Parte Womack, 435 So. 2d 766, 769 (Ala. 1983)). Under Alabama law, these four factors 

identified in United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993), are the test for plain 

error: (1) whether there is error; (2) whether the error is plain; (3) whether the error affects 

substantial rights; and (4) if the first three factors are present, whether, in the court’s discretion, 

correcting the error is appropriate because the error seriously affects “the fairness, integrity or 

public reputation of judicial proceedings.” See Thomas v. State, 824 So. 2d 1, 12–13 (Ala. Crim. 

App. 1999) (internal quotation marks omitted), overruled on other grounds by Ex parte Carter, 

889 So. 2d 528, 533 (Ala. 2004).

Case: 12-14421 Date Filed: 08/01/2013 Page: 70 of 128 
71

these venire members’ demeanor at trial; and (3) the prosecutor offered additional, 

race-neutral reasons for each of these strikes. Id. The court could not “find that 

there was any plain error in this regard.” Id.

The court next addressed Lee’s argument that the State engaged in disparate 

treatment of black and white venire members with similar feelings regarding the 

death penalty when the State did not strike Melissa Speigner, a white venire 

member, but struck Murry, a black venire member. Id.

The state appellate court noted that during voir dire, Speigner initially 

indicated she opposed the death penalty, but later said that she would be able to 

listen to the evidence and recommend either death or life imprisonment based on 

the evidence. Id. As noted above, Murry similarly wavered on the appropriateness 

of the death penalty, but later added that she had subsequently realized she was not 

in favor of the death penalty and that “it wouldn’t do any good to kill [Lee].” Id. 

The court concluded that Speigner and Murry were not similarly situated. Id. at 

816–17. Speigner ultimately said that she would consider the death penalty and 

would vote based on the evidence presented. In contrast, Murry ultimately stated 

that although she could weigh the evidence and make a decision based on that 

evidence, she probably would not impose the death penalty. Id. at 817. Thus, 

because the two venire members were not similarly situated, the court concluded 

that Lee had shown no plain error in the State’s strike of Murry and its retention of 

Case: 12-14421 Date Filed: 08/01/2013 Page: 71 of 128 
72

Speigner. Id.

Next, the state appellate court reviewed Lee’s argument that the State had 

discriminated in its treatment of black venire members who had been accused of or 

charged with a property crime or who had family members or friends who had. 

Specifically, Lee asserted that the State did not strike white venire member Edwin 

Ember, who had indicated that he or a family member had been accused of or 

charged with a property crime, but it struck black venire member Gutridge who 

indicated the same. Id. The court observed that Lee’s trial counsel used his own 

12th peremptory strike against Ember, and the State used its 19th peremptory strike 

against Gutridge. “Because the defense had long since struck veniremember 

[Ember] when the State struck veniremember [Gutridge], we do not find that there 

was any plain error in this regard.” Id.

Having reviewed the state appellate court’s Batson decision, we turn to 

AEDPA’s highly deferential standard for evaluating that state court ruling. 

VIII. AEDPA DEFERENCE TO PLAIN-ERROR REVIEW

Section 2254(d)(1) of AEDPA provides that a federal court may not grant 

habeas relief to a state prisoner on a Batson claim “adjudicated on the merits” in 

state court unless the state court’s “decision [is] contrary to, or involved an 

unreasonable application of, clearly established Federal law.” 28 U.S.C. 

§ 2254(d)(1). Before this Court Lee does not make a “contrary to” claim but 

Case: 12-14421 Date Filed: 08/01/2013 Page: 72 of 128 
73

argues that the state appellate court’s decision was “an unreasonable application of

. . . clearly established Federal law” to the factual record in his case. Id. A

threshold feature of the state court’s decision—plain-error review—requires

discussion before we get to our “unreasonable application” analysis of that court’s 

decision.

Although Lee did not raise all of his Batson arguments in the trial court, the 

state appellate court did not apply a state procedural bar or deem those arguments 

waived. Rather, except for juror Kevin Stevens, the state appellate court reviewed 

the merits of Lee’s federal Batson claim, albeit for plain error under Alabama 

appellate rules. See Lee I, 898 So. 2d at 809 (citing Ala. R. App. P. 45A).

18

 

Consequently, the initial issue we must address is whether a state court’s 

plain-error ruling is an adjudication “on the merits” that may be afforded AEDPA 

deference. 28 U.S.C. § 2254(d). This Court has not squarely decided this 

question, although past decisions have suggested AEDPA deference may apply to 

plain-error rulings. See Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 

1331 (11th Cir. 2012); Frazier v. Bouchard, 661 F.3d 519, 524–27 (11th Cir. 

2011); Borden v. Allen, 646 F.3d 785, 812 (11th Cir. 2011); Powell v. Allen, 602 

 

18In Lee’s direct appeal, the State argued for plain-error review, which the state appellate 

court then conducted not only of Lee’s Batson claim, but also of other new issues Lee had raised 

for the first time on direct appeal. See Lee I, 898 So. 2d at 809. Before this Court, Lee does not 

contend that under Alabama law the state appellate court applied the wrong standard of review.

Case: 12-14421 Date Filed: 08/01/2013 Page: 73 of 128 
74

F.3d 1263, 1272–73 (11th Cir. 2010); Peoples v. Campbell, 377 F.3d 1208, 1223–

24, 1235–37 (11th Cir. 2004). We now confront this issue and decide that AEDPA 

deference may apply to a state court’s plain-error ruling.

To begin with, we have held repeatedly that a state court’s rejection of a 

claim under the state’s heightened-fact pleading rule in Alabama Rule of Criminal 

Procedure 32.6(b)19 is a ruling on the merits. See Boyd, 697 F.3d at 1331; Frazier, 

661 F.3d at 525; Borden, 646 F.3d at 812; Powell, 602 F.3d at 1272–73.

For example, in Frazier v. Bouchard, the § 2254 petitioner asserted an

ineffective assistance of counsel claim. 661 F.3d at 522. Frazier had raised the 

ineffective-assistance claim in his state habeas petition and the state appellate court 

had dismissed that claim because Frazier had not complied with the state’s 

heightened fact-pleading rule in Rule 32.6(b). Id. After the district court 

concluded that Frazier’s federal ineffective-assistance claim was not reviewable 

because Frazier had procedurally defaulted the claim in state court, this Court 

reversed. Id. at 524–27. We noted that “though [the state appellate court’s 

decision] invokes state pleading rules, [it] . . . plainly states that the claim is 

nonmeritorious, as Frazier failed to state his claim with the specificity required by 

Alabama’s fact-pleading post-conviction scheme.” Id. at 526–27 (footnote 

 

19See supra note 9.

Case: 12-14421 Date Filed: 08/01/2013 Page: 74 of 128 
75

omitted). Accordingly, we held that “Frazier’s ineffective-assistance claim . . . was 

adjudicated ‘on the merits’” and it was “subject to review under the standards of 

AEDPA.” Id. at 527; see also Borden, 646 F.3d at 816 (“[A]n Alabama court’s 

consideration of the sufficiency of the pleadings concerning a federal constitutional 

claim contained in a Rule 32 petition necessarily entails a determination on the 

merits of the underlying claim . . . . We therefore must review the merits 

determination . . . under the deferential standards set forth in AEDPA . . . .”); 

Powell, 602 F.3d at 1273 (“We thus review the Rule 32 court’s rejection of 

Powell’s claim as a holding on the merits.”).

While the state appellate courts in Frazier, Powell, and Borden denied the 

claims on pleading grounds, whereas the state appellate court in this case denied 

Lee’s Batson claim on plain-error review, these cases are instructive. They show

that a state court’s dismissal simply for failure to plead with enough specificity is 

an adjudication of lack of merit entitled to AEDPA deference. 

We also considered an issue like this one in Peoples v. Campbell. In that 

capital case, the § 2254 petitioner raised an ineffective assistance of counsel claim, 

which the district court denied based on a procedural default. Peoples, 377 F.3d at 

1231. Before this Court, the petitioner argued that he had raised the claim in the 

state courts, id. at 1233, and contended it was not procedurally defaulted, id. at

1231. We found “that the [state appellate court] most likely considered the 

Case: 12-14421 Date Filed: 08/01/2013 Page: 75 of 128 
76

constitutionality of [counsel’s] performance as part of its perceived duty, under 

Rule 45A of the Alabama Rules of Appellate Procedure, to examine ‘the record’ 

for plain error.” Id. at 1233. And we said: “Thus, in examining ‘the record’ of 

such ‘proceedings’ for plain error, the court felt duty bound to determine whether 

[counsel] had denied [the petitioner] his constitutional right to effective assistance 

of counsel.” Id. We pointed out that the state appellate court had said: “We have 

. . . carefully considered [the petitioner’s] assertions with reference to his 

representation by counsel,” and “[w]e are clear to the conclusion that [the 

petitioner] failed to make out a case of either inadequate or ineffective 

representation by counsel at trial or on original appeal.” Id. (emphasis omitted) 

(internal quotation marks omitted).

This Court concluded that because the state appellate court had reached the 

merits of Peoples’s ineffective-assistance claim, the claim was not procedurally 

barred on federal habeas review. Accordingly, applying AEDPA, we reached the 

same conclusion as the state appellate court—that the ineffective-assistance claim 

failed on the merits. Id. at 1223–24, 1235–37. 

As in Peoples, here the state appellate court reviewed Lee’s Batson claim for 

plain error, under Rule 45A. Although neither Frazier nor Peoples explicitly 

addressed the issue of whether AEDPA deference applies to a state court’s plainerror analysis, two other circuits have. Both circuits have concluded that when a 

Case: 12-14421 Date Filed: 08/01/2013 Page: 76 of 128 
77

state appellate court applies a plain-error rule in deciding a federal claim, that 

decision is an adjudication “on the merits” for purposes of § 2254(d)(1) and 

AEDPA deference. See Douglas v. Workman, 560 F.3d 1156, 1171, 1177–79 

(10th Cir. 2009) (holding “when a state court applies plain error review in 

disposing of a federal claim, the decision is on the merits to the extent that the state 

court finds the claim lacks merit under federal law”); Fleming v. Metrish, 556 F.3d 

520, 530–32 (6th Cir. 2009) (holding that, after state appellate court reviewed for 

plain error, there was “little question that [the] claim was ‘adjudicated on the 

merits’ for AEDPA purposes”).20 

In Douglas, the § 2254 petitioner argued that prosecutorial misconduct had 

occurred during his state trial in violation of his federal due process rights. 

Douglas, 560 F.3d at 1176–77. When Douglas raised this claim on direct appeal, 

the state appellate court “summarily dismissed [it] under the [state appellate 

 

20The Eighth Circuit has also applied AEDPA deference to a state appellate court’s plainerror analysis but without an explicit holding on the issue. See Barnett v. Roper, 541 F.3d 804, 

813–14 (8th Cir. 2008) (applying AEDPA deference to state appellate court’s plain-error review 

of § 2254 petitioner’s prosecutorial misconduct claim); Sublett v. Dormire, 217 F.3d 598, 600–

01 (8th Cir. 2000) (after state appellate court reviewed prosecutorial misconduct claim for plain 

error, holding that “[u]nder the strict standard of review required by the AEDPA, Sublett is not 

entitled to habeas corpus relief”); James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999) 

(applying AEDPA deference to a state appellate court’s denial of a prosecutorial misconduct 

claim after the state appellate court reviewed the claim for plain error and labeled it “‘without 

merit’”); see also Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir. 2009) (assuming without 

deciding that a claim reviewed by the state appellate court for plain error was reviewable and not 

barred by a procedural default, “AEDPA mandates a deferential review of a state court 

decision”). 

Case: 12-14421 Date Filed: 08/01/2013 Page: 77 of 128 
78

court’s] plain error doctrine,” and the Tenth Circuit determined that AEDPA 

deference applied to that disposition. Id. at 1177–78. The Tenth Circuit explained 

that “‘[a] state court may deny relief for a federal claim on plain-error review 

because it finds the claim lacks merit under federal law.’” Id. (quoting Cargle v. 

Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003)). In a case like that, “‘the state 

court’s disposition would be entitled to § 2254(d) deference because it was a form 

of merits review.’” Id. at 1178 (quoting Cargle, 317 F.3d at 1206). 

In Douglas, the state appellate court stated only that it had “reviewed” the 

federal claims and “found no plain error.” Id. The Tenth Circuit explained that it 

was still required to “assume that the [state court’s] review [was] on the merits and 

thus afford it § 2254(d) deference.” Id.; see also Matthews v. Workman, 577 F.3d 

1175, 1186 & n.4 (10th Cir. 2009) (after the state appellate court applied plainerror review to deny the § 2254 petitioner’s federal claims, the Tenth Circuit 

“assess[ed] this decision through AEDPA’s forgiving lens”). 

In Lee’s case we do not have to decide whether to assume that all plain-error 

review entails a decision on the merits because we know that the Alabama 

appellate court reached the merits of Lee’s Batson claim. The state court opinion 

here analyzed the merits of Lee’s Batson claim and determined that there was no 

plain error. See Lee I, 898 So. 2d at 815–17. This is not a case where the state 

court assumed constitutional error that was plain and only looked to whether to 

Case: 12-14421 Date Filed: 08/01/2013 Page: 78 of 128 
79

notice that plain error under the fourth prong of the plain-error review.21

The observations by the Sixth Circuit in Fleming are noteworthy. In that 

case, the Sixth Circuit applied AEDPA’s deferential review to the state appellate 

court’s plain-error analysis of the § 2254 petitioner’s Fifth Amendment claim. 

Fleming, 556 F.3d at 531–32. This conclusion followed from the Sixth Circuit’s 

observation that “the first step of the [state appellate court’s] plain-error review 

essentially required addressing whether an error had occurred—an inquiry which, 

in this case, could not be accomplished without first adjudicating the merits of [the 

petitioner’s] claim.” Id. at 532. While plain-error review “made reversal of the 

state trial court’s judgment less likely” it did not cause the state appellate court to 

“bypass the merits of [the petitioner’s] claim and thereby avoid triggering AEDPA 

deference.” Id.

Like in Fleming, although the plain-error standard might have made it more 

difficult for Lee to succeed on direct appeal, the Alabama appellate court’s use of 

that plain-error standard did not cause its opinion to be anything other than an 

adjudication “on the merits” entitled to AEDPA deference. See Fleming, 556 F.3d 

at 532. 

Accordingly, we hold that when a state appellate court applies plain-error 

 

21See supra note 17.

Case: 12-14421 Date Filed: 08/01/2013 Page: 79 of 128 
80

review and in the course of doing so, reaches the merits of a federal claim and 

concludes there is no plain error, that decision is an adjudication “on the merits”

for purposes of § 2254(d) and thus AEDPA deference applies to it. As the Sixth 

Circuit pointed out in Fleming, it would contravene the comity and federalism 

principles that underlie AEDPA if we were to ignore the state appellate court’s 

work and review Lee’s Batson claim de novo. Id. at 532. We decline to do so. 

The Alabama appellate court’s “substantive reasoning does not simply vanish” just 

because it applied plain-error review. Id. “Nor does AEDPA.” Id.22 

IX. AEDPA DEFERENCE TO SUMMARY OPINIONS

Because of Lee’s arguments before this Court, a second feature of the state 

appellate court’s decision warrants discussion. Lee contends that this Court has 

recently established specific writing requirements for state court opinions before 

AEDPA deference will apply, citing McGahee v. Alabama Department of 

Corrections, 560 F.3d 1252 (11th Cir. 2009), and Adkins v. Warden, Holman CF, 

710 F.3d 1241 (11th Cir. 2013). More specifically, Lee argues that the state 

appellate court’s decision in his case is an unreasonable application of Batson and 

is not entitled to any AEDPA deference because that opinion did not mention or 

discuss every relevant fact or argument he offered in support of his Batson claim

 

22We have no occasion to decide whether a plain-error review holding that turned 

exclusively on some non-merits consideration would be entitled to AEDPA deference. That is 

not this case. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 80 of 128 
81

on direct appeal. In this regard, Lee points out that the state appellate court’s

written opinion did not explicitly mention Lee’s allegation of a jury-discrimination 

history in the district attorney’s office and did not make an explicit credibility 

finding on Batson’s third prong.23 Lee, in essence, argues that a state court opinion 

must show it actually “consider[ed] every relevant circumstance” (and every 

argument) by explicitly mentioning each one.

We agree that the state court’s opinion in Lee’s case did not mention those 

two circumstances. But we reject Lee’s claim that a state court’s written opinion 

involves an unreasonable application of federal law and is not entitled to deference 

unless that opinion on its face “shows its work” by explicitly mentioning “all 

relevant circumstances” argued by a defendant in a Batson appeal. We explain 

why. In doing so, we discuss Supreme Court precedent and then our Circuit 

precedent, both of which refute Lee’s claim.

A. Supreme Court Precedent 

For starters, the Supreme Court squarely held in Harrington v. Richter that a 

state court decision need not address every argument, nor even explain its 

reasoning, to be entitled to AEDPA deference as to its ruling on a federal 

 

23We reject Lee’s claim that the state appellate court also failed to mention that all the 

State’s peremptory strikes were against black venire members. The court acknowledged that 

“the State used all of its peremptory strikes against black veniremembers,” and indeed quoted in 

full the reasons the prosecutor gave for each of the 21 strikes. Lee I, 898 So. 2d at 812–13

(emphasis added).

Case: 12-14421 Date Filed: 08/01/2013 Page: 81 of 128 
82

constitutional claim. 562 U.S. at —, 131 S. Ct. at 784–85; see also Smith v. Sec’y, 

Dep’t of Corr., 572 F.3d 1327, 1333 (11th Cir. 2009) (“In order to merit AEDPA 

deference the state court need not expressly identify the relevant Supreme Court 

precedent, nor make a perfect statement of the applicable rule of law, nor provide a 

detailed opinion covering each aspect of the petitioner’s argument.”). Instead, “our 

focus on the ‘unreasonable application’ test under Section 2254(d) should be on 

the ultimate legal conclusion that the state court reached and not on whether the 

state court considered and discussed every angle of the evidence.” Gill v. 

Mecusker, 633 F.3d 1272, 1290 (11th Cir. 2011) (quoting Neal v. Puckett, 286 

F.3d 230, 246 (5th Cir. 2002) (en banc)). The clear command in Harrington

contradicts Lee’s contention. 

The Supreme Court’s rationale behind Harrington is also instructive. The 

Supreme Court first considered the AEDPA statute: “By its terms § 2254(d) bars 

relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to 

the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington, 562 U.S. at —, 131 S. Ct.

at 784. “There is no text in [§ 2254(d)] requiring a statement of reasons. The 

statute refers only to a ‘decision,’ which resulted from an ‘adjudication.’” Id. The 

Supreme Court added that “[w]here a state court’s decision is unaccompanied by 

an explanation, the habeas petitioner’s burden still must be met by showing there 

was no reasonable basis for the state court to deny relief.” Id. “This is so whether 

Case: 12-14421 Date Filed: 08/01/2013 Page: 82 of 128 
83

or not the state court reveals which of the elements in a multipart claim it found 

insufficient, for § 2254(d) applies when a ‘claim,’ not a component of one, has 

been adjudicated.” Id.

The § 2254 petitioner in Harrington argued that AEDPA deference should 

not apply to a state court’s summary ruling because this would “encourage state 

courts to withhold explanations for their decisions.” Id. The Supreme Court was 

unconvinced: “Opinion-writing practices in state courts are influenced by 

considerations other than avoiding scrutiny by collateral attack in federal court.” 

Id. Further, “requiring a statement of reasons could undercut state practices 

designed to preserve the integrity of the case-law tradition.” Id. Allowing

summary dispositions “can enable a state judiciary to concentrate its resources on 

the cases where opinions are most needed.” Id. In Harrington, the Supreme Court

ultimately concluded that the state court’s summary adjudication of a federal 

constitutional claim was not an unreasonable application of law under 

§ 2254(d)(1). See id. at —, 131 S. Ct. at 788–92. 

We reject Lee’s attempt to limit Harrington to state court decisions with no 

reasoned opinion at all. Harrington’s rule and rationale are not so confined. 

Rather, in Johnson v. Williams, 568 U.S. —, 133 S. Ct. 1088 (2013), the Supreme 

Court explained that a state court decision is an adjudication “on the merits” and 

still entitled to AEDPA deference when it “addresses some but not all of a 

Case: 12-14421 Date Filed: 08/01/2013 Page: 83 of 128 
84

defendant’s claims.” Id. at —, 133 S. Ct. at 1094 (emphasis added). The Supreme 

Court observed that there are good reasons why state courts do not address every 

single argument made by a defendant, including “instances in which a state court 

may simply regard a claim as too insubstantial to merit discussion.” Id. at —, 133 

S. Ct. at 1095. “While it is preferable for an appellate court in a criminal case to 

list all of the arguments that the court recognizes as having been properly 

presented, federal courts have no authority to impose mandatory opinion-writing 

standards on state courts.” Id. (citations omitted). The Supreme Court cautioned 

federal habeas courts that “[t]he caseloads shouldered by many state appellate 

courts are very heavy, and the opinions issued by these courts must be read with 

that factor in mind.” Id. at —, 133 S. Ct. at 1095–96 (footnote omitted). It makes 

no sense to say that a state court decision is entitled to AEDPA deference if the 

opinion fails to contain discussion at all of a claim but is entitled to no deference if 

it contains some but less than complete discussion.

While under Batson a state court assuredly must evaluate the totality of the 

evidence and consider “all relevant circumstances,” this is a far cry from a federal 

court requiring that a state court prove to a federal court that it did so by setting out 

every relevant fact or argument in its written opinion. The test in § 2254(d)(1) is 

whether the state court “unreasonably appl[ied]” Batson and its progeny to the 

facts of Lee’s case. The test is not about how long the state court opinion is or

Case: 12-14421 Date Filed: 08/01/2013 Page: 84 of 128 
85

whether it explicates every relevant fact and argument. 

The Supreme Court has emphasized that “readiness to attribute error” to a 

state court decision is incompatible with both “the presumption that state courts 

know and follow the law” and AEDPA’s “highly deferential standard for 

evaluating state-court rulings, which demands that state-court decisions be given 

the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 

360 (2002) (citation omitted) (internal quotation marks omitted). We have 

similarly stressed that “a ‘grading papers’ approach . . . is outmoded in the postAEDPA era,” such that we will not assume that a state court either misapplied or 

misunderstood clearly established federal law absent a “conspicuous 

misapplication of Supreme Court precedent.” Parker v. Sec’y for Dep’t of Corr., 

331 F.3d 764, 785–86 (11th Cir. 2003) (internal quotation marks omitted). 

Accordingly, based on this Supreme Court precedent, we reject the stringent 

opinion-writing rules for state court opinions that Lee advocates here.

B. Our Circuit Precedent

The Supreme Court’s Harrington and Johnson decisions are enough. But 

even before them, our own Circuit precedent required that we afford AEDPA 

deference even where the state court’s decision is a summary adjudication or 

engages in only some evaluation because “implicit findings” may be inferred from 

dispositive rulings. See Greene v. Upton, 644 F.3d 1145, 1155–56 (11th Cir. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 85 of 128 
86

2011) (emphasizing in a § 2254 capital case that “Batson does not require elaborate 

factual findings” and applying AEDPA deference to a state court’s Batson ruling 

even though it did not address every argument or make an explicit fact finding on 

Batson’s third step); Blankenship v. Hall, 542 F.3d 1253, 1271–72 (11th Cir. 2008)

(stating in a § 2254 capital case that “implicit findings” may be inferred from a 

state court opinion and record and “these implicit findings of fact are entitled to 

deference under § 2254(d) to the same extent as explicit findings of fact”); 

Hightower v. Terry, 459 F.3d 1067, 1072 n.9 (11th Cir. 2006) (deferring to a state 

court judgment on a Batson claim in a § 2254 capital case and noting a state 

court’s “dispositive ruling may contain implicit findings, which, though unstated, 

are necessary to that ruling” (citing United States v. $242,484.00, 389 F.3d 1149, 

1154 (11th Cir. 2004) (en banc) (“[W]e and other federal appellate courts have 

‘inferred from a district court’s explicit factual findings and conclusion implied 

factual findings that are consistent with its judgment although unstated.’”)));

Atwater v. Crosby, 451 F.3d 799, 807 (11th Cir. 2006) (applying AEDPA 

deference in a § 2254 capital case, where the state appellate court’s opinion 

“improperly condensed the second and third steps of Batson” but the opinion 

contained “some evaluation of the prosecutor’s reasons for the strike”); see also

Johnson v. Sec’y, DOC, 643 F.3d 907, 910 (11th Cir. 2011) (“When faced with an 

ineffective assistance of counsel claim that was denied on the merits by the state 

Case: 12-14421 Date Filed: 08/01/2013 Page: 86 of 128 
87

courts, a federal habeas court ‘must determine what arguments or theories 

supported or, [if none were stated], could have supported, the state court’s 

decision; and then it must ask whether it is possible fairminded jurists could 

disagree that those arguments or theories are inconsistent with the holding in a 

prior decision of [the Supreme] Court.’” (quoting Harrington, 562 U.S. at —, 131 

S. Ct. at 786) (alterations in original)).24

We recognize, of course, that this Court in McGahee in 2009 and Adkins in 

2013 held in § 2254 capital cases that a state court’s decision denying Batson relief 

was an unreasonable application of Batson given the explicit racial statements and 

strong evidence of discriminatory purpose in each case. Contrary to Lee’s 

arguments, however, we do not read those two decisions as establishing new rules 

for state court opinion-writing before state court decisions may be entitled to 

AEDPA deference. What drove the unreasonable application result in each of 

those two cases was the abundant racial discrimination evidence that demonstrated 

 

24We contrast (a) a state court’s not explicitly addressing a claim or argument made by a 

petitioner and our inferring findings from that state court’s decision to (b) a wholly different type 

of case where the state court’s opinion itself makes clear that it considered one claim but 

expressly decided not to reach or rule on another claim. If a state court opinion expressly tells us 

that it is not ruling on an issue, then there is no ruling to which we can defer. See, e.g., Johnson, 

643 F.3d at 930 n.9 (“The Court’s instruction from Harrington does not apply here because the 

Florida Supreme Court did provide an explanation of its decision which makes clear that it ruled 

on the deficiency prong [of the Strickland test] but it did not rule on the prejudice prong, and it is 

also clear that the trial court’s ruling on the prejudice prong did not address counsel’s 

investigation and presentation of non-statutory mitigating circumstances evidence. As a result, 

we are still required to follow the Court’s instructions from [ineffective-assistance cases] 

Rompilla and Wiggins and conduct a de novo review.” (citation omitted)). 

Case: 12-14421 Date Filed: 08/01/2013 Page: 87 of 128 
88

that the state court’s Batson decision was an unreasonable application of clearly 

established federal law. There is some loose language to be sure but no holding in 

either McGahee or Adkins that a state court Batson opinion must discuss every fact 

or argument to be a reasonable application of Batson under § 2254(d). Given the 

solid wall of prior panel precedent and Supreme Court decisions prohibiting such 

an approach, we do not read those two decisions as holding that AEDPA deference 

does not apply to state court decisions accompanied by opinions that do not discuss 

all the evidence, circumstances, or arguments. 

If McGahee or Adkins were interpreted as holding that, they would run afoul 

of our earlier precedent in Atwater, Hightower, Blankenship, and Greene, and we

must follow the earlier precedent of these decisions. See United States v. Ohayon, 

483 F.3d 1281, 1289 (11th Cir. 2007) (“When a decision of this Court conflicts 

with an earlier decision that has not been overturned en banc, we are bound by the 

earlier decision.”); Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 n.2 

(11th Cir. 2006) (“[W]hen a later panel decision contradicts an earlier one, the 

earlier panel decision controls.”); Tompkins v. Moore, 193 F.3d 1327, 1331 (11th 

Cir. 1999) (stating that the Court was “duty bound to follow the decisions” in two 

earlier Circuit decisions instead of a more recent Circuit decision under the prior 

panel precedent rule).

Lest there be any doubt, we recount our precedent in detail and in order of 

Case: 12-14421 Date Filed: 08/01/2013 Page: 88 of 128 
89

the earliest precedent first.

C. Atwater v. Crosby (2006)

In Atwater, a 2006 decision in a § 2254 capital case, this Court emphasized 

that a state court decision is still entitled to AEDPA deference where the state court 

engages in “some evaluation” but improperly condenses the second and third steps 

of Batson. 451 F.3d at 807. 

At trial, Atwater objected to the State’s peremptory strike of the sole black 

venire member, and the state trial court required the prosecutor to provide a raceneutral reason for the strike. Id. at 804–05. The prosecutor stated that he struck 

the venire member because of her demeanor and voir dire answers, which 

suggested she was hesitant about serving in a death penalty case. Id. at 805. 

Atwater’s counsel disagreed. Id. The trial court then said that, in “observing that 

particular juror, [it] thought that she did respond with difficulty to the questions 

that were asked.” Id. The court found the “State’s peremptory challenge will be 

well-taken.” Id. 

In Atwater’s direct appeal, the Florida Supreme Court affirmed, giving only 

this four-sentence Batson analysis: 

Upon Atwater’s objection to the peremptory challenge, the trial court 

inquired as to the State’s reasons. The record reflects that the court’s 

inquiry was adequate and the record supports the State’s explanation 

for exercising the challenge. The court expressly noted that the 

prospective juror had difficulty answering the questions put to her and 

Case: 12-14421 Date Filed: 08/01/2013 Page: 89 of 128 
90

her demeanor indicated that she was hesitant and uncomfortable 

regarding the death penalty. This is a valid, race-neutral reason for 

exercising a peremptory challenge, and the court did not abuse its 

discretion in upholding the challenge.

Id. at 806–07 (quoting Atwater v. State, 626 So. 2d 1325, 1327 (Fla. 1993)). 

Considering the analysis of the state appellate court quoted above, this Court 

concluded that the Florida Supreme Court had “improperly condensed the second 

and third steps of Batson.” Id. at 807. “However, given the great deference 

afforded the determinations of state courts under § 2254,” this Court said we could 

not “reach the conclusion that the trial court or the Florida Supreme Court 

unreasonably applied Batson in this case” under § 2254(d)(1). Id. This was 

because “the trial court went beyond a mere finding that the state articulated a race 

neutral reason for the strike—the trial court engaged in some evaluation of the 

prosecutor’s reasons for the strike and determined that the race neutral reason 

given . . . was supportable.” Id. (emphasis added). “Therefore, the third step of the 

Batson analysis was touched.” Id. 

D. Hightower v. Terry (2006)

Next, in Hightower, another 2006 decision in a § 2254 capital case, this 

Court went further and stated that a state court’s denial of a Batson motion may 

contain implicit findings. Hightower v. Terry (“Hightower II”), 459 F.3d 1067, 

1072 n.9 (11th Cir. 2006).

Case: 12-14421 Date Filed: 08/01/2013 Page: 90 of 128 
91

In his Batson objections, Hightower argued that he had established a prima 

facie case because: (1) the prosecution had exercised 6 of its 7 peremptory strikes 

against black venire members; and (2) the prosecutor had “in the past shown a bent 

and scheme” to remove black persons from juries. Hightower v. Schofield

(“Hightower I”), 365 F.3d 1008, 1031 (11th Cir. 2004), vacated by 545 U.S. 1124, 

125 S. Ct. 2929 (2005), new opinion on remand, 459 F.3d 1067 (11th Cir. 2006), 

cert. denied, 550 U.S. 952, 127 S. Ct. 2254 (2007). The prosecutor denied any 

attempt to discriminate, but the court required him to provide strike reasons, which 

he did. Id. at 1032. The court summarily ruled that Hightower “had failed to make 

a prima facie case of discrimination, and alternatively, that the prosecutor had 

‘presented an articulable, nonrace related reason for striking’ each prospective 

black juror.” Id. 

On direct appeal, the Georgia Supreme Court affirmed and its Batson

discussion was brief and never explicitly mentioned Batson’s third step. 

Hightower v. State, 386 S.E.2d 509, 512 (Ga. 1989).25

 

25The Georgia Supreme Court’s entire discussion of Hightower’s Batson claim is nine 

sentences:

The defendant contends the prosecution was guilty of racial discrimination. See

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.E.2d 69 (1986). The 

prosecutor used only seven of his authorized 10 peremptory strikes. He used six 

of those seven strikes against black prospective jurors. The record shows that at 

least two black prospective jurors were struck by the defendant after having been 

accepted by the prosecutor. The prosecutor explained his peremptory challenges. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 91 of 128 
92

Hightower’s § 2254 petition asserted that the state courts had misapplied 

Batson. This Court affirmed the denial of Hightower’s Batson claim. Hightower I, 

365 F.3d at 1035. We explained that, assuming Hightower had stated a prima facie 

case, “the prosecutor gave specific, nonracial reasons for each of his strikes of 

African-Americans,” satisfying step two. Id. at 1034. As to the third step, the state 

courts made no explicit findings about the prosecutor’s credibility or about 

discriminatory purpose, or anything at all relating to that step. Yet, this Court still

deferred to “the state court judgment,” stating: “[O]ur task is to determine, in 

consideration of ‘all relevant circumstances,’ and given our constraints under 28 

U.S.C. § 2254, whether the state court judgment in this case runs afoul of federal 

law. We cannot say that it does.” Hightower I, 365 F.3d at 1035 (citation omitted)

(emphasis in original). Even though the state courts made no explicit fact findings, 

this Court deferred to the state courts’ judgments and stressed “the trial court’s 

 

Four of the challenged prospective jurors were closely related to persons 

convicted of serious felonies. The other two were conscientiously opposed to the 

death penalty, although not to the extent they were excused for cause. The trial 

court found that the prosecutor had articulated legitimate non-racial reasons for 

his challenges. Even assuming the defendant made out a prima facie case, Cf.

Childs v. State, 257 Ga. 243(21), 357 S.E.2d. 48 (1987), the trial court’s 

determination is not clearly erroneous. Compare Foster v. State, 258 Ga. 736(2), 

374 S.E.2d 188 (1988).

Hightower v. State, 386 S.E.2d 509, 512 (Ga. 1989). In contrast, the state appellate court’s 

evaluation of Lee’s Batson claim spans five published pages. Lee I, 898 So. 2d at 812–17. In 

any event, there is no minimum number of sentences or pages required for a state court merits 

adjudication on a federal constitutional claim to be entitled to AEDPA deference. See

Harrington, 562 U.S. at —, 131 S. Ct. at 785; see also Johnson, 568 U.S. at —, 133 S. Ct. at 

1094.

Case: 12-14421 Date Filed: 08/01/2013 Page: 92 of 128 
93

superior position to observe the prosecutor’s ‘credibility’ and ‘demeanor.’” Id. at 

1034. 

Thereafter, the Supreme Court granted Hightower’s petition for certiorari, 

vacated our first opinion in Hightower I, which had been issued in 2004, and 

remanded for further consideration in light of Miller-El v. Dretke, 545 U.S. 231, 

125 S. Ct. 2317 (2005). Hightower v. Schofield, 545 U.S. 1124, 1124, 125 S. Ct. 

2929, 2929–30 (2005).

On remand in Hightower II, this Court concluded that “Miller-El does not 

counsel a decision contrary to the one we reached in Hightower [I], and therefore 

[we] adhere to that decision.” Hightower II, 459 F.3d at 1069 (2006). We 

distinguished Miller-El on the basis that, unlike the case in Miller-El, “we did not 

decide Hightower’s Batson claim on the basis of an augmented record.” Id. at 

1070. “[R]ather, we were, and are post-Miller-El, limited to the evidentiary record 

developed in the state trial court during jury selection and the trial court’s ruling, 

Hightower’s and the State’s briefs to the Supreme Court of Georgia . . . , and that 

court’s opinion.” Id. This Court restated its conclusion in Hightower I as still 

applicable in Hightower II: “Hightower never provided the [state trial] court with 

any evidence tending to discredit the persuasiveness of the prosecutor’s stated 

reasons for striking black jurors.” Id. at 1071 (alteration in original) (quoting 

Hightower I, 365 F.3d at 1035) (internal quotation marks omitted).

Case: 12-14421 Date Filed: 08/01/2013 Page: 93 of 128 
94

This Court in Hightower II (on remand) expressly addressed whether the

state courts had erred on Batson’s third step by not entering an explicit finding that 

the prosecutor’s race-neutral reasons were credible. Id. at 1072 n.9. We pointed 

out “that a trial court’s dispositive ruling may contain implicit findings, which, 

though unstated, are necessary to that ruling.” Id.26

Applying that “implicit findings” principle, the Hightower II Court noted

that “the trial court, after assuming that Hightower had made out a prima facie case 

of racial discrimination, expressly found that the prosecutor had provided an 

‘articulable, nonrace related reason’ for each strike, and overruled Hightower’s 

Batson objection.” Id. Thus, we made “‘the common sense judgment’—in light of 

defense counsel’s failure to rebut the prosecutor’s explanations and the trial court’s 

ultimate ruling—that the trial court implicitly found the prosecutor’s race-neutral 

explanations to be credible, thereby completing step three of the Batson inquiry,”

even though the trial court did not explicitly complete it. Id. 

E. Blankenship v. Hall (2008)

In Blankenship, another § 2254 capital murder case, this time involving an 

ineffective assistance of counsel claim, this Court reiterated Hightower II’s 

 

26In Hightower II, we also observed that this Court had applied this principle in two 

earlier Batson-issue federal cases, in which we upheld a district court’s overruling of a Batson

objection even though the district court did not explicitly find the prosecutor’s race-neutral 

explanations to be credible. 459 F.3d at 1072 n.9 (citing United States v. Cure, 996 F.2d 1136, 

1138–39 (11th Cir. 1993); United States v. David, 844 F.2d 767, 769 (11th Cir. 1988)). 

Case: 12-14421 Date Filed: 08/01/2013 Page: 94 of 128 
95

admonition that a state court’s dispositive rulings contain “implicit findings” which 

are entitled to AEDPA deference. 542 F.3d at 1271–72. The state habeas court 

“rejected Blankenship’s ineffective assistance claim in a summary fashion.” Id. at 

1270. Blankenship argued to this Court that the state court’s summary decision 

was not entitled to AEDPA deference. Id. at 1271.

The inquiry for the Blankenship Court was “whether the state court 

‘adjudicated on the merits’ the ineffective-assistance claim when it summarily 

rejected Blankenship’s arguments” in its order. Id. This Court stated that “our 

case law is clear: We have repeatedly held ‘a state court’s summary rejection of a 

claim qualifies as an adjudication on the merits under § 2254(d) so as to warrant 

deference.’” Id. (collecting cases). 

Following Hightower II’s precedent, this Court in Blankenship reiterated 

that “a state court’s ‘dispositive ruling may contain implicit findings, which, 

though unstated, are necessary to that ruling.’” Id. at 1272 (quoting Hightower II, 

459 F.3d at 1072 n.9). Those implicit findings may be “inferred from [the state 

court’s] opinion and the record,” and those “implicit findings of fact are entitled to 

deference under § 2254(d) to the same extent as explicit findings of fact.” Id. 

Thus, the Court could “make the common sense judgment that material factual 

issues were resolved by the trial court in favor of the judgment when it was 

reasonable for that court to have done so in light of the evidence.” Id. (quoting 

Case: 12-14421 Date Filed: 08/01/2013 Page: 95 of 128 
96

Hightower II, 459 F.3d at 1072 n.9) (internal quotation marks omitted). “In other 

words,” the Blankenship Court said, “we may uphold the state court’s decision that 

counsel was not constitutionally deficient if our review of the record reveals that a 

reasonable view of the facts before the state court supports such a conclusion.” Id. 

Ultimately this Court concluded that the state court did not unreasonably apply 

Strickland under § 2254(d)(1) and the state court decision was entitled to 

deference. Id. at 1281.

Thus, even before the Supreme Court’s decisions in Harrington and Johnson, 

this Court in § 2254 capital cases had already held that a state court’s summary 

disposition of a federal constitutional claim, as well as a state court Batson

decision that contained a less than complete discussion and evaluation of the 

prosecutor’s reasons for peremptory strikes, were entitled to AEDPA deference. 

And this Court had already held that any fact findings necessary to a state court’s 

Batson decision, which have support in the record, can and should be inferred from 

the judgment; they need not be stated in the opinion of the state court. 

F. McGahee v. Alabama Department of Corrections (2009)

Next came McGahee, where an all-white jury had been empanelled because 

the prosecutor struck all black persons from the jury venire in 1986. McGahee, 

560 F.3d at 1258–59; see also id. at 1266 (noting that “[a]t the time McGahee was 

tried, Dallas County, Alabama was fifty-five percent African-American” but his 

Case: 12-14421 Date Filed: 08/01/2013 Page: 96 of 128 
97

jury was all white). 

The McGahee Court held that the state appellate court “unreasonabl[y]

appli[ed]” Batson when it failed “to consider the State’s articulation of an 

explicitly racial reason for striking [venire member Lemuel] Jones.” Id. at 1264. 

That state court’s decision “also failed to consider two additional crucial facts,” 

shown in the trial record and raised by McGahee’s direct appeal brief: (1) the fact 

that all black persons were removed from the venire by the State; and (2) the State 

had offered as a reason for striking multiple black venire members “low 

intelligence,” even though the intelligence of the venire members was unsupported 

by any evidence in the record and that reason was “historically tied to racism.” Id.

at 1265. We concluded that the state appellate court’s failure to consider these two 

critical facts was an unreasonable application of Batson to the record in 

McGahee’s case. Id. at 1265–66. To better understand the failure to consider 

rationale and why we held there was an unreasonable application of Batson, we 

review the facts in McGahee.

After McGahee lodged his Batson objection in the state trial court, the State 

gave only general explanations for striking all black venire members, except for 

Dr. Willis Wright. Id. at 1258. The State said it struck Dr. Wright because he had 

asked to be excused and the State was concerned he “would . . . not be a very 

happy juror.” Id. The state trial court denied the defendant’s Batson motion. Id. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 97 of 128 
98

Only after the jury’s verdict did the State give “individualized, specific reasons for 

its peremptory strikes,” including the strike against a venire member named 

Lemuel Jones, but the state trial court never ruled on any of them. Id. at 1259–60. 

After reviewing the state court record, this Court in McGahee determined 

that the State had given an “explicitly racial reason for striking Jones,” which the 

state appellate court had ignored. Id. at 1264 (emphasis added). In McGahee the 

state appellate court’s opinion had on its face expressly addressed two stated 

reasons for striking Jones. It agreed that the State’s first reason for striking 

Jones—he was a teacher—was “totally insufficient,” and that while its second 

reason—the State lacked information on Jones—was “somewhat weak,” it was a 

“sufficient” reason.27 Id. The state appellate court did not expressly discuss the 

State’s third reason: that Jones was struck because with Dr. Wright leaving the 

venire, the State did not want to leave Jones “individually.” Id. 

In McGahee this Court found that this third reason could only mean that the 

State did not wish to leave Jones “individually” as the sole black venire member. 

Id. We emphasized that at oral argument in McGahee, the State was pressed for a 

non-racial interpretation of this statement about Jones but could not provide one. 

Id. We found that in this third reason the State had articulated “an explicitly racial 

 

27In McGahee’s direct appeal, the Alabama appellate court noted that the State’s lack of 

information reason was “sufficient because the State struck a white [venire member] for the same 

reason.” McGahee v. State, 554 So. 2d 454, 462 (Ala. Crim. App. 1989).

Case: 12-14421 Date Filed: 08/01/2013 Page: 98 of 128 
99

reason for striking Jones.” Id. 

Critically, the McGahee Court said: “As we understand the Alabama court’s 

analysis, it read the record as providing two reasons for the strike of Lemuel Jones 

. . . . The court clearly limited its review to only these two reasons and did not 

implicitly review any other reasons.” Id. (emphasis added). In McGahee, this 

Court acknowledged that state court opinions can “implicitly” review strike 

reasons and evidence, but we read the Alabama court as saying in its opinion that it 

had “clearly limited” its own appellate review to the two non-racial reasons for the 

Jones strike, and thus showing it had not considered the State’s explicitly racial 

reason. See id. The state court’s unreasonable application of Batson was not the 

failure to mention, but the failure to even implicitly consider the explicitly racial 

reason given for striking Jones—thereby ruling out any consideration of that racial

reason.

28

 

28In McGahee, 560 F.3d at 1262, this Court quoted Williams v. Taylor, 529 U.S. 362, 120 

S. Ct. 1495 (2000), where the majority observed that the state court’s opinion discussed some 

evidence, “[b]ut the state court failed even to mention the sole argument in mitigation that trial 

counsel did advance.” Id. at 398, 120 S. Ct. at 1515. This observation related to the prejudice 

prong of an ineffective-assistance claim, where a court must “evaluate the totality of the 

available mitigation evidence—both that adduced at trial, and the evidence adduced in the habeas 

proceeding—in reweighing it against the evidence in aggravation.” Id. at 397–98, 120 S. Ct. at 

1515. But the failure to mention this argument was not how the state court unreasonably applied 

Strickland. The Supreme Court ultimately held that the state supreme court had unreasonably 

applied Strickland because the state court had both: (1) mischaracterized the Strickland prejudice 

test, id. at 397, 120 S. Ct. at 1515; and (2) failed to entertain the possibility that mitigating 

evidence unrelated to dangerousness may alter the jury’s selection of penalty, and thereby failed 

Case: 12-14421 Date Filed: 08/01/2013 Page: 99 of 128 
100

Having concluded that the state appellate court unreasonably applied Batson

to the facts of McGahee’s case, we reviewed McGahee’s Batson claim de novo. In 

that de novo review, this Court found that the McGahee record “compel[led] a 

finding that the State’s use of a peremptory strike in this case to dismiss [venire 

member] Jones constituted intentional discrimination” and violated Batson. Id. at 

1270. The record evidence that compelled that finding was: (1) the explicitly 

racial reason for the strike of Jones; (2) the all-white jury and “the total exclusion

of African-Americans [from the venire] in this county in which they comprised 

fifty-five percent,” id.; and (3) “the strong evidence of race-based decision-making 

both generally and especially with respect to juror[] Jones,” id.29

G. Greene v. Upton (2011)

Our recent Batson decision in Greene v. Upton, another § 2254 capital case, 

is also particularly instructive about state court opinion-writing. In Greene, this 

Court applied AEDPA deference to the state courts’ denial of the § 2254 

 

to accord appropriate weight to the mitigating evidence counsel could have presented, id. at 398, 

120 S. Ct. at 1515–16.

Nothing in Williams set forth any rule requiring a state court to address every claim, fact, 

or argument in its written opinion before AEDPA deference may apply, and indeed, the Supreme 

Court, when confronted with the issue, has said just the opposite. See, e.g., Johnson, 568 U.S. at 

—, 133 S. Ct. at 1094.

29The McGahee Court noted that in the post-trial proffer of race-neutral strike reasons, 

the prosecutor said that he used information obtained from a jury list, which included the race of 

venire members, and that fact “bolster[ed] somewhat the foregoing strong evidence that the 

prosecutor did believe that race was a significant factor.” McGahee, 560 F.3d at 1270.

Case: 12-14421 Date Filed: 08/01/2013 Page: 100 of 128 
101

petitioner’s Batson claim, even though the state courts did not address every 

argument made by the petitioner or make an explicit fact finding on Batson’s third 

step. 644 F.3d at 1154–55.

In Greene’s trial, the State exercised peremptory challenges against 10

venire members, 6 of whom were black. Id. at 1149. Greene lodged a Batson

objection; in response, the State offered race-neutral reasons for each contested 

strike. Id. The state trial court determined “that the prosecutors had provided 

reasons for each challenge that were racially neutral.” Id. at 1150.

On direct appeal, the Georgia Supreme Court affirmed Greene’s convictions

and death sentence. See id. at 1151. As for Greene’s Batson challenge, the 

Georgia Supreme Court stated that it had “conducted ‘a thorough review of the 

voir dire of each of the six prospective jurors’ and determined there was ‘a valid 

racially-neutral basis for the employment of a peremptory strike’ against each.” Id.

(quoting Greene v. State, 469 S.E.2d 129, 135 (Ga. 1996)). 

Although the state courts had determined that at Batson’s second prong that 

the prosecutor had given race-neutral reasons for each strike, they had not made an 

explicit finding on step three about discriminatory intent or purpose. Therefore, 

petitioner Greene contended that the state trial court and the Georgia Supreme 

Court had unreasonably applied Batson under § 2254(d)(1) when “neither made 

specific fact findings about purposeful discrimination.” Id. at 1155. We rejected 

Case: 12-14421 Date Filed: 08/01/2013 Page: 101 of 128 
102

that claim, emphasizing that “Batson does not require elaborate factual findings.” 

Id. (citing, inter alia, Hightower II, 459 F.3d at 1072 n.9). The Greene Court 

quoted and followed Hightower II’s instruction that we may “make the common 

sense judgment—in light of defense counsel’s failure to rebut the prosecutor’s 

explanations and the trial court’s ultimate ruling—that the trial court implicitly 

found the prosecutor’s race-neutral explanations to be credible, thereby completing 

step three of the Batson inquiry.” Id. (quoting Hightower II, 459 F.3d at 1072 n.9) 

(internal quotation marks omitted). 

Citing McGahee, petitioner Greene also contended that the Georgia Supreme 

Court had unreasonably applied Batson under § 2254(d)(1) “because it did not 

explicitly discuss each reason offered by the state in support of the peremptory 

challenges.” Id. This Court squarely rejected this contention, stating that 

“McGahee does not stand for that proposition.” Id. Rather, the Greene Court 

observed that McGahee had determined that the state appellate court “had failed to 

consider all relevant circumstances because it failed to discuss ‘an explicitly racial 

reason’” offered in support of the peremptory strike of a black venire member, 

amid “other particularly suspicious explanation[s].” Id. (alteration in original) 

(internal quotation marks omitted).30 

 

30We also observe that, unlike the situation in other cases, the state court’s judgment in 

Case: 12-14421 Date Filed: 08/01/2013 Page: 102 of 128 
103

The Greene Court added that, in contrast to McGahee, nothing in petitioner 

“Greene’s record reveal[ed] that the prosecutor provided an explicitly racial reason 

to exercise a peremptory challenge against a juror,” and the Georgia Supreme 

Court had implicitly “considered all relevant circumstances during its ‘thorough 

review.’” Id. Thus, the Greene Court concluded that the Georgia Supreme Court’s 

determination “with respect to Greene’s Batson claim was not contrary to, or an 

unreasonable application of, clearly established federal law.” Id. 

H. Adkins v. Warden, Holman CF (2013)

Our most recent relevant Batson decision is Adkins v. Warden, Holman CF, 

710 F.3d 1241 (11th Cir. 2013), which we discuss in two parts. First, we discuss 

the record evidence in state court that the Adkins Court recounted and relied upon 

to find Adkins had carried his Batson burden to show purposeful discrimination as 

to venire member Billy Morris. Second, while we do not quarrel with the end 

result reached by the majority opinion in Adkins,

31 we point out how a significant 

 

McGahee could not be upheld by assuming that the state court had credited the prosecutor’s 

reasons for his strikes. It could not be, because one of those reasons was explicitly racial and 

impermissible—that racially motivated reason was a poison pill that prevented an implicit 

finding of credibility from saving the state court judgment.

31We recognize that the majority opinion in Adkins concluded that the petitioner had 

preserved his federal Batson claim, Adkins, 710 F.3d at 1248–49, and the dissent concluded that 

he had not preserved his Powers claim and the Alabama courts thus had adjudicated only a state 

law claim as to jury selection, Adkins, 710 F.3d at 1266 (Tjoflat, J., dissenting). We do not wade 

into those waters, and we analyze Adkins, as the majority opinion did, as involving a preserved 

federal Batson claim. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 103 of 128 
104

part of the AEDPA rationale and analysis in Adkins is inconsistent with Supreme 

Court and our Circuit precedent. 

In Adkins, the State exercised peremptory strikes against 9 of 11 black 

venire members and only one black juror served. Id. at 1244. In his 1988 trial, 

over 25 years ago, Adkins, who is white, did not object. See id. Subsequently in 

1991, the Supreme Court in Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991),

held that a criminal defendant of any race may raise Batson objections. Adkins, 

710 F.3d at 1244. After the state appellate court’s remand, the trial court held a 

Batson hearing where the State gave its strike reasons. Id. at 1244–45. Several 

weeks later, the trial court directed the prosecutor to supplement the Batson record 

by affidavit with further explanation of the reason for striking black venire member

Billy Morris. Id. at 1245. Later that same day, the prosecutor submitted an ex 

parte affidavit, explaining his Morris strike. Id.32 

Without even awaiting a response from Adkins, the trial court entered an 

order the next day “finding that there was no purposeful racial discrimination in the 

 

Further, our references in this opinion to Adkins or to the Adkins Court are all to the 

majority opinion in Adkins.

32The prosecutor’s affidavit indicated that he and his co-counsel “were at all times under 

the impression and understood that Mr. Billy Morris was a single male and he was struck by the 

state for that reason.” Adkins, 710 F.3d at 1245. The prosecutor’s affidavit stated that his notes 

taken during voir dire corroborated the State’s belief that Morris was single. Id. During voir 

dire, Morris had said he was married. Id.

Case: 12-14421 Date Filed: 08/01/2013 Page: 104 of 128 
105

peremptory strikes exercised by the State as to Billy Morris, or any other black 

juror struck.” Id. at 1245–46. The “trial court found the prosecutor’s assertion of 

mistaken belief as to Mr. Morris’s marital status ‘to be credible.’” Id. at 1246.33 

The state appellate court affirmed the trial court’s denial of Adkins’s Batson claim. 

Id. (citing Adkins v. State, 639 So. 2d 515 (Ala. Crim. App. 1993)). 

In his subsequent § 2254 proceedings, Adkins appealed the district court’s 

denial of his Batson claim. Id. Because the state trial court made explicit fact 

findings of no purposeful discrimination and that the prosecutor was credible, the 

contested issue in Adkins was not about whether explicit fact findings had to be 

made or whether implicit ones would suffice. See id. at 1251–55. Rather, the 

issues were whether the record evidence showed the state court’s Batson finding of 

no purposeful discrimination was (1) an unreasonable application of federal law 

under § 2254(d)(1) or (2) an unreasonable determination of the facts under 

§ 2254(d)(2) or both. See id. Adkins said both. The majority opinion in Adkins

reviewed the state court record and concluded that “[b]ecause the [state] court 

overlooked material facts in its factfinding, it not only unreasonably applied 

Batson, it also unreasonably determined the facts at Batson’s critical third step.” 

Id. at 1254.

 

33The trial court’s order explicitly relied upon the evidence at the Batson hearing, the 

prosecutor’s affidavit, and the “trial court’s own personal experience with the prosecutor in other 

cases.” Adkins, 710 F.3d at 1246. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 105 of 128 
106

Importantly, the Adkins Court acknowledged that state court decisions can 

include both implicit and explicit rulings. It recognized that the state appellate 

court had “implicitly turned to Batson’s first step” and had “implicitly completed 

Batson’s second step.” Id. at 1252. 

But as to step three, the majority opinion in Adkins concluded that the state 

courts had failed to consider these five record facts: (1) “the strength of Mr. 

Adkins’s prima facie case,” id. at 1252; (2) “the fact that the prosecution explicitly 

noted the race of every black venire member (and only black venire members) on 

the jury list the state relied on in jury selection,” id. (emphasis added);

34 (3) “the 

fact that specific proffered reasons provided by the prosecutor were incorrect 

and/or contradicted by the record,” id.; (4) “the fact that the trial court relied upon, 

and did not subject to adversarial testing, an [ex parte] affidavit from the 

prosecutor that was submitted after the Batson hearing,” id.; and (5) “the fact that 

the trial court relied upon facts not part of the record, such as the trial court’s 

personal experience with the prosecutor in unrelated matters,” id. 

After determining that the state court decision was unreasonable, the 

majority opinion in Adkins conducted de novo review “unconstrained by § 2254’s 

 

34At the Batson hearing, the prosecutor’s own voir dire notes were admitted into 

evidence. The prosecutor’s notes explicitly noted the race of every black venire member, and 

only black venire members, marking each black venire member’s name with a “BM” or “BF.” 

Adkins, 710 F.3d at 1253. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 106 of 128 
107

deference.” Id. at 1255 (internal quotation marks omitted). It concluded that 

Adkins had “shown purposeful discrimination as to [venire member] Mr. Morris,” 

id., based on the above five “crucial” facts, id. at 1254, plus three more: (1) “the 

fact that the prosecutor acknowledged at the Batson hearing that he ‘was not 

concerned with the Batson matter . . . because it was a white-on-white crime,’” and 

this was an explicit acknowledgment by the prosecutor that he did not consider 

himself constrained by Batson in striking black venire members during trial, id. at 

1256 (alterations omitted); (2) the fact that several black venire members were 

struck for reasons, such as because the venire member knew defense counsel, even 

though those reasons applied equally to white venire members who were not 

struck, id. at 1256–57; and (3) the fact that the prosecutor struck six black venire 

members on the basis of age, when those venire members’ ages ranged from 31 to 

86 years old and the prosecutor did not strike similarly-aged white venire 

members, id. at 1257–58.

To be sure, the majority opinion in Adkins pointed out plentiful and 

powerful evidence of racial discrimination in the state court evidentiary record that 

supported petitioner Adkins’s federal Batson claim and the ultimate Batson result 

reached in Adkins. Our disagreement is not with the end-result part of Adkins. 

Rather, it is with the part of Adkins about AEDPA deference. The analysis about 

AEDPA deference to state court opinions, used by the Adkins majority opinion, is

Case: 12-14421 Date Filed: 08/01/2013 Page: 107 of 128 
108

flatly inconsistent with the well-established Supreme Court and Eleventh Circuit 

precedent outlined above, and we explain why that part of Adkins does not bind us 

or any future panels of this Circuit. 

A significant part of the Adkins Court’s analysis was that the state appellate 

court’s own written opinion had failed to “mention” and thus “failed to consider” 

all of the relevant facts and circumstances shown in the trial record and raised in 

Adkins’s brief on direct appeal in that state court. Id. at 1252. For example, the 

Adkins Court pointed out that “the Alabama Court of Criminal Appeals’ entire 

discussion of the state’s decision to strike [venire member] Mr. Morris was limited 

to two sentences.” Id. It also concluded that there was “no indication from its 

opinion that the Alabama Court of Criminal Appeals considered any of the relevant 

circumstances bearing on the ultimate issue of discriminatory purpose.” Id.

(emphasis added). This was “because the Alabama Court did not even mention all 

the relevant circumstances brought to its attention by Mr. Adkins in his brief.” Id.

(emphasis added). The majority opinion in Adkins stated that “[a]lthough Mr. 

Adkins’s brief . . . to the Alabama Court of Criminal Appeals brought . . . crucial 

facts to the court’s attention the court did not mention or consider them.” Id. at 

1254 (emphasis added). The Adkins Court went on, “[t]hese are relevant 

circumstances that should have been considered by the Alabama Court of Criminal 

Appeals at Batson’s third step. Instead, the Alabama Court of Criminal Appeals 

Case: 12-14421 Date Filed: 08/01/2013 Page: 108 of 128 
109

never mentioned them.” Id. (emphasis added). The Adkins Court therefore 

determined that the state court had “unreasonably applied Batson because it failed 

to consider crucial facts which Mr. Adkins raised in his brief to that court relevant 

to Batson’s third step.” Id. at 1254–55. 

Under Supreme Court and our Circuit precedent, a state court’s written 

opinion is not required to mention every relevant fact or argument in order for 

AEDPA deference to apply. Just the opposite is true. AEDPA deference under

§ 2254(d)(1) or (2) applies to summary adjudications and does not depend in any 

way on whether a state court opinion “mentions” or discusses a particular relevant 

fact or argument for purposes of § 2254(d). And we do not determine whether a 

state court “considered” evidence by looking to see whether the state court opinion 

“mentions” or “never mentioned” that evidence. The statements in Adkins about 

“never mentioned” or “did not mention” or about the lack of content in the state 

court opinion do not, and cannot, establish a new rule for state court opinionwriting in our Circuit because they are contrary to Supreme Court and our Circuit 

precedent outlined above. 

We use the compelling record facts in Adkins as an example to illustrate 

how AEDPA works. First, AEDPA deference applies even if a state appellate 

court’s opinion is short and does not discuss every fact or argument. In that event, 

we still examine what other “implicit findings” the state court could have made in 

Case: 12-14421 Date Filed: 08/01/2013 Page: 109 of 128 
110

its denial of a federal claim. Even if we recognize all of the implicit fact findings 

that the state court could have made from the evidentiary record in favor of its 

decision in Adkins’s case, and credit every reason the prosecutor gave, that 

decision would not be a reasonable application of Batson or a reasonable 

determination of the facts. Even if we were to indulge every maximum factual 

inference from that evidentiary record and credit every reason given, it would not 

be good enough to make the no-discrimination ruling reasonable. In our view and 

under Supreme Court and our precedent, the strong evidence of discriminatory 

purpose recited from the state court record in Adkins is what makes the state 

court’s Batson decision there unreasonable, not the quality or length of the state 

appellate court’s findings, explanations, or opinion-writing in that case. 

For all these reasons, we reject Lee’s claim that the state appellate court’s 

decision is an unreasonable application of Batson because it did not explicitly 

mention his allegation of a jury-discrimination history and did not make an explicit 

credibility finding on Batson’s third prong. We now address Lee’s other 

unreasonable-application arguments.

X. BATSON ANALYSIS IN LEE’S CASE

In this appeal, Lee focuses on three things as demonstrating that the state 

appellate court’s decision was an unreasonable application of Batson: (1) the 

State’s striking pattern; (2) the district attorney’s office’s alleged racial 

Case: 12-14421 Date Filed: 08/01/2013 Page: 110 of 128 
111

discrimination history in jury selections; and (3) the State’s strike reasons for

venire members David Gutridge and Demond Martin. Our careful review of the 

state court record and the state appellate court’s decision leads us to conclude that 

the state appellate court did not unreasonably apply Batson within the meaning of 

§ 2254(d)(1).35 We address each of Lee’s arguments in turn.

A. Striking Pattern 

The State used all of its 21 peremptory strikes and 17 of its 18 cause strikes 

on black venire members. The State’s striking pattern is troubling, although not 

alone dispositive of Batson’s third step. 

Rather, in the statistical analysis courts must consider the statistics in the 

context of other factors in a case, such as: the racial composition of the venire from 

which the jurors were struck, the racial composition of the ultimate jury, the

substance of the voir dire answers of jurors struck by the State, and any other 

evidence in the record of a particular case. Indeed, “the number of persons struck 

takes on meaning only when coupled with other information such as the racial 

composition of the venire, the race of others struck, or the voir dire answers of 

those who were struck compared to the answers of those who were not struck.”

 

35The State does not claim that the state appellate court procedurally barred any aspect of 

Lee’s Batson claim. But the State does contend that certain arguments Lee has made in the 

federal courts were not raised in the state courts and cannot be made here. We disagree and 

conclude that Lee adequately raised in the state appellate court the claims he made in the district 

court and now here. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 111 of 128 
112

See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044 (11th Cir. 2005) 

(internal quotation marks omitted); see also Cochran v. Herring, 43 F.3d 1404, 

1412 (11th Cir. 1995) (stating that “statistical evidence is merely one factor which 

the court examines, and it is not necessarily dispositive” in evaluating whether a 

Batson violation has occurred). 

Here, as to the voir dire answers, the state appellate court examined them 

and determined that the prosecutor’s strike reasons were all race-neutral. The state 

appellate court compared the answers of the struck venire members to the answers 

of seated jurors whom Lee claimed on direct appeal were similarly situated and 

concluded that there was no disparate treatment. Lee I, 898 So. 2d at 815–17. 

There is nothing in the substance of the voir dire itself that evinces discriminatory 

intent.

The racial composition of the venire and the selected jury should also be 

considered. Before peremptory strikes began, 32 of the 53 remaining venire 

members were black or 60.3% of the venire. Yet on Lee’s jury, 9 of the 12 jurors 

were black or 75% of the jury. That a predominantly black jury was selected cuts 

in favor of the state appellate court’s conclusion that no Batson violation occurred. 

See United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995) (“Although the 

presence of African-American jurors does not dispose of an allegation of racebased peremptory challenges, it is a significant factor tending to prove the paucity 

Case: 12-14421 Date Filed: 08/01/2013 Page: 112 of 128 
113

of the claim.”); see also, e.g., United States v. Gamory, 635 F.3d 480, 496 (11th 

Cir. 2011) (in addition to finding prosecutor’s proffered race-neutral reason 

persuasive, the Court specifically noted that three African-Americans were 

ultimately seated on the jury). 

It was not unreasonable for the state appellate court to conclude that this 

striking pattern, which also produced a predominantly black jury, was not a per se

violation under Batson. Of course, it must be considered in the totality of all other 

relevant circumstances, which we discuss too.

B. Alleged Racial Discrimination History 

Lee also alleges that a history of racial discrimination in jury selections by 

the district attorney’s office demonstrates that the State was motivated by race in 

the jury selection. Lee’s hurdle here is that his trial counsel did not introduce, or 

even proffer, any evidence in the trial court to support that allegation. Rather, all 

trial counsel did was cite the single case of “Robert Thomas v. State.” In that case, 

however, the state supreme court did not find a Batson violation, but remanded the 

case for further proceedings. Ex parte Thomas, 601 So. 2d 56, 58–59 (Ala. 1992). 

We review Ex parte Thomas to show exactly what happened there.

In Ex parte Thomas, the same district attorney’s office used 8 of its 11 

peremptory strikes against black venire members, stating they had misdemeanor 

convictions and/or bad driving records, based on a document prepared by a state 

Case: 12-14421 Date Filed: 08/01/2013 Page: 113 of 128 
114

investigator. Id. at 57. The trial court sustained the State’s objection to producing 

the document and overruled the defendant’s Batson motion. Id. The Alabama 

Supreme Court reversed and remanded, concluding that the trial court erroneously 

“accepte[d] at face value the State’s ostensibly facially neutral explanations for the 

use of its peremptory challenges, which were, with regard to three of the black 

veniremembers who were struck, based exclusively on information contained in 

the document to which only the State had access.” Id. at 58 (emphasis added). 

The Alabama Supreme Court noted in Ex parte Thomas that it “might be in a 

position to affirm” had, inter alia, the state trial court “ordered the State to produce 

the document that it used in exercising its peremptory challenges.” Id. at 59. The 

Alabama Supreme Court did not find a Batson violation, only that the defense was 

entitled on remand to “an opportunity to prove that the seemingly facially neutral 

explanations offered by the State were a sham or pretext.” Id. at 58. 

In Lee’s case, by contrast, prosecutor Greene turned over to Lee’s trial 

counsel the venire members’ criminal histories. If anything, Ex parte Thomas

helps the State here, because Lee’s counsel had the criminal histories but never 

disputed the credibility of the prosecutor’s arrest-record reason for striking venire 

members Demond Martin, Alice Scott, and Johnnie Hall.

Similarly, in his state direct appeal brief, Lee’s appellate counsel did not 

proffer any evidence either. Lee’s counsel did cite two Alabama cases prosecuted 

Case: 12-14421 Date Filed: 08/01/2013 Page: 114 of 128 
115

by the same district attorney’s office where the same Alabama appellate court 

reversed based on a Batson violation. See Kynard v. State, 631 So. 2d 257, 261–

70 (Ala. Crim. App. 1993) (although venire was 35% black, the jury had 10 white

jurors and 2 black jurors, or was only 17% black); Duncan v. State, 612 So. 2d 

1304, 1307–11 (Ala. Crim. App. 1992) (jury composition not noted). Lee’s 

appellate counsel cited one case in which the Alabama appellate court affirmed, 

albeit concluding that the trial court had correctly seated a black juror the State 

struck. See Marks v. State, 581 So. 2d 1182, 1186–87 (Ala. Crim. App. 1990)

(jury composition not noted). 

What Lee ignores is that the trials in Kynard, Duncan, and Marks occurred at 

least a decade before Lee’s trial and shortly after Batson was decided.36 In both 

Kynard and Duncan, the state appellate court found the State’s strike reasons were 

either not supported by the record or were pretextual based on the State’s failure to 

strike white venire members for the same reasons or both. In contrast, in Lee’s 

case that same Alabama appellate court found the prosecutor’s strike reasons were

race-neutral, supported by the record, and not pretextual due to disparate treatment. 

 

36Specifically, in Kynard, the offense occurred on September 2, 1988, 631 So. 2d at 258–

59, and the appeal was docketed in 1990 (appeal number 90-320), which shows the trial occurred 

between 1988 and 1990. In Duncan, the offense occurred on October 11, 1987, 575 So. 2d 1198, 

1199 (Ala. Crim. App. 1990), and the first appellate decision was on August 3, 1990, which 

shows the trial occurred between 1987 and 1990. In Marks, the offenses occurred between 

February and March of 1982, 581 So. 2d at 1183, and the appeal was docketed in 1989 (appeal 

number 89-410), which shows the trial occurred between 1982 and 1989. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 115 of 128 
116

As the State points out, it is telling that, in his direct appeal, Lee cited only a 

handful of reversals out of the thousands of cases prosecuted by this district 

attorney’s office, which prosecutes cases in five Alabama counties. We cannot say 

these few cases where the trials occurred more than a decade before Lee’s trial 

establish that the prosecutor’s peremptory-strike reasons in Lee’s particular case 

were pretextual and discriminatory.37 

Before the state appellate court, Lee focused his arguments on the State’s 

strikes of seven black venire members. As recounted above, the state appellate 

court considered Lee’s arguments in light of the record and concluded that the 

State’s strike reasons for those seven venire members were supported by the record 

and did not demonstrate disparate treatment. In this appeal, although Lee 

continues to claim the State’s strikes against each of the 21 black venire members 

violated Batson, Lee’s brief before us focuses primarily on only two venire 

members, David Gutridge and Demond Martin, and thus we discuss them in more 

detail. 

 

37In his direct appeal, Lee also cited three cases where the Alabama courts found no 

Batson violation. Stephens v. State, 580 So. 2d 11 (Ala. Crim. App. 1990) (seven white jurors

and five black jurors on jury in a 1987 trial); McGahee v. State, 554 So. 2d 454 (Ala. Crim. App. 

1989) (all-white jury in a 1986-1987 trial); and Currin v. State, 535 So. 2d 221 (Ala. Crim. App. 

1988) (70% black jury in 1987 trial). These three trials occurred at least 13 years before Lee’s 

2000 trial. As discussed, in 2009, this Court concluded that the defendant in McGahee was 

entitled to § 2254 relief. Although we have previously discussed McGahee, we also distinguish 

it factually from Lee’s case later.

Case: 12-14421 Date Filed: 08/01/2013 Page: 116 of 128 
117

C. Venire Member David Gutridge

At Lee’s trial, the prosecutor stated that David Gutridge was struck because 

he: (1) opposed the death penalty; (2) was uncooperative in his answers to the 

prosecutor’s questions; and (3) had a family member convicted of a property 

crime. Lee I, 898 So. 2d at 813. Lee argues that the first and second reasons were 

false. At the outset, the state appellate court agreed that the prosecutor had 

mistakenly asserted that Gutridge opposed the death penalty. Id. at 815. The court 

remarked that a mistaken reason could support a peremptory strike so long as it 

was “based on an honest belief” and otherwise represented a race-neutral reason. 

Id. at 815–16 (internal quotation marks omitted). The court examined the record 

and concluded that “[t]he record does not indicate that the prosecutor’s reason was 

not based on an honest belief.” Id. at 816. The conclusion that an honestly 

mistaken but race-neutral reason for striking a black venire member did not violate 

Batson was not unreasonable.

Concerning the prosecutor’s second reason, that Gutridge was 

uncooperative, the state appellate court reiterated that demeanor is a race-neutral 

reason for exercising a peremptory strike and that Lee at trial “did not dispute the 

prosecutor’s assertions about the demeanor” of Gutridge. Id. The trial record 

supports that fact. Additionally we note, as the voir dire transcript shows, that 

Gutridge did not raise his hand to answer either of the prosecutor’s questions about 

Case: 12-14421 Date Filed: 08/01/2013 Page: 117 of 128 
118

whether panel members could impose the death penalty, and only after being 

singled out did Gutridge answer specifically whether he could impose it. 

The third reason the prosecutor struck Gutridge was because he had a 

“[f]amily member involved and convicted of a property crime.” During voir dire, 

the prosecutor asked if any venire member or a family member had been arrested 

and charged with a property crime. Gutridge was one of the prospective jurors 

who raised his hand to this question. The record thus supports this reason too. 

Lee also compares Gutridge with a white venire member, Edwin Ember, 

who answered the same question about a property crime in the affirmative but was 

not struck by the State. Notably, Ember did not sit on Lee’s jury. The state 

appellate court examined the record and found that Lee’s defense counsel had used 

his 12th peremptory strike on Ember, seven strikes before the State used its 19th 

strike on Gutridge. The court concluded that “[b]ecause the defense had long since 

struck veniremember [Ember] when the State struck veniremember [Gutridge], we 

do not find that there was any plain error in this regard.” Id. at 817. Additionally 

we note Ember was not similarly situated to Gutridge for yet another reason 

supported by the record. Ember immediately raised his hand to the question of 

whether he would impose the death penalty if it were the proper penalty. Ember, 

unlike Gutridge, was not reluctant to answer. 

D. Venire Member Demond Martin

Case: 12-14421 Date Filed: 08/01/2013 Page: 118 of 128 
119

Lee contends that the state appellate court should have examined the two 

reasons given for striking Demond Martin, discovered that they were false, and 

concluded the strike was racially motivated. At trial the prosecutor had stated he 

struck Martin because: (1) Martin was opposed to the death penalty; and (2) he had 

“a bit of an arrest record.” 

The record supports the first reason. While Martin said that he could impose 

the death penalty under certain circumstances, he also told the prosecutor, “I don’t 

like the death penalty, I’m against it.” Like Gutridge, Martin also failed to raise 

his hand when the prosecutor asked the members of his voir dire panel if they felt 

death could be “a proper penalty given the circumstances,” and he had to be 

individually prodded by the prosecutor to disclose his views on the death penalty. 

Lee also now challenges the second reason, that Martin had a “bit of an 

arrest record,” as unsupported by the record. In Lee’s direct appeal, Lee made, and 

the state appellate court examined, a more general argument that the prosecutor’s 

reason for striking several black venire members (including Alice Scott and 

Johnnie Hall) due to their arrest records was not supported by the record. Lee I, 

898 So. 2d at 816. The court observed that the prosecutor had documentation 

concerning the criminal histories of each of the venire members. Id. Before the 

parties made cause or peremptory challenges, the State provided the defense with a 

copy of the criminal histories of the venire members. Id. Yet, Lee’s trial counsel 

Case: 12-14421 Date Filed: 08/01/2013 Page: 119 of 128 
120

did not contest the facts relating to the arrest record of any venire member for 

whom the prosecutor cited an arrest record as a reason for the strike. The court

thus concluded that Lee’s contention—that the arrest record reason was 

pretextual—was “not supported by the record,” and found no plain error. Id. This 

conclusion is not unreasonable. At no time has Lee submitted any evidence to 

refute the prosecutor’s statement that Martin, plus Scott and Hall, had arrest 

records.

E. Totality of the Evidence

In sum, courts should consider all relevant circumstances in determining if a 

Batson violation occurred. Batson, 476 U.S. at 96, 106 S. Ct. at 1723; see also

Johnson, 545 U.S. at 170, 125 S. Ct. at 2417; Miller-El, 545 U.S. at 240, 125 S. Ct. 

at 2325. We have examined the voir dire answers, the State’s strike reasons as to 

the contested venire members, and every fact or argument proffered by Lee to 

support his Batson claim. After doing so, and given our highly deferential AEDPA 

review, we conclude that the state appellate court did not unreasonably apply 

Batson to the facts here, i.e., all relevant circumstances in Lee’s case, and its 

decision is entitled to deference.38 

 

38In his briefs to this Court, Lee makes only passing references to 28 U.S.C. § 2254(d)(2) 

and a conclusory contention that the state courts unreasonably determined the facts. The thrust 

of Lee’s argument is that the state courts failed to follow Batson’s third step and unreasonably 

applied clearly established federal law. Thus, Lee’s claim is more appropriately analyzed under 

Case: 12-14421 Date Filed: 08/01/2013 Page: 120 of 128 
121

Although Lee contends that there are factual parallels between his case and 

McGahee and Adkins, our recitation of the facts in those cases already 

demonstrates how materially and starkly different the evidence was in those cases 

from Lee’s. If anything, the evidentiary differences between this case and 

McGahee show how weak Lee’s Batson claim is. Lee’s jury was not all white but 

was 75% black, with nine black jurors and three white jurors. In Lee’s case, each 

of the prosecutor’s reasons for the strikes was race-neutral and supported by the 

record. There was no explicitly racial reason for striking any black venire member. 

No state court’s reasoning, given in its own opinion in Lee’s case, revealed that the 

court did not consider an explicitly racial reason for a venire member strike. No 

prosecutor gave a “low intelligence” reason historically tied to racism.

The record evidence in Lee’s case is also nothing like Adkins, where only 

one black juror served. In Lee’s case, there is no jury list with racial notations by 

the prosecutor. There is no prosecutor admitting he did not consider any Batson

restraints in striking black prospective jurors. There is no ex parte affidavit by the 

prosecutor about strike reasons. There is no augmented record, assembled well 

after the original trial, with extensive objections by trial counsel. There is no 

evidence of black venire members struck for age or answers where white venire 

 

§ 2254(d)(1). McGahee, 560 F.3d at 1256 (“Where the concern is that a state court failed to 

follow Batson’s three steps, the analysis should be under AEDPA § 2254(d)(1) . . . .”). In any 

event, Lee has not shown an unreasonable determination of the facts under § 2254(d)(2).

Case: 12-14421 Date Filed: 08/01/2013 Page: 121 of 128 
122

members with the same age or the same answers were not struck. Rather, in Lee’s 

case, the prosecutor’s race-neutral reasons for the struck venire members were 

largely not objected to at trial, and were supported by the trial record. Lee has 

failed to show any Batson violation.

XI. CONCLUSION

For the reasons set forth above, we affirm the district court’s denial of Lee’s 

§ 2254 petition.

AFFIRMED. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 122 of 128 
123

TJOFLAT, Circuit Judge, specially concurring:

I concur fully in the court’s opinion and write separately to add another 

reason for the affirmance.

In this case, Lee timely raised a Batson1claim in the state trial court, 

objecting to the State’s exercise of peremptory challenge—at the end of the voir 

dire of the venire and after the jury had been struck—against twenty-one black 

venirepersons. The court ruled that Lee had established a prima facie case of racial 

discrimination and required the State to respond. The District Attorney responded 

with race-neutral reasons for each of the State’s challenges. Lee had no fault with 

the reasons the District Attorney gave for twenty of the challenges, effectively 

agreeing that he had lawful reasons for exercising them. As for the remaining 

challenge, the one lodged against Kevin Stevens, Lee disagreed, contending that it 

was racially motivated. He expressed his contention thusly: “The District 

Attorney gave the reason being [Stevens is] going to be in child support court. 

There is no indication that there’s any problem with him being in child support 

with any animosity towards the District Attorney’s Office or him going to court. 

The mere fact that he’s appeared in court is no reason why he should be struck 

from the jury.” Maj. Op. at 67. The District Attorney, in reply, explained that his 

 

1

 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

Case: 12-14421 Date Filed: 08/01/2013 Page: 123 of 128 
124

office prosecuted child support cases and “[u]nfortunately that tends to create some 

difficulty with defendants that come before the Court. They feel somehow we’re 

prosecuting them for a crime.” Maj. Op. at 68. Lee let the explanation stand; that 

is, he did not contend that the District Attorney’s explanation was a pretext for 

racial discrimination. The court overruled Lee’s specific objection to the Stevens 

challenge and the twenty other challenges as well. 

In his appeal to the Alabama Court of Criminal Appeals, Lee asked the court 

to notice plain error and sustain his Batson objections. That is, he did not claim 

that the trial court had erred in overruling his objections. Rather, he argued that 

had the trial court considered the representations he advanced in his brief, the trial 

court would have found the District Attorney’s reasons for exercising the twentyone peremptory challenges a pretext for racial discrimination. The Court of 

Criminal Appeals, being bound by Rule 45A of the Alabama Rules of Appellate 

Procedure2to notice plain error in this capital case, entertained Lee’s Batson

arguments. It gave him a second bite of the apple; it allowed him to present 

Batson objections he had withheld from the trial court. In doing so, the court 

 

2

 Rule 45A, “Scope of review in death cases,” states:

In all cases in which the death penalty has been imposed, the Court of Criminal 

Appeals shall notice any plain error or defect in the proceedings under review, 

whether or not brought to the attention of the trial court, and take appropriate 

appellate action by reason thereof, whenever such error has or probably has 

adversely affected the substantial right of the appellant.

Case: 12-14421 Date Filed: 08/01/2013 Page: 124 of 128 
125

litigated Batson claims that Batson and its Supreme Court progeny would not have 

entertained. 

The Alabama Court of Criminal Appeals did precisely what the Alabama 

Supreme Court did in Ex Parte Adkins, 600 So. 2d 1067 (Ala. 1992). There, in the 

trial court, the defendant, Adkins, stood silent when the State peremptorily 

challenged blacks on the venire. Instead, he waited until he was before the 

Alabama Supreme Court on direct appeal before objecting. Invoking Rule 45A, 

the Supreme Court entertained his objection and remanded the case to the Court of 

Criminal Appeals with the instruction to remand the case to the trial court for a full 

blown Batson hearing. On remand, Atkins failed to establish that the State’s 

peremptory challenges were racially discriminatory, and the Alabama Court of 

Criminal Appeals affirmed. Adkins v. State, 639 So. 2d 515 (Ala. Crim. App. 

1993). This court found the alleged discrimination and granted habeas corpus 

relief. Adkins v. Warden, Holman CF, 710 F.3d 1241 (11th Cir. 2013). As I 

pointed out in dissenting, nothing in Batson or its progeny recognizes a Batson

claim presented for the first time on appeal. Id. at 1261–62 (Tjoflat, J., dissenting). 

Case: 12-14421 Date Filed: 08/01/2013 Page: 125 of 128 
126

To be cognizable, a Batson claim must be presented to the trial court prior to the 

empanelment of the jury; if not presented then, the claim is non-existent.3

The only difference between the Adkins scenario and the scenario this case 

presents is that, here, the defendant did object to the State’s peremptory challenges 

at trial; whereas in Adkins, the defendant did not. Thus, the narrow question this 

case presents is whether, because the defendant lodged a Batson objection at trial, 

he may augment his objection on appeal with an argument he failed to present to 

the trial court, to-wit: that the State’s reasons for its challenges were a pretext for 

discrimination. In other words, had the trial court focused on evidence the record 

contained—but the defendant neither mentioned nor relied on in pressing his 

Batson objections—the trial court would have found that the reasons the State gave 

for challenging the black venirepersons were mere pretext for racial discrimination. 

Three of our sister circuits have answered this question. If, after the State has 

come forth with non-discriminatory reasons for exercising the peremptory 

challenges at issue the defendant stands silent, the defendant waives his Batson

objection; he may not resurrect it on appeal. See Davis v. Baltimore Gas & Elec. 

Co., 160 F.3d 1023, 1027 (4th Cir. 1998) (“[T]he movant’s failure to argue pretext 

 

3

 A policy allowing the initiation of a Batson claim on appeal rather than at trial would 

lead to the type of sandbagging that procedural rules, like the contemporaneous objection rule, 

seek to avoid. See United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998) (“The 

contemporaneous objection rule fosters finality of judgment and deters ‘sandbagging,’ saving an 

issue for appeal in hopes of having another shot at trial if the first one misses.”).

Case: 12-14421 Date Filed: 08/01/2013 Page: 126 of 128 
127

constitutes a waiver of the initial [Batson] objection.”); Hopson v. Fredericksen, 

961 F.2d 1374, 1377 (8th Cir. 1992) (“We hold that [appellant] failed to properly 

preserve this issue for appeal. After the trial judge listened to [appellee’s] reasons 

for striking the black venireman and requested the jury to return, [appellant] did 

not object nor request the trial judge to articulate her reasons on the record for 

overruling the Batson objection. Nor does the record show that [appellant’s] 

counsel made any attempt to rebut the reasons advanced by Fredericksen’s counsel 

when given the opportunity to do so.”); United States v. Rudas, 905 F.2d 38, 41 

(2d Cir. 1990) (“Once the Government has offered reasons for its peremptory 

challenges, defense counsel must expressly indicate an intention to pursue the 

Batson claim. Here defense counsel did nothing. . . . By failing to dispute the 

Government’s explanations, she appeared to acquiesce to them. As a result, there 

was no need for the district judge to make a ruling.”).

I fully concur in the court’s affirmance of the District Court’s decision 

denying habeas relief. I also do so because Lee failed to show on direct appeal to 

the Alabama Court of Criminal Appeals that the trial court erred in denying his 

Batson objections. Because the State, in its brief in the instant appeal, has treated 

the Alabama Court of Criminal Appeals, in its plain error review, as having 

reviewed what Lee argued to the trial court (but did not) in making his Batson

objections, I agree that Court of Criminal Appeals decision is neither contrary to, 

Case: 12-14421 Date Filed: 08/01/2013 Page: 127 of 128 
128

nor an unreasonable application of, the United States Supreme Court’s Batson

holdings. 

Case: 12-14421 Date Filed: 08/01/2013 Page: 128 of 128