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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CECIL KEITH HAYES §

§

Petitioner, §

§

VS. § 

§ NO. 3-05-CV-1974-M

NATHANIEL QUARTERMAN, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Cecil Keith Hayes, a Texas prisoner, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be

conditionally granted.

I.

Petitioner was convicted of aggravated robbery and sentenced to 70 years confinement. His

conviction and sentence were affirmed on direct appeal. Hayes v. State, No. 11-02-00348-CR, 2003

WL 22064066 (Tex. App.--Eastland, Sept. 4, 2003, pet. ref'd). An application for state postconviction relief was denied without written order. Ex parte Hayes, No. 61,529-01 (Tex. Crim. App.

Jun. 29, 2005). Petitioner then filed this action in federal district court.

II.

In two grounds for relief, petitioner contends that: (1) the prosecutor exercised her

peremptory challenges in a discriminatory manner to exclude all eligible African-Americans from

 

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the jury; and (2) he received ineffective assistance of counsel at trial and on appeal because his

attorney did not object to the admission of extraneous offense evidence on double jeopardy grounds.

A.

The standard of review in federal habeas cases is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996).

Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may

grant habeas relief only if the state court adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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

State court proceeding. 

28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 411-13, 120 S.Ct. 1495, 1522-24,

146 L.Ed.2d 389 (2000). Federal habeas courts review questions of law and mixed questions of law

and fact under subsection (d)(1). Pure questions of fact are reviewed under subsection (d)(2). See

Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 122 S.Ct. 194 (2001).

A state court decision is contrary to clearly established federal law "if the state court arrives

at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state

court decides a case differently than [the] Court has on a set of materially indistinguishable facts."

Williams, 120 S.Ct. at 1523. An unreasonable application of clearly established federal law is one

in which "the state court identifies the correct governing legal principle from [the] Court's decisions

but unreasonably applies that principle to the facts of the prisoner's case." Id. To be unreasonable,

the application of clearly established federal law must be more than merely incorrect. Gardner v.

 

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Johnson, 247 F.3d 551, 560 (5th Cir. 2001). The standard is one of "objective reasonableness."

Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000), cert. denied, 121 S.Ct. 2220 (2001), quoting

Williams, 120 S.Ct. at 1521-22. Factual determinations made by state courts are presumed to be

correct and are unreasonable only where the petitioner "rebut[s] the presumption of correctness by

clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Moody v. Quarterman, ___ F.3d

___, 2007 WL 102870 at *6 (5th Cir. Jan. 17, 2007).

B.

Petitioner first contends that the prosecutor used eight of her 11 peremptory challenges in

an attempt to exclude all eligible African-Americans from jury service in violation of the equal

protection clause of the Fourteenth Amendment to the United States Constitution. 

1.

The Fourteenth Amendment guarantees every defendant in a criminal case equal protection

under the law. Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954).

This right extends to the jury selection process. Swain v. Alabama, 380 U.S. 202, 204, 85 S.Ct. 824,

826, 13 L.Ed.2d 759 (1965); Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 305-08, 25 L.Ed.

664 (1879). Thus, a prosecutor may not use peremptory challenges to exclude potential jurors solely

on the basis of their race. Swain, 85 S.Ct. at 837-38. Prior to 1986, the use of peremptory strikes

against minority jurors was not unconstitutional absent proof of a historical pattern of racial bias.

Id. at 837-38. The Fifth Circuit explained this burden as follows:

In order to prevail [on a Swain claim], [petitioner] must prove that his

prosecutor had a systematic and intentional practice of excluding

blacks from traverse juries in criminal trials through the exercise of

peremptory challenges, and that this practice continued unabated

through petitioner’s trial.

 

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 The Supreme Court observed that the "crippling burden" imposed by Swain rendered the prosecution's use of

peremptory challenges "largely immune from constitutional scrutiny." Batson, 106 S.Ct. at 1721. 

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Evans v. Cabana, 821 F.2d 1065, 1068 (5th Cir.), cert. denied, 108 S.Ct. 5 (1987), citing Willis v.

Zant, 720 F.2d 1212, 1220 (11th Cir. 1983), cert. denied, 104 S.Ct. 3548 (1984). Unless a defendant

had evidence of purposeful and systematic discrimination, the prosecutor was entitled to a

presumption that he used his peremptory strikes in a proper manner. Swain, 85 S.Ct. at 837.

The Supreme Court revisited Swain two decades later in Batson v. Kentucky, 476 U.S. 79,

106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Recognizing that it is often impossible for a defendant to

prove the systematic exclusion of minorities from jury service over an extended period of time, the

Court rejected this evidentiary formulation "as inconsistent with standards that have been developed

since Swain for assessing a prima facie case under the Equal Protection Clause." Batson, 106 S.Ct.

at 1721.1

 No longer were defendants required to establish a historical pattern of discrimination in

the use of peremptory strikes. Under Batson, "a defendant may make a prima facie showing of

purposeful racial discrimination in selection of the venire by relying solely on the facts concerning

its selection in his case." Id. at 1722 (emphasis in original).

Batson articulated a three-part test for proving purposeful discrimination in the exercise of

peremptory challenges, similar to the test for proving discrimination under Title VII. Id. at 1721

n.18 (expressly referencing the "burden of proof rules" in Title VII disparate treatment cases). First,

the defendant must raise an inference that the prosecutor excluded potential jurors on the basis of

race. Id. at 1723; United States v. Wallace, 32 F.3d 921, 925 (5th Cir. 1994). A defendant may

satisfy this burden in a variety of ways, such as by showing a pattern of strikes against minority

jurors on the venire panel or by statements made by the prosecutor during the voir dire examination.

 

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Batson, 106 S.Ct. at 1723. Second, if the defendant makes a prima facie showing of the

discriminatory use of peremptory challenges, the burden shifts to the prosecution to articulate a raceneutral explanation for each of the challenged strikes. Id. at 1723-24; Wallace, 32 F.3d at 925. This

inquiry focuses on the facial validity of the explanation given by the prosecutor for striking minority

jurors. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered

will be deemed race neutral." Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131

L.Ed.2d 834 (1995) (citations omitted); see also United States v. Perkins, 105 F.3d 976, 978 (5th

Cir. 1997). Third, the court must determine whether the defendant has carried his burden of proving

purposeful discrimination. Batson, 106 S.Ct. at 1724; Wallace, 32 F.3d at 925. This final step of

the Batson analysis involves evaluating "the persuasiveness of the justification" offered by the

prosecutor. See Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006), quoting

Elem, 115 S.Ct. at 1771. However, "the ultimate burden of persuasion regarding racial motivation

rests with, and never shifts from, the opponent of the strike." Id.

A finding by the state court that the prosecutor exercised his peremptory challenges without

any discriminatory intent is accorded great deference because it largely turns on an evaluation of the

credibility or demeanor of the attorney who exercised the challenge. See Hernandez v. New York,

500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991); United States v. Bentley-Smith,

2 F.3d 1368, 1373 (5th Cir. 1993). Such a finding is a pure question of fact that will not be disturbed

on federal habeas review unless it is "objectively unreasonable and has been rebutted by clear and

convincing evidence to the contrary." Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005), cert.

denied, 126 S.Ct. 1028 (2006), quoting Miller-El v. Cockrell, 537 U.S. 322, 341, 123 S.Ct. 1029,

1041, 154 L.Ed.2d 931 (2003) ("Miller-El I"). See also Collins, 126 S.Ct. at 976 ("Reasonable

 

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 Under Texas law, the prosecution and defense each are entitled to 10 peremptory challenges, plus one additional

peremptory challenge for an alternate juror. See TEX. CODE CRIM. PROC. ANN. art. 35.15(b) & (d). Out of 11 total

challenges, the prosecutor struck eight African-Americans, one juror with an Hispanic surname, and two whites. (See

St. App. Tr. at 34). 

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minds reviewing the record might disagree about the prosecutor's credibility, but on habeas review

that does not suffice to supersede the trial court's credibility determination.").

2.

Petitioner, an African-American, was charged with aggravated robbery. The original venire

consisted of 63 prospective jurors. Five members of the panel were struck for cause and 18 others

were excused by agreement of the parties. Of the remaining 40 jurors, eight were African-American

and two were Hispanic. After the lawyers submitted their strike lists, defense counsel objected that

the prosecution had struck every African-American on the panel. (SF-II at 167).2

 In response, the

prosecutor offered specific reasons for striking each African-American juror. With respect to Juror

No. 6, Gertrude Hashaway, the prosecutor explained:

We struck Number 6, she--first and foremost, she was asleep for a

large portion of the voir dire. She is extremely grandmotherly. She

had--she seemed rather clueless in response to the questions,

especially in response to the Judge’s questions. I mean, she was

sleeping, and then it would be kind of in and out, and her response,

she had no response, in fact, to most of the Judge’s questions. The

other people would shake their head or answer ‘yes’ or ‘no,’ or

something to that effect. When she wasn’t asleep, she was clueless,

and didn’t appear to understand what was going on, certainly

concepts and certainly questions. She seems like a very nice lady,

but very grandmotherly, and we feel that this is a punishment case,

and that aspect of it concerned us. 

(Id. at 167-68). 

As grounds for striking Juror No. 11, Elwood Beasley, the prosecutor stated:

 

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He gave conflicting answers in response to our questions. I was clear

in explaining the requirements of a gun, would you require us to

bring a gun even if he believed eyewitness testimony beyond a

reasonable doubt, and he indicated that yes, that he would. And then

certainly changed his answer with Mr. Roberts. We believe that

inconsistency indicates he’s not understanding what’s going on or has

some questions. He currently has a cousin that’s in TDC right now.

He-- while he wasn’t as near asleep as Juror Number 6 was, he had

the heavy eyes. His eyes kept closing, his head kept bobbing, he was

clearly having trouble staying awake. He also mentioned, in his

factor as a punishment, a number three as a factor in his punishment.

(Id. at 168). 

The prosecutor struck Juror No. 15, Cynthia Richard, because:

She . . . had no response to the Judge’s questions. Her head didn’t

shake. She didn’t answer out loud. She just sort of sat there. She

received a bad juror rating on an assault with deadly weapon. Why

[sic] that in and of itself does not--is not sufficient cause, in a

combination of other things, that can be one thing that’s considered.

I think the most important thing, she was seriously hostile to the

State. She clearly--her body language. She had absolutely no sense

of humor. She was scowling at me. I wasn’t comfortable with her

looking at me. She also was a teacher, which they’re notoriously

liberal in--especially in their punishment, as we indicated earlier.

This is, we feel, a punishment case, and she as well indicated three in

her reasoning as her punishment, which was rehabilitation.

(Id. at 169). 

In support of the peremptory strike of Juror No. 16, Linda Denise Jackson, the prosecutor

offered:

[She] . . . changed her answers, gave inconsistent answers, indicated

she would need a gun to convict, even after explanation, then

changed her answers with Mr. Roberts. She, as well, mentioned three

as a punishment of--the rehabilitation factor as the punishment. She--

it did concern us when she changed her answer with Mr. Roberts.

What she said was, “Well, if I believe, if I believe,” kept harping on

the “if I believe,” sort of implying that she might have some higher

burden of proof of the State in order to believe one eyewitness, if we

 

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were unable to produce the gun. She also currently has a cousin out

on bond in a pending case here in Dallas County.

(Id. at 169-70). 

With regard to her strike of Juror No. 22, Rickie Parker, the prosecutor told the court:

When I asked him specifically regarding if he--if himself or a family

member or friend had ever been arrested, charged or convicted, he

lied. He has been arrested on violation of a court order and arrested

on another charge, but has also been convicted of assault, family

violence and DWI, and was certainly not forthcoming with that. He

mentioned a three as well in his punishment reasons, for

rehabilitation. He also had an earring in his ear, and that aspect of

that bothered us. His attitude seemed a little hostile, and I think it’s

been made clear it’s because he, you know, had these convictions

against him.

(Id. at 170). 

As for Juror No. 26, Mary Turner, the prosecutor stated:

She, as well, mentioned three as a punishment factor for her. She

was curt in her answers with the State, but more importantly, she has

a nephew that’s serving his 40-year sentence for, I believe she

indicated some sort of robbery, and her quotes were, “He didn’t do

it. He’s taking the wrap [sic] for someone else. The punishment of

40 years seems unfair.” She indicated it was just a small amount of

money and it didn’t seem fair to her that her cousin was treated this

way – or her nephew was treated this way. So we struck her for all

of those reasons.

(Id. at 170-71). 

The prosecutor gave several reasons for striking Juror No. 35, Annie Lee:

[S]he also changed her answer, was inconsistent with Mr. Roberts

and I. She indicated she would require more than one witness, even

though I explained the rules to her, and when she changed her

answers, her--I believe her direct quote was, “Well, I could--I would

prefer to, but if I believed them, if I was really convinced and made

a real strong effort and really convinced in part.” Again, implying 

 

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perhaps a higher burden on the State and their witnesses, and the fact

that she was unemployed, we struck her.

(Id. at 171). 

With regard to Juror No. 46, Donna Sue Jackson, the prosecutor explained:

We struck 46 for the same reason as some of the other jurors that

changed their answers. All the jurors that gave inconsistent answers,

we struck. She would require the State to produce a gun, then

changed her mind, you know, with the Defense attorney and said,

“Well, I guess”--she said, “I guess if they were believable. I guess I

wouldn’t need a gun.” With this kind of “I guess,” again, left it sort

of omnibus [sic]. And she indicated she had friends or family

members, arrested, charged or convicted, she said she had a whole

list of people, and then did point out one member of the family in

which he--I believe the quote was, she called the process unfair to

that particular person. And that aspect of it concerned the State as

well; so, for those reasons, we struck those jurors.

(Id. at 171-72). 

The trial judge then called upon petitioner, through his attorney, to rebut each of the reasons

given by the prosecutor for striking the African-American jurors. Regarding those panel members

who allegedly changed their minds about the need to see a weapon in order to obtain a conviction,

defense counsel accused the prosecutor of using her hypothetical questions as a tool for striking

jurors by presenting "a slanted, one-sided explanation" of this requirement and not fully exploring

the concept. (Id. at 172). Counsel further protested that he did not notice any jurors falling asleep,

but if they did, the prosecutor should have brought that matter to the attention of the bailiff. (Id. at

173). As for the African-American jurors who allegedly were struck based on their belief that

rehabilitation was a primary purpose of punishment, defense counsel pointed out that most of those

jurors also believed in the punitive aspects of punishment, much like six or seven non-AfricanAmericans who were not struck by the prosecutor. (Id.). Finally, counsel argued that there was no

 

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evidence in the record to substantiate the claim that any African-American juror was confused,

inattentive, hostile, or failed to respond to relevant questions. Rather, he accused the prosecutor of

fabricating these subjective explanations to justify her discriminatory use of peremptory challenges.

(Id. at 174-75). 

After considering the arguments of counsel, the trial court sustained the Batson objection to

Juror No. 6, Gertrude Hashaway, thereby rejecting the prosecutor's reasons for striking Hashaway

because she fell asleep, did not respond to questions, and was grandmotherly and careless in her

appearance. (Id. at 178). The judge also expressed concern "that out of the African-American

jurors, that seven of them, plus the alternate, were struck, which causes me to look at this with

perhaps--in a serious manner." (Id. at 179-80). Notwithstanding this concern, petitioner's other

objections to the prosecutor's use of peremptory challenges were overruled. Although the judge

found no Batson violation with respect to Juror No. 15, Cynthia Richard, all but one of the reasons

proffered by the prosecutor for striking Richard were called into question:

Considering Number 15 [Richard], much of the same thing as

Number 6 [Hashaway], no response to the Judge's question, bad jury

rating. There's nothing before the Court that would indicate what that

piece was or the type of case it was, and I assume that she received

a bad juror rating because of the outcome of the case. She--counsel

indicated that she was hostile in her body language and had no sense

of humor, and that she was a teacher and, therefore, liberal, and that

she answered number three [rehabilitation as a primary purpose of

punishment]. The only one of those that I would seriously consider

is the hostile and body language, and I know that some jurors do

promote hostility to a particular lawyer, of the lawyer's style, of the

questioning of them in voir dire, and that, again, of course, would be

nonracially. If you will either--it doesn't necessarily--is not

necessarily nonracial. The State's explanation that she seemed to

have some personal hostility to the assistant district attorney, and that

nothing has convinced me that that did not take place, even though I

didn't see it, but wasn't necessarily looking for that, the Court will

excuse that--will hold that to be the reason--nonracial reason for

 

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 Fifth Circuit precedent is in accord. See, e.g. United States v. Jimenez, 77 F.3d 95, 101 (5th Cir. 1996) (conviction

of close relative is race-neutral explanation for striking juror); United States v. Maseratti, 1 F.3d 330, 335-36 (5th Cir.

1993), cert. denied, 114 S.Ct. 1096 (1994) (sleeping during voir dire is race-neutral explanation); Murphy, 416 F.3d at

433, 439 (inconsistent answers, appearance and demeanor of juror, and lying about past criminal record are race-neutral

reasons); Bentley-Smith, 2 F.3d at 1374 n. 6 ("This court repeatedly has upheld peremptory challenges based upon

intuition and other objectively unverifiable considerations.").

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excusing that juror, the fact that the State has said that that juror was

personally hostile to the district attorney, and her body language.

(Id. at 178-79). 

On direct appeal, the state court held that each of the explanations given by the prosecutor

for striking the African-American jurors was race-neutral and facially valid. Hayes, 2003 WL

22064066 at *2-3, citing Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993), cert.

denied, 114 S.Ct. 1338 (1994) (belief that rehabilitation is a primary goal of punishment is raceneutral reason for exercising peremptory strike); Earhart v. State, 823 S.W.2d 607, 625 (Tex. Crim.

App. 1991), cert. granted and jmt. vacated on other grounds, 113 S.Ct. 3026 (1993) (same as to

juror who lacked steady employment); Dorsey v. State, 940 S.W.2d 169, 175 (Tex. App.--Dallas

1996, pet. ref'd) (same as to juror who appeared to sleep during voir dire, was inattentive, and had

relatives convicted or charged with a criminal offense); Ivatury v. State, 792 S.W.2d 845, 848 (Tex.

App.--Dallas 1990, pet. ref'd) (same as to non-verbal behavior and bad juror rating in prior case);

Anderson v. State, 758 S.W.2d 676, 680 (Tex. App.--Fort Worth 1988, pet. ref'd) (same as to juror

who had history of trouble with the law); Chambers v. State, 724 S.W.2d 440, 442 (Tex. App.--

Houston [14th Dist.] 1987, pet. ref’d) (same as to "body english" exhibited by juror).3

 In rejecting

petitioner's Batson claim, the appellate court provided little analytical insight into the reasons for

its decision, writing only that:

 

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 Petitioner did not raise a Batson claim in his state writ of habeas corpus.

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The record reveals that the trial court conducted an extensive

review of the reasons offered by the State for striking the minority

veniremembers. This review required the trial court to make an

evaluation of the prosecutor's credibility and its own observation of

the veniremembers. The trial court's ruling was not clearly

erroneous.

Hayes, 2003 WL 22064066 at *3. Petitioner now challenges that decision on federal habeas review.4

3.

The court initially observes that petitioner has established a prima facie Batson violation by

virtue of the fact that the prosecutor used eight of her 11 peremptory challenges in an attempt to

exclude all eligible African-Americans from jury service. These raw numbers are remarkable and

raise an inference that the prosecutor excluded potential jurors on the basis of race. See, e.g. Moran

v. Clarke, 443 F.3d 646, 651 (8th Cir. 2006) (defendants established a prima facie case under Batson

where plaintiff attempted to strike all African-American members of jury panel); Green v. Travis,

414 F.3d 288, 299 (2nd Cir. 2005) (defendant established prima facie Batson violation where

prosecutor struck all African-American and Hispanic panel members not already excused for cause);

United States v. Sowa, 34 F.3d 447, 452 (7th Cir. 1994), cert. denied, 115 S.Ct. 915 (1995) ("The

government easily made its prima facie case that the peremptory challenges were motivated by race;

each and every black venireperson was challenged."). In response to petitioner's prima facie

showing of discrimination, the prosecutor articulated race-neutral explanations for striking each

African-American juror. Therefore, this case, like most cases involving discriminatory jury

selection practices, turns on the third and final step of the Batson analysis. 

 

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a.

"Whether a defendant has carried his burden under Batson's third step to prove purposeful

discrimination is based on the persuasiveness and credibility of the prosecutor's justification for his

exercise of the peremptory strike." Moody, 2007 WL 102870 at *5, citing Elem, 115 S.Ct. at 1771.

At this stage, "implausible or fantastic justifications may (and probably will) be found to be pretexts

for purposeful discrimination." Miller-El I, 123 S.Ct. at 1040, quoting Elem, 115 S.Ct. at 1771. In

that instance, the issue comes down to whether the trial court finds the prosecutor's race-neutral

explanations to be credible. Id. A side-by-side comparison of minority panel members who were

struck by the prosecution and non-minority jurors who were allowed to serve can also be probative

of racial bias. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196

(2005) ("Miller-El II") (noting evidentiary strength of such close comparisons); Murphy, 416 F.3d

at 438. As the Fifth Circuit explained:

We would tend to reverse if the State's reasons were fantastic or

inconsistent with its treatment of similar non-minority jurors. Where

its reasons are believable, however, the inquiry is one of credibility.

Obviously, this question of fact turns heavily on demeanor and other

issues not discernible from a cold record, such that deference to the

trial court is highly warranted[.]

Ladd v. Cockrell, 311 F.3d 349, 356 (5th Cir. 2002) (internal quotations and citations omitted). The

ultimate conclusion of discriminatory intent is a pure question of fact which is entitled to deference

on federal habeas review unless rebutted by clear and convincing evidence. Id.

b.

A side-by-side comparison of prospective jurors shows that six of eight African-Americans

struck by the prosecution were not similarly situated to other jurors who shared some, but not all,

of the same characteristics. For example, the prosecutor articulated four reasons for striking Juror

 

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No. 11, Elwood Beasley: (1) he gave conflicting answers regarding the need to see a gun in order

to obtain a conviction; (2) he had a cousin in prison; (3) he had trouble staying awake; and (4) he

listed rehabilitation as one of the reasons for punishment. (SF-II at 168). Although three nonAfrican-American panel members also had relatives in jail and nine others believed in the

rehabilitative aspects of punishment, none of those jurors gave inconsistent answers or appeared to

fall asleep during voir dire. (Compare id. at 114, 118-19, 121 with id. at 75-76, 100, 140-41). The

prosecutor struck Juror No. 16, Linda Denise Jackson, because: (1) she initially indicated the need

to see a gun in order to convict; (2) she gave inconsistent answers on the gun question; (3) she

believed in rehabilitation; and (4) she had a cousin out on bond. (Id. at 169-70). Of the nonAfrican-Americans who had at least one characteristic in common with Linda Jackson, none gave

inconsistent answers to questions, implied that the state had a higher burden of proof, or had a family

member out on bond. (Id. at 73-74, 142-43, 111-12). Nor was any non-African-American juror

similarly situated to Juror No. 22, Rickie Parker, who: (1) lied regarding a prior arrest; (2) wore an

earring; and (3) appeared hostile to the prosecution. (Id. at 115, 170). Juror No. 26, Mary Turner,

was struck because: (1) she gave "curt" answers to several questions; (2) she had a family member

in jail; (3) she believed that a relative had been unfairly convicted and punished; and (4) she listed

rehabilitation as a primary purpose of punishment. (Id. at 170-71). No non-African-American juror

had more than two of these characteristics. (See id. at 114, 118-19, 121, 100-02, 104). The

prosecutor struck Juror No. 35, Annie Lee, because: (1) she gave inconsistent answers to questions;

(2) she suggested that more than one witness would be required to convict; and (3) she was

unemployed. (Id. at 171). No other juror had any, much less all three, of these characteristics. (See

 

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 Three white jurors were "retired," but none listed themselves as "laid off" or "unemployed" as did Lee. (Compare

Pet. Mem. Br., Exh. B at #8, 18, 31 with id., Exh. B at #35).

 6 Petitioner asks the court to take judicial notice of his trial in another aggravated robbery case where the prosecutor

struck five African-Americans from the jury panel. Hayes v. State, No. 11-02-00244-CR, 2003 WL 2010949 (Tex. App.-

-Eastland, May 1, 2003). Even if the court takes judicial notice that the Dallas County District Attorney represented the

state in the other aggravated robbery trial and that petitioner raised a Batson claim on direct appeal, such evidence is not

probative of discrimination in this case. There is no evidence in the record that the same prosecutor tried both cases.

Moreover, two African-Americans were seated on petitioner's jury in the other aggravated robbery trial. The adjudicative

facts that petitioner asks the court to judicially notice do not help him establish a pattern of racial discrimination.

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id. at 90, 147 & Pet. Mem. Br., Exh. B at #8, 18, 31).5

 Juror No. 46, Donna Sue Jackson, was struck

because: (1) she gave inconsistent answers; (2) she had multiple family members and friends who

had been arrested, charged or convicted of crimes; and (3) she believed that the criminal justice

system was unfair. (SF-II at 171-72). Although one white juror also had multiple relatives or

acquaintances with criminal records, that juror did not give inconsistent answers and never

questioned the fairness of the criminal justice system. (Compare id. at 117-18 with id. at 78, 143-44,

123-24). In sum, only two non-African-American jurors who remained on the panel shared more

than a single attribute in common with Beasley, Parker, Turner, Lee, Linda Jackson, and Donna

Jackson, and each of those two non-African-Americans had only two of five characteristics in

common with one of the African-American panelists. There simply is no evidence, other than the

raw numbers, to suggest that the reasons given by the prosecutor for striking these jurors were a

pretext for discrimination.6

c.

The court reaches a different conclusion with respect to the peremptory challenges used

against Juror No. 15, Cynthia Richard. According to the prosecutor, Richard was struck because:

(1) she did not respond to the judge's questions; (2) she had a "bad juror rating;" (3) she exhibited

hostile body language; (4) she was a teacher; and (5) she believed that rehabilitation was one of the

 

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primary purposes of punishment. (SF-II at 169). The first reason was specifically rejected by the

trial judge, who noted that "[t]he few questions I had dealt with the qualifications of the jurors, and

just general questions that [were] directed to the entire panel as to whether they could accept certain

propositions of law." (Id. at 178). The judge also discredited three of the other reasons for striking

Richard--that she had a bad juror rating, that she was a teacher, and that she believed in the

rehabilitative aspects of punishment. Although the judge did not articulate a basis for rejecting the

prosecutor's explanations, the record shows that two non-African-American teachers, Juror No. 24,

Patrick Lopez, Jr., and Juror No. 36, Ret Little, served on the jury. (See Pet. Mem. Br., Exh. B,

Master Jury List). Another non-African-American with a bad juror rating, Juror No. 45, Deborah

Noble, sat as an alternate. (Evid. Hrg., Pet. Exh. 2). This disparity justifiably caused the trial judge

to question the propriety of the prosecutor's reasons for striking Richard. Moreover, the prosecutor

misrepresented Richard's response to the punishment question. When asked if she believed in

punishment, deterrence or rehabilitation, Richard chose punishment and deterrence. (Id. at 101).

Contrary to what the prosecutor told the trial judge, Richard never expressed a belief in

rehabilitation. 

Having rejected all but one of the explanations for striking Richard, the trial court accepted

only the hostile body language as a valid reason. Significantly, the judge did not observe any

personal hostility on the part of this juror toward the prosecutor. (Id. at 179). Instead, the trial judge

blindly accepted the prosecutor's representation that Richard "was seriously hostile to the State,"

"had absolutely no sense of humor," and "was scowling at me." (Id. at 169). In so doing, the judge

implicitly found the prosecutor's hostility argument to be credible. Thus, the issue squarely

 

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presented is whether this credibility determination was objectively unreasonable in light of the

evidence presented in the state court proceeding.

i.

"Credibility can be measured by, among other factors, the prosecutor's demeanor; by how

reasonable, or how improbable, the explanations are; and by whether the proffered rationale has

some basis in accepted trial strategy." Miller-El-I, 123 S.Ct. at 1040. The only specific behavior

cited by the prosecutor in support of her hostility argument was that Richard "was scowling at me"--

something the trial judge did not observe. The absence of any objective evidence bearing on

Richard's hostility, a fact pointed out by defense counsel at the Batson hearing, undermines the

plausibility of this reason. Additionally, the prosecutor conflated Richard's alleged hostility with

her lack of a sense of humor-- another subjective assessment for which there is no objective

verification. It is unclear how the presence or absence of a sense of humor is relevant to the ability

to serve as a juror in a felony case. This seemingly implausible explanation further undermines the

prosecutor's credibility. See United States v. Jones, 245 F.3d 990, 993 (8th Cir. 2001), citing United

States v. Jenkins, 52 F.3d 743, 747 (8th Cir. 1995) (pretext can be based on a finding that the factors

used to explain the strike are irrelevant to a person's ability to perform as a juror in the particular

case).

ii.

Notwithstanding the purely subjective and inherently suspect reasons given by the prosecutor

in support of her hostility argument, petitioner cannot establish a Batson violation unless he rebuts

the ultimate finding of no purposeful discrimination by clear and convincing evidence. Because

direct evidence of discrimination is especially rare, the Supreme Court has fashioned special rules

 

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to ease the evidentiary burdens in equal protection cases. See McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Price Waterhouse v. Hopkins,

490 U.S. 228, 271, 109 S.Ct. 1775, 1802, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring) ("[T]he

entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct

evidence of intentional discrimination is hard to come by."). Once such rule permits proof of

discriminatory intent by circumstantial evidence. In Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), a Title VII case cited with approval in both

Miller-El I and Miller-El II, a unanimous Supreme Court held:

Proof that the [employer's] explanation is unworthy of credence is

simply one form of circumstantial evidence that is probative of

intentional discrimination, and it may be quite persuasive. In

appropriate circumstances, the trier of fact can reasonably infer from

the falsity of the explanation that the employer is dissembling to

cover up a discriminatory purpose. Such an inference is consistent

with the general principle of evidence law that the factfinder is

entitled to consider a party's dishonesty about a material fact as

affirmative evidence of guilt. Moreover, once the employer's

justification has been eliminated, discrimination may well be the

most likely alternative explanation, especially since the employer is

in the best position to put forth the actual reason for its decision.

Thus, a plaintiff's prima facie case, combined with sufficient evidence

to find that the employer's asserted justification is false, may permit

the trier of fact to conclude that the employer unlawfully

discriminated.

Reeves, 120 S.Ct. at 2108-09 (citations and punctuation omitted). See also Desert Palace, Inc. v.

Costa, 539 U.S. 90, 99-100, 123 S.Ct. 2148, 2154, 156 L.Ed.2d 84 (2003) (noting that

"[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and

persuasive than direct evidence" in proving discrimination). These special rules apply with equal

force in the Batson context. See Hernandez, 111 S.Ct. at 1866; Batson, 106 S.Ct. at 1721 n.18 &

 

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19; see also United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988) (recognizing analogies

between Batson and Title VII jurisprudence). 

Here, the circumstantial evidence leads to the inescapable conclusion that the prosecutor

struck Richard from the jury panel on account of her race. First, the court again observes that the

prosecutor used eight of 11 peremptory challenges in an attempt to exclude all African-Americans

from jury service. In Miller-El, the Supreme Court described the prosecutor's attempt to strike 91%

of the eligible African-American panel members as "remarkable" and noted that "[h]appenstance

is unlikely to produce this disparity." Miller-El II, 125 S.Ct. at 2325, quoting Miller-El I, 123 S.Ct.

at 1042. See also Holloway v. Horn, 355 F.3d 707, 722 (3d Cir.), cert. denied, 125 S.Ct. 410 (2004)

(noting that use of 11 out of 12 strikes against African-Americans was the "most striking factor"

suggesting an intent to keep blacks off the jury). In this case, the prosecutor attempted to remove

100% of African-Americans from the jury panel--evidence that is both "striking" and beyond

"remarkable." Cf. United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir.1988) (rejecting

Batson claim where prosecutor used six of seven peremptory challenges against Hispanic panel

members, but suggesting that defendant's argument might be stronger "[h]ad the prosecutor used all

of his challenges to exclude members of defendant's race").

Equally compelling is the fact that the trial court sustained a Batson objection to the

peremptory challenge used against Juror No. 6, Gertrude Hashaway. The prosecutor explained that

Hashaway was struck because she fell asleep, did not respond to questions, and was grandmotherly

and careless in her appearance. (SF-II at 167-68). All three reasons were rejected by the trial judge.

(See id. at 178). This, together with the pattern of peremptory strikes used against other AfricanAmerican jurors, should have caused the judge to question the prosecutor's credibility and reject her

 

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purely subjective hostility argument. See United States v. Nelson, 450 F.3d 1201, 1209 (10th Cir.),

cert. denied, 127 S.Ct. 326 (2006) ("[T]he prosecutor's use of peremptory strikes directed at other

African-American veniremembers is a relevant factor to be considered" in evaluating a Batson

challenge); Bennett v. Collins, 852 F.Supp. 570, 581 (E.D. Tex. 1994) (reasons for striking a juror

become even less believable when the pattern of challenges against other minority panel members

emerges). 

The court also notes that the prosecutor misrepresented Richard's answer to the punishment

question. Contrary to what the prosecutor told the trial judge, Richard never expressed a belief in

rehabilitation. Instead, she believed in the punitive and deterrent aspects of punishment. (See SF-II

at 101). Although a misstatement by the prosecutor can "plausibly be viewed as an innocent

transposition," see Collins, 126 S.Ct. at 975, such a conclusion is unsupportable here. At the Batson

hearing, the prosecutor argued that punishment "is the major focus of this particular case, and that's

why it's an important question." (SF-II at 176). Given the importance of this issue to the state, the

prosecutor's failure to accurately apprise the court of Richard's response to the punishment question

cannot be dismissed as a mere mistake. It can only be viewed as evidence of pretext. See McClain

v. Prunty, 217 F.3d 1209, 1221 (9th Cir. 2000) ("Where the facts in the record are objectively

contrary to the prosecutor's statements, serious questions about the legitimacy of a prosecutor's

reasons for exercising peremptory challenges are raised."); Caldwell v. Maloney, 159 F.3d 639, 651

(1st Cir. 1998), cert. denied, 119 S.Ct. 1152 (1999) ("Serious questions are also raised in cases in

which the facts in the record are simply objectively contrary to the prosecutor's statements."). 

Finally, and perhaps most significantly, the trial court had already rejected four of the five

reasons offered by the prosecutor for striking Richard--that she did not respond to certain questions,

 

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that she had a bad juror rating, that she was a teacher, and that she believed in the rehabilitative

aspects of punishment. (See SF-II at 179-80). Having implicitly determined that those explanations

were not worthy of belief, it was unreasonable for the judge to blindly accept the prosecutor's

representation that Richard exhibited hostile body language-- an unverified, subjective assessment

vigorously disputed by defense counsel. See, e.g. Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003)

("[I]f a review of the record undermines the prosecutor's stated reasons, or many of the proffered

reasons, the reasons may be deemed a pretext for racial discrimination."); Riley v. Taylor, 277 F.3d

261, 283 (3d Cir. 2001), quoting United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) ("The

relative plausibility or implausibility of each explanation for a particular challenge . . . may

strengthen or weaken the assessment of the prosecution's explanation as to other challenges.");

Caldwell, 159 F.3d at 651 ("A reviewing court's level of suspicion may also be raised by a series of

very weak explanations for a prosecutor's peremptory challenges. The whole may be greater than

the sum of its parts."). 

4.

Given the manner in which the prosecutor used her peremptory challenges and other strong

evidence of pretext in the record, it "blinks reality" to deny that Richard was struck because of her

race. See Miller-El II, 125 S.Ct. at 2340. In reaching this conclusion, the court is mindful of the

deference accorded to state court findings under the AEDPA. This is particularly true of credibility

determinations in Batson cases. See Moody, 2007 WL 102870 at *5 (evaluation of prosecutor's

justification for exercising peremptory challenges "should lie solely in the province of the trial

judge"). Indeed, this court has found only one reported decision since the AEDPA was enacted

 

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 7

 The court notes that the habeas petition in Rideau was filed on July 24, 1994-- 21 months before the effective date

of the AEDPA. Although the appeal was decided more than six years later, it was not subject to the AEDPA standards

of review. Rideau, 237 F.3d at 476 n.2, citing Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 2063, 138

L.Ed.2d 481 (1997).

 8 The court distinguishes this case from Collins, where the Supreme Court held it was not unreasonable for the trial

judge to allow a peremptory strike against an African-American juror who "rolled her eyes in response to a question from

the court," even though the judge did not observe such behavior. Collins, 126 S.Ct. at 973. In Collins, unlike the instant

case, the prosecutor gave other reasons for striking the African-American juror, such as her youth and lack of ties to the

community, both of which could be objectively verified. Id. at 975. Moreover, the prosecutor struck a white juror with

the same characteristics. Id. On those facts, it was not objectively unreasonable for the trial judge to accept the

prosecutor's uncorroborated representation that the African-American juror "rolled her eyes in response to a question

from the court." By contrast, the only legitimate reason offered by the prosecutor for striking Richard was her perceived

hostility toward the state. Every other reason for striking this juror was specifically rejected by the trial judge. Under

these circumstances, it was unreasonable for the judge to give the prosecutor the benefit of the doubt.

-22-

where the Fifth Circuit granted habeas relief based on a Batson violation. See Rideau v. Whitley,

237 F.3d 472 (5th Cir. 2000).7

 While the AEDPA standards are demanding, they are not insatiable:

Even in the context of federal habeas, deference does not imply

abandonment or abdication of judicial review. Deference does not by

definition preclude relief. A federal court can disagree with a state

court's [factual] determination and, when guided by the AEDPA,

conclude the decision was unreasonable or that the factual premise

was incorrect by clear and convincing evidence.

Miller-El I, 123 S.Ct. at 1041. Such is the case with respect to the state court's assessment of the

prosecutor's hostility argument. In light of evidence that the prosecutor used eight of 11 peremptory

challenges against all of the African-Americans on the jury panel, offered several pretextual reasons

for striking two African-American jurors, and misstated Cynthia Richard's position on punishment,

it was objectively unreasonable for the trial judge to accept the prosecutor's purely subjective

explanation that Richard exhibited hostility toward the state, particularly when the judge admittedly

observed no such hostility.8

 This ground for relief should be sustained.

 

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 9

 The statute provides, in relevant part, that:

(a) If a subsequent application for writ of habeas corpus is filed after final

disposition of an initial application challenging the same conviction, a court may

not consider the merits of or grant relief based on the subsequent application unless

the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have

been presented previously in an original application or in a previously considered

application filed under this article because the factual or legal basis for the claim

was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the

United States Constitution no rational juror could have found the applicant guilty

beyond a reasonable doubt . . .

-23-

C.

Petitioner further contends that he received ineffective assistance of counsel at trial and on

appeal because his lawyers did not object to the use of extraneous offense evidence on double

jeopardy grounds. Respondent counters that this claim is barred from federal habeas review because

it was never presented to the Texas Court of Criminal Appeals and any attempt to do so at this

juncture would be futile.

1.

A federal court may not consider the merits of a habeas claim if a state court has denied relief

due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120

L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by

state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S.

255, 262-63, 102 S.Ct. 2421, 2426, 72 L. Ed.2d 824 (1982). Article 11.07 of the Texas Code of

Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that

could have been, but were not, raised in his first habeas petition. See TEX.CODE CRIM. PROC. ANN.

art. 11.07, § 4 (Vernon Supp. 2003).9 This statute constitutes an adequate state procedural bar for

 

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TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a). 

-24-

purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115

S.Ct. 2603 (1995). The procedural bar doctrine also applies to unexhausted claims if the state court

would likely dismiss a successive habeas petition under article 11.07. See Coleman v. Thompson,

501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 (1991) (procedural default occurs

when prisoner fails to exhaust available state remedies and "the court to which the petitioner would

be required to present his claims in order to meet the exhaustion requirement would now find the

claims procedurally barred").

2.

 Petitioner raised two ineffective assistance of counsel claims in his state writ. In one ground

for relief, petitioner argued that trial counsel failed to interview and secure the attendance of material

witnesses, file pretrial motions to suppress the results of a suggestive photo line-up, and challenge

the admissibility of three written confessions. (St. Hab. Tr. at 7-12). In his second ground,

petitioner criticized his appellate lawyer for failing to challenge the factual sufficiency of extraneous

offense evidence. (Id. at 7, 12). Nowhere in his state writ did petitioner even mention, much less

argue, that counsel was ineffective for failing to object to the use of extraneous offenses on double

jeopardy grounds. The court finds that a Texas court, presented with this claim in a successive

habeas petition, would likely find it barred under article 11.07. Consequently, this ground for relief

is barred from federal habeas review. Coleman, 111 S.Ct. at 2557 n.1; see also Nobles v. Johnson,

127 F.3d 409, 422-23 (5th Cir. 1997), cert. denied, 118 S.Ct. 1845 (1998). 

 

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RECOMMENDATION

Petitioner's application for writ of habeas corpus should be conditionally granted. The writ

should issue unless petitioner is retried within 90 days after these findings are approved by the

district judge.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: March 9, 2007.

 

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