FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 18, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11611

________________________

D. C. Docket No. 02-01511-CV-CLS-TMP

JACK TRAWICK, 

Petitioner-Appellant, 

versus 

RICHARD ALLEN, Commissioner of the 

Alabama Department of Corrections, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(March 18, 2008)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Jack Trawick appeals from the denial of his habeas corpus petition filed

pursuant to 28 U.S.C. § 2254. Trawick was convicted of capital murder in

Alabama in 1994 and sentenced to death. Both the Alabama Court of Criminal
 This is the sole issue upon which a Certificate of Appealability was granted. 1

 Trawick was convicted by a petit jury on March 23, 1994. The U.S. Supreme Court 2

issued J.E.B. on April 14, 1994.

2

Appeals and the Alabama Supreme Court affirmed Trawick’s conviction and death

sentence for the kidnaping and murder of Stephanie Gash, and the U.S. Supreme

Court denied Trawick’s petition for a writ of certiorari. Trawick v. State, 698 So.

2d 151 (Ala. Crim. App. 1995); Ex parte Trawick, 698 So. 2d 162 (Ala. 1997);

Trawick v. Alabama, 522 U.S. 1000 (1997). His Alabama Rule 32 petition was

denied, and that denial was summarily affirmed on appeal. Trawick v. State, 854

So. 2d 1215 (Ala. Crim. App. 2002); Ex parte Trawick, 856 So. 2d 963 (Ala.

2002). Trawick then filed this federal habeas corpus petition, which the district

court denied. This appeal followed. 

The only issue before us on appeal is whether Trawick is entitled to federal

habeas relief on his claim that the State of Alabama exercised its peremptory

strikes in a discriminatory manner by using eleven of its fourteen strikes to remove

women from the venire in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994),

which prohibits gender discrimination in jury selection. Although Trawick did not 1

raise any objection to gender-biased striking during trial, he did argue that claim on

direct appeal to the Alabama Supreme Court on the basis of J.E.B., which the U.S.

Supreme Court decided several weeks after Trawick’s conviction. The Alabama 2
3

Supreme Court held that Trawick failed to establish a prima facie case of gender

discrimination. 

I. Standard of Review

This Court reviews a district court’s legal findings de novo. Housel v. Head,

238 F.3d 1289, 1294 (11th Cir. 2001). Because this case arises on habeas review,

the district court correctly reviewed the state court’s determination under the

highly deferential standard of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Under AEDPA, a federal court may not grant habeas relief

unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or “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)(1)–(2). The state court’s factual determinations are “presumed to be

correct” and the petitioner has the “burden of rebutting the presumption of

correctness by clear and convincing evidence.” Id. § 2254(e)(1).

II. Discussion

In J.E.B., the U.S. Supreme Court extended the prohibition against racebased discrimination in jury selection articulated in Batson v. Kentucky, 476 U.S.

79 (1986), to prohibit gender-based discrimination as well. In doing so, the
4

Supreme Court held that “gender, like race, is an unconstitutional proxy for juror

competence and impartiality.” J.E.B., 511 U.S. at 129. As with a claim of racial

discrimination, a party making a J.E.B. challenge bears the burden of proving a

prima facie case of gender discrimination by showing “‘that the totality of the

relevant facts gives rise to an inference of discriminatory purpose.’” Johnson v.

California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-94); see also 

J.E.B., 511 U.S. at 144–45. Once a party establishes a prima facie case of gender

discrimination, the burden shifts to the prosecutor to offer gender-neutral

explanations which are not pretextual for the challenged strikes. J.E.B., 511 U.S.

at 144–45. The third step in the Batson/J.E.B. framework then requires the trial

judge to decide whether the opponent of the strike has proven purposeful

discrimination. Johnson, 545 U.S. at 168.

The Alabama Supreme Court determined that Trawick had not established a

prima facie case of gender discrimination because the number and pattern of strikes

did not suffice to establish a prima facie case. We must review that decision of the

Alabama Supreme Court to determine if it was “contrary to” or involved “an

unreasonable application of” established U.S. Supreme Court precedent. 

During Trawick’s jury selection, there were forty-two jurors on the venire,

of which nineteen, or forty-five percent, were women. The prosecution used
 Fourteen peremptory strikes were exercised, as well as an additional strike of an

3

alternate who was a white male. 

 The State argues, and the district court agreed, that given the fact that the prosecutor 4

and the victim in this case were women, there was no clear motivation to discriminate against

women on the jury. As the Supreme Court has previously done, we reject this rationale

altogether. See J.E.B., 511 U.S. at 138–39 (rejecting gender-based stereotypes related to the

facts of the case as a defense to gender-based discriminatory striking).

5

eleven out of its fourteen peremptory strikes to eliminate women from the jury,

including the first seven. However, the final jury was composed of seven men and 3

five women.

During voir dire, Trawick did object to the prosecution’s use of peremptory

strikes, alleging that they were racially motivated and thus violated Batson. The

trial judge required the prosecutor to articulate race-neutral reasons for striking the 

black members of the venire and, rejecting the prosecution’s articulated raceneutral reasons for striking three black jurors, the court reinstated them to serve on

the jury. Trawick did not, however, object on the basis of gender discrimination. 

On appeal, Trawick argues that both the Alabama Supreme Court and the

district court here erred in rejecting his gender discrimination claim, and that

neither court gave adequate consideration to the arguments he made in addition to

the number and pattern of gender-based strikes. He contends that the following 4

additional factors support a finding of a prima facie case: 1) the history of

discrimination in peremptory striking by the prosecutor’s office; 2) the disparate
 Trawick cites to a series of Batson cases to support his argument that the Jefferson 5

County prosecutor’s office has historically racially discriminated in the selection of juries. 

(Appellant’s Br. at 12–13) (citing Cochran v. Herring, 43 F.3d 1404 (11th Cir. 1995); United

States v. Gordon, 817 F.2d 1538 (11th Cir. 1987); Ex parte Bankhead, 625 So. 2d 1146 (Ala.

1993); Smith v. State, 620 So. 2d 732 (Ala. Crim. App. 1992); Ex parte Williams, 571 So. 2d

987 (Ala. 1990); McElemore v. State, 798 So. 2d 693 (Ala. Crim. App. 2000); Miesner v. State,

665 So. 2d 978 (Ala. Crim. App. 1995); Hodge v. State, 665 So. 2d 959 (Ala. Crim. App. 1995);

Richmond v. State, 590 So. 2d 384 (Ala. Crim. App. 1991)).

6

treatment of men and women on the jury; 3) the lack of meaningful voir dire

conducted by the prosecution; and 4) the fact that the only common factor among

the women struck from the jury was their gender. 

Initially, we are satisfied that the Alabama Supreme Court considered his

arguments regarding these factors. The court’s opinion specifically acknowledges

his argument that the prosecutor’s office had a history of racial discrimination in

jury selection and although it does not specifically address each of the arguments

advanced by Trawick, we cannot assume that the court failed to consider all of the

arguments Trawick presented. 

Although Trawick may be correct that J.E.B. recognized that “gender and

race are overlapping categories,” 511 U.S. at 145, and past racial discrimination

may be considered as evidence that the prosecutor is willing and able to

discriminate in jury selection, we cannot say without some evidence evincing a

relationship to gender discrimination in this case that the Alabama Supreme Court

erred in rejecting this factor.5
7

Similarly, we cannot say that the trial record “provides clear evidence that

the State treated male and female jurors who shared the same characteristics in a

dramatically different manner.” (Appellant’s Br. at 14.) In this complicated

capital case, jurors were questioned about, among other things, their views on the

death penalty, amenability to sequestration, personal experiences with mental

health professionals, and previous involvement with the criminal justice system. 

The fact that two women stricken from the venire offered similar answers to men

who were chosen for the jury in response to a single question regarding media

exposure to the case is an isolated example in this record that simply does not

amount to disparate treatment of men and women with “the same characteristics.” 

Without more, we cannot find that the Alabama Supreme Court erred in finding

that Trawick failed to provide evidence that there was gender-based disparate

treatment of similarly-situated individuals. 

Nor can we say that the Alabama Supreme Court erred in rejecting the

argument that there was a lack of meaningful voir dire of jurors whom the state

struck. In Batson, the Supreme Court instructed that “the prosecutor’s questions

and statements during voir dire examination and in exercising his challenges may

support or refute an inference of discriminatory purpose.” Batson, 476 U.S. at 97. 

However, “the mere fact that . . . counsel decided to exercise peremptory
8

challenges against jurors who had not been extensively questioned during voir dire

does not establish a discriminatory purpose.” Cent. Ala. Fair Hous. Ctr., Inc. v.

Lowder Realty Co., Inc., 236 F.3d 629, 638 (11th Cir. 2000) (citing United States

v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990)). Here, Trawick offers no

explanation as to how the prosecutor’s conduct is evidence of gender bias,

particularly because Trawick does not allege that the prosecutor only failed to

question members of either gender. Trawick’s contentions amount to conclusory

statements characterizing the prosecutor’s performance. Thus, we cannot find that

the Alabama Supreme Court unreasonably disregarded Trawick’s argument that

the lack of meaningful voir dire was evidence of gender discrimination. 

Trawick also argues that the female jurors who were stricken from the venire

“had in common only one characteristic—their gender.” (Appellant Br. at 16.) 

The Alabama Supreme Court explicitly recognized that a relevant factor in

determining whether a prima facie case had been made was “evidence that the

jurors in question shared only the characteristic of gender and were in all other

respects as heterogenous as the community as a whole.” Ex parte Trawick, 698 So.

2d at 168. To that end, Trawick lists several factors which distinguish the women

stricken from the jury from one another—their marital status, employment status,

and parental status. 
9

While the cited biographical factors indicate that there was diversity among

the women stricken from the venire, there were significant characteristics shared

by various subsets of the women as well. For example, five of the women had

been victims of violent crimes in the past. Seven of the women had previous

experiences in the criminal justice system, either as witnesses or members of a

jury. Three of the women had past experience with mental health professionals. 

Another three of the women expressed reluctance at being sequestered for the

duration of the week. Given these substantial similarities among some of the

women stricken from the jury, we cannot say that it was unreasonable to disregard

Trawick’s contention that the female venire members were “as heterogenous as the

community as a whole.” 

Finally, in light of this record, we cannot say that the Alabama Supreme

Court erred in rejecting Trawick’s argument that the number and pattern of strikes

against female jurors in this case sufficed to establish a prima facie case. While

Batson states that “a ‘pattern’ of strikes against black jurors . . . might give rise to

an inference of discrimination,” 476 U.S. at 97, the Supreme Court did not

explicitly determine whether a pattern of strikes alone is enough to permit a judge

to draw the necessary inference. Rather, the Supreme Court instructed judges to

consider “all relevant circumstances” relating to jury selection in determining
10

whether a prima facie case of discrimination exists. Batson, 476 U.S. at 96. 

In this case, the prosecution used eleven of its peremptory strikes to remove

approximately fifty-eight percent of the nineteen women on the venire. The

original venire was forty-five percent women, and the final seated jury was fortytwo percent women. The number of women struck is not so disparate from the

number of women on the venire as to render the Alabama Supreme Court’s

determination clearly erroneous. Moreover, though it is not a dispositive factor,

this Court has held “that the unchallenged presence of jurors of a particular

[gender] on a jury substantially weakens the basis for a prima facie case of

discrimination in the peremptory striking of jurors of that [gender].” Lowder, 236

F.3d at 638.

Given the facts of this case, we cannot find that the Alabama Supreme Court

erred in concluding that Trawick’s reliance on the number and pattern of strikes

against women was, without more, insufficient to establish a prima facie case of

gender discrimination in this case. We have reviewed the record and based

thereupon cannot say that the Alabama Supreme Court’s ultimate conclusion was

“contrary to” or involved an “unreasonable application of” federal law. 

Accordingly, the district court opinion denying Trawick’s petition for habeas relief

is AFFIRMED.