Jะตffery LEE, Petitioner-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
No. 12-14421.
United States Court of Appeals, Eleventh Circuit.
Aug. 1, 2013.
726 F.3d 1172
Defendant argues that his sentence was substantively unreasonable because (1) his prior criminal history amounted to a single assault offense; (2) he committed the offense while โdetained without due process in the Bryan County, Oklahoma jailโ and his letters were nothing more than a โcry for attention to a judge who [Defendant] justifiably believed was simply indefinitely detaining him,โ Aplt. Br. at 34; (3) Defendant had diminished capacity at the time of the offense because of his mental illness and incompetency; (4) Defendantโs sentence is too harsh when compared with a sentence received by a defendant in a similar case in the same court; (5) the sentence would not deter other criminal conduct because it was โnot a highly publicized caseโ and anyone similarly situated to Defendant (or Defendant himself) would not โbe able to perceive the sentence and use it to adjust future behavior,โ id. at 36; and (6) Defendant committed the offenses while incarcerated, so further incarceration will not protect the public.2
We see no abuse of discretion. The district court reasonably determined that Defendantโs โhistory of violence, along with the defendantโs continued inability to control his anger, and history of being noncompliant with medication at times during his evaluation with the Bureau of Prisons causes the Court concern that the defendant poses an actual danger to the public.โ R., Vol. 2 at 200.
V. CONCLUSION
We AFFIRM Defendantโs sentence.
Sipos, Perkins Coie, LLP, Seattle, WA, Leslie S. Smith, Federal Defender Program, Inc., Montgomery, AL, for Petitioner-Appellant.
Stephanie Reiland, Andrew Lynn Brasher and John Cowles Neiman, Jr., Attorney Generalโs Office, Montgomery, AL, for Respondent-Appellee.
David Burman, John Thomas Cooke, Nicholas Gellert, Jeffrey Hanson, Charles
HULL, Circuit Judge:
Alabama death row inmate Jeffery Lee appeals the district courtโs denial of his
- GUILT PHASE
- Stateโs Evidence
- Pretrial Mental Evaluations
- Defenseโs Mental Health Evidence
- Stateโs Rebuttal Evidence
PENALTY PHASE AND DIRECT APPEAL - Sentencing Hearing before Jury
- Sentencing Hearings before Trial Judge
- Leeโs Direct Appeal and First Remand
- Trial Judgeโs Amended Sentencing Order
- State Appellate Courtโs Decision on Direct Appeal (Lee I)
- COLLATERAL REVIEW
- Leeโs Amended Rule 32 Petition and Supplement
- State Trial Courtโs Rule 32 Decision
- State Appellate Courtโs Decision on Rule 32 Decision (Lee II)
- Leeโs Federal ยง 2254 Petition
- STANDARD OF REVIEW
- INEFFECTIVE-ASSISTANCE CLAIM
- Strickland v. Washington Test
- Prejudice Prong
- JURY-OVERRIDE CLAIM
- Leeโs Ring Claim
- Direct Appeal Decision
- Juryโs Guilty Verdict Included Armed Robbery
- LEEโS BATSON CLAIM
- Batson and Its Progeny
- Jury Selection in Leeโs Trial
- Direct Appeal Decision
- AEDPA DEFERENCE TO PLAIN-ERROR REVIEW
- AEDPA DEFERENCE TO SUMMARY OPINIONS
- Supreme Court Precedent
- Our Circuit Precedent
- Atwater v. Crosby (2006)
- Hightower v. Terry (2006)
- Blankenship v. Hall (2008)
- McGahee v. Alabama Department of Corrections (2009)
- Greene v. Upton (2011)
- Adkins v. Warden, Holman CF (2013)
- BATSON ANALYSIS IN LEEโS CASE
- Striking Pattern
- Alleged Racial Discrimination History
- Venire Member David Gutridge
- Venire Member Demond Martin
- Totality of the Evidence
- 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 robbery of a pawn shop.
The murder charges against Lee were capital in nature because Lee: (1) commit
A. Stateโs Evidence
Critically, the Stateโs 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) Leeโs signed statement confessing to shooting the three victims and attempting to rob the pawn shop.1
On the day of the murders, Lee went into Jimmyโs 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 shopโs 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, โWhatโs up, mother[ ]fuckers?โ 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 Kingโs hand. King fell to the floor and pretended to be dead. Lee then shot Ellis again in the chest. After shooting the pawn shopโs 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 shopโs doors. Lee had left his sawed-off shotgun, used in the murders, on the shopโs 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 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 Leeโs 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.
At trial surviving victim King described the crimes and positively identified Lee as the perpetrator. King verified the pawn shopโs surveillance footage corresponded to her recollection of events. The State introduced into evidence several photographs of the victims. Objecting, Leeโs counsel argued that the photographs were highly inflammatory and prejudicial. Also, well before trial, Leeโs counsel filed a motion in limine to preclude the State from introducing โseveral gruesome and highly prejudicial photographs of the victims,โ photographs which depicted โ[f]ull-body and close-up head shots of the victims.โ 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 closะต-range shotgun blast to the face. The jury heard the medical examiner describe Thompsonโs wound as follows: the shotgun pellets โshattered [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.โ
On cross-examination, Leeโs 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 state only that the shotgun wounds were not self-inflicted injuries and the shots were fired from a โsufficient range that [he] classified it as homicide.โ
The State also called Maurice Cunningham, Leeโs sisterโs boyfriend. Cunningham was with Lee the night before the murders along with a larger group, first at Cunninghamโs 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 โto see how it shot.โ 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 Sheriffโs 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 Leeโs Miranda rights, Lt. Freine interviewed Lee and took a written statement. Leeโs 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. Freineโs testimony, the State also introduced into evidence and played for the jury the surveillance footage
On cross-examination of Lt. Freine, Leeโs counsel elicited testimony implying that despite the many objects of value in the pawn shop, including $900 in victim Ellisโs pocket, none of these items were taken by Lee.
B. Pretrial Mental Evaluations
Prior to trial, Leeโs trial counsel2 had 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 defenseโs 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 Stateโs request, the state trial court ordered a mental evaluation of Lee. On July 20, 1999, clinical psychologist Dr. Kathy Ronan evaluated: (1) Leeโs present mental condition and competency to stand trial; and (2) Leeโs 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 Leeโs family background. Prior to his incarceration, Lee lived with his family, and had two sisters, three half-brothers, and one half-sister. Lee told Dr. Ronan that he was โmentally abusedโ by his mother, and that he was cursed and all his life told he โainโt gonna amount to nothing.โ But Lee โdenied any physical or sexual abuse, or any significant difficulties while growing up.โ
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 โa few ะฐreas of below normal functioning... but no significant deficits.โ Leeโs test results โsuggested that his overall intellect is probably within the low average to perhaps borderline range,โ but Dr. Ronan found โno indication of retardation.โ Dr. Ronan also recounted how Lee had a โfairly significant history of substance abuse, including Marijuana Dependence; Alcohol Dependence; and Cocaine Dependence.โ
Ultimately, Dr. Ronan concluded that Lee was competent to stand trial, as Lee did not โhave any type of major psychiatric illness,โ โ[t]here is no indication of retardation,โ and Lee โdemonstrated adequate knowledge in all areas assessed related to legal proceedings.โ
Dr. Ronan also evaluated Leeโs mental state at the time of the murders. Lee told Dr. Ronan that immediately prior to the murders, he smoked โa bluntโ 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 โno indication that [Lee] had any type of command hallucinations or delusions di-
2. Dr. Donald Blanton
On September 20, 1999, after receiving Dr. Ronanโs report and certain school records, Leeโs 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, including but not limited to โthe 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.โ Leeโs counsel specifically recognized that โ[m]ental impairment is the most compelling mitigating factor[ ].โ
After the state trial court granted this motion, Leeโs 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 (โWAIS-Rโ). Lee scored an IQ of 67, which indicated to Dr. Blanton that Lee was โin the middle range of mental retardation.โ Dr. Blanton administered the Bender Visual-Motor Gestalt Test, on which Lee did โfine.โ 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 โwas not psychotic and that he was having some depression secondary to his situation.โ In his report, Dr. Blanton stated that โ[t]hroughout testing [Lee] appeared to put good effort into his work and anxiety did not appear to be a significant factor.โ
As for Leeโs 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. Blantonโs report noted that Leeโs mother and father both allegedly suffered from โnervous troubleโ and had been treated for โnerves.โ Additionally, Leeโs โ[f]amily history... reveal[ed] a drug addicted uncle and another alcoholic uncle.โ
3. Dr. Winston Pineda
Although not called at trial, we review what the record states about Dr. Pinedaโs evaluation of Lee. Following his arrest, Lee was evaluated by Dr. Pineda, a psychiatrist working for the State, on January 7, 1999. Dr. Pinedaโs evaluation and treatment are referenced in Dr. Ronanโs report, which both the state trial court and Leeโs counsel had.
Dr. Pineda reported that, during his consultation, Lee complained of โpersecutory auditory hallucinationsโ starting immediately before the murders and that Lee was โquite distraught and remorseful.โ Dr. Pineda stated that Lee had an unspecified psychiatric disorder, as well as a dependence on marijuana. Dr. Pineda
C. Defenseโs 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 โcertified psychometrist.โ3
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 โin the middle range of mental retardation which is slightly below the second percentile nationally.โ Dr. Blanton stated that meant โout of 100 people, 98 would have a higher I.Q. score than Mr. Lee on average nation[ ]wide.โ
Dr. Blanton also administered the Bender Visual-Motor Gestalt Test, a test performed to determine any โorganic disturbancesโ between Leeโs โeyeballs and brain hookup.โ On that test Lee did โfine.โ
Dr. Blanton also testified to Leeโs 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 Leeโs reading score indicated that โ92 percent of people score better than what [Lee] had [scored] on his test.โ As for Leeโs arithmetic score, Dr. Blanton stated it was โvery low. That would mean that 99.7 percent of the people would score higherโ than Lee on the same test.
As for Leeโs 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 โquite often too.โ
Dr. Blanton also testified that he performed โa number of other tests that [Lee] was unable to handle.โ Dr. Blanton gave Lee the Beck Depression Inventory and Mental Status Examination โwhich is a psychological test thatโs administered orally.โ From that test Dr. Blanton concluded that Lee โwas not psychotic and that he was having some depression secondary to his situation.โ Dr. Blanton testified, though, that he did not believe Lee was malingering: โIn this case, I didnโt feel [Lee] understood whether it would hurt him or not hurt him [to be deceptive in answering the questions].โ4
On cross-examination, the State elicited testimony from Dr. Blanton that individuals in the โmild range of mental retardationโ can function in society, and Dr. Blanton agreed to the prosecutorโs statement that these individuals can โ[h]ave families, jobs, go to work, drive trucks, and that sort of thing.โ But Dr. Blanton stated that โ[l]ess than four percentโ 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, tะพ which Dr. Blanton replied that it โ[d]epend[ed] on the school.โ
In its rebuttal presentation, the State called Leeโs work supervisor, Howard Mitchell, at Taylor Lumber Company. Mitchell testified that Lee had worked for him for โa period of time,โ 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 Leeโs high school, Billingsley High School. Principal Smith described Lee as โa good student.โ Principal Smith said that the high school had three levels of classes: special education, basic level, and advanced track; Lee was โin the advanced track preparing for college.โ Lee was not in special education and โwas never tested for special education.โ During his time at Billingsley, Lee maintained โaverage grades, Bs and Cs.... [j]ust an average student in that particular level.โ Lee began encountering problems around the eleventh grade, when โ[h]is grades turned down,โ and Leeโs twelfth grade year was โpretty much the worst year.โ Lee did 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 Leeโs SAT test and Smith agreed that Leeโs scores were โsomewhat low.โ
On redirect examination, the State showed Principal Smith a number of Leeโs 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, Leeโs 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 Leeโs substance abuse or whether something else may have impacted Leeโs 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 โno mental illness or mental retardation that would have impaired his understanding of right or wrong during the time of questioning.โ
Prior to her trial testimony, Dr. Ronan reviewed Dr. Blantonโs report. Dr. Ronan agreed with some aspects of Dr. Blantonโs report but disagreed with others. Dr. Ronan stated that Dr. Blantonโs test resultsโwhich measured Leeโs intelligence and achievement abilityโโwere quite low, and they were inconsistent with my original findings. They were also inconsistent with the history of Mr. Leeโs academic performance.โ Dr. Ronan stated that the inconsistencies could be attributed to two possibilities: (1) Lee was depressed when Dr. Blanton saw himโsuffering from what she termed โan adjustment reactionโ to incarcerationโand that depression may have impacted Leeโs testing ability; or (2) malingering.
Dr. Ronan also testified that even a mildly mentally retarded personโs condition is โ[n]ot so great as to interfere with [his] decision making process or ability to understand right from wrong.โ She explained that โwhen youโre talking about [a] mental retardation level that interferes with some people to distinguish between right and wrong, youโre really talking about an I.Q. level of in the forties, we call that moderate to se[vere]... retardation.โ And here, it was Dr. Ronanโs opinion that Lee did not suffer from retardation of any kind.
Ultimately, the jury returned a unanimous verdict of guilty against Lee ะพn all counts.
II. PENALTY PHASE AND DIRECT APPEAL
A. Sentencing Hearing before Jury
In his opening statement in the penalty phase, Leeโs counsel said that counsel would โput on evidence to give you a better picture of Jeff[er]y Leeโ and โwhy he shouldnโt die.โ Counsel said this โbetter pictureโ would include Leeโs young age (23), his status as a father of two children, and things the jury had โalready heardโ including Leeโs good work record and good school record. Counsel also said the defense would talk about Leeโs mental retardation, although the defense would not recall Dr. Blanton.
The State put forth no evidence, resting upon the guilt-phase evidence.
In Leeโs mitigation presentation, Leeโs counsel first invoked Dr. Blantonโs guilt-phase testimony concerning Leeโs mental capabilities and Howard Mitchellโs guilt-phase testimony concerning Leeโs status as a good worker. The defense then called Leeโs father, uncle, aunt, and mother.
Leeโs father, Jessie James Lee,6 testified that his son was 23 years old and the third of six children. Jessie testified that โall [his] other children except [Lee] and one of [his] other boys have had seizures,โ and that often Jessie had to take them to โBirmingham at Saint Vincent,โ a hospital.
Jessie said that he was a mechanic and also worked for the State of Alabama. Jessie testified that Lee was โgood helpโ until he entered ninth or tenth grade and began experimenting with drugs. Specifically, Jessie โwould tell [Lee] to get [him] such and such a wrench and when [Lee] would come back, [Lee] would have the wrong wrench.โ After Lee began using drugs, Jessie said that Lee โjust wasnโt the same,โ and that Lee โwould 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.โ Jessie said Lee would โjust sitโ outside until โ[t]en or eleven oโclock at night.โ
Jessie testified that Lee exhibited other strange behavior, and as an example stated that once Lee painted a dog. Jessie also said that โyou could tell [Lee] not to do something and sometimes he would do it.โ Other times, โ[Jessie] would tell him to do something and [Lee] wouldnโt do it.โ
Leeโs counsel asked Jessie if his son should receive the death penalty. Jessie expressed sympathy for the victimsโ families, but stated, โI donโt want my son to go to no death penalty. Iโm the one, Iโm the one that carried my son to jail.โ Jessie testified that Lee wanted to turn himself in for the murders. He asked that his sonโs life be spared, and stated that his son โreally need[s] help.โ
On cross-examination, the State confirmed with Jessie that Leeโs problems
Jessie said that Lee stayed with Jessie and his wife (Leeโs mother) during the week. The State asked Jessie whether he thought Lee had used drugs on the day of the crimes. Jessie responded: โIt had to be something the matter with him because my children would come home every night. The night this happened, they didnโt come home. My other son, Andre... who was in the car with him, he had called my daughter that morning about eight oโclock to come pick him up.โ When pressed as to whether Lee was on drugs at the time, Jessie responded, โWhen I s[aw] [Lee] that evening, he didnโt look nothing like right.โ
Leeโs uncle, Walter Jackson Lee, testified that he had been around Lee throughout Leeโs life. Walter described Lee as โkind of a smart childโ growing up and an โaverage childโ who did not always โdo everything he was supposed to do.โ Walter stated Lee should not receive the death penalty: โTo me and especially to the family,... I wouldnโt like to see him getting the death row. To the family, Iโm sorry what he done. But I wouldnโt like to see him get death row.โ
Leeโs aunt, Emmajean Thomas, testified that she had known Leะต โever since he was a baby.โ Thomas said that growing up, Lee โwas a good child. Not saying it because heโs my nephew, but Iโm saying it because itโs true.โ When asked if she ever noticed anything unusual about Lee, Thomas responded, โNo more than they used to like, like my brother said, like to play with dogs. [Lee] went and painted a dog.โ She confirmed that Lee painted the dog โbrownโ and โ[p]ainted the whole dog.โ Thomas testified that she knew of Leeโs 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 victimsโ families but that Lee should not receive the death penalty.
Finally, Leeโs mother, Betty Jean Lee, testified that while she had sympathy for the victims and their families, โI donโt want to lose my child. I love him.... [H]eโs my third son... and I donโt want to lose him.โ 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 โwas engaged in the commission of an attempt to commit flight after committing or attempting to commit robbery.โ The state trial court also instructed that โ[t]he fact that Jeff[er]y Lee has been convicted in this case in and of itself is not an aggravating circumstance.โ
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 court judge commenced the first sentencing hearing on September 22, 2000.7 The state trial court took addi-
The victimsโ children testified. Jimmy Ellis, Jr., victim Jimmy Ellisโs son, testified that his fatherโs death โtore [his] world apart,โ and the community remained outraged by the crimes. Similarly, Telena Thompson, victim Elaine Thompsonโs daughter, testified that her motherโs death โpretty much turned [her] personal life upside down,โ her mother had been her โvery best friend,โ and that she suffered nightmares as a consequence of her motherโs murder.
Surviving victim Helen King testified that: โI still canโt sleep at night. I slap at my kids for no reason. I blame my husband for everything because heโs the same color [as Lee].8 Iโm not trying to be prejudiced because Iโm not. But it turned my life upside down.โ King moved away from that community because she felt unsafe.
Larry Nichols, a manager of a service station across the street from victim Ellisโs 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 Stateโs presentation, the defense presented additional testimony from Leeโs family members.
Leeโs 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: โ[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.โ Leeโs counsel confirmed with Jessie that he meant Lee began acting funny โmentally.โ 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. Iโm 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 oโclock 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 knew Lee had โstarted messing with some dope.โ However, Jessie said Lee did not get in trouble with the law, and the only problem Jessie could recall was โa little argument or fight at a club one night.โ
Jessie also testified about how his sonโs 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.
Leeโs mother, Betty Jean Lee, testified that she was the grandmother of Leeโs children, she loved her son Lee very much, and if Lee were given the death penalty, โ[i]t would be hard.โ Leeโs mother acknowledged that what Lee had done was wrong.
Another of Leeโs 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: โ[h]e just wasnโt the same kid he was.โ Lanier stated he loved Lee and that if Lee received the death penalty, โ[i]t would hurt a lot.โ
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 Leeโs background as the third child of seven born to Jessie James Lee and Betty J. Lee, and Lee was raised in a home with both biological parents. The report stated that โLee denied childhood history of physical, emotional [or] sexual abuseโ and โdenied any specific family history of psychological treatment.โ Lee admitted that he started using marijuana at age 16 and regularly drank alcohol.
The presentence report also reflected that Leeโs 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, Leeโs counsel objected that the presentence report did not reflect: (1) Leeโs current medications, including Zyprexa, Navane, Cogentin, and Remeron; and (2) that Lee was โpresently under Doctor Pinedaโs care who diagnosed the Defendant as Borderline Mentally Retarded.โ 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 โas to why the sentence of this court should not be pronounced against you.โ Lee stated: โI would like to say I truly am sorry for what happened. I would like to say to the victims of the family, Iโm really sorry. I didnโt mean to do all that. I know itโs bad. I truly am sorry. Thatโs all I can say.โ
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 Iโve ever had to do. Iโve 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 firะต 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.
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
In its order, the state trial court also considered Leeโs evidence of non-statutory mitigating circumstances, including Leeโs: (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) familyโs love and support. After consideration of the aggravating circumstance and the statutory and non-statutory mitigating circumstances, and after due consideration of the juryโs recommendation of life without parole by a seven to five vote, the trial court concluded โthat the aggravating circumstance outweigh[ed] the mitigating circumstancesโ 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. Leeโs Direct Appeal and First Remand
Bryan Stevenson, an experienced capital defense attorney with the Equal Justice Initiative of Alabama, handled Leeโs direct appeal of his convictions and sentences to the Alabama Court of Criminal Appeals (the โstate appellate courtโ). 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 courtโs sentencing order failed to comply with 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 juryโs recommendation the consideration it did as required by Taylor. Lee v. State, 898 So.2d 790, 808 (Ala.Crim.App.2003) (โLee Iโ) (opinion on return to remand).
D. Trial Judgeโs 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 โsentencing order entered October 11, 2000, shall remain in full force and effect as if set out fully herein.โ The state trial court amended that order to โprovide the specific reasons for giving the juryโs recommendation the consideration it did,โ including:
(1) โThe Court is and was extremely mindful of the juryโs 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.โ
(2) โIt appeared clearly to the Court that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt. It is the Courtโs opinion that the advisory verdict of the jury should not be followed.โ
(3) Lee, โwith cold precision and premeditation, using a weapon designed for the sole purpose of extinguishing human life, mercilessly gunned down 3 people who were doing nothing more than trying to earn a living.โ
(4) โAs 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.โ
(5) Lee โplanned 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.โ
(6) When Lee returned, โhe 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.โ
The state trial court concluded that Leeโs โcase deserves the death penalty,โ and noted that it had compared Leeโs 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 Courtโs Decision on Direct Appeal (Lee I)
In his direct appeal, Lee challenged the state trial courtโs override of the juryโs life recommendation as violating Ring v. Arizona. After jury selection, Lee had made a motion under Batson v. Kentucky challenging the prosecutorโs strikes of black venire members during jury selection. The state trial court denied Leeโs Batson motion, and Lee also raised Batson issues in his direct appeal.
In an 84-page published opinion, the state appellate court affirmed Leeโs convictions and sentences, expressly rejecting Leeโs Ring and Batson claims. See Lee I, 898 So.2d at 874. Later on, when we discuss these issues, we review the state appellate courtโs decision in depth.
In a summary, two-sentence order, the Alabama Supreme Court denied Leeโs 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 Leeโs certiorari petition. Lee v. Alabama, 543 U.S. 924, 125 S.Ct. 309, 160 L.Ed.2d 222 (2004).
III. COLLATERAL REVIEW
A. Leeโs Amended Rule 32 Petition and Supplement
After Leeโs direct appeal, his appellate counsel Stevenson withdrew, and attorneys from the law firm Perkins Coie represented Lee in the state collateral proceedings. Leeโs new counsel filed a petition for relief from judgment and sentence pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. Leeโs 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 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 Leeโs life; (6) his mental health issues; (7) his long history
Subsequently, Leeโs counsel submitted an unverified supplement to that amended Rule 32 petition that focused more on three โnewโ 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.
โDespite his serious drug habit,โ the supplement alleged, Lee โmade an effort to maintain employment to support his child and the one on the way [by his girlfriend].โ Lee also said, though, that the pressure of being a father drove Lee to drink and use drugs more often.
B. State Trial Courtโs Rule 32 Decision
The state circuit court (the โRule 32 courtโ) denied Leeโs amended Rule 32 petition. Having presided at Leeโs trial, the Rule 32 court found โthe evidence of Leeโs guilt was overwhelming.โ The Rule 32 court denied Leeโs petition, first stating: (1) Leeโs claims failed to meet the specificity and factual pleading requirements of
The Rule 32 court further found that Leeโs allegations of ineffective assistance of counsel failed to show prejudice. The Rule 32 court stated that โ[a]fter carefully considering the supplement to Leeโs amended petition, the Court is convinced that there is no reasonable probability that had the proffered information been presented during Leeโs trial it might have caused more jurors to recommend that Lee be sentenced to life imprisonment without parole.โ Additionally, the Rule 32 court (which had sentenced Lee) stated that had this evidence been presented, โit would not have persuaded this Court that the aggravating circumstance did not outweigh the mitigating circumstances.โ
C. State Appellate Courtโs Decision on Rule 32 Decision (Lee II)
The state appellate court affirmed the denial of Leeโs amended Rule 32 petition.
As to Leeโs ineffective-assistance claim, the state appellate court agreed with the Rule 32 court that โLee pleaded mere conclusions without any factual basisโ 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. โFor 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.โ Id. Thus, the Rule 32 court was entitled to dismiss Leeโs amended Rule 32 petition and decline to grant an evidentiary hearing, because even if all Leeโs factual assertions were assumed to be true, he was not entitled to relief. See id. at 1156.
Moreover, the Rule 32 state appellate court affirmed because Leeโs allegations did not demonstrate the requisite prejudice, citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).10 The state appellate court observed that evidence of Leeโs 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 Leeโs mental health, Principal Smith concerning Leeโs academic history, and Dr. Blanton concerning Leeโs purported mild mental retardation, and this testimony was invoked again in the penalty phase. Id. at 1160-61.
Further, in the penalty phase, Leeโs trial counsel presented the testimony of four of Leeโs family members, including Leeโs father and mother, with the former testify-
ing 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 Leeโs family members asked that Leeโs life be spared. Id. The state appellate court pointed out that the mitigation presentation Leeโs trial counsel did make was โso persuasive that the jury recommended by a vote of 7 to 5 that Lee be sentenced to life imprisonment without the possibility of parole.โ Id.
The state appellate court concluded that even if all of Leeโs alleged new mitigation evidence had been presented, that new mitigation evidence โwas neither strong nor compelling.โ Id. The state appellate court was โconfident that it would have had no impact on the penalty phase proceedings.โ Id.
D. Leeโs Federal ยง 2254 Petition
In 2010, Lee filed a
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 (โAEDPAโ), 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 courtโs deci-
sion: (1) โwas contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United Statesโ; or (2) โwas based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.โ
A state court decision is โcontrary toโ 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, 152 L.Ed.2d 914 (2002).
A state court decision involves an โunreasonable applicationโ of clearly established federal law โif the state court correctly identifies the โโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโgoverning legal principleโ from the relevant Supreme Court decisions โbut unreasonably applies it to the facts of the particular case.โ Id.; Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). โ[A]n unreasonable application of federal law is different from an incorrect application of federal law.โ Williams, 529 U.S. at 410, 120 S.Ct. at 1522.
Further, the phrase โclearly established Federal lawโ โrefers to the holdings, as opposed to the dicta, of [the Supreme] Courtโs decisions as of the time of the relevant state-court decision.โ Id. at 412, 120 S.Ct. at 1523; see Burns v. Secโy, Fla. Depโt of Corr., 720 F.3d 1296, 1301-02, No. 11-14148, 2013 WL 3369145, at *4 (11th Cir. July 8, 2013). Circuit precedent may not be used โto refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.โ Marshall v. Rodgers, 569 U.S. โ, โ, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013).
In short, AEDPA โimposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.โ Trepal, 684 F.3d at 1107 (quoting Hardy v. Cross, 565 U.S. โ, โ, 132 S.Ct. 490, 491, 181 L.Ed.2d 468 (2011)). To be entitled to federal habeas relief under
V. INEFFECTIVE-ASSISTANCE CLAIM
A. Strickland v. Washington Test
Leeโs ineffective assistance of counsel claim is governed by the Supreme Courtโs two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Johnson, 615 F.3d at 1330. Under the Strickland test, Lee must show both that: (1) his attะพrneyโs performance was deficient; and (2) the deficient performance prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064. Because we must view Leeโs ineffective-assistance claimโwhich is already governed by the deferential Strickland testโthrough the lens of AEDPA defer
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 (โ[A] court need not determine whether counselโs performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.โ); Frazier v. Bouchard, 661 F.3d 519, 531-32 (11th Cir. 2011) (stating we โmay decline to reach the performance prong of the ineffective assistance test if convinced that the prejudice prong cannot be satisfiedโ (internal quotation marks omitted)); Windom v. Secโy, Depโt 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 โ[t]he object of an ineffectiveness claim is not to grade counselโs performanceโ and consequently, โ[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.โ 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 โmust show that there is a reasonable probability that, but for counselโs unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.โ 466 U.S. at 694, 104 S.Ct. at 2068. In assessing prejudice, โwe consider the totality of the available mitigation evidenceโboth that adduced at trial, and the evidence adduced in the habeas proceedingโand reweigh it against the evidence in aggravation.โ Porter v. McCollum, 558 U.S. 30, 41, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (per curiam) (internal quotation marks and brackets omitted); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 2542, 156 L.Ed.2d 471 (2003) (in determining prejudice from failure to present mitigating evidence, โwe reweigh the evidence in aggravation against the totality of available mitigating evidenceโ). To satisfy the prejudice prong, the โlikelihood of a different result must be substantial, not just conceivable.โ Harrington, 562 U.S. at โ, 131 S.Ct. at 792.
As to prejudice, the state appellate court concluded that โthe evidence that Lee states should have been presented in mitigation was neither strong nor compelling. We are confident that it would have had no impact on the penalty phase proceedings.โ Lee II, 44 So.3d at 1161. Lee has not carried his burden of showing the state appellate courtโs determination was โcontrary to, or involved an unreasonable application of, clearly established Federal law.โ
At the outset, much of the alleged โnewโ mitigation evidence in Leeโs 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 Leeโs 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 โreported that [Leeโs] drug and alcohol use got increasingly worse over time,โ and that Leeโs trial counsel โfailed to fully interview [Leeโs] family membersโ and โfailed to interview
Even assuming all the allegations of new mitigation evidะตnce in Leeโs 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 the outcome of Leeโs penalty-phase proceedings. As the Rule 32 court pointedly stated, โ[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.โ
A comparison of Leeโs allegations of childhood poverty and his parentsโ fights to the types of โpowerfulโ mitigating evidence that the Supreme Court has found sufficient to establish prejudice under Strickland is instructive as Leeโs evidence pales in comparison.
For example, in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), defense counsel failed to present evidence that: (1) โRompillaโs parents were both severe alcoholics who drank constantlyโ; (2) โ[h]is mother drank during her pregnancy with Rompillaโ; (3) โ[h]is father, who had a vicious temper, frequently beat Rompillaโs mother, leaving her bruised and black-eyed, and bragged about his cheating on herโ; (4) โ[h]is parents fought violently, and on at least one occasion his mother stabbed his fatherโ; (5) Rompilla โwas abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticksโ; (6) โ[a]ll of the children lived in terrorโ; (7) โ[h]is father locked Rompilla . . . in a small wire mesh dog pen that was filthy and excrement filledโ; (8) Rompilla โhad an isolated background, and was not allowed to visit other children or to speak to anyone on the phoneโ; and (9) โ[t]hey had no indoor plumbing . . . , [Rompilla] slept in the attic with no heat, and [was] not given clothes and attended school in rags.โ 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 (Wigginsโs 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 Wigginsโs foster father and siblings molested and raped him).
In stark contrast to Rompilla and Wiggins, Lee alleged childhood poverty but admitted that his โparents did the best they couldโ 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, Leeโs father spanked him with a belt at school to show the school principal he was โkeeping after the boys.โ Lee generally alleged that his mother endured abuse from his father but provided no specific examples of incidents. And yet, in his
Furthermore, the additional mitigation evidence of Leeโs substance abuse was largely cumulative of the substance abuse
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) (per curiam) (rejecting claim counsel was ineffective for failing to investigate and present evidence of Powellโs 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. Blantonโs testimony concerning possible mild mental retardation.11
Without any allegations explaining how his so-called โnewโ 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.
We wholly reject Leeโs attempts to analogize his case to Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009). The factual differences between the two cases on the prejudice prong are so significant that, if anything, Porter demonstrates how Leeโs alleged โnewโ 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 Port
In contrast, Leeโs 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 petitionerโs military service in Porter. See Pooler v. Secโy, Fla. Depโt of Corr., 702 F.3d 1252, 1276-79 (11th Cir. 2012) (contrasting Poolerโs military record with Porterโs exemplary military record and concluding that โPorter presented a far more mitigating evidentiary profile than this case doesโ).
Moreovะตr, in Porter, defense counsel only presented one witness and the โsum totalโ of mitigating evidence amounted to โinconsistent testimony about Porterโs behavior when intoxicated and testimony that Porter had a good relationship with his son.โ Porter, 558 U.S. at 32, 130 S.Ct. at 449. Here, Leeโs trial counsel invoked the guilt-phase testimony of Dr. Blanton concerning Leeโs diminished mental capacity as well as the guilt-phase testimony of Leeโs supervisor, who testified that Lee was a competent employee. Leeโs trial counsel also presented the testimony of four of Leeโs family members, who testified about Leeโs 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 counselโs 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) (โA petitioner cannot show sentencing phase prejudice when the jury recommends a sentence of life instead of death.โ (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 Leeโs additional mitigation evidence been presented, the court would not have imposed a sentence of life imprisonment instead of death. Thus, Lee cannot show that โthere 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.โ Id. at 1285; see also Ferguson v. Secโy for Depโt of Corr., 580 F.3d 1183, 1198-99 (11th Cir. 2009) (noting that Strickland asks if a different result is โreasonably probable,โ not if it is โpossibleโ (emphasis omitted)); see also Brown v. United States, 720 F.3d 1316, 1326, 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 mitigation 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 courtโs rejection of Leeโs ineffective-assistance claim was not contrary to or an unreasonable application of Strickland.
A. Leeโs Ring Claim
Leeโs next argument is that the state trial courtโs death sentence, overriding the juryโs recommendation of life without parole, violated Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Supreme Court in Ring concluded that under the Sixth Amendment โ[c]apital defendants, no less than noncapital defendants, . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.โ 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 Leeโs claim that the trial judge improperly overrode the juryโs sentencing recommendation. Lee I, 898 So.2d at 858. First, the state appellate court noted that โ[t]hese arguments have previously been decided adversely toโ Lee in Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), which upheld as constitutional Alabamaโs 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 Courtโs later decision in Ring did not invalidate Alabamaโs sentencing law. The state appellate court further observed the Alabama courts had recognized โthe narrownessโ of the Ring holding, stating: โ[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 judicial sentencing or judicial override was constitutional.โ Id. (internal quotation marks omitted).
Third, the state appellate court pointed out that the state trial judge had found that one aggravating circumstance existedโLee committed the capital offenses while he was engaged in the commission of an attempted robbery. The state appellate court reasoned that โ[b]ecause the jury convicted [Lee] of the capital offense of robbery-murder, that statutory aggravating circumstance was proven beyond a reasonable doubt.โ Id. at 858. Therefore, the state appellate court found that in Leeโs case โthe jury, and not the judge, determined the existence of the โaggravating circumstance necessary for imposition of the death penalty.โโ Id. Thus, the state appellate court concluded that the judgeโs death sentence did not violate Ring v. Arizona. Id.
C. Juryโs Guilty Verdict Included Armed Robbery
We can easily dispose of Leeโs claim in light of the narrowness of the Supreme Courtโs holding in Ring. As the state appellate court in Lee I concluded, the juryโs 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 โ[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.โ
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 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 Amendmentโs 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 Leeโs case by virtue of the juryโs capital robbery-murder verdict. Ring goes no further, and Lee points to no Supreme Court precedent that has extended Ringโs holding to forbid the aggravating circumstance being implicit in the juryโs verdict or to require that the jury weigh the aggravating and mitigating circumstances.
Accordingly, we must conclude that the state appellate courtโs decision is not contrary to or an unreasonable application of Ring, and Leะต is not entitled to habeas relief on this claim.
VII. LEEโS BATSON CLAIM
We left Leeโs 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 courtโs decision on Leeโs Batson claim; (4) discuss whether AEDPAโs deference applies to plain-error decisions by state courts; (5) review Supreme Court and Circuit precedent holding 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,
A. Batson and Its Progeny
It is clearly established federal law that, under the Equal Protection Clause, a criminal defendant has a constitutional โright to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.โ Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). In Batson, the Supreme Court established a three-step test for evaluating
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, 162 L.Ed.2d 129 (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) โthe prosecutorโs questions and statements during voir dire examinationโ and in exercising peremptory challenges. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723; see also United States v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007) (โ[A] pattern of strikes against all venire members of one race or gender is considered significantโ in establishing a prima facie case.).
โOnce the defendant makes a prima facie showing,โ in the second step โthe burden shifts to the State to come forward with a neutral explanation for challenging black jurors.โ Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The State may not rebut the defendantโs prima facie case by simply denying a discriminatory motive or โaffirm[ing] [his] good faith in making individual selections.โ Id. at 98, 106 S.Ct. at 1723-24 (alterations in original) (internal quotation marks omitted). The Stateโs proffered explanation need not be โpersuasive, or even plausible. . . . the issue is the facial validity of the prosecutorโs explanation.โ Purkett v. Elem, 514 U.S. 765, 767-78, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (internal quotation marks omitted).
The Supreme Court has rejected the contention โthat the justification tendered at the second step be not just neutral but also at least minimally persuasive.โ Id. at 768, 115 S.Ct. at 1771. โIt is not until the third step that the persuasiveness of the justification becomes relevant. . . .โ Id.
In the third and final step, โ[t]he trial court . . . will have the duty to determine if the defendant has established purposeful discrimination.โ Batson, 476 U.S. at 98, 106 S.Ct. at 1724. This is โa pure issue of fact, subject to review under a deferential standard . . . [and] โpeculiarly within a trial judgeโs province.โโ Hernandez v. New York, 500 U.S. 352, 364, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991) (plurality opinion). Further, โ[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.โ Batson, 476 U.S. at 96, 106 S.Ct. at 1723; see also id. at 93, 106 S.Ct. at 1721 (โIn 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.โ (internal quotation marks omitted)). Those relevant circumstances may include the strength of the defendantโs prima facie case at step one. See id. at 97, 106 S.Ct. at 1723 (observing that โa โpatternโ of strikes against black jurors . . . might give rise to an inference of discriminationโ); see also Hernandez, 500 U.S. at 375, 111 S.Ct. at 1875 (OโConnor, J., concurring in the judgment) (โDisproportionate 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.โ).
โIn the typical peremptory challenge inquiry, the decisive question will be whether counselโs race-neutral explanation for a peremptory challenge should be believed.โ Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869 (plurality opinion).
Ultimately, the burden of persuasion to show purposeful discrimination โrests with, and never shifts from, the opponent of the strike.โ Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. โ[A] defendant may rely on โall relevant circumstancesโ to raise an inference of purposeful discriminationโ in the third step. Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005). As to โside-by-side comparisons,โ the Supreme Court has said that โ[i]f a prosecutorโs proffered reason for striking a black panelist applies just as well to an otherwise-similar non-black who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batsonโs third step.โ Id. at 241, 125 S.Ct. at 2325.12
Importantly too, โunder 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.โ 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 (โBecause we find that the trial court committed clear error in overruling petitionerโs Batson objection with respect to [one venire member], we have no need to consider petitionerโs claim regarding [a second venire member].โ).
With this Supreme Court background, we turn to the jury-selection record.
B. Jury Selection in Leeโs Trial
Initially, the state trial court granted deferrals for hardship and inconvenience. Then outside the venireโs presence, Leeโs 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.
The trial court had each potential juror give his or her name, occupation, marital status, and if married, his or her spouseโs 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 membersโ views on the death penalty. That afternoon, the state trial court broke the venire into smaller panels, and the court, prosecution, and de
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 strikะตs on black venire members. The record indicates that each partyโs last strike still sat as an alternate.14
Before the jury was sworn, Leeโs counsel made a Batson motion, stressing the Stateโs use of all of its peremptory strikes against black venire members. Leeโs counsel asserted that this district attorneyโs office had a โhistory of racial discrimination in making jury selection[s]โ and โmany cases overturned with Batson problems.โ
The trial court asked, โHow long have they had that problem? I donโt ever remember [prosecutor Edgar] Greene having one.โ Leeโs counsel cited only one case, โRobert Thomas v. State,โ and stated that โgiven the fact that the State [h]as exercised all of their peremptory challenges striking all Blacks,โ 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 โ[f]irst of all, Judge, thereโs no history of racial discrimination in striking the jury either in the District Attorneyโs Office or in this Circuit.โ Greene added that โ[t]hereโs been very few cases, if any, overturned on that basis.โ Next Greene said, โSecondly, 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 weโre trying a death penalty case.โ
Although the State did not make its own Batson motion, Greene did point out that โthe 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.โ
Prosecutor Greene then explained his specific race-neutral reasons for each of the Stateโs 21 peremptory strikes. We quote what Greene said to the trial court because the state appellate court quoted it too, and we review those 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 Gutridgeโno, Johnnie Hall, he opposed the death penalty. Didnโt 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. Didnโt 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 the death ัenalty. 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 weโre prosecuting same. Struck him for that reason.
In summary, the prosecutorโs 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 prosecutorโs 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 Greeneโs statement of reasons, the state trial court found, โIt appears you have given factually race valid reasons for striking.โ
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. Without counting the alternates, the 12 member jury was 25% white and 75% black.
After the trial courtโs comments, Leeโs counsel did not contest, dispute, or otherwise object to any of the prosecutorโs reasons for 20 of the 21 struck venire members. Instead, he challenged only the prosecutorโs child-support prosecution reason for striking Kevin Stevens, venire member 213, as follows:
Judge, for the record, and to preserve the record, weโre going to object to the last strike, Kevin Stevens, No. 213. The District Attorney gave the reason being heโs going to be in child support court. Thereโs no indication that thereโs any problem with him being in child support with any animosity towards the District Attorneyโs Office or him going to court.
The mere fact that heโs appeared in court is no reason why he should be struck from the jury.
Even as to Stevens, Leeโs counsel did not dispute the truth of the factual premise of prosecutor Greeneโs stated reason that Stevens was going to be in a child-support hearing prosecuted by Greeneโs 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 โ[u]nfortunately that tends to create some difficulty with defendants that come before the Court. They feel somehow weโre prosecuting them for a crime.โ
The trial court then stated to the defense: โAll right, Iโm going to overrule your motion.โ
After closing arguments in the guilt phase and outside the juryโs presence, 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, Leeโs jury was still 75% black. The trial court observed that โsince Kevin Stevens was the only one defense objected to on Batson [grounds], I guess that takะตs care of that too.โ
In his direct appeal, Lee raised several new Batson arguments that were not made in the trial court. We focus on the state appellate courtโs decision because it is the last reasoned decision of the state courts on Leeโs Batson claim. See Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir. 2011); Sweet v. Secโy, Depโt of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006).
C. Direct Appeal Decision
The state appellate courtโs analysis of Leeโs Batson claim proceeded in the following way. The court correctly identified Batson as the applicable test, and stated that โ[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].โ Lee I, 898 So.2d at 813. Consistent with Batsonโs step three, the state appellate court observed that it would โreverse the circuit courtโs ruling on the Batson motion only if it is โclearly erroneous.โโ Id.
After reviewing these Batson principles, the state appellate court implicitly turned to Batsonโs first step and stated that Leeโs trial counsel objected on Batson grounds โafter the State used all of its peremptory strikes against black veniremembers.โ Id. at 812. The court recounted the manner in which Leeโs Batson objection was raised and evaluated in the trial court. It noted that after the jury was struck, but before it was sworn, Leeโs trial counsel had made a Batson motion, and the trial court had required the prosecutor to state his reasons for exercising the Stateโs peremptory strikes. Id. The appellate court also noted that the prosecutor had first observed that most of the Stateโs strikes were made based on potential jurorsโ opposition to the death penalty. Id. But then the prosecutor had provided specific reasons for each of the Stateโs 21 peremptory strikes. Id. at 812-13.
Despite the fact that at trial Lee had specifically objected to only the race-neutral reason given for striking venire member 213, Kevin Stevens, the state appellate court still evaluated in great detail all of the prosecutorโs strike reasons to determine whether each was race-neutral. The court even reproduced in full the prosecu
Consistent with step two of Batson, the state appellate court then assessed whether the prosecutorโs proffered reasons were race-neutral. See id. at 813-15. To begin with, it observed that opposition to or even reservation about the death โโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโpenalty is a โreasonable explanationโ 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, Leeโs trial counsel did not dispute that these 13 venire membersโ 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 membersโ views of the death penalty, because the overwhelming evidence of Leeโs guilt meant the main fight would be about the sentence.
The state appellate court then addressed Leeโs 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 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 race-neutral reason. Id. at 814.
After confirming that each of the prosecutorโs reasons for the Stateโs peremptory strikes was race-neutral, the appellate court turned to other arguments 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 Leeโs arguments concerning each venire member
The court first considered Leeโs 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 Leeโs argument moot. Id. Because Lee had not raised his other pretext arguments before the trial court, the appellate court evaluated the rest of Leeโs pretext challenges for plain error under Alabama Rule of Appellate Procedure 45A. Id. Although issues not raised in trial courts are usually waived, Alabamaโs Rule 45A requires the state appellate court in death penalty cases to review such issues for plain error.16
The state appellate court then evaluated the plausibility of each of the prosecutorโs 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 Leeโs contentions that the prosecutorโs strike reasons were false and did not demonstrate disparate treatment between black and white venire members. See id.
First, the court considered Leeโs 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 Stateโs challenge of Poe for cause on this basis, stating, โI didnโt have thatโ she could not impose the death penalty. Id. at 815. Lee contrasted Poe with the Stateโs 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 โa proper thing,โ she could โweigh the evidence and make a decision based on the evidence,โ but also stated she was โrealizing [she] wasnโt in favor of the death penalty because people were innocentโ and โthe reason [she] would say not the death penalty is because if [Lee] was innocent and he [was] killed . . . it wouldnโt do any good to kill him.โ 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 Leeโs 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
Next, the court addressed Leeโs argument that the prosecutorโs 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 membersโ criminal histories and, before the parties made challenges for cause, the State provided the defense with โa copy of the criminal history on the venire.โ 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, Leeโs 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 prosecutorโs 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 prosecutorโs assertions regarding these venire membersโ demeanor at trial; and (3) the prosecutor offered additional, race-neutral reasons for each of these strikes. Id. The court could not โfind that there was any plain error in this regard.โ Id.
The court next addressed Leeโs 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 โit wouldnโt do
Next, the state appellate court reviewed Leeโs 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 Leeโs trial counsel used his own 12th peremptory strike against Ember, and the State used its 19th peremptory strike against Gutridge. โBecause the defense had long since struck venire-member [Ember] when the State struck veniremember [Gutridge], we do not find that there was any plain error in this regard.โ Id.
Having reviewed the state appellate courtโs Batson decision, we turn to AEDPAโs highly deferential standard for evaluating that state court ruling.
VIII. AEDPA DEFERENCE TO PLAIN-ERROR REVIEW
Section
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 Leeโs federal Batson claim, albeit for plain error under Alabama appellate rules. See Lee I, 898 So.2d at 809 (citing
Consequently, the initial issue we must address is whether a state courtโs plain-error ruling is an adjudication โon the meritsโ that may be afforded AEDPA deference.
To begin with, we have held repeatedly that a state courtโs rejectiะพn of a claim under the stateโs 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
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 Leeโs Batson claim on plain-error review, these cases are instructive. They show that a state courtโs 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
This Court concluded that because the state appellate court had reached the merits of Peoplesโs 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 courtโthat the ineffective-assistance claim failed on the merits. Id. at 1223-24, 1235-37.
As in Peoples, here the state appellate court reviewed Leeโs 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 courtโs plain-error analysis, two other circuits have. Both circuits have concluded that when a state appellate court applies a plain-error rule in deciding a federal claim, that decision is an adjudication โon the meritsโ for purposes of
In Douglas, the
In Douglas, the state appellate court stated only that it had โreviewedโ the federal claims and โfound no plain error.โ Id. The Tenth Circuit explained that it was still required to โassume that the [state courtโs] review [was] on the merits and thus afford it
In Leeโs 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 Leeโs Batson claim. The state court opinion here analyzed the merits of Leeโs 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 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 AEDPAโs deferential review to the state appellate courtโs plain-error analysis of the
Like in Fleming, although the plain-error standard might have made it more difficult for Lee to succeed on direct appeal, the Alabama appellate courtโs use of that plain-error standard did not cause its opinion to be anything other than an adjudication โon the meritsโ entitled to AEDPA deference. See Fleming, 556 F.3d at 532.
Accordingly, we hold that when a state appellate court applies plain-error 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 โon the meritsโ for purposes of
IX. AEDPA DEFERENCE TO SUMMARY OPINIONS
Because of Leeโs arguments before this Court, a second feature of the state appellate courtโs 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 courtโs 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
We agree that the state courtโs opinion in Leeโs case did not mention those two circumstances. But we reject Leeโs claim that a state courtโs written opinion involves an unreasonable application of federal law and is not entitled to deference unless that opinion on its face โshows its workโ by explicitly mentioning โall relevant circumstancesโ 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 Leeโs 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 constitutional claim. 562 U.S. at โ, 131 S.Ct. at 784-85; see also Smith v. Secโy, Depโt of Corr., 572 F.3d 1327, 1333 (11th Cir. 2009) (โIn 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 petitionerโs argument.โ). Instead, โour focus on the โunreasonable applicationโ test under Section
The Supreme Courtโs rationale behind Harrington is also instructive. The Supreme Court first considered the AEDPA statute: โBy its terms
The
We reject Leeโs attempt to limit Harrington to state court decisions with no reasoned opinion at all. Harringtonโs rule and rationale are not so confined. Rather, in Johnson v. Williams, 568 U.S. โ, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013), the Supreme Court explained that a state court decision is an adjudication โon the meritsโ and still entitled to AEDPA deference when it โaddresses some but not all of a defendantโs claims.โ Id. at โ, 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 โinstances in which a state court may simply regard a claim as too insubstantial to merit discussion.โ Id. at โ, 133 S.Ct. at 1095. โWhile 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.โ Id. (citations omitted). The Supreme Court cautioned federal habeas courts that โ[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.โ Id. at โ, 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 โall relevant circumstances,โ 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
The Supreme Court has emphasized that โreadiness to attribute errorโ to a state court decision is incompatible with both โthe presumption that state courts know and follow the lawโ and AEDPAโS โhighly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.โ Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (citation omitted) (internal quotation marks omitted). We have similarly stressed that โa grading papersโ approach is outmoded in the post-AEDPA era,โ such that we will not assume that a state court either misapplied or misunderstood clearly established federal law absent a โconspicuous misapplication of Supreme Court precedent.โ Parker v. Secโy for Depโt 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 Courtโs Harrington
We recognize, of course, that this Court in McGahee in 2009 and Adkins in 2013 held in
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) (โWhen a decision of this Court conflicts with an earlier decision that has not been overturned en banc, we are bound by the earlier decision.โ); Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 n. 2 (11th Cir.2006) (โ[W]hen a later panel decision contradicts an earlier one, the earlier panel decision controls.โ); Tompkins v. Moore, 193 F.3d 1327, 1331 (11th Cir.1999) (stating that the Court was โduty bound to follow the decisionsโ 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 the earliest precedent first.
C. Atwater v. Crosby (2006)
In Atwater, a 2006 decision in a
At trial, Atwater objected to the Stateโs peremptory strike of the sole black venire member, and the state trial court required the prosecutor to provide a race-neutral 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. Atwaterโs counsel disagreed. Id. The trial court then said that, in โobserving that particular juror, [it] thought that she did respond with difficulty to the questions that were asked.โ Id. The court found the โStateโs peremptory challenge will be well-taken.โ Id.
In Atwaterโs direct appeal, the Florida Supreme Court affirmed, giving only this four-sentence Batson analysis:
Upon Atwaterโs objection to the peremptory challenge, the trial court inquired as to the Stateโs reasons. The record reflects that the courtโs inquiry was adequate and the record supports the Stateโs explanation for exercising the challenge. The court expressly noted that the prospective juror had difficulty answering the questions put to her and 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)).
D. Hightower v. Terry (2006)
Next, in Hightower, another 2006 decision in a
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 โin the past shown a bent and schemeโ to remove black persons from juries. Hightower v. Schofield (โHightower Iโ), 365 F.3d 1008, 1031 (11th Cir.2004), vacated by 545 U.S. 1124, 125 S.Ct. 2929, 162 L.Ed.2d 863 (2005), new opinion on remand, 459 F.3d 1067 (11th Cir.2006), cert. denied, 550 U.S. 952, 127 S.Ct. 2254, 167 L.Ed.2d 1123 (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 โhad failed to make a prima facie case of discrimination, and alternatively, that the prosecutor had โpresented an articulable, nonrace related reason for strikingโ each prospective black juror.โ Id.
On direct appeal, the Georgia Supreme Court affirmed and its Batson discussion was brief and never explicitly mentioned Batsonโs third step. Hightower v. State, 259 Ga. 770, 386 S.E.2d 509, 512 (1989).25
Thereafter, the Supreme Court granted Hightowerโs 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, 162 L.Ed.2d 196 (2005). Hightower v. Schofield, 545 U.S. 1124, 1124, 125 S.Ct. 2929, 2929-30, 162 L.Ed.2d 863 (2005).
On remand in Hightower II, this Court concluded that โMiller-El does not counsel a decision contrary to the one we reached in Hightower [I], and therefore [we] adhere to that decision.โ Hightower II, 459 F.3d at 1069 (2006). We distinguished Miller-El on the basis that, unlike the case in Miller-El, โwe did not decide Hightowerโs Batson claim on the basis of an augmented record.โ Id. at 1070. โ[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 courtโs ruling, Hightowerโs and the Stateโs briefs to the Supreme Court of Georgia . . . , and that courtโs opinion.โ Id. This Court restated its conclusion in Hightower I as still applicable in Hightower II: โHightower never provided the [state trial] court with any evidence tending to discredit the persuasiveness of the prosecutorโs stated reasons for striking black jurors.โ Id. at 1071 (alteration in original) (quoting Hightower I, 365 F.3d at 1035) (internal quotation marks omitted).
This Court in Hightower II (on remand) expressly addressed whether the state courts had erred on Batsonโs third step by not entering an explicit finding that the prosecutorโs race-neutral reasons were credible. Id. at 1072 n. 9. We pointed out โthat a trial courtโs dispositive ruling may contain implicit findings, which, though unstated, are necessary to that ruling.โ Id.26
Applying that โimplicit findingsโ principle, the Hightower II Court noted that โthe trial court, after assuming that Hightower had made out a prima facie case of racial discrimination, expressly found that the prosecutor had provided an โarticulable, non-race related reasonโ for each strike, and overruled Hightowerโs Batson objection.โ Id. Thus, we made โโthe common sense judgmentโโin light of defense
E. Blankenship v. Hall (2008)
In Blankenship, another
The inquiry for the Blankenship Court was โwhether the state court โadjudicated on the meritsโ the ineffective-assistance claim when it summarily rejected Blankenshipโs argumentsโ in its order. Id. This Court stated that โour case law is clear: We have repeatedly held โa state courtโs summary rejection of a claim qualifies as an adjudication on the merits under
Following Hightower IIโs precedent, this Court in Blankenship reiterated that โa state courtโs โdispositive ruling may contain implicit findings, which, though unstated, are necessary to that ruling.โโ Id. at 1272 (quoting Hightower II, 459 F.3d at 1072 n. 9). Those implicit findings may be โinferred from [the state courtโs] opinion and the record,โ and those โimplicit findings of fact are entitled to deference under
Thus, even before the Supreme Courtโs decisions in Harrington and Johnson, this Court in
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 โ[a]t the time McGahee was tried, Dallas County, Alabama was fifty-five percent African-Americanโ but his jury was all white).
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 โwould . . . not be a very happy juror.โ Id. The state trial court denied the defendantโs Batson motion. Id. Only after the juryโs verdict did the State give โindividualized, specific reasons for its peremptory strikes,โ 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 โexplicitly racial reason for striking Jones,โ which the state appellate court had ignored. Id. at 1264 (emphasis added). In McGahee the state appellate courtโs opinion had on its face expressly addressed two stated reasons for striking Jones. It agreed that the Stateโs first reason for striking Jonesโhe was a teacherโwas โtotally insufficient,โ and that while its second reasonโthe State lacked information on Jonesโwas โsomewhat weak,โ it was a โsufficientโ reason. Id. The state appellate court did not expressly discuss the Stateโs third reason:27 that Jones was struck because with Dr. Wright leaving the venire, the State did not want to leave Jones โindividually.โ Id.
In McGahee this Court found that this third reason could only mean that the State did not wish to leave Jones โindividuallyโ 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 โan explicitly racial reason for striking Jones.โ Id.
Critically, the McGahee Court said: โAs we understand the Alabama courtโs 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.โ Id. (emphasis added). In McGahee, this Court acknowledged that state court opinions can โimplicitlyโ review strike reasons and evidence, but we read the Alabama court as saying in its opinion that it had โclearly limitedโ its own appellate review to the two non-racial reasons for the Jones strike, and thus showing it had not consid-
Having concluded that the state appellate court unreasonably applied Batson to the facts of McGaheeโs case, we reviewed McGaheeโs Batson claim de novo. In that de novo review, this Court found that the McGahee record โcompel[led] a finding that the Stateโs use of a peremptory strike in this case to dismiss [venire member] Jones constituted intentional discriminationโ 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 โthe total exclusion of African-Americans [from the venire] in this county in which they comprised fifty-five percent,โ id.; and (3) โthe strong evidence of race-based decision-making both generally and especially with respect to juror[] Jones,โ id.29
G. Greene v. Upton (2011)
Our recent Batson decision in Greene v. Upton, another
In Greeneโs 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 โthat the prosecutors had provided reasons for each challenge that were racially neutral.โ Id. at 1150.
On direct appeal, the Georgia Supreme Court affirmed Greeneโs convictions and death sentence. See id. at 1151. As for Greeneโs Batson challenge, the Georgia Supreme Court stated that it had โcon-
Although the state courts had determined that at Batsonโs 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
Citing McGahee, petitioner Greene also contended that the Georgia Supreme Court had unreasonably applied Batson under
The Greene Court added that, in contrast to McGahee, nothing in petitioner โGreeneโs record reveal[ed] that the prosecutor provided an explicitly racial reason to exercise a peremptory challenge against a juror,โ and the Georgia Supreme Court had implicitly โconsidered all relevant circumstances during its โthorough review.โโ Id. Thus, the Greene Court concluded that the Georgia Supreme Courtโs determination โwith respect to Grะตeneโs Batson claim was not contrary to, or an unreasonable application of, clearly established federal law.โ 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 part
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, 113 L.Ed.2d 411 (1991), held that a criminal defendant of any race may raise Batson objections. Adkins, 710 F.3d at 1244. After the state appellate courtโs 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 โfinding that there was no purposeful racial discrimination in the peremptory strikes exercised by the State as to Billy Morris, or any other black juror struck.โ Id. at 1245-46. The โtrial court found the prosecutorโs assertion of mistaken belief as to Mr. Morrisโs marital status โto be credible.โโ Id. at 1246.33 The state appellate court affirmed the trial courtโs denial of Adkinsโs Batson claim. Id. (citing Adkins v. State, 639 So.2d 515 (Ala.Crim.App.1993)).
In his subsequent
Importantly, the Adkins Court acknowledged that state court decisions can include both implicit and explicit rulings. It recognized that the state appellate court
But as to step three, the majority opinion in Adkins concluded that the state courts had failed to consider these five record facts: (1) โthe strength of Mr. Adkinsโs prima facie case,โ id. at 1252; (2) โthe 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,โ id. (emphasis added);34 (3) โthe fact that specific proffered reasons provided by the prosecutor were incorrect and/or contradicted by the record,โ id.; (4) โthe 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,โ id.; and (5) โthe fact that the trial court relied upon facts not part of the record, such as the trial courtโs personal experience with the prosecutor in unrelated matters,โ id.
After determining that the state court decision was unreasonable, the majority opinion in Adkins conducted de novo review โunconstrained by
tions 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 membersโ 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 Adkinsโs 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 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 Courtโs analysis was that the state appellate courtโs own written opinion had failed to โmentionโ and thus โfailed to considerโ all of the relevant facts and circumstances shown in the trial record and raised in Adkinsโs brief on direct appeal in that state court. Id. at 1252. For example, the Adkins Court pointed out that โthe Alabama Court of Criminal Appealsโ entire discussion of the stateโs decision to strike [venire member] Mr. Morris was limited to two sentences.โ Id. It also concluded that
Under Supreme Court and our Circuit precedent, a state courtโs 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
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 courtโs opinion is short and does not discuss every fact or argument. In that event, we still examine what other โimplicit findingsโ the state court could have made in 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 Adkinsโs 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 fะฐctual 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 courtโs Batson decision there unreasonable, not the quality or length of the state appellate courtโs findings, explanations, or opinion-writing in that case.
For all these reasons, we reject Leeโs claim that the state appellate courtโs 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 Batsonโs third prong. We now address Leeโs other unreasonable-application arguments.
X. BATSON ANALYSIS IN LEEโS CASE
In this appeal, Lee focuses on three things as demonstrating that the state appellate courtโs decision was an unreason-
A. Striking Pattern
The State used all of its 21 peremptory strikes and 17 of its 18 cause strikes on black venire members. The Stateโs striking pattern is troubling, although not alone dispositive of Batsonโs 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, โthe 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.โ 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 โstatistical evidence is merely one factor which the court examines, and it is not necessarily dispositiveโ 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 prosecutorโs 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 Leeโs 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 courtโs conclusion that no Batson violation occurred. See United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir.1995) (โAlthough the presence of African-American jurors does not dispose of an allegation of race-based peremptory challenges, it is a significant factor tending to prove the paucity of the claim.โ); see also, e.g., United States v. Gamory, 635 F.3d 480, 496 (11th Cir.2011) (in addition to finding prosecutorโs proffered race-neutral reason persuasive, the Court specifically noted that three African-Ameriัans 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
B. Alleged Racial Discrimination History
Lee also alleges that a history of racial discrimination in jury selections by the district attorneyโs office demonstrates that the State was motivated by race in the jury selection. Leeโs 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 โRobert Thomas v. State.โ 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 attorneyโs 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 investigator. Id. at 57. The trial court sustained the Stateโs objection to producing the document and overruled the defendantโs Batson motion. Id. The Alabama Supreme Court reversed and remanded, concluding that the trial court erroneously โaccepte[d] at face value the Stateโs 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.โ Id. at 58 (emphasis added).
The Alabama Supreme Court noted in Ex parte Thomas that it โmight be in a position to affirmโ had, inter alia, the state trial court โordered the State to produce the document that it used in exercising its peremptory challenges.โ Id. at 59. The Alabama Supreme Court did not find a Batson violation, only that the defense was entitled on remand to โan opportunity to prove that the seemingly facially neutral explanations offered by the State were a sham or pretext.โ Id. at 58.
In Leeโs case, by contrast, prosecutor Greene turned over to Leeโs trial โโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโโcounsel the venire membersโ criminal histories. If anything, Ex parte Thomas helps the State here, because Leeโs counsel had the criminal histories but never disputed the credibility of the prosecutorโs arrest-record reason for striking venire members Demond Martin, Alice Scott, and Johnnie Hall.
Similarly, in his state direct appeal brief, Leeโs appellate counsel did not proffer any evidence either. Leeโs counsel did cite two Alabama cases prosecuted by the same district attorneyโs 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). Leeโs 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 Leeโs trial and shortly after Batson was decided.36 In both
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 attorneyโs office, which prosecutes cases in five Alabama counties. We cannot say these few cases where the trials occurred more than a decade before Leeโs trial establish that the prosecutorโs peremptory-strike reasons in Leeโs particular case were pretextual and discriminatory.37
Before the state appellate court, Lee focused his arguments on the Stateโs strikes of seven black venire members. As recounted above, the state appellate court considered Leeโs arguments in light of the record and concluded that the Stateโs 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 Stateโs strikes against each of the 21 black venire members violated Batson, Leeโs brief before us focuses primarily on only two venire members, David Gutridge and Demond Martin, and thus we discuss them in more detail.
C. Venire Member David Gutridge
At Leeโs trial, the prosecutor stated that David Gutridge was struck because he: (1) opposed the death penalty; (2) was uncooperative in his answers to the prosecutorโs 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 โbased on an honest beliefโ and otherwise represented a race-neutral reason. Id. at 815-16 (internal quotation marks omitted). The court examined the record and concluded that โ[t]he record does not indicate that the prosecutorโs reason was not based on an honest belief.โ 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 prosecutorโs 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
The third reason the prosecutor struck Gutridge was because he had a โ[f]amily member involved and convicted of a property crime.โ 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 Leeโs jury. The state appellate court examined the record and found that Leeโs 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 โ[b]ecause the defense had long since struck veni remember [Ember] when the State struck veni remember [Gutridge], we do not find that there was any plain error in this regard.โ 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
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 โa bit of an arrest record.โ
The record supports the first reason. While Martin said that he could impose the death penalty under certain circumstances, he also told the prosecutor, โI donโt like the death penalty, Iโm against it.โ 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 โa proper penalty given the circumstances,โ 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 โbit of an arrest record,โ as unsupported by the record. In Leeโs direct appeal, Lee made, and the state appellate court examined, a more general argument that the prosecutorโs 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, Leeโs trial counsel 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 Leeโs contentionโthat the arrest record reason was pretextualโwas โnot sup-
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 Stateโs 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 Leeโs case, and its decision is entitled to deference.38
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 Leeโs. If anything, the evidentiary differences between this case and McGahee show how weak Leeโs Batson claim is. Leeโs jury was not all white but was 75% black, with nine black jurors and three white jurors. In Leeโs case, each of the prosecutorโs 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 courtโs reasoning, given in its own opinion in Leeโs case, revealed that the court did not consider an explicitly racial reason for a venire member strike. No prosecutor gave a โlow intelligenceโ reason historically tied to racism.
The record evidence in Leeโs case is also nothing like Adkins, where only one black juror served. In Leeโs 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 members with the same age or the same answers were not struck. Rather, in Leeโs case, the prosecutorโs 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 courtโs denial of Leeโs
AFFIRMED.
TJOFLAT, Circuit Judge, specially concurring:
I concur fully in the courtโs opinion and write separately to add another reason for the affirmance.
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 Attorneyโs reasons for exercising the twenty-one peremptory challenges a pretext for racial discrimination. The Court of Criminal Appeals, being bound by Rule 45A of the Alabama Rules of Appellate Procedure2 to notice plain error in this capital case, entertained Leeโs 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 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 defendะฐnt, 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 Stateโs peremptory challenges were racially discriminatory, and the Alabama Court of Criminal Appeals affirmed. Adkins v. State, 639 So.2d 515 (Ala.Crim.App.1993).
The only difference between the Adkins scenario and the scenario this case presents is that, here, the defendant did object to the Stateโs 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 Stateโs reasons for its challenges were a pretext for discrimination. In other words, had the trial court focused on evidence the record containedโbut the defendant neither mentioned nor relied on in pressing his Batson objectionsโthe 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) (โ[T]he movantโs failure to argue pretext constitutes a waiver of the initial [Batson] objection.โ); Hopson v. Fredericksen, 961 F.2d 1374, 1377 (8th Cir.1992) (โWe hold that [appellant] failed to properly preserve this issue for appeal. After the trial judge listened to [appelleeโs] 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 [appellantโs] counsel made any attempt to rebut the reasons advanced by Fredericksenโs counsel when given the opportunity to do so.โ); United States v. Rudas, 905 F.2d 38, 41 (2d Cir.1990) (โOnce 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 Governmentโs explanations, she appeared to acquiesce to them. As a result, there was no need for the district judge to make a ruling.โ).
I fully concur in the courtโs affirmance of the District Courtโs 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, nor an unrea-
Merly NUNEZ, a.k.a. Nunez Merly,
Plaintiff-Appellant,
v.
GEICO GENERAL INSURANCE COMPANY, Defendant-Appellee.
No. 10-13183.
United States Court of Appeals, Eleventh Circuit.
Aug. 8, 2013.
Juan Carlos Montes, Lidsky & Montes Law Firm, PA, Hialeah, FL, for Plaintiff-Appellant.
Frank A. Zacherl, III, Douglas G. Brehm, Maria N. Vernace, Shutts & Bowen, LLP, Miami, FL, Jose E. Pagan, Allen Kopet & Associates, PLLC, Tallahassee, FL, Peter J. Valeta, Meckler Bulger Tilson Marick & Pearson, LLP, Chicago, IL, A. Hinda Klein, Conroy Simberg Ganon Krevans Abel Lurvey Morrow & Schefer, PA, Hollywood, FL, Shannon Patricia McKenna, Weston, FL, for Defendant-Appellee.
Before DUBINA, FAY and KLEINFELD,* Circuit Judges.
DUBINA, Circuit Judge:
Merly Nunez (โNunezโ), a class representative, appealed the district courtโs dismissal of her complaint for failure to state a claim and its order denying her motion for reconsideration. Nunez argued that examinations under oath (โEUOsโ) are impermissible conditions precedent to personal injury protection (โPIPโ) coverage under Florida law and the Florida No-Fault automobile insurance statute based on the Florida Supreme Courtโs decision in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086, 1089 n. 1, 1091 (Fla.2010). Geico Insurance Company insisted that any statements regarding EUOs by the Florida Supreme Court in Custer were merely dicta and not controlling. As a result of varying interpretations of Custer in the lower Florida state courts, we concluded in our previous opinion reported as Nunez v. Geico General Insurance Co., 685 F.3d 1205 (11th Cir.2012), that Florida law was unclear in the context of statutorily mandated insurance and the Florida No-Fault Statute and certified the following question to the Supreme Court of Florida: โ[w]hether, under
On June 27, 2013, the Supreme Court of Florida answered the certified question in the negative as to
* Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting by designation.
Notes
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.
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.
The defendant contends the prosecution was guilty of racial discrimination. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.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.
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 courtโs determination is not clearly erroneous. Compare Foster v. State, 258 Ga. 736(2), 374 S.E.2d 188 (1988).
Hightower v. State, 259 Ga. 770, 386 S.E.2d 509, 512 (1989). In contrast, the state appellate courtโs evaluation of Leeโs 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 โ, 131 S.Ct. at 785; see also Johnson, 568 U.S. at โ, 133 S.Ct. at 1094.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 โ, 133 S.Ct. at 1094.