Lead Opinion
Thе Director of the Texas Department of Criminal Justice, Nathaniel Quarterman (“the State”), appeals from the district court’s provisional grant of habeas relief in favor of Stephen Lindsey Moody (“Moody”). Moody filed the underlying petition for habeas relief asserting ineffective assistance of counsel and violation of his equal protection rights pursuant to Batson v. Kentucky,
I. FACTUAL AND PROCEDURAL BACKGROUND
Because our review of this appeal pertains solely to the issue of whether the Texas trial court and the Texas Court of Criminal Appeals committed reversible error in failing to allow Moody’s Batson challenge, we limit our recitation of the facts and proceedings to those germane to the resolution of that issue.
In 1993, Moody was indicted on a charge of capital murder for the death of Joseph Franz Hall. The death occurred during the commission of a botched armed robbery in 1991. A jury subsequently found Moody guilty of the offense in 1993. After answering Texas’s special issues in the affirmative during a separate punishment phase of the trial, the jury sentenced Moody to death by lethal injection.
During voir dire, the State used four of its thirteen peremptory challenges to strike four out of eight (50%) of the African-Americans on the venire. Moody objected to one of those strikes when the State used a peremptory strike to exclude Jerome Hightower. At the close of the voir dire, Moody requested a Batson hearing to challenge the propriety of the State’s exclusion of Hightower. The trial judge denied Moody’s request, explaining that because Moody was white he had no standing to raise a Batson equal protection claim when the excluded venireperson was of a different race. The State agreed with the state trial court’s reasoning, but nevertheless volunteered a race-neutral explanation for its striking of Hightower; mainly, that Hightower had two brothers-in-law in prison. The State argued that Hightower’s family circumstances would have adversely affected his beliefs concerning whether a defendant could be rehabilitated by a long prison sentence. Disregarding Moody’s request for a Batson hearing, the trial court dismissed Hightower without conducting any step of the three-part Bat-son analysis, solely on the basis that Moody had no standing to challenge the striking of a black juror.
In 1997, Moody filed an application for a state writ of habeas corpus in the Texas trial court. Moody did not assert his Bat-son claim in his state habeas petition. In 1999, the state trial court denied Moody’s request for habeas relief and entered findings of fact and conclusions of law in support of its ruling. The Texas Court of Criminal Appeals denied relief holding that the trial court’s findings of fact and conclusions of law were supported by the record. Ex parte Moody, No. 71,687 (Tex. Crim.App. Nov. 3, 1999) (unpublished).
Moody subsequently petitioned for habe-as relief in federal court. Moody raised the same claims he raised on direct appeal — two ineffective assistance of trial counsel claims and the equal protection claim at issue here. The State filed a motion for summary judgment, and Moody filed a cross motion for summary judgment. The district court granted summary judgment to the State on Moody’s ineffective assistance of counsel claim and denied Moody’s request for a COA;
In a renewed motion for summary judgment, the State argued that the state trial court’s decision denying Moody’s request for a Batson hearing should be affirmed because (1) the erroneous ruling did not prevent Moody from fully developing his Batson claim in the state trial court; (2) Moody did not establish a prima facie case of discrimination; and (3) Moody did not meet his burden of establishing discriminatory intent. In response to the State’s arguments the district court concluded that:
[w]ell after the Supreme Court had ruled on the issue [of the irrelevance of a prospective juror’s race when a defendant raises a Batson claim,] the trial court committed the error denounced by Powers. The trial court abdicated its duty to make an inquiry into alleged racial discrimination by failing to recognize Petitioner’s standing to contest the issue. [The State] now argues that, the trial court’s erroneous ruling notwithstanding, Petitioner should have proceeded to a Batson inquiry by attempting to prove intentional discrimination. [The State] triviаlizes the practical effect of the trial court’s ruling that Petitionerlacked standing to raise a Batson issue. As a practical matter, any attempt to analyze the merits of a Batson claim in that forum would have been pointless; the trial court had already erroneously prevented Petitioner from developing the issue. Any attempt to make an extensive record or persist in his claim would have been a waste of judicial resources.
As part of the Batson analysis, a “trial court ... will have the duty to determine if the defendant has established purposeful discrimination.” Batson,476 U.S. at 98 ,106 S.Ct. 1712 . In ignoring its obligation through an inaccurate standing ruling, the trial court disabled Petitioner’s efforts to comply with his burden. [The State] now asks this Court, on the basis of a cold record alone, to consider the Batson framework and the petition. [However,] [t]he trial court prevented Petitioner from making a case under Batson; [furthermore,] the record is silent as to the prosecutor’s true intent, demeanor, or credibility. [Therefore,] [t]he Court of Criminal Appeals’ failure to apply fully Powers to this case was both contrary to and an unreasonable application of Supreme Court precedent.
Moody v. Dretke, H-00-CV-1450, at 2 (S.D.Tex. Sep. 30, 2002) (supplemental memorandum opinion and order). Based on these findings, the district court provisionally granted habeas relief on the equal protection claim.
In the same supplemental memorandum opinion and order, the district court addressed the issue of the correct remedy needed to rectify the state trial court’s violation of Moody’s equal protection rights. The court stated:
In its earlier order, this Court instructed the parties to address what relief is available in this case. [The State] only argues that a federal evidentiary hearing is unavailable. Petitioner contends that this Court should order a new trial. In support of his argument, Petitioner submits an affidavit by the trial prosecutor .... There, the prosecutor states that any hearing would be unproductive as he has no recollection of his motive in peremptorily striking [Mr. Hightower] eight years ago. As it appears that a hearing at this late dаte would not be feasible, the State of Texas must retry Petitioner.
Id. at 3. Faced with the futility of ordering a remand to reconstruct the Batson hearing, the district court ordered the State to either retry Moody within 180 days from its ruling, or release him from custody. In December of 2002, that order was stayed by the district court pending the outcome of this appeal.
The State now urges us to reverse the district court’s final judgment provisionally granting Moody’s petition for habeas corpus. The State’s sole basis for reversal is that Moody failed to rebut the race-neutral explanation voluntarily proffered by the prosecutor. Moody, on the other hand, vigorously contends that the decision of the district court should be affirmed.
II. DISCUSSION
A. Standard of Review
In reviewing a grant of the writ of habeas corpus, this court reviews a district court’s findings of fact for clear error and reviews de novo the district court’s disposition of pure issues of law and mixed issues of law and fact. Valdez v. Cockrell,
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Ogan v. Cockrell,
Absent a direct conflict with Supreme Court authority, habeas relief is available only if the state court decision is factually or legally unreasonable in light of the evidence present in the state court proceeding. Montoya v. Johnson,
In the instant case, our focus is on the third step of the Batson inquiry, the court’s determination as to whether the defendant carried his burden of proving purposeful discrimination. This detеrmination is a question of fact. United States v. Kelley,
B. Equal Protection Under Batson
The Supreme Court has long since made clear that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from striking prospective jurors solely on the basis of race. Batson v. Kentucky,
For the second step of the analysis, a prosecutor is not allowed to merely deny that he did not have a discriminatory motive; he must provide a specific explanation that is clear and reasonable. Elem,
Whether a defendant has carried his burden under Batson’s third step to prove purposeful disсrimination is based on the persuasiveness and credibility of the prosecutor’s justification for his exercise of the peremptory strike. Id. This step of the analysis is extremely fact intensive. Because of the importance of demeanor and credibility evidence in making such determinations, this step of the analysis should lie solely in the province of the trial judge. Id. Indeed, it is at this stage that the persuasiveness of a prosecutor’s explanation becomes relevant. Accordingly, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id.
1. Texas Trial Court
As stated, “[u]nder the AEDPA deference scheme, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), and questions of facts are reviewed under § 2254(d)(2).” Trevino v. Johnson,
From our review of the record, it is patently clear that the state trial court’s ruling was contrary to clearly established Supreme Court law. The trial court did not even consider Moody’s request for a Batson hearing because it incorrectly concluded that Moody had no standing to challenge the prosecution’s exclusion of Hightower. As noted above, the Supreme Court has held that defendants have standing to raise a prospective juror’s equal protection claim by way of a Batson challenge, even if the prospective juror is of a different race. Powers,
2. Texas Court of Criminal Appeals
Essentially acknowledging that the state trial court’s decision is not entitled to deference under AEDPA, the State contends alternatively that the district court should have denied relief based on the Texas Court of Criminal Appeals’ holding regarding Moody’s Batson claim. It contends that the Texas Court of Criminal Appeals’ rejection of Moody’s Batson claim was proper because the prosecutor’s reason for striking Hightower was a valid race-neutral explanation. The State argues that because of AEDPA’s deferential standard requiring that reviewing federal courts defer to the factual findings of state courts, the district court committed error when it failed to accede to the Tеxas Court of Criminal Appeals’ factual findings that the prosecutor’s race-neutral explanation was sufficient and that Moody failed to prove discriminatory intent. We agree.
The Supreme Court has held that “the presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata,
In considering Moody’s petition for federal habeas relief, instead of determining whether the record supported the Texas Court of Criminal Appeals’ finding that the prosecutor was not motivated by discriminatory intent, the district court essentially concluded that the Texas Court of Criminal Appeals erred by not remanding the case to the state trial court to conduct a proper Batson hearing. Recognizing the futility of ordering a remand to reconstruct the Batson hearing, the district court ordered a new trial.
Given the Supreme Court’s directive in Batson that the third step of the analysis should lie solely in the province of trial judges,
In Elem,
On federal habeas review, the district court, applying the deferential standard required under § 2254(d), affirmed the state appeals court, holding that based on the record “the Missouri courts’ determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness.” Id. at 767,
Thе Supreme Court granted certiorari and reversed the Eighth Circuit, concluding that the panel had conflated steps two and three of the Batson analysis. Id. 768,
On remand, the Eighth Circuit followed the Supreme Court’s instructions “to reevaluate, under the proper § 2254(d) standard, [the Missouri Court of Appeal’s] ‘finding of no racial motive.’ ” Elem v. Burkett,
When petitioner’s counsel objected to the prosecutor’s use of peremptory strikes to eliminate jurors 22 and 24, the trial judge noted, and then the prosecutor argued, that there was no evidence that jurors 22 and 24 were in fact African American. The prosecutor nonetheless stated that he struck jurors 22 and 24 because of their mustaches and beards, which “look[ed] suspicious,” and because of their hair, which the prosecutor “[didn’t] like.” Responding to the trial court’s comment and the prosecutor’s responsive argument, the defense attorney requested that the court either allow him to ask the two jurors if they were black or take judicial notice of the fact that they were black, in order to establish a record of the jurors’ race. The trial court rеsponded, “I am not going to do that, no, sir.”
Elem,
because the prosecutor proffered reasons for striking juror 22 that were facially race-neutral, and petitioner made no attempt to persuade the state trial court that the prosecutor’s reasons for striking juror 22 were merely a pretext for purposeful discrimination, the trial court’s finding of no racial motive is fairly supported by the record, and petitioner is not entitled to habeas relief on his Batson claim.
Id. at 1201.
In the instant case, when the trial court erroneously stated that Moody could not assert a Batson claim, defense counsel responded “Thank you. Note our excep
On appeal to the Texas Court of Criminal Appeals, defense counsel did not even attempt to argue that the prosecution’s reasons for striking Hightower were pre-textual. Instead, counsel argued only that “[t]he State failed to articulate a racially neutral reason, or any other reason, for exercising a peremptory strike on Mr. Hightower.” But, as we noted above, the prosecutor’s stated reason for striking Hightower was that he had two brothers-in-law that had been imprisoned and who he believed could be rehabilitated. It is understandable that defense counsel did not attempt to respond to the prosecutor’s stated reasons following the trial judge’s ruling that Moody lacked standing; nevertheless, we hold that Moody’s failure to do so before the Texas Court of Criminal Appeals precludes a finding that the Texas Court of Criminal Appeals’ determination was unreasonable.
Our conclusion is bolstered by defense counsel’s objection to the prosecution’s strike of a second juror on Batson grounds. In an effort to preempt a second erroneous ruling that Batson did not apply, defense counsel established a prima facie case that the prosecutor exercised a peremptory strike on the basis of race. The prosecutor then articulated several reasons for the strike including the juror’s memory loss and her statement that she could not follow the evidence. Dеfense counsel responded by arguing that the prosecutor’s explanation was not supported by the witness’s testimony. The trial judge then made a finding that the juror was not struck because of her race. In his brief to the Texas Court of Criminal Appeals, Moody contended that there was nothing in the record to support the prosecutor’s stated reasons for striking Lathon; however, he did not point to any evidence, or lack thereof, with regard to the prosecutor’s stated reasons for striking High-tower. The Texas Court of Criminal Appeals found that the prosecutor’s stated reasons for striking Hightower are supported by the record and that Hightower was struck for those reasons and not because of his race. Moody has not rebutted these findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Accordingly, although we might disagree with the Texas Court of Criminal Appeals’ failure to remand the case to the trial court, the Texas Court of Criminal Appeals’ finding that the prosecutor’s striking of prospective juror Hightower was not a violation of Moody’s equal protection rights was not unreasonable and is therefore not grounds for habeas relief. The district court’s determination to the contrary is VACATED.
III. CONCLUSION
For the foregoing reasons, the order of the district court granting Moody’s petition for habeas relief is VACATED. This case is REMANDED for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
. Following the district court's denial of relief on his ineffective assistance claim, Moody sought a COA before this court solely on that issue. We denied Moody's application as to each of the arguments in support of that claim and dismissed his petition as to that claim. See Moody v. Dretke,
. Indeed we agree that the better practice would have been for the Texas Court of Criminal Appeals to remand the case to the trial court to conduct a Batson hearing. In Wardlow
. The colloquy transpired as follows:
MR. GUERINOT: We would like the record to reflect that this juror is a black male, and we would ask the State to specifically state in the record, after your voir dire and mine, the racially impartial reason that they are exercising a strike.
THE COURT: That will be denied, being the fact that the Defendant in this case is white. He is not part of any racial minority
MR. GUERINOT: Thank you. Note our exception.
THE COURT: Give the gentleman an excuse and tell him he is free to go.
MR. MORRIS: In addition to that, if it be needed — probably doesn't need to — our point would be, of course, the records of the two brother-in-laws [sic], one robber and one dope pusher, and he says they can be rehabilitated, even though they have been up twice before.
THE COURT: Tell him he's free to go and thank him for being with us.
Dissenting Opinion
dissenting:
When Moody’s state trial counsel made a Batson objection to the state prosecutor’s peremptory challenge of a black juror, the state trial court cut him off at the knees, ruling sua sponte that Moody did not have standing to object because Moody is white. Undisputedly, the state trial court’s no-standing decision was contrary to the rule of federal law clearly established by the Supreme Court in Powers v. Ohio.
The state trial court’s ruling foreclosed any opportunity for: (1) Moody to make a prima facie showing of discrimination; (2) the State to make a valid proffer of a race-neutral basis for the challenge; or (3) Moody to show that the State’s proffer would have been pretextual and that the challenge was race-based. Thus, the state trial court’s immediate, sua sponte ruling
All this is evident from the unbroken train of events that rapidly followed Moody’s objection to the peremptory challenge: (1) the trial court immediately ruled sua sponte that Moody did not have standing to object; (2) defense counsel noted his exception to the court’s ruling; (3) the trial cоurt excused the black juror from further jury service; (4) the prosecutor agreed with and accepted the benefit of the trial court’s no-standing ruling, but interjected a reference to his reasons for the strike, stating that “[i]n addition to that, if it be needed — probably doesn’t need to — ... the records of the two brother-in-laws [of the juror], one robber and one dope pusher, and he says they can be rehabilitated, even though they have been up twice before ...and (5) the trial court signified his insistence on his no-standing ruling and sustained the prosecutor’s peremptory challenge by directing that the black juror be told that he was “free to go” and thereby released from further jury duty.
The district court correctly determined that a writ of habeas corpus must be granted because (1) the state trial court unquestionably violated the clear, firm rule of Powers by holding that Moody lacked standing to object to the race-based exclusion of a black juror through peremptory challenge because Moody “is whitе ... [and] not part of any racial minority”; (2) the state trial court compounded its Powers error by also violating the clearly established rules of Batson v. Kentucky,
The majority scouts for a way to say that the CCA’s decision, although flatly contrary to Batson, was not unreasonable. But each theory it advances is itself contrary to оr an unreasonable application of those clearly established Supreme Court holdings. First, the majority vaguely suggests that the collection of decisions related to Purkett v. Elem is a reasonable basis to think that a state appellate court might decide a Batson challenge originally and ab initio despite the trial court’s failure to undertake any of the three steps. See Purkett v. Elem,
In my opinion, Powers and Batson clearly establish that Moody had standing to object to the peremptory challenge, to make a prima facie case and to prove racial discrimination on the merits in the trial court, and Batson unmistakably does not allow a state'appellate court to make the factual determination of racial discrimination in peremptory challenges vel non in the absence of a record of such a previous finding by the trial court. In Batson, the Supreme Court applied by analogy from its equal protection jurisprudence a burden-shifting framework for the analysis of objections to peremptory strikes as discriminatory. It established a three-step analysis: first, the defendant must make a prima facie showing that the peremptory challenge was racially motivated; second, the prosecutor must then articulate a race-neutral reason for the strike; and third, the trial court must determine whether the defendant has established purposeful discrimination. Batson,
Batson plainly does not authorize an appellate court to take evidence or to act as the initial fact-finder regarding whether a peremptory challenge was racially motivated. Nor does it allow appellate judges to speculate as to what would have happened in the absence of the trial court’s Batson error or to hypothesize a record for review in a case in which the trial court failed to make findings as to whether the defendant made out a prima facie case of racial discrimination, whether the prosecution had proffered a race neutral explanation, and whether the defendant prevailed on the ultimate issue of intentional racial discrimination. In the final analysis, the CCA’s decision in the present case is, at best, a review of a hypothesized three-step inquiry that was never made by the state trial court, or, at worst, rank speculation that the prosecutor’s uninvited, unaccepted, and untraversed faux-proffer concerning Hightower’s brothers-in-law must have been the true basis for the prosecutor’s peremptory challenge.
Nothing in AEDPA or the Supreme Court’s jurisprudence reasonably supports the CCA in making credibility calls on peremptory challenges against black jurors based on a trial record devoid of evidence, traverse, contradictory hearing, or judicial questioning. It was well settled prior to AEDPA that, in habeas corpus proceedings in federal courts, the factual findings of state courts were presumed to be correct, but that the presumption was rebuttable and the findings could be set aside if they were “ ‘not fairly supported by the record.’ ” Purkett,
However, the Supreme Court held that although the Sumner cases еstablished that the presumption applies to facts found by appellate as well as trial courts, there were instances in which the presumption would not arise with respect to appellate fact-finding — for example, in a case which turned on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record. See Cabana v. Bullock,
In Childress v. Johnson,
The trial court in this case never initiated the Batson inquiry, and the record does not contain even á first-step analysis. Rather, the trial court refused to consider the issue on the ground that Moody lacked standing to make the objection. We have previously described Batson findings by the trial court as a “prerequisite for proper appellate review.” United States v. Romero-Reyna,
In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.” Wainwright v. Witt,469 U.S. 412 , 428,105 S.Ct. 844 ,83 L.Ed.2d 841 (1985), citing Patton v. Yount,467 U.S. 1025 , 1038,104 S.Ct. 2885 ,81 L.Ed.2d 847 (1984).
The trial court’s Powers error here led it to default completely on its duty under Batson to make a three-step analysis. The CCA here attempted to conduct the third step of the Batson analysis on its own, despite the Supreme Court’s admoni
Finally, while Moody may not have gone outside of the trial court record before the CCA to identify a particular aspect of the prosecutоr’s demeanor which suggested racial motivation in this case, as the majority surmises, this does not detract from the general rule that an appellate court errs by attempting to make a credibility determination at the appellate level on a cold or hollow record.
Subtle and nonverbal cues such as a wink, a glance, or a brief hesitation are often perceived by a fact-finder only indirectly and subconsciously. The rule requiring that it be a trial judge who scrutinizes the demeanor of a witness is in place precisely because these cues would be difficult, if not impossible, to identify on appeal. “A transcript cannot reveal tone, speech inflections, mood and other indicia of a mental state and certainly cannot pick up subtle but crucial changes in [the prosecutor’s] demeanor.” Bruce v. Estelle,
Moody plainly preserved this argument by, at the first available opportunity in his briefs to the federal district court, arguing that a “[tjrial judge at least might recall the demeanor of the prosecutor and prospective jurors while reviewing the record. The CCA absolutely could not.” After citing law to the effect that only a trial court may make in-person credibility assessments,
The majority’s further contention that Moody failed to argue that the prosecutor’s stated reasons for striking Hightower were pretextual is also troubling. First, Moody was not required to make such an argument, considering the trial court’s clear legal errors in its ruling and proceedings contrary to Powers and Batson. Second, Moody’s briefs to the district court cеrtainly made this argument anyway, flatly stating that “[t]he record of individual voir dire proves, however, that the prose-eution[’s] explanation for its strike was pretextual.” Moody pointed both to statistical evidence of a disproportionate number of black jurors being struck from the venire in this case and to several white jurors who Moody argues stated similar views and yet were not struck by the prosecutor. While Moody’s briefs before the CCA did not detail the reasons why Moody believed the strike of Hightower to be pretextual, this failure certainly does not amount to a waiver, as implied by the majority. In response to Moody’s briefs
The burden of proving any waiver by Moody of his arguments lies on the State. See, e.g., 31 C.J.S. Estoppel and Waiver § 213 (2006) (“The burden of proving waiver is on the party claiming or asserting it, or alleging and relying on it, or raising an issue as to it.”). The State’s brief to the district court describes the facts as if no evidentiary hearing ever occurred, arguing in a footnote that the only “hearing” necessary for a state appellate court to make a finding of fact is to allow the parties opportunity for written and oral argument. The State’s briefs before us contain no allegation of waiver and do not give us any indication as to whether oral argument occurred in the CCA or what was said at any hearing. We cannot, on the incomplete record before us and on our own initiative, presume a waiver. Moody’s first opportunity to challenge the CCA’s sua sponte effort to reach the. third step of the Batson inquiry was before the district court, and it is plain that he argued there that the state’s proffered reason was pre-textual.
For these reasons, I respectfully dissent from the majority’s reversal of the district court’s judgment. Ordinarily, I believe a remand to re-conduct the Batson analysis is the most appropriate remedy. However, in this case the hearing took place over a decade ago, and the prosecutor has submitted an affidavit stating that he does not remember the reasons motivating his strike and could not now testify to them. On these circumstances, I cannot say that the district court erred in ordering a new trial. See Barnes v. Anderson,
For these reasons, I respectfully dissent.
. See United States v. Montgomery,