*1 Threats, D. Illegal Surveillance and In-
terrogations Stephen Lindsey MOODY, Petitioner-Appellee,
Finаlly, the NLRB adopted numer ous findings Dynasteel threatened, in terrogated and spied on employees its at
tempting to form a union. The numerous Nathaniel QUARTERMAN, Director, (1) threats include: Adcock telling employ Department Texas of Criminal Jus- Dynasteel ees that would shut down before tice, Correctional Institutions Divi- (2) in, it let a union Jones telling Goss sion, Respondent-Appellant. “there wouldn’t be no Union come (3) here,” and No. Sanders 02-21245. telling Goss he would be the first one if a fired union came United States Court of Appeals, (1) in. Interrogations include Adcock ask Fifth Circuit. ing Goss if they starting and, a union post-termination, asking Jones Goss Jan. “why they do want a union?” incident surveillance occurred when
Jones and Sanders arrived at a company
diner during a union meeting and Sanders in,
stepped around, looked just and left
minutes before Vaughn was fired.
Dynasteel’s only complaint regard with
to these that the ALJ credited wrong witnesses. again, Once that is a
judgment we generally leave to the ALJ NLRB, and will defer to their findings long
so as they are reasonable and sup-
ported by substantial Dynasteel evidence.
never shows how the findings were unrea-
sonable unsupported, so we defer to the
NLRB on the matter.
IV. CONCLUSION all
Because the NLRB’s findings are
supported by substantial evidence, Dynas- petition
teel’s DENIED, review is
the NLRB’s request to enforce its order is
GRANTED in full. wearing a that, union t-shirt. argued Counsel probably fan, assume he was a Drew Bre es "if wearing I were a Drew jersey, you Brees much like Melvin would have assumed that
wouldn’t But, assume that I’m Drew Brees.” Churchill was supporter. a union oppоsing as out, pointed counsel we would
Philip Hilder, Harlan James Gregory Rytting (argued), Hilder & Associates, Houston, TX, for Moody. er- reversible committed Austin, Appeals Criminal (argued), Eldred Elaina Carla chal- failing allow ror
TX, Quarterman.
of the facts
limit our recitation
lenge, we
germane
to those
proceedings
of that issue.
resolution
Judge, and
JONES, Chief
Before
charge
aon
1993, Moody was indicted
DENNIS,
Judges.
Circuit
STEWART
Joseph
the death
murder for
capital
during
occurred
The death
Hall.
Franz
Judge:
STEWART, Circuit
E.
CARL
rob-
armed
a botched
commission
Department
of the Texas
Director
*4
found
jury subsequently
A
bery in 1991.
Quarterman
Justice, Nathaniel
of Criminal
After
in 1993.
of the offense
Moody guilty
the district
(“the State”),
appeals
in the
special issues
answering Texas’s
relief
habeas
of
grant
provisional
court’s
punishment
separate
during a
affirmative
Moody
Lindsey
Stephen
of
favor
trial,
jury sentenced
of the
phase
underlying
filed
Moody
(“Moody”).
injection.
by lethal
Moody to death
asserting ineffec-
relief
for habeas
petition
of
dire,
used four
the State
During voir
of
and violation
counsel
of
tive assistance
to
challenges
peremptory
thirteen
its
to
pursuant
rights
protection
equal
his
(50%)
Afri-
of the
eight
out of
four
strike
79, 106 S.Ct.
Kentucky, 476 U.S.
Moody ob-
on
venire.
can-Americans
(1986). The district
L.Ed.2d
when
strikes
of those
to one
jected
Moody’s ineffective
on
relief
court denied
to exclude
strike
peremptory
his State used
and denied
claims
of counsel
assistance
close of
At the
Hightower.
however,
court
COA;
Jerome
for a
request
a Batson hear-
dire,
requested
Moody
relief
voir
for
request
Moody’s
granted
of
propriety
challenge the
ing
The district
to
claim.
his Batson
based
The trial
Hightower.
im-
of
exclusion
trial court
State’s
the Texas
that
held
court
explaining
request,
Moody’s
for
Moody’s request
judge denied
denied
properly
no
he had
white
use
Moody
the State’s
to contest
that
challenge
protection
equal
jury voir
a Batson
during
standing
raise
strikes
venireperson was
that the
the excluded
reasoned
court
claim when
The district
dire.
agreed with
apply
The State
properly
race.
failed
a different
Texas
reasoning, but never-
holding in Powers
trial court’s
Supreme Court’s
explana-
400, 111
a race-neutral
Ohio,
volunteered
theless
mainly,
(1991).
Hightower;
we conclude
Because
tion for its
L.Ed.2d
proper
give
two brothers-in-law
court failed
had
Hightower
district
Hightow-
of Criminal
argued
Court
Texas
to the
State
deference
prison.
ad-
pursuant
of fact
would
family circumstances
Appeals’
er’s
Moody’s
concerning
granting
order
beliefs
his
versely
U.S.C.
affected
equal
on his
corpus
rehabilitated
could be
for habeas
petition
defendant
whether a
Disregarding
claim is VACATED.
sentence.
protection
prison
long
hearing, the
a Batson
request
Moody’s
AND PROCEDURAL
FACTUAL
I.
without
Hightower
dismissed
trial court
BACKGROUND
Bat-
three-part
conducting
basis
on the
solely
analysis,
son
per-
appeal
our review
Because
challenge the
standing to
had no
of whether
issue
solely to the
tains
juror.
a black
striking of
Texas
and the
trial court
Texas
appeal
On direct
Texas
Court of
for summary
motion
judgment,
Appeals, Moody
Criminal
raised seven filed a cross motion for summary judg-
error,
claims of
including the equal protec- ment. The district
granted
sum-
tion claim at issue here. Moody argued mary judgment
to the
on Moody’s
State
state trial court failed to conduct a
ineffective assistance of counsel claim and
Batson hearing as he requested in viola- denied Moody’s request
COA;1
for a
how-
tion
Court’s decision in
ever, it ordered
briefing
additional
on the
Ohio,
Powers
which
long
has
since re-
equal protection issue, including evidence
solved the issue of whether a defendant
arguments
as to the proper remedy
could raise a Batson claim to
contest
that should
rectify
error,
be ordered to
State’s use of a peremptory strike when a
i.e., whether it should issue an order of
venireperson is of a
race
different
from the
remand to
proper
conduct a
Batson hear-
challenging
defendant.
the Texas
ing
an order of remand for a
trial.
new
Court of Criminal Appeals
affirmed
In a rеnewed motion for summary judg-
sentence,
conviction and
stating ment, the State argued that the state trial
although
the state trial court improp-
denying
decision
Moody’s request
*5
erly failed to conduct a proper Batson
for a Batson hearing should be affirmed
hearing,
prof-
race-neutral
(1)
because
ruling
erroneous
not
did
fer was
for a
sufficient
lawful exclusion of prevent Moody from fully developing his
Hightower and
prosecutor
did not
claim in
(2)
Batson
court;
the state trial
Hightower
strike
of his
race. Moody did not
prima
establish a
facie case
State,
Moody
71,687
No.
(Tex.Crim.App.
of discrimination; and Moody
did
17,1996)
Jan.
(unpublished).
meet his burden of establishing discrimina-
In
Moody filed an application for a
tory intent.
In response to the State’s
writ
of
corpus
habeas
in the Texas
arguments
the district court concluded
trial
Moody
court.
did not assert his Bat-
that:
son claim in his state
petition.
In
[w]ell after
the Supreme Court had
1999, the state trial court denied Moody’s
ruled on the issue
[of
irrelevance of
request for habeаs relief and entered find
prospective juror’s
race when a defen-
ings of fact and conclusions of law in sup
dant raises a
claim,]
the trial
port of its ruling. The Texas Court of
court committed the error
denounced
Criminal Appeals denied relief holding
Powers. The trial court abdicated its
that the trial
court’s
of fact and
duty to make an inquiry into alleged
conclusions of law were supported by the
racial discrimination by failing to recog-
parte
(Tex.
record. Ex
71,687
Moody, No.
nize Petitioner’s standing to contest the
3, 1999)
Crim.App. Nov.
(unpublished).
issue.
[The
argues that,
State] now
Moody subsequently petitioned for habe-
trial court’s
ruling
erroneous
notwith-
as relief in federal court. Moody raised
standing, Petitioner should
pro-
have
the same claims he raised on direct ap-
ceeded to a Batson inquiry by attempt-
peal
ineffective assistance of trial
ing
prove
to
—two
intentional discrimination.
counsel claims
equal
and the
protection
[The State] trivializes
practical
effect
claim at issue here. The State filed a
the trial
of
ruling
that Petitioner
Following
1.
the district court's denial of relief
arguments
of
each
support
in
of that
claim,
on his ineffective
assistance
claim and
petition
dismissed his
as to that
sought a COA
solely
before this court
Dretke,
on that
claim. See
Fed.Appx.
issue. We
Moody's
denied
application
(5th Cir.2003)
as to
(unpublished).
evidentiary hear-
federal
that a
argues
issue.
a Batson
raise
standing to
lacked
contends
Petitioner
is unavailable.
ing
attempt
matter, any
practical
aAs
trial.
a new
should order
this Court
in
claim
of a Batson
the merits
analyze
Petitioner
argument,
his
support
In
pointless;
have been
would
that forum
prosecu-
an
erroneously
affidavit
already
submits
court had
states
There,
....
developing
tor
from
Petitioner
prevented
unproductive
hearing would be
make an
attempt
Any
the issue.
of his motive
no
has
recollection
claim
as he
his
persist
record or
extensive
Hightower]
peremptorily
[Mr.
judicial re-
a waste
been
would
appears
As
аgo.
it
eight years
sources.
not be
would
late date
hearing at this
a “trial
analysis,
of the Batson
part
As
retry
feasible,
of Texas must
the State
duty
deter-
... will have
Petitioner.
has established
defendant
mine if
Batson, 476
discrimination.”
futility of order-
purposeful
with
3. Faced
Id. at
ignoring
In
98, 106 S.Ct.
the Batson
reconstruct
ing
remand
inaccurate
through an
obligation
its
court ordered
hearing,
district
disabled
the trial court
ruling,
Moody within
standing
retry
to either
State
with his
comply
efforts
him
ruling,
Petitioner’s
or release
its
days from
this
asks
now
State]
order
[The
burden.
custody.
December
record
a cold
Court,
pending
on the basis
by the district
stayed
framework
alone,
to consider
appeal.
the outcome
[However,]
[t]he
petition.
and the
to reverse
urges us
The State now
*6
making
Petitioner
prevented
court
provisionally
judgment
court’s final
district
[furthermore,] the
Batson;
a case under
cor-
for habeas
petition
Moody’s
granting
is silent as
record
is
reversal
sole basis
The State’s
pus.
credibility.
demeanor, or
intent,
true
the race-neutral
to rebut
Moody fаiled
Ap-
of
[Therefore,]
Criminal
Court
[t]he
by the
voluntarily proffered
Powers
apply fully
peals’ failure
hand,
the other
Moody, on
prosecutor.
and an
contrary to
both
was
this case
of
the decision
vigorously contends
Supreme
of
application
unreasonable
affirmed.
should be
the district
precedent.
Court
H-00-CV-1450,
2at
Dretke,
II. DISCUSSION
2002)
(supplemental
(S.D.Tex. Sep.
of Review
A. Standard
order). Based
opinion
memorandum
provi-
findings, the district
these
on
of the writ
grant
reviewing
equal
relief on
sionally
habeas
granted
a dis
reviews
this court
corpus,
of habeas
claim.
protection
error
for clear
findings of fact
trict court’s
the district
memorandum
novo
supplemental
de
same
and reviews
In the
mixed
law and
order,
court ad-
of
district
issues
pure
of
disposition
opinion
Cockrell,
remedy
correct
fact. Valdez
law and
issue
of
issues
dressed
Cir.2001).
(5th
Because
trial court’s
rectify the
274 F.3d
needed
the effec
protection
filed after
equal
Moody’s petition
of
violation
the Antiter
of the enactmеnt
stated:
date
The court
tive
rights.
Act of
Penalty
Death
Effective
rorism
instruct-
order, this Court
In its earlier
2254, our
§
(“AEDPA”), 28 U.S.C.
relief is
address what
parties
ed
heightened
a more
by
governed
is
only review
State]
case.
[The
in this
available
Accordingly,
standard
review.
decision,
a federal Court’s]
but unreasonably applies
corpus
writ of
may
habeas
not issue to a
principle
to the facts of the [petition-
petitioner seeking
AEDPA,
relief under
prisoner’s
er]
case.” Id.
adjudication
claim,
unless the state
of his
case,
In the instant
our focus is on
(1) resulted in a decision that was con-
third
of the Batson inquiry, the
to,
trary
or involved an unreasonable
court’s determination as to whether the
of,
application
clearly established Feder-
defendant carried his burden of proving
law,
al
by
as determined
Supreme
purposeful discrimination. This determi
States;
Court of the United
question
nation is a
of fact. United States
resulted
a decision that was based
(5th
v. Kelley,
Cir.1998)
140 F.3d
on an unreasonable determination of the
(“The district court’s determinatiоn that a
in light
facts
presented
evidence
party
used peremptory
has
strikes in a
in the State court proceeding.
discriminatory manner is a finding of fact
2254(d);
§
28 U.S.C.
see
Ogan
also
and thus cannot be
overturned
Cockrell,
(5th
Cir.2002).
F.3d
error.”).
clear
absent
Accordingly,
Moreover, a writ of
corpus pursu
entitled to relief if the state
§
ant to
2254 should not issue solely on court’s determination constituted “an un
the basis that the state court committed
reasonable
determination
the facts in
Rather,
error.
the writ
granted
should be
light of the
presented
evidence
in the State
only if the state court
at a
“arrive[d]
con
court proceeding.”
2254(d).
28 U.S.C.
opposite
clusion
to that
reached
[the
Supreme Court]
a question
on
if
B. Equal
law or
Protection Under Batson
the state court
decide[d]
case differently
The Supreme Court
long
has
than
[the
Court]
a set
has
since made clear that
Equal
Protection
materially
indistinguishable
facts.” Clause of the Fourteenth
pro
Amendment
Taylor,
Williams v.
529 U.S.
prosecutors
hibits
from striking prospeс
1495, 146
(2000).
L.Ed.2d 389
tive
solely on the basis of race.
Absent a direct conflict with Su Batson v. Kentucky,
79, 89,
*7
preme Court authority,
1712,
habeas relief is S.Ct.
90
(1986);
69
L.Ed.2d
accord
available
if the state court decision is United
Webster,
States v.
308,
162 F.3d
factually or legally
(5th
in light
Cir.1998)
unreasonable
of 349
(recognizing that
present
evidence
in the state court Fifth
prohibits
Amendment
use of peremp
proceeding. Montoya
Johnson,
v.
tory
226
of prospective
strike
jurors solely on
399,
(5th
F.3d
Cir.2000).
404
race).
Notwith
Batson,
basis of
the Court
standing, an unreasonable application of delineated a three-step analysis for evalua
federal
law is
equivalent
not the
of an tion of a defendant’s claim that a prosecu
incorrect
application of
federal
law.
tor used a peremptory
strike
a racially
Williams v. Taylor,
362, 412,
529 U.S.
120
(1)
discriminatory manner:
a defendant
1495,
S.Ct.
(2000).
267 discrimination.” York, purposeful pretexts Newv. Hernandez nation. See 1859, 114 Id. 358-59, 352, 111 S.Ct. U.S. Batson, at 96- 476 U.S. (citing
L.Ed.2d 395 Trial Court 1. Texas 1712). burden ultimate 98, The S.Ct. with the times at all lies AEDPA defer- stated, persuasion of “[u]nder As Elem, 514 U.S. v. Purkett scheme, See of law pure questions defendant. ence 1769, L.Ed.2d 834 768, 115 S.Ct. are re- and fact of law questions mixed Dretke, 361 (1995); Miller-El 2254(d)(1), see also and questions § under viewed Cir.2004), other (5th rev’d on 2254(d)(2).” § F.3d under reviewed facts are 2317, 162 231, 125 (5th S.Ct. grounds, Johnson, F.3d Trevino 196(2005). L.Ed.2d Cir.1999). not enti- Moody is Accordingly, the state unless relief tled step For the second on an unreason- is “based court’s decision not allowed is analysis, a light the facts in determination able a dis nоt have he did deny that merely in the State presented the evidence motive; provide must he criminatory 2254(d)(2). Further, § proceeding.” and rea is clear specific explanation presumed are factual court’s state Elem, at 514 U.S. sonable. by clear unless contravened to be correct explana Although 1769. 2254(e)(1). convincing evidence. reasonable, be clear and must tion mind, of deference With standard persua to be not required equal protection consider we 767-68, 115 at Id. plausible. or even sive claim. 1769; also United States see S.Ct. (5th Cir. n. 640-41 76 F.3d Huey, record, From our review validity” 1996). “facial question is clear patently it is Elem, at explanation. clearly es contrary to ruling was Therefore, a dis “[u]nless 1769. law. The Supreme Court tablished prose in the is inherent criminatory intent Moody’s re even consider court did not [by offered the reason explanation, cutor’s in it hearing because for Batson quest neu deemed race will be prosecutor] Moody had no correctly concluded 768, 115 Id. tral.” ex prosecution’s challenge the standing to above, the As noted Hightower. car clusion has defendant Whether a that defendants has held third under Batson’s ried his burden juror’s prospective standing to raise is based purposeful discrimination prove of a Batson by way claim equal protection credibility of persuasiveness *8 is juror prospective if the even challenge, his exer justification prosecutor’s Powers, U.S. 499 race. of a different This Id. strike. peremptory cise of of 415, 1364. Because inten extremely fact analysis is step of in contravention ruling court’s erroneous de of importance Because sive. three-step Powers, not it did broach of making in credibility evidence meanor and a defendant’s analysis required evaluate analy determinations, step of the this such Supreme challenge. Given Batson solely province in the should lie sis Powers, that we find holding stage Court’s Indeed, it is at Id. judge. trial was an unreason ruling court’s state prosecutor’s aof persuasiveness that Su clearly-еstablished of application able According relevant. becomes explanation re to AEDPA’s As law. preme justifications or fantastic “implausible ly, the state defer to this court that will) quirement to be (and found be may probably fact, findings ertheless, trial court’s of this directive the Texas Court of Ap- Criminal applicable as to this state trial court peals on appeal direct did so in its stead. it findings failed make of First, the Texas Court of Appeals Criminal fact relative to the heart of claim. presumed that Moody made the requisite showing necessary to establish a prima Court Criminal Appeals Texas facie case to challenge prosecutor’s
Essentially acknowledging that Hightower. strike of The decision state court’s is not enti Texas Court of Appeals Criminal next con- AEDPA, tled to deference under the State cluded that the State had volunteered a alternatively contends that the district valid explanation race-neutral sufficient to court should have denied relief bаsed on meet its burden step under two of the Texas Court Criminal Appeals’ hold analysis. Based upon its review of the ing regarding Moody’s Batson claim. It record, the court concluded Moody contends that the Texas Court of Criminal prove failed to was Appeals’ rejection of Moody’s claim Batson by discriminatory motivated intent and proper was prosecutor’s because the rea satisfy thus failed to his burden step under son for striking Hightower a valid three of the analysis. explanation. race-neutral The State ar In considering Moody’s petition for fed- gues that because of AEDPA’s deferential relief, eral habeas instead of determining standard requiring reviewing federal whether the record supported the Texas courts defer to the factual findings of state Court of Criminal Appeals’ finding courts, the district court committed error prosecutor was by not motivated discrimi- when it failed to accede to the Texas Court intent, natory the district court essentially Appeals’ Criminal factual findings that concluded the Texas Court of Crimi- prosecutor’s race-neutral Appeals nal erred not remanding the was sufficient and that failed to case to the state trial court to conduct a prove discriminatory agree. intent. We proper hearing. Recognizing the Supreme Court has held that “the futility ordering a remand to recon- presumption of equally ap- correctness is struct the Batson hearing, the district plicable court, when a appellate as ordered new trial. opposed court, to a state trial makes the finding Mata, of fact.” Sumner v. Given the Court’s directive in 591, 592-93, Batson that the third analysis (1982); L.Ed.2d 480 see solely also Rolan v. should lie the province of trial (3d Vaughn, Cir.2006) 445 F.3d judges, 476 U.S. at it is (applying presumption of easy correctness to to understand the district court’s of fact analysis where of this claim. The district court petition was filed after the effective date of found that the erred, Texas state courts AEDPA); Spencer, Norton v. 351 F.3d first failing to recognize (1st Cir.2003) (same); Mitchell, Bugh v. standing had under Powers to chаllenge (6th Cir.2003) (same). F.3d strikes, use of peremptory *9 case, In the instant we have already second, deter- and by failing on direct appeal to mined that the state trial court did not remand the case back to the state trial the three-step conduct Batson test. Nev- court to a proper conduct Batson hearing.2 2. agree we Indeed that practice the Appeals better inal to remand the case the trial would been for the Texas of Court Crim court to conduct a hearing. In Wardlow
269 shotgun. Id. a sawed-off with been robbed task was Nevertheless, court’s district the prosecution’s 766, 1769. The the 115 S.Ct. agreed with at it whether to assess not juror number that because to determine was ruling, but rationale court’s state finding gun, enti- actual was with an he 24 robbed the state court’s was whether correctness guilty of find Elem of presumption able to to the not be tled would was that determination gun whether not use a to decide Elem did robbery because pre- of the evidence light trial unreasonable “The state Id. сommit his offense. 333, Collins, 546 U.S. Rice v. sented. overruled court, explanation, without Cf. 969, 973, L.Ed.2d 824 163 126 S.Ct. objection empaneled Batson] [Elem’s of proper standard the (“Though it recited words, the state Id. In other jury.” the sub- review, majority improperly panel the Elem did not concluding that judge, trial for the record evaluation its stituted case of race dis- facie prima a establish court.”); Brown trial state crimination, any of the engage failed 1432, 143, 133, 125 S.Ct. 544 U.S. Payton, 770, id. at analysis. See three-step Batson (2005) (“Even as- on the 161 L.Ed.2d J., (Stevens, dissenting). 115 S.Ct. incorrect, was conclusion that its sumption appeals court appeal, the state direct On unreasonable, and is therefore not it was judgment, court’s trial the state affirmed that AEDPA “ type the decision just con- ‘state’s finding the review.”). on habeas shields that ‘[t]he ‘hunch’ and legitimate a stituted 1769, 765, Elem, 115 S.Ct. the neces- to raise failfed] circumstances ” con- Court Supreme the L.Ed.2d discrimination.’ of racial sary inference aof reversal Eighth Circuit’s sidered opin- (majority at Id. relief of habeas court’s denial district Elem, iоn) 747 S.W.2d State (quoting jury During selec- similar circumstances. (Mo.App.1988)). (“Elem”) trial, a Jimmy Elem’s for tion review, district On federal degree with second charged defendant standard court, deferential applying young woman’s snatching a robbery for 2254(d), affirmed the under required objected to Elem purse, court, that based on holding appeals state two to exclude strikes use determi- courts’ “the Missouri the record ju- prospective jurors, black prospective purposeful no had been that there nation 766, 115 1769. at S.Ct. 22 and 24. Id. rors finding enti- a factual was discrimination request from without prosecutor, The Id. of correctness.” presumption tled for explanations judge, trial offered to the review 1769. On at jurors. prospective of the two its strikes panel Appeals, Eighth Circuit juror prospective regard With Id. decision and the district reversed he struck explained instructions that with the case remanded unkempt “long, had juror he petition grant Elem’s the district Id. mustache, hair, and beard.” Eighth The Id. corpus. of habeas writ juror 24 Prospective pros- еssentially concluded Circuit juror previously had struck because court noted State, (Tex.App.1999),the S.W.3d and reversed in Powers decision Court’s the defendant’s overruled trial court, holding case to the violation, remanded irrele acknowledging that it was peremptory strike of prosecution’s white noting the defendant was vant but es remaining venire-member black judge's concluding on the based a Batson viola prima facie case they tablished prosecutors that with experience at 787-88. tion. Id. race. based on *10 270 explanation
ecution’s
for striking prospec-
can
prosecutor
American. The
nonethe-
juror
pretextual.
tive
22 was
Id.
less stated
jurors
that he struck
22 and
24 because of their mustaches and
Supreme
granted
The
certiorari
beards, which
suspicious,”
“look[ed]
and
Circuit,
Eighth
and reversed the
conclud-
hair,
because of their
which
prosecu-
ing that
panel
steps
had conflated
two
tor
like.” Responding
“[didn’t]
to the
768,
and three of
analysis.
the Batson
Id.
trial court’s
prosecu-
comment and the
On made the Eighth Circuit followed no attempt persuade the state trial Court’s instructions “to re- evaluate, court that 2254(d) prosecutor’s proper § under the reasons for stan- dard, juror merely [the Missouri Court of Appeal’s] pretext ” ‘finding of for purposeful discrimination, no racial motive.’ Elem v. Burkett, (8th Cir.1995) 64 F.3d finding of no racial motive is (quoting Elem, Purkett v. fairly supported by record, peti- 1769). The court’s review the tioner is not entitled to habeas relief on record revealed the following: his Batson claim. petitioner’s
When objected counsel Id. at 1201. use of peremptory jurors strikes to case, eliminate the instant when the trial noted, trial judge and then prosecu- court erroneously stated could tor argued, that there claim, was no evidence not assert a Batson defense counsel and were in fact Afri- responded “Thank you. Note our excep- *11 Appeals’ determination of Criminal that Mr. Court indicated then judge The tion.”3 however, unreasonable. the was go; to was free Hightower his race- offered immediately prosecutor by defense is Our conclusion bolstered Hightower. dismissing reason for neutral prosecution’s the objection to counsel’s that Mr. stated again judge once The juror on Batson a second strike Defense to leave. free was Hightower a second preempt In effort to an grounds. understand respond. We not counsel did аp- did not ruling that Batson erroneous reluc- have been may counsel why defense prima a counsel established defense ply, issue before pursue to tant a prosecutor exercised case that the facie that nevertheless, we conclude court; of race. on the basis strike peremptory that argue appeal on Moody’s failure to articulated several then The pretextual were reasons prosecution’s juror’s including the the strike reasons for was denied that he any argument fatal to she that memory loss her statement and carry his burden. opportunity to an evidence. Defense not follow could that by arguing responded counsel Crimi- to Texas Court appeal On sup- not was prosecutor’s not even counsel did defense Appeals, nal testimony. The by the witness’s ported prosecution’s that argue attempt to finding that the made a judge then pre- Hightower striking for reasons race. of her not struck because was Instead, juror that argued counsel textual. of Criminal Texas Court In his brief to the racially to articulate failed State “[t]he was that there Moody contended reason, Appeals, reason, for any other neutral prose- support nothing in the record Mr. strike exercising Lathon; striking for above, cutor’s stated reasons But, as we noted Hightower.” evidence, however, any point he did not reason for prosecutor’s stated thereof, prose- regard to the with or lack he had brothers- two Hightower striking High- for stated reasons cutor’s and who imprisoned that had been in-law Ap- of Criminal Texas Court tower. The It is be rehabilitated. believed could he stated prosecutor’s found that peals did counsel that defense understandable sup- are striking Hightower for reasons to the attempt respond Hightower and by the record judge’s ported following the trial reasons stated and not be- reasons for those struck standing; never- was Moody lacked ruling not rebutted his has cause of race. to do theless, Moody’s failure we hold that convincing evi- and findings by clеar these Criminal Court of before Texas so 2254(e)(1). See 28 U.S.C. Texas dence. finding precludes Appeals gentleman an ex- Give the COURT: THE colloquy transpired as follows: go. he is free to and him cuse tell We would record like MR. GUERINOT: that, be if it male, addition to MR. MORRIS: juror this is black to reflect that to—our probably doesn't need specifically State we would ask the needed— mine, course, record, be, the records your voir dire point after would in the they [sic], are racially impartial reason robber one two brother-in-laws exercising they a strike. says can pusher, and he dope one denied, being That will be COURT: rehabilitated, THE they though even be case is Defendant in the fact that the up before. twice been part minori- racial He is not white. go he's free Tell him THE COURT: ty being us. with him thank you. our Note Thank GUERINOT: MR. exception. *12 court, opinion Moody’s The district court’s Ap- Texas Court of Criminal argument stage that the third the Bat- peals’ finding prosecutor’s necessarily requires son test a trial judge, prospective juror Hightower not a court, reviewing appellate not a to scruti Moody’s equal violation of protection demeanor, thereby, nize the the credi rights was not unreasonable and is there- bility prosecutor’s offering quite of a are grounds fore not for habeas relief. The supported by forceful and are indeed district court’s determination to the con- Supreme Court’s own admonition. See trary is VACATED. Batson, 98, 1712; U.S. S.Ct. York, 352, 365,
Hernandez v. New
500 U.S.
III. CONCLUSION
1859,
(1991)
L.Ed.2d 395
reasons,
For
foregoing
the order of
(“In
(plurality opinion)
typical
peremp
the district court granting Moody’s peti-
tory. challenge inquiry, the
ques
decisive
tion for habeas relief is VACATED. This
tion will be whether counsel’s race-neutral
case is REMANDED for
proceed-
further
peremptory
for a
challenge
ings consistent with
opinion.
should be believed. There will seldom be
issue,
much evidence bearing on that
VACATED AND REMANDED.
the best evidence often will be the demean-
or of
attorney
who exercises the chal
DENNIS,
Judge,
Circuit
dissenting:
Further,
lenge.”).
we are mindful that the
When
state trial counsel made
“[tjhere
Supreme Court has observed that
objection
to the state prosecu-
instances, however,
might be
in which the
tor’s peremptory challenge
ju-
of a black
presumption
ap
[of
would not
correctness]
ror, the state trial court cut him off at the
ply
appellate
factfinding ....
For ex
knees, ruling
sponte
sua
did
ample,
question
.... might
given
in a
standing
object
turn
credibility
case
determinations
Undisputedly,
white.
the state trial
that could
accurately
not be
made
an
court’s no-standing
contrary
decision was
appellate court on the
paper
basis of a
to the rule of federal
clearly
law
estab-
Bullock,
record.”
376,
Cabana v.
474 U.S.
lished
Powers
5,
388 n.
106 S.Ct.
Accordingly, although might
we
disagree
pretextual
would have been
and that
with the Texas Court of
Appeals’
Criminal
challenge
Thus,
was race-based.
the state
failure to remand the case to
immediate,
trial court’s
sponte
sua
ruling
chal-
a race-based
had used
of a record
making
precluded the
also
juror;
a black
lenge to exclude
rea-
court could
an
which
(“CCA”),
Appeals
of Criminal
Texas Court
finding of racial
sonably make
factuаl
recognition
the state
despite its
a determination
vel non
discrimination
Powers,
contrary to
court’s decision was
omissions were
legal
errors
*13
unreasonably applied
contrary to or
acted
harmless.
fact that
to find as a
by purporting
the unbroken
from
All this is evident
challenge
prosecution’s peremptory
the
rapidly followed
that
of events
train
based on racial discrimina-
had not been
chal-
peremptory
the
Moody’s objection to
it
tion,
the record before
was
although
(1)
immediately ruled
court
the trial
lenge:
any
completely devoid of
semblance
Moody did not have stand-
that
sponte
sua
any of
compliance
court’s
with
state trial
(2)
his
counsel noted
object;
ing to
defense
steps and
clearly
three
established
the
(3) the trial
ruling;
to the court’s
exception
required by Batson.
procedures
juror from further
the
excused
black
court
way
say
a
to
majority scouts for
(4)
agreed
service;
prosecutor
jury
decision,
flatly
although
the CCA’s
the benefit
acсepted
with
Batson,
contrary to
was
unreasonable.
not
interjected
no-standing ruling, but
con-
theory it advances is itself
But each
strike,
for the
reasons
to his
reference
application
trary to or an unreasonable
that,
it be
to
if
stating that
addition
“[i]n
clearly
established
those
need to — ...
probably doesn’t
needed —
First,
majority vaguely sug-
holdings.
[of
of the two brother-in-laws
records
decisions relat-
gests
the collection of
dope push-
one
juror], one robber
basis
v. Elem is
reasonable
ed to Purkett
rehabilitated,
er,
says they can be
and he
might
court
appellate
a state
to think that
up twice be-
they have been
though
even
originally and
challenge
a Batson
decide
(5)
court signified
...and
fore
failure to
the trial court’s
despite
ab initio
no-standing ruling and
his insistence on his
steps.
the three
See
any
undertake
sustained
Elem,
Purkett v.
juror
directing that the black
challenge
(1995);
Elem
L.Ed.2d 834
and there-
go”
“free to
told that he was
be
(8th Cir.1995);
Purkett,
State
See Sumner
case never initi-
trial court
(1982);
1303,
(citing challenge Anderson in typical peremptory In the 1504, L.Ed.2d 564, 575, 105 84 S.Ct. will be decisive quiry, question Witt, (1985); 469 U.S. Wainwright v. explana 518 counsel’s race-neutral whether 844, 429, 412, 83 L.Ed.2d challenge should a tion for (1985)). seldom be much There will be believed. issue, bearing on that evidence Johnson, 103 F.3d Childress be the demeanor often will best evidence (5th Cir.1997), held this court n. 7 the chal attorney who exercises of the pre- the traditional that AEDPA retained of mind with the state lenge. As afforded to state of correctness sumption prosecutor’s of the juror, evaluation determinations, at 1225 id. factual demeanor and mind based on state of 2254(e)(1)), but that (citing 28 U.S.C. within credibility “peculiarly lies be- to be rebuttable continues presumption Witt, Wainwright province.” judge’s “[sjection 2254(d)(2) cause, post-AEDPA, if the writ the state issuance of authorizes (1985), Patton citing L.Ed.2d on an unreason- ‘was court decision based Yount, 467 U.S. in light facts of the determination able ” (1984). 2885, L.Ed.2d 847 n. 7. Id. at presented.’ the evidence here led it Powers error 2254(d) re- The trial does not section Consequently, duty its under completely on to default defer to the this court CCA’s quire analysis. three-step to make of Batson exonerating State finding of fact to conduct the attempted here The CCA Hightower, the black in striking bias racial analysis its of the Batson third support lacks juror. finding That admoni- Supreme Court’s own, despite de- an “unreasonable and was thus record pecu- patently tion in Hernandez this role was evidence is devoid of fairness and liarly judge’s province process. within the trial due despite judge’s failure to make Moody plainly preserved argument any of the three It findings steps. as to by, at the first opportunity available in his cold, woefully based on a in- its court, briefs to the federal district arguing uninvited, complete equivo- and an record “[tjrial judge that a might least recall cal, unaccepted proffer and unexamined the demeanor pro- prosecutor. a race-neutral reasоn spective reviewing while the record. It to observe opportunity had no the de- absolutely The CCA could not.” After prosecutor, meanor of the described citing law to the effect that a trial as often the “best evidence” in Hernandez may in-person credibility make as- required this situation. The CCA was sessments,1 Moody argued that “the TCCA three-step analysis per remand for a as not, not, did and could an ‘in person make Batson, anything do else was con- assessment,’ credibility and there was no trary application to or an unreasonable such assessment front of it for review. Batson. means, This the TCCA could not make a
Finally, Moody may while gone reasonable assessment of racial discrimina- outside of the trial court record before the tion vel non” identify particular aspect CCA majority’s further contention that suggested demeanor which to argue prosecu- failed case, racial major- motivation in this as the tor’s stated reasons for striking Hightower surmises, ity this does not detract from the prеtextual First, troubling. is also general that an appellate rule court errs Moody was not required to make such an by attempting credibility to make a deter- *16 argument, considering the trial court’s mination at appellate the level on a cold or legal clear in ruling errors its and proceed- hollow record. ings contrary to Powers and Batson. Sec-
Subtle and nonverbal cues such as a ond, Moody’s briefs to the district court wink, a glance, or a brief hesitation are certainly argument anyway, made this flat- perceived by often a fact-finder indi ly stating that “[t]he record of individual rectly subconsciously. The rule re however, proves, voir dire that the prose- quiring that it be a trial judge who scruti explanation for eution[’s] its strike was nizes the demeanor of a witness in place is pretextual.” Moody pointed both to statis- precisely because these cues would be dif tical disproportionate evidence of a num- ficult, if impossible, not identify ap to jurors being ber of black struck from the peаl. tone, “A transcript cannot reveal venire in this case and to several white inflections, speech mood and other indicia Moody argues who stated similar of a mental certainly state and pick cannot yet views and by were not struck the up changes subtle but crucial in prose [the prosecutor. While briefs before Estelle, demeanor.” cutor’s] Bruce v. 536 the CCA did not detail the why reasons (5th Cir.1976). F.2d Moreover, Moody believed of Hightower the strike to appellate such an credibility determination pretextual, be certainly this failure does based on a trial court record waiver, devoid of not amount to a implied by as judicial inquiry, contradictory hearing majority. In response Moody’s briefs Wallace, Montgomery, See United States (5th Cir.1994)). 210 F.3d 32 F.3d (5th Cir.2000) (citing United States v. sua challenge CCA’s opportunity requesting a clear error identifying step third to reach (which sponte concedes is effort majority the. remand the district inquiry on its was before remedy), the CCA appropriate appellate court, аrgued in that he there engage plain and it is chose initiative own hardly have Moody pre- reason was fact-finding. proffered could the state’s this sua and brief to foresee expected been textual. Furthermore, action sponte court. reasons, I dissent respectfully For these Moody certainty that with cannot state
we of the district majority’s reversal pretextual as challenge the strike did not Ordinarily, I a judgment. believe does appeal record on because analysis to re-conduct the remand proceed- oral transcript of a contain remedy. Howev appropriate the most is of Criminal Texas ings before place took over er, hearing case the this that an no indication and contains Appeals has sub ago, decade a to the hearing prior held evidentiary that he does not stating an affidavit mitted no indica- fact-finding. We appellate motivating his the reasons remember permitted was ever tion testify now to them. and could not strike pretex- the strike was evidence offer circumstances, say I cannot these On court. tual, of the district requested he as a ordering new district court erred find- fact, appears it Anderson, 202 F.3d Barnes v. trial. See an evidentia- made fact was without ing of (2d Cir.1999) (ordering a new trial refusal of the given the ry hearing which,— hearing on the Batson issues of a instead inquiry to allow the Batson court to an incom passage time and step, gave to even first proceed hearing unlikely to made record a plete at the meet his burden opportunity no dire); analysis of the voir allow reliable by introducing evi- third unreached (3d 261, 293 F.3d Riley Taylor, backhanded challenging State’s dence Cir.2001) of time passage (holding that pretex- strike as for the reason proffer hearing for a Batson remand rendered tual. that “statis remedy as inappropriate any waiver proving The burden evidence, subject might be which tical on the State. arguments lies Moody of his hearing, analysis at such of some and Waiver See, Estoppel e.g., 31 C.J.S. to our deci dispositive but not relevant *17 (2006) (“The waiv- proving burden justify a remand not alone and could sion” it, asserting claiming or party er is on trial); Kelly, 973 Brown over new it, raising an relying or on alleging Cir.1992) (2d (holding 116, 121-22 F.2d it.”). to the brief as State’s issue contrast, evidentiary hearing that, an if no the facts as describes district court remedy where appropriate was a more occurred, arguing hearing evidentiary ever vividly remem he testified “hearing” neces- in footnote that reasons bered his court to make sary for a state detail, the de about them and testified op- parties of fact is to allow finding notes contemporaneous counsel had fense argument. oral portunity for written dire, years only six at the voire taken contain no us briefs before The State’s passed). had any give do not us allegation of waiver reasons, dissent. respectfully I these For argument oral to whether as indication said at what was in the CCA or occurred cannot, the incom- hearing. We our own us and on record before plete Moody’s first initiative, presume waiver.