*1 Smith, minutes”); (1) (deny- F.3d at 1420 just attempted who had to murder tiff — immunity' ing qualified particu- police another, one officer and assaulted —-without precedent (2) officer larized who broke control, who police was not under —to arrestee). unresisting (3) arm of by was a weapons- close source of —-was unconstitutional.4 specific question before us whether, considering pertinent here is Our earlier conclusion remains unaffect- facts, the Officer Defendants violated fed Supreme ed Court’s in decision eral already clearly law estab Hope. We must still conclude the Officer 1987, by shooting lished Plaintiff within are Defendants entitled to the defense of “split attempted she kill second” after quahfied immunity. pri- We reinstate our one officer and assaulted another. In our opinion judgment supplement opinion, rejected earlier we considered and our earlier qualified discussion of immuni- that, argument even the absence of ty opinion. with this facts, materially with case similar Fourth SO ORDERED. fairly Amendment law warned these offi cers that their conduct clearly unlaw
ful: this clearly egregious incident was no
shooting beyond that was far the hazy acceptable
border of Willingham, force. F.3d 1187 n. 14. In accord with whether,
Hope, again we have considered light of general constitutional rules deadly already force that had Quang BUI, been Petitioner-Appellant, law, identified in the decisional this use of v. deadly force would have been seen as HALEY, Commissioner, Michael Ala- plainly objectively unlawful all reason Department Corrections, bama officers; able given and the answer is “no” al., Respondents-Appellees. et circumstances, including that shooting split occurred within a second of No. 00-15445. an attempted murder aon fellow officer. United States of Appeals, Court general No applied decisional rules Eleventh Circuit. clarity obvious to these circumstances in way such a give as to fair notice that what Feb. these were doing clearly defendants violat And, ed federal law. as was the situation decision,3
with our earlier Plaintiff has
pointed us to no Supreme case of the
Court, Circuit, Eleventh or the
Court of Florida which already decid
ed that the deadly use of force on a Plain- survey invitation,
3. "Our own
of the case law indicates
4. At
parties
our
sup-
submitted
plemental
clearly
impact
that in 1987 it was not
briefs
established that
on the
Su-
preme
Hope
Court’s decision in
per
this case.
constituted excessive force to shoot a
Plaintiff cited several cases she claimed clear-
presented
son under the circumstances
in this
ly established the law in these circumstances.
Willingham,
case.”
Randall Scott Susskind (Court-Appoint- ed), Equal Justice Iniative of Alabama, AL, Montgomery, for Bui.
Beth Jackson Hughes, Montgomery, AL, for Respondents-Appellees. its burden carry failed to that the State Batson, peti- a failure which violated under protection. We right equal tioner’s TJOFLAT, BLACK and Before ruling court’s reverse the therefore district WILSON, Judges. Circuit a writ of the court to issue and direct corpus on the State’s habeas conditioned TJOFLAT, Judge: Circuit retry right petitioner. denied we February On retained rehearing but petition for State’s I. withdraw now of the case. We jurisdiction Bui v. panel, of this opinion prior A. *4 Cir.2002), (11th 1327 Haley, place. in its this opinion substitute Bui, Petitioner, a Ngoc Vietnam- Quang citizen, in in the United States arrived ese case, pris- an Alabama in this Petitioner woman, an American and married 1975 corpus inmate, of habeas a writ seeks on three children. On had with whom he capital for conviction aside his 1986 setting 9, 1986, County grand Montgomery April a District States The United murder.1 capital murder of for the indicted Bui jury of Alabama District the Middle for Court arraigned Bui three children.3 was these writ, among other rejecting, the denied County Circuit Court Montgomery in the the claims, assertion petitioner’s plea of and entered a April 15 Attorney County District Montgomery to trial on go to He scheduled guilty. present case failed his prosecuted who 8, a month 9, May over 1986. On nine June striking for any race-neutral date, Bui moved the before scheduled peti- for summoned the venire from blacks pros- the enjoining for “order the court an trial, petitioner denying thereby tioner’s chal- peremptory using his from recognized ecutor law as protection equal blacks exclude systematically lenges in Court States the United by the motion recited His 79, jury.” from 106 S.Ct. Kentucky, 476 U.S. v. Batson following facts: (1986).2 conclude We 90 L.Ed.2d by questions actu- sufficiently covered convicted petitioner was indicted and 1. ruling. find no error persons ally posed. are We two more "Murder wherein for act or district court by grounds, one by defendant addition to these In murdered con- scheme or course claim on pursuant rejected petitioner’s to one could have themselves, 13A-5-40(a)(10). counsel, § duct.” Ala.Code ground petitioner’s venire ample opportunity to examine , claim, the district Batson to his In addition Prior to of racial bias. on the matter ap- a granted petitioner certificate court dire, told the court of voir commencement constitu- twenty-seven claims pealability on as fol- proceed dire would that voir counsel however, appeal, his brief on error. tional jury gener- voir going am dire lows: "I claims, Bat- only two his presented petitioner whole going to send the I am ally and then court, claim, the trial and claim that son bring twelve at a then back panel out and commence- examining prior to the venire a few lawyers to ask time allow selection, question the failed ment they think I have questions of what don’t (according as jurors on racial bias prospective to their thoroughly satisfaction.” asked Murray, 476 U.S. v. petitioner) Turner 1688-89, 36-37, L.Ed.2d children, deaths, Phi of their the time 3.At (1986), to do. The district required Bui, April Nicole Quang Bui and Ngoc Julie grounds that on the denied claim this six, Bui, age, years of eight, four overly posed were questions petitioner respectively. prejudice topic of racial that the broad and 1. The Defendant is Well, non-white. Court: he is a minority. prosecutor 2. The county[, Shinbaum: That’s requirement, not a Evans,] James routinely per- utilizes his that he be black to raise the motion. emptory challenges to systematically ex- After disposing of Bui’s motion and some clude blacks from jury panel. pre-trial matters, other jury selection be- 3. The will no doubt fol- gan. We describe the jury pro- selection pattern low that in this case and utilize cess considerable detail because the his peremptory challenges to systemat- Batson issue cannot properly be resolved ically exclude blacks from jury panel without first understanding circum- so as to insure that the Defendant will stances in which it arose. tried jury.4 all-white The court summoned forty-nine venire The court heard Bui’s motion on June persons for Bui’s case. Jury selection took before jury moments selection began. approximately three hours, and a half Richard Shinbaum and ap- William Abell without a single court, recess coun- peared defendant; for the Evans, James sel, or the defendant. The court began by the Montgomery County Attorney, District questioning all forty-nine persons venire appeared State, for the assisted Elea- *5 together, using questions by submitted the nor James, Brooks and Randall assistant parties and some of its own. The court district attorneys. The following exchange then sent the room, venire to another in- occurred when the up court took the mo- forming jurors the that it would call them tion: back to the courtroom twelve or thirteen Court: [Turning to] now Defendant’s at a time. After being brought to the enjoin motion to the from courtroom, each group questioned was utilizing his peremptory challenges to the court and counsel. Evans all did systematically exclude blacks from the the questioning for the State. jury panel. I don’t see where that The court entertained challenges for happen, would but everybody is aware of cause in chambers after all forty-nine ve- the particular law on this issue now. persons nire had been examined as de- Evans: Definitely. scribed excused, above. Ten were reduc- grant Court: I systemat- the motion to ing the qualified venire to thirty-nine exclude, ically if reasons, but there are I (Nine persons. of these ten remained will hear those reasons later. venire, with the unaware of proceed- the Brooks: We intend to cite Batson v. ings in chambers or that they had been Kentucky. excused; tenth, the police officer, was
permitted courthouse.) to leave the Af- Let Evans: me put the record that ter the clerk informed the that an court the distraction; defendant is of oriental odd of qualified number venire members he is not black. remained, the court ordered that the infra, As we show in the text the method ty-eight the persons, following granting employed to select jury cause, did not challenges for required and then were involve the "peremptory use of challenges” in reduce number to the twelve individu- specific sense that a perempto- number of als who would constitute the to be em- ry challenges were respective this, awarded to paneled. To do each side had thirteen parties See, they strikes, for use as e.g., saw fit. parties which the and the courts rul- 24(b). Rather, Fed.R.Crim.P. parties ing petitioner's here on Batson claim have referred presented were qualified with a venire of thir- to as "peremptory challenges.” persons venire The twelve the venire. further reduced venire be qualified non- male and eleven one black person remaining, venire striking the thirty-eight 81). (Juror females, blacks, consti- # males and two nine number highest everyone returned jury.5 Once tuted to the court- then returned The court sworn, jury was and the the courtroom min- for ten venire and recessed room jurors they court informed in the past or “in the Anyone who utes. the trial and sequestered would psychological any received] present [had they re- p.m., after begin 2:30 come to instructed treatment” lunch. turned from The court recess. during the chambers chambers, all persons four saw courtroom, jurors had left Once the defendant. and of counsel presence racial objected grounds on counsel defense cause, but struck for already been had One nine African-Ameri- striking of to Evans’s informed, the court and not been so had the venire: cans from qualified individuals three the other found objection to to enter Abell: We need to serve. blacks before exclusion of systematic court, this, counsel After ruling on ask for and we the court courtroom, and to the returned defendant that. venire, number- outwardly now entire that? argue want to Anybody Court: who (including the ten forty-eight ing put haven’t don’t—we Evans: We un- still but for cause excused been proof offer of There no any evidence. removal), in. brought of their aware systematic exclusion. to stand were asked persons The venire themselves, spouses, their identify say to that? Why you do [sic] Court: *6 soon as As employment. of places their honor, Well, three their first your Abell: done, to cham- court retired the this was blacks, strike the were fourth strikes to the defendant and with counsel bers were white, three four the next or was a jury. the strike females. two struck black They blacks. identity the knew parties The court and have—there panel, we far And as as who thirty-eight persons venire the proportionate enough blacks aren’t the from whom and qualified to sit were jury venire.6 to the [sic] Ev- would be chosen. twelve-person jury we be- those struck who Evans: We the Abell for the and for State ans struck Those strikes acquit. lieved strikes. defendant; side had thirteen each just our exer- race but not based on off, rapid succession— and in led Evans we feel jurors to strike our cising right Evans for was no time that there meaning acquit. On favorable would most James, Abell to or for Brooks or consult only. grounds that the defendant— with Shinbaum confer you for how Thank right. All Court: ve- sides, the alternating, reduced the two I’ll see efficiently did that. you each ex- Evans twelve-person jury. to the nire 2:30. everybody at six, through strikes one cused blacks with rul- recess without the The court declared his eleven, used Abell and twelve. eight, re- court objection. When Abell’s ing on member a black eliminate tenth strike to record, the struck According the Evans race of 6. does not indicate 5. The record order indicated jurors in the nine black jurors. these eleven non-black Abell de- supra than in order text rather exchange. this scribes 1310 p.m.,
convened 2:30 and ery District Attorney’s Office to become defense made their opening statements Alabama Attorney General and Brooks and the began its case in chief. was serving as one of his assistants. later, days
Three 12, on June the jury The circuit court scheduled the Batson found Bui guilty of capital murder and hearing September 19, 1991. Brooks recommended a death sentence. On July appeared for the State and informed the 11, 1986, the accepted court jury’s court that Evans would appear for the and recommendation sentenced Bui to State, either as counsel or as a witness. death. The Alabama Court of Criminal requested She a continuance that so she Appeals7 and the Alabama Supreme could locate the prosecution’s files relating Court8 affirmed the conviction and sen- and, selection based on files, those tence. explain why Evans had struck nine blacks from the venire. The court granted the
B.
continuance and reconvened the hearing
The United
States
on October
Court
time,
va-
At that
Brooks in-
cated both appellate
formed
decisions
court
remand-
that she had been unable
ed
case for
to locate
reconsideration in
either
light
notes she had made
Ohio,
Powers v.
during jury
499 U.S.
111
selection
S.Ct.
or any notes Evans
(1991)
may
L.Ed.2d
said,
made.
(holding
She
however,
that
a criminal defendant
she had
can bring a
ascertained
third
Evans’s reasons for
party challenge to the
exercising
peremptory
State’s
striking
strikes
reviewing
jurors
based
transcript
on race
juror
whether or not he
occupation
is of the
same
criminal history
race as
jurors
lists and
who are
then “simply
struck). See
Alabama,
compiling]
Bui v.
juror
information by
499 U.S.
help
remember and
L.Ed.2d
see
what
(1991).
happened
on that
Alabama Supreme
occasion.”9
Court in
Based on
review,
turn
she represented
remanded the case to the
court of
Evans
exercised
criminal
appeals,
State’s
with the
strikes on four
instruction that
bases:
jurors’
criminal histories;
remand the case to
jurors’
the Montgomery
personal
County
knowledge of
defendant,
Circuit
Court
for hearing on
his
*7
attorneys or their family members;
State’s use of its strikes to
the
remove black
jurors’ employment; and,
persons from the
finally,
ju-
venire.
the
parte
Ex
rors’ ages.
Bui,
State,
suggest a hearing, at the Batson or- State’s burden of the court’s Since neither Rhodes. discrimination, pursue 10. Al no did not of race attempted offer case point has the State court of appeal, Evans's own objection in information contained challenges. finding a explain upheld the use of appeals *9 before this court—the State's elimination of Although the Court in was Sumner inter- blacks the venire from and the trial court's preting pre-AEDPA, section 2254 as it existed refusal question to prospective allow Bui to holding hinged the on the fact that no distinc- jurors on racial bias. See supra note 2. tion was made appel- between state trial and late pre-AEDPA courts in the version of sec-
1313 the court addressed Finally, the district Su- upheld the Alabama district court The the ultimate court’s fact on on circuit holdings both preme Court’s First, that held the court no racial discrimination Batson issue—that Batson issues. post- the Evans at during jury the by mere absence State was committed “the the prevent not hearing d[id] Batson The court relied trial for Bui’s trial. selection burden of its Batson satisfying” from that the cir- concluding in on four factors for race-neutral providing no discrimination that cuit court’s decision that acknowledged The court strikes. that the clearly erroneous: existed was key which was intent Evans’s own were not dis- by the State reasons offered that suffi- but found inquiry, the Batson the reasons applied; that parately found intent of this could evidence cient record; that one black by the supported his she knew testimony, Brooks’s in if circuit and that jury; served on to conclude went on The reasons. court Batson sensitivity to expressed judge for the factual error clear it was not that Thus, accord- district court problems. find, court supreme and court to pro- the deference determination ed this Evans’s affirm, did know that Brooks statute, 28 federal in habeas vided for testimony at the reasons, on her based § 2254. U.S.C. participate that she “did hearing remand jury]. [striking [She] [him] with strike, III. him observed present, [she] avail- information same [they] had the Kentucky, the Unit In Batson v. This factual that time.” [them] able to “[pur held that Supreme Court ed States held, was entitled the district
finding, selection racial discrimination poseful mandat- presumption of correctness right a defendant’s the venire violates 2254(e)(1). by section ed 86, 79, 106 476 protection.” U.S. equal Next, court addressed the district (1986). 1717, L.Ed.2d 69 90 S.Ct. of federal interpretation supreme court’s three-step analy in a engage must Courts the State’s of whether question on law First, the Batson claims. evaluating sis consti- explain its eleventh strike failure facie prima establish a must defendant noted The court violation. a Batson tuted part of intent on the discriminatory case of Supreme of United States absence n case is prima A facie prosecution. agreed in this area precedent Court showing a defendant by a constructed appli- Supreme Court’s Alabama with “ cognizable a member of ‘he is that States in United court’s dicta cation of this circum the ‘relevant that group’ racial (11th Cir.1986), David, 1567 v. prose that [the inference’ raise an stances established that the decision holding chal peremptory ‘exercised has cution] juror not neces- single principle that “a members from venire lenges to remove merely be- against sarily discriminated ” F.2d Dykes, Fludd v. race.’ [his] has juror striking a reason cause Cir.1989) Batson, (11th (quoting 822, 829 articulated, sufficient if there are not been 1723). 106 S.Ct. at U.S. the con- to draw from which other factors defendant that a criminal requirement dis- was no intentional clusion there show com challenge must raising Batson From this juror.” against crimination jurors was excluded monality race the su- basis, the court determined that in Pow Court eliminated decision not based its preme court had Ohio, U.S. v. ers applica- interpretation unreasonable (1991). has a court Once L.Ed.2d 411 of federal law. tion *10 1314 prima that a determined facie case of dis- state of why he struck nine blacks mind — against jurors
crimination black has been from the venire —when she told the trial established, “the shifts to burden the State judge that Evans exercised his strikes for to come explanation forward neutral race-neutral reasons. for challenging jurors.” Batson, black 476 Brooks’s task of adducing evidence of at 106 U.S. S.Ct. 1723. If the State Evans’s race-neutral state of mind was all hurdle, clears this the trial court then has because, the more formidable as the trial
the responsibility to determine whether indicates, transcript thought Evans that he the defendant has established purposeful could strike blacks panel from the solely Elem, discrimination. See Purkett v. on account of their race: Batson did not 765, 767-68, U.S. 1770-71, S.Ct. apply, thought, he Bui because was (1995) curiam). 131 L.Ed.2d (per black; he was “oriental.” Moments before appeal, this argues Bui began selection opposing Bui’s —-in court erred when concluded that he had motion for an “order enjoining prose- failed to establish Batson violation. cutor using from his peremptory chal- Since this case is governed by section 2254 lenges to systematically exclude blacks AEDPA, may we not grant peti- Bui’s from jury”- Batson, cited —Brooks tion for a writ of corpus habeas unless thereby suggesting that Batson foreclosed adjudication Alabama’s of his claim result- motion, Bui’s and said: Evans “Let me put ed in a decision that was either “contrary it on the record that the defendant is of to, or involved an unreasonable application distraction; oriental he is not black.” In of, clearly law,” established Federal words, other Brooks and Evans were tell- “based on an unreasonable determination ing the court that Evans could strike of the facts in light pre- the evidence blacks from reason, any venire for (2). sented.” 2254(d)(1), § 28 U.S.C. We reason, including and, further, a racial also presume must the state court’s find- he could ings not be made of fact correct to disclose the unless rea- rebutted clear son on the and record. convincing Since this evidence. See 28 Evans’s 2254(e)(1). § U.S.C. state of mind With these moments principles before he made his mind, strikes, we consider whether Brooks the Mont- had to convince the gomery County Circuit Court erred in years con- court—five only later —not that she cluding that the State had “come forward knew mind, Evans’s state of but also that with a neutral explanation for challenging he in fact changed that state of mind Batson, jurors,” [the] black U.S. before he made the strikes. It was no 106 S.Ct. at despite its failure to wonder, then, that the trial judge voiced present any race-neutral reasons of the over concern Evans’s failure attend the actually who exercised the problem have, “another hearing: I I strikes, despite its failure to present know busy Evans is present- Brooks is any reason at for striking all Emma ing matter, but actually Evans struck Rhodes from the venire. the jury .... Evans is not here and I can’t listen to his comments and reasons
A. .... problem [t]hat’s another little I added). As the have.” (emphasis district court acknowledged, Brooks under- “[i]t is axiomatic that task, one stood cannot know the court’s remarking that the another’s Nonetheless, state mind.” court “must evaluate now Evans’ state of Brooks claimed known Evans’s mind.” *11 had Brooks, decisionmaking. though Even Brooks court hearing from
After so, opportunities to do she never three met the State’s that she had concluded actually discussed with claimed to have reasons for offering non-racial burden for each of the strikes it Evans his reasons issue, that a conclusion strikes at fact, claimed exercised. never if that her he she it found only have reached could all, him at have discussed the issue with they probative value—that statements notes, his trial which beyond requesting had fin Evans the reasons represented to locate.15 she was never able strikes. he made the mind when however, if we to assume for a mo- conclusion, wholly un- Even This that Evans discussed the state ment Brooks and Brooks did by the record. supported who should be struck— persons in venire participate [Evans] did “[she] acquit inclined to they might because present, jury], [She] [striking death-penalty recommen- strike, oppose had Bui or [they] him observed [she] the court used to se- information dation —the method [them] available the same jury highly unlikely makes it Court lect The Alabama that time.” have known what was and Brooks would on this statement placed great weight terms of non-racial rea- in de- Evans’s mind—in the word “we” Brooks’s use of challenged he exercised the striking jury, sons—when process scribing transcript of for the State. The could have strikes that “the trial court finding jury selection reveals that the ... that Ms. Brooks inferred reasonably counsel alternated strikes striking and defense as a team and Evans worked oppor- thus, being without afforded and, given quickly, that the reasons jury, tunity anyone consult with between per- striking for the black by Ms. Brooks Thus, had to Evans would have strikes. venire were the reasons” from the sons State, strategy on adjust any pre-existing at trial. Bui v. by Evans used added). on the strikes defense spot, depending (emphasis While at 859 So.2d made. counsel also found no clear error district that Brooks [by judge] the trial finding “a record —save nothing With to articulate the position was in a argument— representations Brooks’s strikes,” the peremptory the state’s in fact to find that Brooks was from which explicitly drew judge trial himself never (for excusing Evans’s reasons presenting an inference. such find the trial jurors), we eight black contrary finding an “unreasonable Indeed, judge’s could reason- the trial court 28 U.S.C. of the facts.” See in a determination have found that Brooks was ably 2254(d)(2).16 this sub- § Without workings of to know the inner position fact, circuit court would sidiary specifically, mind at Evans’s trial — the State had to find that in his been unable significant role play race did not however, frame, hear- constitute rank to statements testified as If Brooks had during say. selection Evans made to her before or regard involving his intent with strikes, exercising those statements the State’s I.B, part supra, indi- our discussion in 16. As by the court as been considered could have cates, speculate even as to could not Brooks mind under the of Evans's slate of evidence Rhodes; yet, the why Emma' Evans struck hearsay exception rule. mind state of the reasons judge implicitly found that 803(3). Any later statements Fed.R.Evid. other strikes offered for Evans's Brooks why he exercised made Evans as to striking Rhodes. the reason for served as challenges, beyond time this narrow State's *12 burden, carried granted its and would have those who would be “favorable to acquit.” Bui relief for the of equal violation his With nothing but these good faith asser protection rights. tions, we must conclude that the State satisfy failed to its Batson burden of com
The
urges
this court to uphold as
ing forward with
explana
a race-neutral
finding
reasonable the
that
pre-
Brooks
tion.
Supreme
Court has instructed
sented Evans’s
for striking eight
prosecutor
that a
may not “rebut the de
of the blacks
from
venire because
fendant’s
merely by
case
case,
denying that
Brooks was familiar with the
he
could
had a discriminatory
articulate reasons
all but
motive or
for
the Rhodes
affirming
strike,
presented
good
much
his
faith in making
of the
individual selec
State’s case at
trial.17
Batson,
Bui’s
While these
tions.”
476 U.S. at
record,
facts are all clear
they
(internal
from the
at 1723-24
quotations and citation
are simply
carry
insufficient to
the State’s
omitted). Furthermore,
this court has
obligation under
analysis.18
Batson
held that vague explanations will be insuf
familiarity
Brooks’s
with Bui’s case and
ficient to
prima
refute a
facie case of racial
her role at trial
bearing
have no
on her
discrimination. See United States v. Hors
knowledge of
reasons for striking
Evans’s
(11th
ley,
Cir.1989)
venire members during jury selection.
curiam).
(per
Just
prosecutor’s
as the
ex
That she was able to articulate reasons for planation in Horsley
just
that “I
got a
just
strikes could
plausibly
as
have
feeling
juror]
about [one
as I have about
resulted from the
that
fact
she “[l]ook[ed]
...
several others” was deemed insuffi
over
transcript
and the information
so, too,
cient
vagueness,
for
must Evans’s
still
available
attorney’s
district
of-
attempt
justify
all nine of the State’s
fice,” as from
knowledge
actual
of those
strikes against
persons
black venire
State,
reasons. Bui v.
race discrimination. We consequently con- I. clude that factors, these latter two stand- alone, ing result, insufficient To reach its circumstantial the majority con- proof from which a court fronts could the following find that obstacle: Batson de- had a factual, race-neutral terminations are reason for and factual deter- striking Emma Rhodes. minations presumed are correct under 28 2254(e)(1). § U.S.C. To avoid this obsta-
IV. cle, the majority point must to clear and convincing evidence Bui that equal shows protection denied the state of the court’s law Batson by the conclusions to State’s failure “unrea- rebut his sonable prima facie determination^] case of race the facts.” 28 discrimination in 2254(d)(2). § selection, U.S.C. Rather violation than pointing of the principles to such clear and established in convincing evidence, Batson v. Kentucky its majority circumvents progeny, and is the presumption therefore entitled to habe- by correctness corpus as concluding prosecution relief. We therefore REVERSE failed to meet its district burden court’s at decision step to the Batson’s contrary two. Opinion See (“[T]he and REMAND 1315-16 case with cir- instructions cuit court would a have issue writ of been unable corpus habeas to find condi- that the State tioned on the State’s carried its right provide burden [at Bui a two], step new trial within granted a period reasonable Bui relief for the time. violation of equal his protec- rights.”). tion SO ORDERED. This is an anomalous conclusion because BLACK, Circuit Judge, dissenting: prosecution’s burden at step two is so I respectfully disagree with the majority light. The Supreme Court emphasized has points. First, three I think prose- need only articulate cution more than carried its limited burden or proffer1 a rationale for its strikes that
1. The canonical step version of (1 appears Cir.2002); two lth Allen-Brown, United States v. speak prosecution's "articulating” 1293, a (11th 243 F.3d Cir.2001); 1297 United See, race-neutral reason for its e.g., strikes. Tokars, 1520, States v. (11th 95 F.3d 1533 Brown, United 1252, States v. 299 Cir.1996); F.3d 1255 Burton, Hollingsworth v.
1319
judgment
intuitive
sumption
his
Purkett v.
race-neutral.
facially
is
—that
—or
1769,
partial
to the defendant
765, 768,
they would be
Elem,
514 U.S.
race.”).
(1995) (“At
can
their shared
Nor
because of
L.Ed.2d 834
131
plead
faith
prosecution simply
good
is
inquiry,
issue
step of
[second].
discriminatory motive.
Id. at
expla
or lack of a
prosecutor’s
validity of
the facial
106
at 1723-24. On
other
intent is
S.Ct.
discriminatory
a
nation. Unless
hand,
step
explana
prosecution’s
two
explanation,
prosecutor’s
inherent
justifying
the level of
“need not rise to
deemed race
tion
will be
reason offered
United,
for cause.” Id. at
neutral.”) (citation omitted);
challenge
exercise of a
States
(llth
[Batson]
at 1723. “What
Brown,
Cir.
S.Ct.
F.3d
v.
a
reason’ is not'
2002) (“If
‘legitimate
means
of the strike
explanations
sense,
but
reason
inherent
reason
makes
response are devoid of
offered
Purkett,
equal protection.”
intent,
deny
does not
persua
if not
discriminatory
even
769, 115
at 1771.
ulti
S.Ct.
sive,
'to the
U.S.
proceeds
then
the court
objecting par
of whether the
inquiry
mate
evidentiary requirements of Bat-
discrimination.”).
purposeful
has shown
ty
illuminated
the anal
step
’s
two are
son
prose
that even if the
has said
The Court
similar, three-
requirements of the
ogous
car
implausible, it
explanation
cution’s
step
regime of McDonnell
burden-shifting
Purkett,
production.
ries the burden
*15
See McDonnell
Douglas
progeny.
and its
1771;
767-68,
at
115 S.Ct.
at
514 U.S.
Green,
792,
411 U.S.
93
Douglas Corp. v.
968,
Novaton, 271 F.3d
v.
States
United
(1973);
1817,
668
Texas
S.Ct.
36 L.Ed.2d
(llth Cir.2001);
v. To
States
United
1002
Burdine,
Community
v.
Dept.
Affairs
Cir.1996).
(11th
kars,
1520, 1533
95 F.3d
1089,
248,
67 L.Ed.2d
101 S.Ct.
450 U.S.
words,
step two screens
Batson’s
In other
(1981);
Mary’s Honor Ctr. v.
St.
207
proffered by
very few reasons
out
2742,
Hicks,
502,
125
509 U.S.
113 S.Ct.
nondiscrimina
legitimate
as a
prosecution
two,
(1993).2 Thus,
step
at
407
L.Ed.2d
tory reason for its strikes.
articulate a le
employer must
defendant
nondiscriminatory reason that is
course,
proffered
gitimate
reasons are
certain
Of
Burdine,
reasonably specific.”
“clear and
prosecutorial
A
hunch is
clearly barred.
258,
at
The
101 S.Ct.
450 U.S. at
step two. See
for Batson’s
not sufficient
persuade
97,
employer “need
Batson,
1723 defendant
at
1321
and Evans worked as a team in
not indicate that
the Brooks
hearings does
son
and, thus,
striking
jury,
that the rea
facially
a
discrimina-
asserted
prosecution
given by
striking
Ms. Brooks for
hunch,
sons
nor did it
or mere
tory reason
persons from the venire
black
were the
prima facie case
asser-
rebut Bui’s
State,
Bui v.
[for
strikes].”
Thus, nothing
good faith.
tions of its own
(Ala.1992).
855,
majori
627 So.2d
859
The
prosecution’s effort to
suggests that
emphasizes that
ty
only
the trial court
facially
with a
race-neutral
come forward
inferred,
“could have”
not that it
so
from the
reason for its strikes suffered
required
presen
to do
based on
so
Brooks’
step
Batson’s
normal defects that attend
inference,
hypothetical
tation. Yet this
if
two.
true,
taken as
is more than sufficient to
there-
question
majority
should
carry
prosecution’s
step
at
burden
two.
presentations
is whether Brooks’
fore ask
Hicks,
See
mate
of whether the objecting par-
II.
ty
discrimination”)
purposeful
has shown
In examining the State court’s Batson
added);
(emphasis
Hicks,
see also
509 U.S.
analysis,
the majority should
con-
be
at
at
S.Ct.
2748 (limiting evalua-
strained
the presumptions and
proffered
tion of a
burdens
race-neutral reason to
established
two).
three,
habeas review
step
step
not
AEDPA.
“[A] determination of a factual issue made
By drifting into
step three,
Batson’s
by a State court
presumed
shall be
be
majority makes another
error
analy-
correct.”
2254(e)(1).4
§
U.S.C.
A ha-
three,
step
sis. At
Bui—not the State—
petitioner
beas
can rebut this presumption
bears the
proof. Purkett,
burden of
of
only
correctness
with clear and convinc-
(“It
at
U.S.
S.Ct. at 1771
is not
ing evidence.
Moreover,
Id.
step
until the third
that
writ
persuasiveness
can-
granted
justification
becomes
unless the State
relevant —the
court’s
step in which the trial
decision
“was based
determines
on an unreasonable
opponent
whether the
has carried his bur-
determination of the
in light
facts
proving purposeful discrimination.”)
den of
evidence presented in the
proceed-
(second emphasis added); Novaton, 271 ing.”
2254(d)(2).
§
Id.
Although the
F.3d at
panel
1002-03. The
majority nev- prosecution bears the minimal
burden
er
that
produces
claims
Bui
any evidence production at step
original
two
Bat-
carry
burden;
could
all,
this
after
son hearing, on
review,
federal habeas
Bui
majority denies that
it has reached the
now
bears
burden of proving, by clear
step
inquiry,
three
despite making judg-
and convincing evidence, that
the state
persuasiveness
ments about
that are not
courts’ factual findings were unreasonable.
appropriate
step
at
two.
This he cannot do.
An accurate
step
Batson
can
inquiry
two
I must concur with the philosophical
only conclude
factual
truth that
person
cannot know the mind
prosecution
carried its minimal burden
of another. Courts nevertheless regularly
of producing a facially race-neutral reason
draw inferences about states of
for its
mind
strikes. That reason can be evalu-
based upon the evidence
only
step
Batson,
ated
before
three of
them.
at which
point Bui
evidence
presented
Brooks
bear the
prov-
burden of
the two
ing
prosecution’s
Batson hearings
proffered
supports just such
rea-
an in-
pretextual.
sons were
Bui
ference.
cannot
As
carry
member of
ultimate
burden
persuasion,
team,
so his
Brooks was
second-chair,
Evans’
challenge
Batson
must fail.
participated
she
directly at trial.5 As she
4. AEDPA
required
deference is
every
as to
son instructs that the trial court's finding of
stage
analysis
of the Batson
Batson
because
no
great
discrimination is entitled to
defer-
*18
conclusions constitute fact-finding. Allen-
Batson,
ence.
at
U.S.
98 n.
Brown,
("[a]
In the defendant raised lead requiring the to prosecution’s hearing to the use a Batson is inconsistent with the challenge a Batson opinion Hollingsworth. chal- peremptory of nine of its fourteen tenor of our that, than with the poten- to African-American More is inconsistent lenges strike that, prosecution” regarding prosecution's opinion 9. I also 11. refers “the note Hollingsworth, (for could articulate no “the State.” final strike which it reason) only place opinion majority one does the race-neutral acknowl- 110-13. prosecutor,” though edges prosecution’s refer without "[t]he race-neutral strong identifying specific lawyer. striking jurors presents the other evidence circumstantial race-neutral striking juror. Indeed, last Because I reasons for this why it is hard to understand else carried its burden of Hollingsworth, think the would have the defendant two, step production at I would con- Batson's prosecu- argued that the absence the lead prosecution’s proffer of race- clude at the Batson hearing would have been tor neutral its other was more reasons for strikes error. If the lead was reversible strikes, support the state courts' than sufficient lawyer who carried out Batson there no violation testimony would have contributed then her challenge. respect this beyond other factual informa- little whatever already available from the other tion was Hence, sure, attorneys. (hopefully) prosecuting I can under- 10. To be this is a rule of case, Hollings- challenge application. defendant's limited In the usual stand the summarily rejected by prosecutor who strikes the will immedi- worth —which explain only substantially the same ately upon called her state of if it were Court — argument majority accepts here. doing as the mind in so. *21 pro- the minimal law burden of governing COMPANY, ADMIRAL INSURANCE step two.
duction at Batson’s Plaintiff-Counter-Defendant, v. IV. COMPANY, FEIT MANAGEMENT Ter- conclusion, majority In makes three Apartments, Inc., ra Place Cotta (1) misapplies errors: it the burden of corporation, al., Florida et Defen-
production step at the second of the Bat- dants-Appellees, (2) it analysis; son lifts the burden of petitioners proof from habeas to rebut the City Insurance, Twin Fire National presumption of correctness afforded to Surety Corporation, Reliance Nation- determinations; factual state courts’ Company, al Insurance Defendants- (3) unjustified new announces rule Appellants. likely already law has most been re- No. 01-10331. jected in Hollingsworth. this Circuit United Appeals, States Court of voicing my disagreements with the Eleventh Circuit. I majority, step take the unusual of dis- senting panel opinion origi- from a I had Feb. 2003. nally joined. Haley, Bui v. As Corrected on Denial of Rehearing — (11th Cir.2002), withdrawn F.3d March
-(11th Cir.2003). else, nothing my If doing judging so confirms that the task of seek, being
is to as best a fallible human
can, every the correct result case. The
quest right for the answer to the issue always
before us carries with it the real answer; indeed, of an
possibility incorrect
the existence of such incorrect answers is judicial quest
the best evidence the is for
right An judge, answers. honest there-
fore, might upon sometimes be called
report her I own error. do so this case my further reflection
because convinces majori-
me that the answer reached
ty accepted answer I had once —the —is respectfully
fact incorrect. I therefore
dissent. notes criminal prima case had been established. facie object at the did remand 11. While State finding prima a facie Batson hearing to the present 1986)). State’s total any failure reason Following supreme court’s re- for the striking of the juror pre- eleventh jection of his Batson claim and the state vented it rebutting from the defendant’s courts’ grant post-conviction refusal to re- prima facie case of race discrimination. claims,12 lief on his other Bui filed the The appeals court of criminal thus conclud- petition instant for federal habeas corpus ed engaged State had in racial relief. in discrimination the use of challenges. certiorari, B. On Supreme Alabama Court reversed the court ap- criminal The Antiterrorism and Effective decision, peals’ concluding that the record (AEDPA) Death Penalty Act of 1996 gives support did findings factual the United States district courts the au circuit State, court. See Bui v. 627 So.2d thority to a grant writ corpus of habeas (Ala.1992). Examining the rea- where the adjudication State of a claim: by sons offered Brooks at the remand (1) resulted in a decision that was con- hearings, supreme court concluded to, trary or involved an unreasonable that “the trial court could have reasonably application of, clearly established Feder- inferred from testimony [her] that [she] law, al by as determined and Mr. Evans worked as a team in strik- States; Court of the United ing and, thus, the jury,” that Evans had (2) resulted in a decision that was based exercised the State’s strikes for the rea- on an unreasonable determination of the (em- sons she had articulated. Id. at 859 facts light of the presented evidence added). phasis supreme The court there- in the State court proceeding. by found no error in the circuit court’s 2254(d). § 28 U.S.C. This statute also di- determination that dis- rects that presumption a of correctness be charged its burden under Batson. Id. afforded findings factual courts, of state supreme The court also found that which may be rebutted only by clear and failure of the explain State to why Evans convincing evidence. id. struck Emma Rhodes did not render the 2254(e)(1). § This presumption of correct- circuit court’s of an absence of applies ness equally to factual determina- racial clearly discrimination erroneous. tions made state appellate trial and See id. at 859-60. Relying on dicta Mata, courts. See Sumner v. 449 U.S. opinion court, from supreme 539, 547, 764, 769, 66 L.Ed.2d held that “‘[f]ailure (1981).13 explain every peremptory strike of black jurors is not necessarily prose- fatal to the governs AEDPA petition Bui’s cutor’s ability to rebut prima facie federal corpus habeas Bui relief. raised ” case.’ Id. (quoting at 859 United States nineteen petition, claims his including David, v. (11th Cir. the Batson challenges described above.14 12. As supra indicated note Bui attacked his lion 2254—a fact which continues to be true murder on a twenty-eight conviction total of of the current version of the statute. grounds. Only ap- two are before us in this peal. 14.Only two issues were presented by Bui
Notes
notes 18. The fact that not a shred of evidence of later prosecutor's used to refresh the exhaust- exercising Evans's intent in the State's strikes ed recollection. introduced, beyond Brooks's mere con- passing We note in this case jecture, arose apart hypothetical sets this case from prior to the issuance of the petitioner cases in simply which Court's defers his decision in Powers. Had challenge Powers Batson been memories have until faded trial, controlling law at or the the time of longer Bui's no available. Of course, judge by deferring responded challenge, peti- prima his Bui’s showing tioner facie procedural runs the of a by requir- risk aof default. Batson violation most, many, ing explain if not Evans to cases in which no reasons for his occurred, done, default has some evidence strikes. Had this been the Alabama prosecutor's state of mind will be left be- courts would not have needed to divine Ev- hind—either in the thoughts form statements made ans’s after fact. clearly courts did not err that the state B. fact of no discrimina- their ultimate Batson, whether now consider We tion. failure to excuses the State’s progeny, striking Emma any reason present up correctly The district court Rhodes. application court’s supreme held the David, Ala-