Ricky D. Adkins v. Warden, Holman CF

TJOFLAT, Before BARKETT and MARTIN, Judges. Circuit MARTIN, Judge: Circuit Adkins, Ricky Petitioner an Alabama row, prisoner on appeals death from the District petition Court’s denial of his first for writ corpus, brought pursu of habeas ant to 28 The U.S.C. District granted Mr. Adkins a Certificate of (COA) Appealability following for the is (1) sues: whether the state unconstitution ally removed on the basis of their race in violation Ken tucky, 476 (1986); L.Ed.2d 69 whether Mr. rights Adkins was denied his constitutional proceedings to fair process due be judicial cause of a conflict of interest and appearance of impropriety. This granted request Adkins’s to ex pand the to include a third issue: COA capital ineffec- convicted Mr. Adkins of trial counsel rendered his whether him to death. See murder sentenced during penal- of counsel tive assistance I, August 1056. On 600 So.2d Because we deter- ty phase his trial. 24, 1990, the Alabama Court is entitled habeas mine that Mr. Adkins and sen- Appeals affirmed convictions claim, we do not relief on his Batson based Be- appeal. Id. at 1067. tence direct decide his other claims. sought review the Ala- fore Mr. Adkins II, Court, bama see Adkins Legal Background Presentation I. the United States of the Claim ruling in Powers v. Court delivered Hamilton, Dean a real body of Billie Ohio, “that criminal defendant holding Caucasian, was dis agent estate who was object ju- may to race-based exclusions Alabama, County, Clair on covered in St. through chal- peremptory rors effected State, 18, v. January 1988. See Adkins the defendant lenges whether 1054, (Ala. 1057, 1059, 1060-61 600 So.2d the same races.” juror the excluded share (Adkins I); parte Ex Ad Crim.App.1990) 400, 1364, 1366, 402, 111 S.Ct. 113 (Ala.1992) (Ad kins, 1067, 600 So.2d 1069 (1991). Powers, Following 411 L.Ed.2d II). Adkins, Right away, Mr. also kins claim in his Mr. Adkins raised Batson white, charged capi arrested and with was Ala- petition for of certiorari writ tal for Hamilton’s death. Id. murder II, Supreme Adkins 600 bama Court. So.2d at Alabama 1069. 24, Jury began on October selection granted petition Mr. Adkins’s During process, exer- remanded his case the Alabama Court twenty-four peremptory cised nine of further Appeals proceed Criminal to remove nine of eleven black strikes Bankhead, parte Ex ings. (citing Id. 585 II, Adkins 600 So.2d at veniremembers. remand, 112, (Ala.1991), on So.2d 117 1069. Mr. Adkins struck one the two aff'd (Ala.Crim.App.1992), 625 So.2d 1141 rev’d remaining jurors, ultimately, black (Ala. grounds, on other 625 So.2d juror only jury. black served on the one 1993)).1 The Alabama Court trial, Id. the time of Mr. Adkins’s At then remanded Adkins’s case Mr. rule in Alabama was a white defen- hearing for a court Batson dant, Adkins, standing like lacked 12, direction, June with the “[d]ue perempto- challenge state’s exercise filed this court with should be with return ry jurors to remove black from the strikes days this opinion.” from the date of See, State, panel. e.g., Owen So.2d (Ala. State, So.2d (Ala.Crim.App.1990), rev’d sub. (Adkins III). Crim.App.1992) The return Owen, (Ala. nom. parte Ex 10,1992. September was thus due on 1991). reason, For this neither there was objection by a proffer the defense nor The state trial court held the Batson During prosecutor striking hearing July of reasons jurors. hearing, prosecutor proffered the nine Bankhead, objection though was parte prosecutor per- 1. In even no Ex son Powers, ("Based emptorily challenged eight of ten black made trial. capital Bankhead, white, on the venire in a case with white must now hold that defendant. 585 So.2d at 117. Two standing Equal under the Protection Clause jury. blacks served on the Id. at 117. After challenge allegedly racially prosecutor's decided, was Powers challenges.”). motivated use of case for a Bat- remanded Bankhead's jurors, ings in her striking capacity each the nine black with her as a DHR Ap- employee. which the Alabama Court of Criminal

peals summarized follows: Prospective Juror number 60 ... was juror

Prospective 59 ... number struck because her father had a federal he a drug-related struck because came forward and conviction for crime. serving asked that he be excused from State, (Ala. Adkins v. 639 So.2d old jury. years on the He was 61 (Adkins withdrawn, Crim.App.1993) IV), had ulcers. Adkins, (Ala.1994) parte Ex 662 So.2d 925 juror [Billy Prospective number decision).2 (unpublished during table Also Morris] ... was struck he an- because hearing, ed. ly single Morris The was man.” trial juror Prospective 52 ... number was during court’s noted that order voir dire struck age because and because he Mr. he In Morris said was married. single. appeared was He also inatten- by affidavit prosecutor submitted the dat- during tive and seemed disinterested day, ed prosecutor the same the stated: voir dire. Mike and were at Campbell myself all Prospective juror 36 ... number was impression times under the and under- single. struck she and because was 53 Billy single stood that Mr. Morris was a unemployed She was also and asked to the by male and he was struck state for serving jury be excused from the that We did not until long reason. learn pressure. had high because she blood upon reading after the trial and the juror Prospective 31 ... transcript Billy number was that was in fact Morris single struck spouse unemployed. because she was and be- married and his cause she was known to associate with a The we prepared prepa- notes which of police [h]earing former local chief who had been ration for the Batson also re- resign. Billy single forced to flected that Morris was and no in our during where notes taken [sic] Prospective juror number 56 ... was is it process selection noted struck old years because was 86 Billy a married Morris was man. because that he knew he indicated de- fense counsel. day, argument oppor- next without or Prospective juror 14 ... tunity by number was Mr. Adkins cross-examination affidavit, single struck she about prosecutor’s because be- state Department “finding trial cause she worked court entered its order (DHR) purposeful Human Resources and the dis- there was no racial discrimina- frequent attorney’s trict office had deal- tion strikes exercised Batson name. Because our discussion of the issue Morris, Billy identify juror we him centers on Morris, timely petition Mr. Adkins then filed any other Billy as State us, or court’s now before corpus trial for writ of habeas struck.” testimony upon the relied the Dis- expressly pursuant der to 28 U.S.C. sub the Batson hearing and affidavit for the District trict Court Northern prosecutor. respect With by the mitted peti- November 2006. His Alabama on Morris, the state trial court found Mr. claims, asserted, among that the tion other “mistaken” he was struck per- unconstitutionally exercised state single. Invoking he was belief that striking African- challenges by emptory experience with personal trial own court’s of their race American the bases cases,3 in other of Batson. respondent’s violation assertion court found Court, state District admit- brief marital Mr. Morris’s mistaken belief as to [Mr. merits of Adkins’s “[t]he ted Upon return be credible.” status “to rejected Batson] claim were reviewed hearing, from remand after the by the Alabama Court of Criminal again affirmed appellate courts Court,” as- and the Alabama but sen Mr. convictions and death Adkins’s denial of relief serted that the courts’ IV, 515;4 Ex tence. See Adkins 639 So.2d this claim was entitled deference Adkins, (Ala.1994) parte under Antiterrorism and Effective (Adkins V). The United States (AEDPA), Penalty Act Death v. Ala Court denied certiorari. Adkins (1996). 104-132, 110 Pub.L. No. Stat. bama, Ultimately, the District Court denied Mr. (1994). L.Ed.2d 90 Adkins’s claim on the merits. Mr. postconviction timely sought appeal timely notice of Adkins filed Rule pursuant relief in the state court above, the District Court recited Pro Alabama Rules of Criminal 32 of the him a COA on his Batson claim. granted petition His denied cedure. Rule 32 this argument After oral before court, by trial and the Alabama the state Court, long parties since the had sub Appeals affirmed. Ad Court of Criminal briefs, further requested mitted their State, (Ala.Crim. kins v. 930 550 on the Batson is briefing by parties (Adkins VI). Su App.2001) Alabama briefing, In an sue. the state raised review, preme discretionary Court denied that, the first time because argument for certiorari. Supreme Court denied Alabama, contemporaneously Mr. Adkins did ob Adkins v. 547 U.S. 126 (2006). 2022, 164 ject strikes S.Ct. L.Ed.2d 786 finding support ment to mistaken belief as the marital 3. of its as credible, [sic] status of Morris to credible. trial order stat- state court’s ed: Judge 4. Bowen dissented from having At- Court worked with District This affirming opinion Court of Criminal torney many Davis on other cases trial decision. See Adkins court’s Batson intentionally past, has finds that he never J., IV, (Bowen, 639 So.2d at 520-22 dissent- misrepresented any fact this Court Bowen, ing). According Judge obvi- ”[i]t is gain proceeding. advantage in a criminal attorney engaged here that the district ous many admitted facts which He has times disparate treatment of black veniremembers and ac- were to the detriment of cases opposed struck to white veniremembers as consequences were cepted the of facts that possessing same Id. at characteristics.” against This has never his case. Judge Bowen also because he dissented Attorney purposeful- finding found District Davis to believed "the court’s non-dis- clearly ly juries prose- Id. at exclude from in cases crimination was erroneous.” blacks by state- cuted him. The Court finds his

1247 trial, 2254(d) meaning § at the time of he cannot raise a of U.S.C. 28 at the time petition. federal Batson claim his habeas pending Adkins’s case was on direct argument not raise The state did this appeal before the Alabama Courts. See — original District or in re- Fisher, U.S.-, Greene v. in this For sponse brief filed Court. 38, 45, (2011) (holding reason, that it we conclude has waived this that “clearly law,” established Federal argument. v. Ardley, See United States determined Court for the (11th Cir.2001) (stating 242 F.3d 990 2254(d), § purposes of includes ais “well-established rule that issues and Court decisions existence at the time of timely contentions not raised in the briefs merits). adjudication the state-court on the abandoned”); are deemed United States v. can any Neither there be doubt (11th Cir.2000) Nealy, 232 F.3d that state courts are free to fashion and (“Parties on appeal must submit all issues enforce procedural their own rules to re briefs.”); in their (holding initial id. quire that contemporane defendants make new “parties properly cannot raise issues objections preserve ous constitutional supplemental briefing, even if the [new] See, e.g., claims. Wainwright Sykes, intervening issues arise based deci- 72, 86-87, 2497, 2506, U.S. S.Ct. developments sions new cited (1977) L.Ed.2d (applying procedural supplemental authority”). petitioner’s bar to habeas constitutional Although dissent to suggest seems claim contemporane did not Ardley trumped by policies ously object during and, the trial under implemented (AEDPA), our law, state this failure barred state courts applied Ardley Nealy to a number of from the claim on either direct cases, See, including 2254 cases. e.g., review). appeal or collateral “The Corr., Herring Dep’t Sec’y, F.3d appropriateness general of looking to (11th Cir.2005) 1338, 1344 n. 4 (applying governing local rules for the law the time case); Nealy §to 2254 habeas Bond v. is, claim liness a constitutional Moore, (11th 309 F.3d 774 n. 5 Cir. course, Georgia, clear.” Ford v. 2002) (applying Ardley §to 2254 habeas 411, 423, L.Ed.2d case); Head, Isaacs v. added). (11th Cir.2002) (same). (emphasis Ford con 6n. firms that exception Batson claims are no But if accept even we the dissent’s general to the rule: premise, and that assume the state had not itself, example, we im- arguments upon waived its based Mr. Ad posed procedural no rules new and de- contemporaneously object kins’s failure to particular clined “to either formulate prosecutor’s' discriminatory to the exercise procedures upon to be followed a defen- peremptory challenges at the time of objection timely dant’s to a trial, we conclude would federal or challenges,” objec- to decide when properly claim is and before squarely us timely. tion must made to In- be on based the state court record. Alabama stead, recognized practices that local Adkins, law foreclosed Mr. a white defen proper would indicate the deadlines in dant, challenge from a Batson bringing at procedures the contexts of the various the time of his trial based state’s cases, try used to See, criminal and we left it peremptorily striking jurors. courts, Owen, to Indeed, the trial with their wide “vari- e.g., 586 So.2d at 959. ety practices,” can to jury imple- there be no doubt that Powers was selection “clearly federal within established law” ment Batson the first instance. Un- determined, rule, under state then, may state court adopt a state court

doubtedly, defaulted); id. procedurally that a Batson claim is claim was a rule general pick if raised the first time its own untimely (stating, it is at “Alabama can sworn, here”); or or after so appeal, procedural rules and has done 1404, are its members selected. before 1409-10 Herring, 43 F.3d Cochran (11th Cir.1995) (concluding District Court omitted). Thus, (citations Id. Batson claim addressed merits of properly state court rules in Ford viewed not finding “ha[d] that state courts after Batson claims the timeliness of governing consistently procedural a bar” to applied rules that “limit all re procedural to be itself,” petitioner’s). like the so cases the constitutional claim view of independent, these rules are ade long as certainly recognize that con We Ford does quate firmly and established. objection can rules serve temporaneous us as a to treat state rules call interests, finality as such important state of, to, or element the constitu prerequisite judge a giving as as state well 423-24, 111 at tional claim. address, if to and immediately opportunity nothing new here. We We do 857-58. correct, injury.5 a necessary constitutional a fail petitioner’s viewed previously have reasons, important For these as well as contemporane comply ure with a state’s to federalism, comity interests preserve a Batson objection ous rule procedural per default doctrine does not procedural impediment, subject a claim as a claim re mit federal habeas review of analysis, procedural to traditional default jected by a state court “if the decision in the constitution than a defect rather law court rests on [the state] See, Cook, al Pitts v. e.g., claim. ground of the federal independent that is Cir.1991) (11th 1568, 1571 (finding petition question judg adequate support er defaulted Batson claim procedurally ment,” show cause and defendant cannot contemporaneously did not ob where he justice. miscarriage prejudice, ject appeal trial or on as Alabama law 729, Thompson, Coleman exception required and could show rule); procedural default see also Tarver v. (1991). L.Ed.2d (11th 710, 712-13 Hopper, 169 F.3d Cir. 1999) But is not of those cases. one (finding petitioner procedurally de No claim he failed Alabama court ever decided faulted his Batson object object precluded contemporaneously at trial where Mr. Adkins’s failure I) (noting petitioner's certainly contempora- Batson claim 5. We are aware that El cases, would, many pattern practice pre- objection relied on evidence neous allow decided, pretrial court to evaluate evanescent evidence sented before Batson the trial and, step, third like de- after his case was remanded the Tex- relevant Batson’s attorney exercising findings per- for new meanor of the as Court Criminal Batson)', emptory challenge and the reasons offered based attorneys (remanding to relating to S.Ct. at 1725 case the trial the demeanor of Louisiana, prosecu- proceedings to jurors. Snyder v. determine See court trial, 1203, 477, 1208, 472, explanation, his unstated at 128 S.Ct. L.Ed.2d tor’s itself, (2008). by persons passage of time removal of all black venire But default, purposeful facts discrimina- procedural there is does not whether establish where no Corr., Comm’r, tion); Dep’t presentation challenge a Ala. of Batson or Madison bar the of 1333, Cir.2012) (remand- (11th evidentiary proceedings sup- the trial 677 F.3d after See, port e.g., ing petitioner’s case to the District Court for of the claim. Miller-El I v. Cockrell, 322, 328-29, proceedings complete "to the final 123 S.Ct. further 537 U.S. 1035, (Miller- (2003) proceedings"). steps of L.Ed.2d 931 two rules, his Batson court considering from the merits of bama’s own but the Alabama Indeed, challenge. unambigu the record implement Court is entitled to its own ously just opposite to be true. shows wisdom on this. It not for is us to dictate decided, After Mr. Adkins Powers to the state courts of Alabama pro- which time in raised his Batson claim the first cedural it adopt. rules should Mr. Ad- petition for writ of certiorari to the kins’s Batson claim is properly before this Supreme Alabama Court. The Alabama Court.

Supreme granted petition for a certiorari, according writ of to own II. Standard Review rules, procedural and remanded case Our review Mr. Adkins’s federal ha court the trial for a on whether petition beas is governed by 28 U.S.C. prosecution its peremptory exercised § by as amended AEDPA. Be challenges racially discriminatory cause Mr. adjudicated Adkins’s claim was This, manner in violation of Batson. not on the merits in his state court proceed withstanding object Mr. Atkins’s failure 2254(d) § ings, precludes habeas relief II, at trial. Adkins (1) unless the state court decision was remand, Following from to, or “contrary involved unreasonable adjudicated state courts considered and of, application clearly established Federal Mr. claim Adkins’s Batson on the merits. law, as by determined 2254(d), § Under 28 U.S.C. as amended States,” the United 28 U.S.C. AEDPA, claim has “[w]hen federal been 2254(d)(1), § or “was based on an un presented to a state court and the state reasonable determination of the facts in relief, court has denied be may pre light presented of the evidence adjudicated sumed that the state court 2254(d)(2). proceeding,” § State claim any on the merits in the absence of Harrington, also S.Ct. procedural princi indication state-law ples contrary.” Harrington to the “[fjederal Further, habeas courts — Richter, U.S.-, 784- generally findings defer to the factual (2011); (holding “an courts, presuming facts be ‘adjudication on the merits’ [within the unless, correct they are rebutted clear 2254(d)] § meaning is best defined as convincing evidence.” Jones v. Walk any state court decision that not rest does er, (11th Cir.2008) 1288 n. 5 bar”); solely procedural on a state see also (en 2254(e)(1) banc); see also 28 U.S.C. Reed, 255, 264-65, Harris v. 109 (“[A] determination of a factual issue made 1038, 1044-45, 103 L.Ed.2d 308 by presumed court shall State be (1989) (presuming a merits determination correct.”). However, when it is unclear whether a ap decision adjudication when a state court’s pearing rest on grounds federal in a habeas claim decision that result[s] basis). Applying decided on another these on an [i]s based unreasonable determi simply there principles, no indication in light nation of the evi facts any of opinions the state courts’ which presented pro dence the State court cause us to conclude the Alabama ceeding, this Court not bound to defer adjudicated courts federal Adkins’s unreasonably-found facts or to the claim anything but the merits. The legal conclusions that flow from them. question dissent may the wisdom of wheth Jones, F.3d at n. 5 (quotation er the Court should omitted); marks also have excused Mr. lack a con and citations see Adkins’s temporaneous objection Quarterman, based Ala- Panetti v. 551 U.S.

1250 2858, striking 2842, proffered L.Ed.2d 662 race-neutral reasons

127 168 S.Ct. (“When (2007) adjudication jurors. state court’s Mr. Adkins’s case was a nine black on an antecedent dependent Supreme of a claim is remanded the Alabama Court law, of federal application proffered unreasonable hearing, for a Batson the state 2254(d)(1) § set forth in requirement for its peremptory race-neutral satisfied.”). strikes, and the trial court ruled on the question discriminatory pur- ultimate that AEDPA def

If we determine remand, return from pose. On the undertake apply, must erence does Appeals Alabama Court of Criminal deter- a of the claim. McGahee de novo review the trial court found “that a 1252, mined Corr., 1266 Ala. Dep't of Cir.2009). prima showing facie had (11th discrimination made,” IV, 517, So.2d at been Adkins

III. Discussion the prosecutor and that offered race-neu- peremptory tral reasons for its strikes law clearly It is established federal at jurors. 517-520. This satis- Clause, that, Protection a Equal under steps. first second fied Batson’s has a constitutional criminal defendant Thus, applica- we look to the state court’s “right a whose mem to be tried step. nondiscrimi tion Batson’s third pursuant bers are selected Batson, natory criteria.” 85- analysis, also our at least for We focus Batson, 1717. 106 S.Ct. at 2254(d)(1) § purposes, on the Alabama Supreme three-step a Court established Appeals Court of Criminal decision on re- inquiry to evaluate use IV, turn from remand Adkins 639 So.2d 96-98, strikes. Id. at peremptory there (affirming determination S.Ct. at 1723-24. Court summarized violation), no Batson because it is the Cockrell, inquiry Miller-El v. Batson’s last reasoned state court decision discuss- 154 L.Ed.2d U.S. ing Mr. Adkins’s Batson claim.6 I: Miller-El discussing opinion, Before First, make a prima a defendant must however, important points several about that a chal- showing facie First, step emphasis. third bear Batson’s has been exercised on the basis of lenge prove pur burden to defendant’s Second, showing if that has been race. poseful discrimination at Batson’s third made, prosecution must offer race- York, step. See Hernandez v. New striking neutral basis for 359, 111 U.S. S.Ct. Third, light parties’ question. (1991); Batson, 476 L.Ed.2d 395 U.S. at submissions, must deter- 98, 106 1724. S.Ct. at mine whether the defendant shown purposeful discrimination. Second, in Batson (cita- 328-29, at 1035 S.Ct. emphasized deciding whether “[i]n omitted). tions requisite showing made the defendant has discrimination], purposeful the trial [of Here, step third we focus Batson’s court should consider all relevant circum parties dispute do that Mr. 96, 106 stances.” 476 U.S. at prima facie Adkins established case added). (emphasis discrimination that the state reason purposeful summarily af- the Alabama Court of Criminal The Alabama analysis appeal purpose under on the return decision of our firmed Mr. Adkins’s 2254(d)(1). McGahee, 560 F.3d at 1261 remand of his Batson from V, Thus, through” we “look n.12.

1251 it, Batson, is, meaning- a court cannot deference. See 476 this without U.S. at 98 n. 21, proffered 106 S.Ct. at 1724 n. fully evaluate the state’s reason. 21. A federal McGahee, (“Because “presume habeas court at 1261 must the [state] See court’s factual findings be weigh the evi- sound unless courts must defendant’s petitioner] [the rebuts the of ‘presumption articulation against dence by correctness convincing clear and evi- explanation,’ of a courts are direct- ‘neutral II, 240, dence.’” Miller-El 545 at U.S. ‘all cir- by ed Batson to consider relevant 125 S.Ct at 2325 (quoting 28 U.S.C. step of the cumstances’ third Batson 2254(e)(1)). § respect But with ato Bat- Supreme has analysis.”). As the Court in particular, son claim reason, own, said, facially neutral on its has stated: chal- does not suffice answer Batson habeas, Even context federal Dretke,

lenge. Miller-El v. 545 U.S. See deference imply does not abandonment 231, 240, 2317, 2325, 125 S.Ct. 162 L.Ed.2d judicial or abdication of review. Defer- (2005) (Miller-El II) (“If any facially by ence does not preclude definition re- neutral answer a reason sufficed to Batson A lief. federal can disagree court with a then challenge, Batson would not amount credibility state court’s determination Alabama, to much more than Swain [v. and, AEDPA, guided by when conclude U.S. S.Ct. L.Ed.2d the decision was unreasonable or that Batson, (1965), by at overruled 476 U.S. factual premise was incorrect 25].”). 25, 106 1725 n. It 100 n. S.Ct. at convincing clear and evidence. Bat- [A abundantly principle thus clear that this ... be supported any claim] son can clearly law. established federal Under that, demonstrating evidence despite Batson, “a must undertake a sensi explanation prosecution, neutral of the inquiry tive into such circumstantial and strikes the final anal- may direct evidence of intent be avail ysis goes were race based. It without 93, 106 able.” at at 476 U.S. S.Ct. saying that this includes the facts and omitted). (quotation marks sup- circumstances that were adduced in law, being With this the state of the this prima port facie ease. held a state court’s failure I, Miller-El 123 S.Ct. consider “all relevant circumstances” step ap- Batson’s third is an unreasonable 2254(d)(1). plication of Batson under Application A. State Court’s McGahee, 1261-62.7 F.3d at Batson and Determination of the Facts Third, finding we are mindful that a no finding intentional discrimination is a Our rec review of state court fact is ordinarily great entitled to ord us to leads conclude striking juror, requires judge 7. As this Court has observed: plausibility to assess the repeated that reason point Court has it.”); opinions applying Snyder light bearing later Batson. of all evidence with a Louisiana, 478], York, 352, 363, [552 U.S. at v. New 500 U.S. Hernandez ("[I]n considering objec- [at] 1208 111 S.Ct. 114 L.Ed.2d 395 tion, ruling reviewing claimed to (1991) ("An discriminatory pur- invidious error, all of the circumstances may totality pose often from the be inferred animosity upon bear issue racial facts.”) Washington (quoting relevant [II], consulted.”); must be Miller El Davis, 251-52, U.S. at S.Ct. at 2331-32 2048-49, (1976)). ("[T]he provides opportu- rule in Batson McGahee, 560 F.3d n.13. at 1262 nity give reason proffered had unreasonably prosecutor fact that the Appeals of Criminal Court Be- it reasons its strikes. when failed race-neutral step Batson’s third applied the Alabama Court did not even circumstances cause all relevant to consider all mention the relevant circumstances Mr. Adkins estab- bearing on whether by to its attention Mr. Adkins brought “Be- purposeful discrimination. lished sup- that are weigh the defendant’s brief —circumstances courts must cause ported by say the record —we cannot that purposeful discrimination] [of evidence inquiry a it “a sensitive into such prosecutor’s articulation of undertook against the direct of intent are circumstantial and evidence explanation,’ courts directed ‘neutral Batson, may at ‘all circum- be available.” by to consider relevant Batson 1721 (quotation 106 S.Ct. at marks step of the Batson stances’ third McGahee, McGahee, omitted); at at see also 560 F.3d analysis.” that Alabama appli- (holding an 1261-62 the Court to do so is unreasonable Failure unreasonably Appeals applied of of meaning Batson within the cation of 2254(d)(1). clearly at law that was established See id. 1261-62. federal to when it failed consider all rele- IV, reciting proce- the In Adkins after step). vant circumstances Batson’s third history case, the dural of the Alabama giving Alabama Even the Court Crim- implicitly Appeals of Criminal certainly inal the deference it is step to Batson’s first and stated: turned due, it we are left to conclude that did not findings that the The trial court’s show perform duty step under Batson’s third prospec- the 11 state struck 9 of black the relevant considering circumstances jurors on the venire. One black tive by Mr. raised his brief return ultimately the jury. sat on These remand that court. relevant showing that a facie of dis- prima found (1) include: the strength circumstances and it held a crimination had been made (2) case; facie fact prima Mr. Adkins’s the prosecutor gave which prosecution explicitly that noted the following reasons .... (and every race black veniremember The court then summa- 639 So.2d veniremembers) only on the list black and found at rized the reasons (3) selection; in jury the state relied valid, reason, sup- least one race-neutral specific fact proffered port Id. at 517-20. each the strikes. provided by prosecutor were incorrect Thus, implicitly completed the state court record; (4) contradicted and/or there, step. Batson’s second From howev- upon, fact that trial court relied er, Ap- Alabama Court of Criminal subject testing, not to adversarial did peals’ of the state’s deci- entire discussion prosecutor from the sub- affidavit sion strike Morris limited to hearing; after mitted two The court “will sentences. stated upon the fact court relied reverse trial court’s decision on record, part of the such as the facts Batson violation unless that decision ” trial court’s personal experience with erroneous,’ ‘clearly summarily and then prosecutor in matters. unrelated find the trial concluded do not “[w]e elaborate, clearly regard will first with court’s decision here erroneous.” We strength prima is no from its of Mr. Adkins’s facie at 520. There indication During opinion that the voir dire Mr. Adkins’s Crimi- case. case, any nal the state used strikes Appeals considered relevant bearing eligible jurors, on the ultimate is- exclude nine of eleven circumstances discriminatory beyond resulting eighty-two a strike rate of purpose sue of percent. “seriously disproportion- jury. These Such contradictions in the because, ate exclusion” blacks establishes a record are relevant illegiti “when strong prima facie case. grounds issue, mate like race are (quotation U.S. at 106 S.Ct. at 1721 simply got to state his rea omitted). marks The Alabama Court of sons as can best he or fall on stand or Appeals gave weight no consideration plausibility gives.” of the reasons he Mil complete II, of this almost elimination black ler-El U.S. at 125 S.Ct. at jurors. 2332.

Second, of Fourth, the Alabama Court Criminal the Alabama Court of Criminal Appeals fact that failed consider the the Appeals ignored the fact the trial prosecution explicitly the noted race of court relied on evidence that test- veniremember, every only black by ed process the of adversarial cross- veniremembers, prose- on the list the jury Upon examination. after realizing the upon striking cutor the jury, relied Batson hearing that the prosecution’s rea- of marking each them with “BM” or son for Mr. striking not sup- Morris was “BF.” strong This is evidence discrimi- (i.e., ported by the record that he was not I, natory intent. See Miller-El single), court the trial solicited relied (“The supposition upon an parte ex affidavit prose- from the a factor race was could be reinforced cutor without Mr. an giving ade- by prosecutors the fact that the marked quate notice opportunity or to be heard.9 prospective juror the race of on each their noted, As we the trial court on remand cards.”).8 conducted the Batson on July presented at which both parties time Third, the Alabama Court Criminal September 9, evidence. On the trial Appeals that spe- did not consider the fact court soliciting expla- entered an order an proffered by cific provided the prosecutor nation from why the Mr. prosecutor by were contradicted the rec- single Morris was struck for being when ord. During hearing, pros- the Batson transcript voir dire indicated ecutor struck Billy said he Morris because married. apparently The order was Mr. single prior Morris was and had September served on on knowledge of the case. But the voir dire 1992, but not counsel for Mr. on Adkins. clearly Mr. transcript shows that Morris The prosecutor responded the Court’s said he was married. The other reason by order an dated that given striking Morris, preparing affidavit Mr. that he had affidavit, case, day. prosecu- same prior hardly knowledge per- tion All claimed that struck Mr. Morris un- suasive on the facts of this case. but der sixty-four jurors single. five or six of the on the mistaken belief that he was case, September 10, venire The next including day, knew about the 1992—the day least white who served trial order seven record and court’s were Although support only, adequate argument we cite Miller-El I to our or without notice conclusion, rely need we on Miller-El I to repre- from Mr. Mr. counsel Adkins. Adkins’s draw the inference that racial notations creat- Ap- sented to the prosecution ed sheets are strike peals that he received both the final order and relevant circumstances indicative racial days order “several later'' and solicitation compelled bias. Our conclusion is affidavit “was never served defense facts. dispute counsel.’’ The state does not these facts. By parte, ex mean the trial solic- party ited and one considered evidence from testing.10 adversarial examination other to the Alabama Court to be returned due Further, en- of Criminal trial court the Alabama Court Appeals of Criminal —the prosecu- relying upon Appeals consider that tered order did not Adkins’s Bat- denying only tor’s affidavit on the ex affida- parte court relied not claim. vit, son which also non-record evidence but opportunity Mr. Adkins did not have later, days Mr. Adkins’s counsel ob- Six rebut, personal as the trial court’s such the ex parte jected consideration rep- experience opinion with and about parte moved for the ex affida- affidavit and are rel- prosecutor.11 These utation of on appeal. record to be included vit have been evant circumstances should motion stated he Mr. Adkins’s Specifically, by the Alabama Court of Crim- notice, opportunity no considered provided no “was In- reliability step. the information inal at Batson’s third contest the upon through Ap- cross-ex- stead, or relied Alabama of solicited Court Criminal means, no opportu- amination or other them. peals never mentioned Generally, Mr. to be nity heard.” also conclude state trial We solicitation and argued trial court’s all cir court’s failure consider relevant deprived him consideration of affidavit finding of making its fact no cumstances process. due discrimination, well as purposeful as its Although brief on return to Mr. Adkins’s affidavit, parte of ex is consideration of Criminal remand of “an unreasonable determination these facts to the Appeals brought crucial 2254(d)(2). § Batson facts.” 28 U.S.C. court’s court did mention attention clearly established that the Alabama Court TV, consider them. See Adkins 639 Appeals required to con was of the timing prose- at 517-20. making sider all relevant circumstances be- parte cutor’s ex affidavit is relevant Be its ultimate factual determination. after trial only cause it offered was the court overlooked material facts cause brought court contradictions record only unreasonably factfinding, it not such, prosecutor’s As it to the attention. Batson, applied unreasonably it also deter credit” and “reeks after- is “difficult to the facts at Batson’s critical third mined II, thought.” Miller-El 545 U.S. at step. Similarly, the 125 S.Ct. at 2328. state’s sum, we conclude the Alabama Court of the affidavit the trial submission Appeals unreasonably applied of Criminal of the court’s court on the eve because it failed to consider crucial ruling, to Mr. Adkins’s without service counsel, in his brief facts which Adkins raised is relevant because assured the subjected to court affidavit would not be cross- relevant Batson’s third contexts, opinion prosecutor's reputation. How- In other Court has ever, presented opportunity during observed that cross- there was evidence "[t]he no ensuring prosecutor’s ... is about the examination critical the Batson integrity good fact-finding process. reputation, Cross- other than assertions faith by principal prosecutor. examination is the means which Neither there evi- believability prosecutor’s of a and the truth of witness dence of the use of Kentucky testimony against pro- are tested.” v. Stinc in other criminal strikes blacks 730, 736, er, S.Ct. ceedings. U.S. It therefore not reasonable for (1987) (quotation marks omit interject the trial court to non-record facts ted). analysis. Importantly, into its Batson as with itself, prosecutor’s affidavit Mr. Adkins opportunity to finding pur- did not have notice or an 11. The trial court based its no poseful part on on these matters. discrimination in its own heard McGahee, petit jury. 560 F.3d at 1263 step. See Court has ob- (“Because step from or seriously dispropor- omitted served that “total analysis facts which three of its crucial tionate Negroes exclusion of from ve- court, McGahee raised his brief to unequal nires is itself such an application we that the Court of Criminal find of the law ... toas show intentional dis- Batson, ‘all relevant circumstances’ did not review crimination.” See at U.S. required (quoting as Batson.” (quotation 106 S.Ct. at 1721 marks and 1723)). omitted). at For here, U.S. at S.Ct. citations Also Mil- like reasons, II, these also conclude the state unlikely “[h]appenstance ler-El unreasonably trial court determined the produce disparity.” at upon facts based the state court record. (quotation S.Ct. marks omit- ted); see also id. B. Review De Novo of Batson Claim (describing the per- use emptories Where, here, as “remarkable” one “we where have de jury, black served but the termined a state court is an decision struck peremptorily ten elev- application of law un unreasonable federal eligible 2254(d), jurors). en black We conclude the der 28 U.S.C. we are uncon many eligible removal of so by § strained 2254’s deference and must Mr. Adkins’s explain case difficult to novo undertake a de review of record.” grounds. nonracial But McGahee, our conclusion is F.3d at 1266. Our review of upon not based statistics alone. the record leads us to conclude that Mr. met at Adkins has his burden Batson’s The record the voir dire and step third shown discrimi purposeful the Batson also con support the nation as to Mr. Morris. id. at 1267- Billy clusion that Morris was not excused emphasize We that our conclusion is any legitimate reason. for The state said fact, any upon particular not based one but it struck that Mr. Morris because he was totality the of relevant circumstances single prior knowledge and had the about II, this case. See Miller-El U.S. at fact, case. But in Mr. the Morris told (“[T]he 251-52, 125 S.Ct. rule in that during voir dire he was married. provides

Batson an to opportunity the more, jurors almost all of on What’s the prosecutor give striking to the reason for prior knowledge the venire had about juror, it requires judge case, jurors including majority white plausibility assess the of that reason in jury. who sat See id. at it.”). light bearing of all evidence with a (“If a prosecutor’s proffered at 2325 panelist applies reason for a black striking example, For stress as non- just well to an otherwise-similar strength prima of Mr. Adkins’s facie case serve, who is permitted black recognized for discrimination. Batson prove dis tending purposeful evidence ‘pattern’ jurors “a strikes black against crimination to considered at Batson’s ... might give rise to an inference of step.”). legitimate third The absence of a discrimination.” 476 U.S. at reason indicates Mr. Morris was removed Again, 106 S.Ct. at 1723. the state here See, McGahee, e.g., race. used strikes to nine of because his peremptory exclude (reason potential jurors, resulting pretextual eleven black in a 560 F.3d found record eighty-two percent. Only strike rate of where there was no evidence it).12 juror support one black served on Mr. Adkins’s stated, juror previously 12. The for As "under removal even one discrimi- this Court has natory reasons is sufficient to violate Batson. jurors he for could strike that our conclu- believed noting worth It is also race).13 reason, any including Mr. Morris for the state struck sion by the is buttressed as well reasons racial prosecutor exer- Our conclusion that explicitly noted prosecution that the fact strikes based on peremptory cised his (and every black veniremember race of fact also that Mr. race is bolstered veniremembers) on its list only black juror only black was not the Morris dire, the fact preparation voir reasons that were the state offered whom acknowledged prosecutor or oth- supported by the record were hearing that “was not concerned they applied suspect erwise because [during voir dire] the Batson matter with See, jurors not excused. who were white [crime].” white-on-white [w]as IV, (Bowen, at 521 e.g., from prosecutor This statement J., dissenting) (identifying prosecutor’s acknowledgment that because explicit 56 and jurors 60 as striking the Su- trial occurred before Adkins’s example, “highly suspect”). For besides Powers, Court’s decision preme prosecutor gave two reasons for age, juror of black num- peremptory strike exercising (1) constrained in prison her father was either ber 60: jurors. challenge against black drug prison had been in federal See, F.3d e.g., Haley, crimes; Bui v. did she not re- related (11th Cir.2003) (finding, in a simi- during 1314-16 dire when were spond voir context, family that the they any remand if member post-Powers lar “asked had time of voir dire Id. But prison.” belief at the that had ever been prosecutor’s dissent, the defen- in his apply Judge did not Bowen that Batson observed strike of prospec- case because the defendant was not the extent that the “[t]o dant’s black, 60 was based on the relevant to the tive number juror that assessment prosecutor [prosecutor’s] of mind and indicated the Batson, striking juror tunity respond by type Adkins. This for a Mr. of one black evidence, Equal subjected reason violates the Protection to the crucible of ad- racial Clause, jurors even where other black are versary testing, weight. little Neither can has seated, even valid reasons for the and when ignore prosecutor, we that the with fact jurors striking of some black are shown.” transcript dire the benefit of the voir David, F.2d States v. 803 1571 United hearing, clearly ample notice of the Batson Cir.1986); (11th Snyder, see also at justified striking Morris because he was (“Because we find that Indeed, hearing. single we at the Batson error in the trial court committed clear over- testimony from his at the Batson hear- know objection with ruling petitioner’s re- ing, prosecutor had reviewed the tran- juror], spect we have no need to [one script preparation of the voir dire in for the petitioner’s regarding [a claim sec- consider facts, hearing. these and the Given Allen, juror].”); Parker ond percent ju- eighty-two rate of of black strike (11th ("It Cir.2009) necessary is not rors, good a mere faith that the assertion majority prose- of the that all or even a show prosecution single believed Mr. Morris discriminatory; any single strikes were cutor’s hearing is not the time of the Batson sufficient purposeful demonstrated to result from strike proffered that the to overcome the indication sufficient.”). discrimination pretextual. reason Cf. ("Nor may the 106 S.Ct. at 1723-24 prosecution’s parte ex affidavit assert- 13. The merely prosecutor defendant’s case rebut the ing good faith mistake about Mr. Morris’s by denying discriminatory that mo- he had adequate explanation is not an marital status good making faith in affirming] tive or [his] striking him. The affidavit was solicited selections.”) (quotation marks hearing individual long evidentiary had after the con- omitted). oppor- to or an cluded and without fair notice IV, forthrightness by (Bowen, J., a lack of fail- kins displayed So.2d at dis- (alteration question to answer the voir about ing senting) original). dire in While ‘family prison,’ that member[s] assess- may each of these be facially race- supported by was not the record on neutral, ment two of are suspect them here. (alteration in original). dire.” Id. In- voir reliance the fact that deed, precise asked question juror 56 knew defense counsel is suspect prosecutor during the voir dire was this: because state did strike a white anyone jury panel there on the verniremen, “DOs juror who also acknowl- friend, presently a relative or close or edged he knew defense counsel. Id. In- past, prison system?” the State deed, prosecutor juror did not strike this, Judge Based Id. Bowen rea- juror jury, this served even soned, and agree, though he “shared two characteristics used juror A reasonable awith Mend or rela- [by prosecutor] justify the strikes of penitentiary tive could federal blacks—that he defense knew counsel and dealt question solely conclude in prison.” had a relative Id. at prison system, the State speci- with indication, This is further under the fied, especially [prosecutor] in- since the step third analysis, the Batson that the further the fact quired any whether prosecutor’s stated reasons for striking jurors had a relative or friend in black were pretextual. Id. penal system the state “would ... make Similarly, again under required [prosecutor] feel ill toward [them] analysis, the prosecutor’s juror reliance on possibly like people us are re- age suspect light 56’s of the fact that sponsible putting a relative or loved prosecutor proffered “age” as a reason in prison?” one friend striking prospective jurors, six black (alteration in original). While the ranging in age years from 31 to 86 old: prosecutor may justified have been 61; juror 59, age juror black black (age striking juror 60 based on information that 32); 53); juror (age juror black black father prison, her had been in credi- “[t]he 86); (age 36); juror (age black reason, however, bility of that was called 31). (age respect With question by into that the fact district age, during stated Bat- attorney to strike at least one white failed son “that the defendant was a [juror who 48] veniremember answered single age male and that same bracket that he had a in prison. brother-in-law people of these that were struck.” Mr. That veniremember in fact served on the twenty-three years Adkins was old (citation omitted). jury.” and footnote prosecutor’s time of voir dire. The “same proffered Again, prosecutor’s “[i]f reason age clearly ap- bracket” rationale did not striking a panelist applies just black as jurors to all ply by of the six black struck to otherwise-similar well nonblack who on basis. serve, that permitted is to is evidence tending to prove purposeful prosecutor’s discrimination The reliance on age to to be considered at third step.” jurors Batson’s prospective strike black is also un- II, Miller-El 545 U.S. at 125 S.Ct. at that by the fact the state did not dermined of jurors age. strike white similar For example, prosecutor did not strike vein, In this same we note the state 44); juror juror white (age (age white juror prospective struck black number 56 48); 48); old, jury juror white white (age years because he was 86 could not well, 49); 58); (age juror (age “acknowledged hear white 62). prosecutor’s knew personally.” (age [defense Ad- white counsel] that the strikes did not Appeals of a reason to decided age as proffered justification jurors deny right those their to serve range prospective of strike such a wide Ricky Dale Adkins’s on account jurors clearly were who State, Adkins, and their race. 639 So.2d 515 as Mr. Adkins age “same bracket” argues that age (Ala.Crim.App.1993). were Adkins fact that similar white serve, supports conclusion the court’s decision cannot be sustained allowed to our on an age is “based unreasonable that the reliance fact, facts,” 28 U.S.C. This when considered determination pretextual. 2254(d)(2) (2006), circum- as amended with all the other relevant Penalty defendant Antiterrorism and Effective Death bearing stances on whether the (“AEDPA”), discrimination, bol- Act of 1996 No. 104- proved Pub.L. purposeful (1996); ar- a Bat- 110 Stat. 1214 the State our that there was sters conclusion contrary. Today, this court gues to son violation Mr. Adkins’s case. the Dis- adopts position, Adkins’s reverses IV. Conclusion adopting trict Court’s decision the State’s to position, and directs District Court reasons, all AEDPA For these deference corpus setting issue a writ of habeas aside to the courts’ unrea- apply does Adkins’s murder conviction and death sen- unrea- application sonable Batson and I tence. am convinced court errs sonable of facts based on determination ordering issue therefore record. record com- that the writ the state court This per- its pels finding that the state used dissent. discriminatory in a man- emptory strikes face, Although, opinion on its right ner and Mr. Adkins’s violated of Criminal states that the Court Equal clearly Protection as established claim, court decided a Batson the COA McGahee, Batson. poses parties a Batson issue and the have Any contrary finding would inconsistent issue, I submit that the Court briefed convincing

with the clear and evidence. Appeals, though opinion of Criminal so, denying did not a Batson purports The District Court’s order do decide all; reversed, rather, relief is and the claim it decided a state law habeas claim the Batson Accord- bearing case remanded the District label. Ap- to issue of habe- ingly, with instructions the writ because the Court adjudicated corpus right peals conditioned determination of state law, retry Article III State of him. the District Court lacked power review that determination. and REMANDED. REVERSED true same is of this court.

TJOFLAT, dissenting: Judge, Circuit III explain why part opinion, I of this I, circum- describing, part after appeal according The issue in this Billy (“COA”) stances led to Dean Hamilton’s appealability certificate of conviction, murder and Adkins’s District issued1 “whether II, part Court’s cre- Alabama unconstitutionally per- State exercised asserting. ation of the claim Adkins is emptory challenges by striking African- American their jurors on basis of race I. Kentucky, in violation of’ Batson v. 79, 1712, Appeals of Criminal The Alabama Court

(1986). murder oc- Alabama of Criminal described how Mrs. Hamilton’s The Court 2253(c). 1. See U.S.C. State, Embry very Dr. deep Adkins v. So.2d observed seven

curred (as (Ala.Crim.App.1991) scalp. corrected on deni- lacerations to the victim’s There rehearing). upper al of was a stab wound to the abdomen which was six and a half inches long. It During a Mrs. Hamilton realtor. liver, stomach, into extended and morning Sunday, January heart. real put left her out some she home There were six small on scratches go to her to do signs estate and to office left buttock victim’s which were consis- out paperwork. putting As she was some fingernail tent with scratches. She also sign, up Adkins drove a Ford Bronco had a bruise of her left inside looking told her that he was for and bruises, thigh. There were scrapes and buy. agreed him house She show lacerations on both hands. testi- [He] sale and his got some were for into trial, fied that these were af- defense wounds. According Bronco. to Adkins at houses, seeing “they four ter three or When [he] examined the victim’s oral at a and and stopped park, ‘held hands cavity lungs, and her mouth and throat ” They stayed kissed.’ Id. at 1058. there were filled with dirt and small rocks that minutes, look thirty for about then left to through went all larynx way her at more houses. “At one of the vacant down her lungs. impact- into It was this at, claim[ed], they looked [Adkins] houses airway, ed dirt victim’s associa- voluntarily with Mrs. Hamilton had sex tion with stab wounds and blunt evening, him twice.” Id. That after visit- head, force trauma to the that caused with the of one of houses ing owners the victim’s death. testified that [He] sale, Hamilton, Ad- according Mrs. through tendons of incisions kins, him down a dirt “directed road appeared post-mor- wrists victim’s last one sexual encounter.” Id. at 1059. tem bleeding because there was no put bag ground his on the and sleeping He the wounds. “ they said ‘talked about the stars Id. at 1059-60. ” night.’ The of capital convicted Adkins sex, put they having finished he [A]fter and, murder a vote of 10 to recom- sleeping bag the Bronco and back penalty. mended that he receive death hurry get Mrs. told Hamilton The Court Circuit followed the recommen- dressed. claims that called [He] [she] dation sentenced to death. Adkins her him “bastard” and he told appealed Adkins then conviction and but At “nothing that she was a whore.” sentence. this, said, slapped he him. [she] [He] bent her pull stated over to [she] II. jeans up, her in he hit the back of head with a next [He] wrench. said he of Criminal affirmed seeing lying remembered his victim Adkins’s conviction and death sentence on ground He body. with blood her State, January both slashing admitted of her wrists. (Ala.Crim.App.1991). says He got then the Bronco thereafter left. granted petition certiorari re- Adkins’s Adkins, Embry, parte Joseph pathologist Id. Dr. with view. Ex 600 So.2d (Ala.1992). case was be- Department the Alabama of Forensic Sci- 1068 While the ences, court, in that the United performed autopsy. ing the briefed

1260 79, Kentucky, v. 476 U.S. v. ioned in Batson decided Powers Supreme Court States 1712, (1986),5in 400, 1364, 90 L.Ed.2d 69 Ohio, 111 S.Ct. S.Ct. 499 U.S. that, prosecutor (1991), peremp- held under the deciding which whether L.Ed.2d Clause, torily jurors solely the challenged “a criminal black Equal the Protection step exclu- race. The first re- object race-based because of their may defendant through jurors perempto- make facie show- quired prima of effected a sions Adkins challenges or the defen- ry ing prosecutor “exclude[d] [an] whether the share person[ dant and the excluded and qualified ] otherwise unbiased 402, 111 S.Ct. at 1366 same races.” Id. jury solely by [his from reason petit Powers, added). Citing 409, Adkins (emphasis Powers, or race.” 499 U.S. her] in- Supreme Court to urged Alabama Supreme The at 1370. Alabama S.Ct. error” “plain doctrine2 voke Alabama’s facie already prima made that Court had remand the case to Circuit Court when, “plain under the showing for the prosecutor whether hearing for doctrine, “re- error” his case ordered any peremptory used of the State’s had circuit for a manded to the court against challenges to discriminate Adkins, parte on” “Batson issue.” Ex Supreme venire. The members at 1069. Court 600 So.2d The Circuit and, error3 after af- plain noticed step with began therefore the second presented to firming “each the issues requiring prosecutor inquiry, Appeals],” Ex Court of Criminal [the offer for each of a race-neutral reason Adkins, 1068, remand- parte 600 So.2d prosecutor came for- strikes. After hearing on the case the issue ed reasons, took the ward with his the court Powers, whether, “the im- State under step, inquiring third whether Adkins had chal- properly exercised any proven that the had struck the ba- lenges striking black of the solely of the nine blacks because race,” 1069.4 of their id. at sis At the of the person’s race. conclusion inquiry, the court credited the remand, Court, following On the Circuit that he representation struck blacks Alabama Court’s Supreme instructions (albeit upheld the con- implicit), inqui- non-racial three-step used stitutionality of his ry Supreme Court fash- strikes. United States Bankhead, plain statutory parte 3. cited Ex is a cre- The court 2.The error doctrine capital (Ala.1991), to be cases which the authority. ation used So.2d 112 as its 45A, imposed. penalty death Rule Procedure, Appellate "Scope of re- Rules Court remanded case to cases,” view death states: it, turn, Appeals; the Court of Criminal penalty In all in which the death has cases case to Court for remanded the the Circuit imposed, Ap- been the Court of Criminal State, (Ala. hearing. So.2d 515 Adkins v. any plain defect peals shall notice error or Crim.App.1993). review, proceedings under whether brought or attention of the Kentucky, three-step model in Batson v. court, appellate appropriate action take 106 S.Ct. thereof, by reason whenever such error has (1986), is akin to the model adversely probably or affected the sub- Douglas Corp. created in McDonnell appellant. right stantial Green, U.S. case, Ap- Adkins's the Court (1973), adjudicating Title L.Ed.2d 668 VII plain peals could noticed error on not have employ- racial discrimination claims of Ohio, the basis of Powers ment, where, say, protected of a member (1991), 113 L.Ed.2d that he or was denied em- claims she class after the had af- Powers decided promotion race. ployment due to firmed conviction sentence. Adkins’s remand, corpus return from the Court of issue the writ of On habeas conditioned a careful Appeals, right Criminal review of the “[a]fter State Alabama to given by prosecutor retry reasons Adkins.” Ante at 1258. testimony examining after taken at the III. hearing, ... that no f[ound] Bat corpus statute, The federal State, habeas Adkins v. son violation occurred.” § by AEDPA, U.S.C. as amended (Ala.Crim.App.1993). 639 So.2d 104-132, Pub.L. No. (1996), 110 Stat. 1214 The court therefore affirmed Circuit interpreted by the United States Su- judgment. Court’s 520. Court, preme forbids a federal court from panel majority of this faults the reviewing a state court conviction grant Court of decision Appeals’ be- writ of habeas unless corpus the state Appeals cause the Court of Criminal “did adjudication court claim “resulted in give any consideration Batson’s contrary to, decision that or involved step third to several relevant circum- of, application an unreasonable clearly es- by stances in his raised brief on law, tablished Federal as by determined return to court.” remand to that Ante at Court of the United States.” 1252. example, “gave For court no 2254(d)(1). § phrase 28 U.S.C. “clear- strength consideration to the of Adkins’s ly established Federal law” only refers prima facie Batson’s step,” ease at third dicta,” “the holdings, opposed to the id.; specific proffered to “the fact that Court decisions extant at the provided by were adjudication. time the state court record,” id.; by contradicted or to “the 362, 412, v. Taylor, Williams fact that the trial court relied on evidence by that was not tested the adversarial added). (emphasis cross-examination,” process id. at i.e., prosecutor’s stating affidavit The first task the District Court faced in he “struck Morris under the mistaken be- case in reviewing the Alabama Court lief that he was id. at single,” Appeals 1253. Given of Criminal decision was to deter- these shortcomings “adjudicated Court of Crimi- mine whether that court [a nal Appeals decision, the majority con- federal constitutional on the claim] mer- 2254(d). § cludes that of Criminal Appeals the Court its.” 28 U.S.C. According to “unreasonably applied parties, Batson because it Criminal Appeals Court of adjudicated failed to using consider crucial facts which Ad- a Powers claim the Bat- kins three-step possess raised his brief that court To inquiry. rele- son a Pow- claim, vant step,” to Batson’s claim a third therefore ers or Batson a defendant “ failed objected to review ‘all relevant circum- must have to the ex- stances’ as required Batson.” Id. at ercise of a peremptory challenge for a consequence, discriminatory As a the Court of purpose, exclude the ven- ireperson decision is afforded no AEDPA from service. United id.; (11th deference, Tate, fact-finding see 28 U.S.C. States 2254(e)(1) (“[A] Cir.2009) (“Under Circuit, determination of a factu- of this the law al issue made a State shall be forfeits a Batson claim if he or defendant correct.”), presumed object ground to be and this court fails to she on this court.”).6 reverses judgment objection the District district “[A] Court, District instructing the Court “to must be exercised the venire before It consequence is of no that Powers had For new of criminal rules of conduct trials to been decided at the time Adkins’s trial. claim not have a Powers Id7 Adkins did trial commences.” and the

dismissed object any of he did not to “sandbag because objection prevents an Requiring That strikes.9 Pielago, prosecutor’s peremptory F.3d v. 135 States ging.” United (11th Cir.1998) (“The and the the Circuit Court remand 703, contempora 709 to Appeals on return finality of Court of Criminal objection rule fosters neous thought they were de- may have ‘sandbagging,’ saving remand judgment deters claim mean that ciding a Powers does not hopes having in of appeal an issue a viable Powers claim —that if the first misse Adkins had shot at trial one another Alabama s.”).8 holding required the Powers’s Supreme law. The retroactively, preserve constitutional apply defendants must federal "timely” explicitly objections. never defined claims with Court has constitutional their 314, challenge, but several Kentucky, 479 107 of a Batson v. U.S. context See Griffith 708, (1987); Su- also circuits have noted that the see our sister 348, (5th Butler, preme plainly an v. 864 F.2d 363-64 Court in Batson envisioned Jones Cir.1988) petitioner’s (declining objection during juiy cir- to excuse fail- These selection. discriminatory per- object allegedly grant habeas ure to to cuits refused to a writ of have though not emptory corpus petitioner preserve strike even Batson had did not where his objection. Haney decided at the time of trial because been v. his claim with an 1168, Cir.2011) Adams, (9th had claim been assert- "the was familiar F.3d many ed in other cases.... 'Where the basis petitioner bring a (holding may a not available, and oth- a constitutional claim is petition if he did claim in his habeas Batson perceived litigat- er defense counsel have during peremptory object not to the strikes claim, comity Henderson, ed that the demands trial); McCrory his state v. labeling finality against alleged un- counsel Cir.1996) 1243, (2d (reversing a district objection as cause for a awareness corpus where grant of a writ of habeas court’s ” Isaac, Engle procedural (quoting default.’ preserve claim of a did not defendant discriminatory with a con- peremptory strike (1982))). L.Ed.2d Butler, objection); temporaneous Jones (5th Cir.1988) (denying F.2d rehear- Tate, appellant ar- In United States v. ing regardless of whether Louisiana en banc gued court erred it district applied procedural a bar state courts state provide an[] "failed to elicit or even counsel contemporaneous objection to the because "a opportunity object.” 586 F.3d to ju- peremptory challenges exclude use of to (internal (11th Cir.2009) quotation marks necessary predi- rors of race on the basis is a omitted). "declin[ed] the invita- This claim”). raising a Be- cate later mandating that tion” to create a new rule “necessary cause Adkins did not meet oppor- provide courts counsel with an district claim, predicate” to a federal constitutional tunity objections. to raise Batson Id. at 944. may he not ask for federal habeas relief. majority that "state courts are race— error, step inquiry. explained why the claim is not root- Batson, Powers, ed and J.E.B. deci- equal An like the protection issue one but, instead, sions was the court’s creation. parte whenever Ex Adkins arises the case, In that Christopher Anthony Floyd (or of Appeals Court Criminal the Su- convicted capital of murder and sen- Court on certiorari review as in preme Ex tenced to death. appeal, Floyd argued On Adkins), parte discharging statutory the had exercised the obligation to search record in the death peremptory challenges State’s to strike error,10 plain for finds that the defen- cases blacks and women from the venire for the had to grounds object prosecu- dant purpose excluding of them from jury ser- strike a prospective tor’s due to on account vice of their race and sex. juror’s race, not. Once but did —State, Floyd So.3d-,-, made, finding is must be case remand- 2811968, at *1 (Ala.Crim.App. Sept.28, WL to the trial court Batson hearing. ed 2007). Floyd objected had not to the remand, pri- At the because a court, strikes the trial and therefore facie case of ma race discrimination has asked the Court Appeals of Criminal already court, appellate been found error, Batson, plain citing Powers, notice begins trial court with Batson’s second and J.E.B. The Ap- if step, prosecutor provides race- peals concluded that the record established issue, neutral reasons for the strikes at purposeful an inference of race- gen- moves step court to the third and deter- der-based discrimination and remanded mines “whether the defendant has carried the case to the trial for a Batson proving purposeful his burden of discrimi- hearing. at-, Id. at *3. —State, So.3d-, Floyd nation.” (Ala.Crim. -, remand, 2012 WL at *1 On the trial court found that 2012) Dec. App. (quoting prosecutor’s Hernandez v. reasons the strikes York, 352, 359, 111 gender-neutral. New 500 U.S. S.Ct. race- and were On return (1991)) (inter- remand, Appeals L.Ed.2d the Court of Criminal omitted). quotation nal marks the trial findings affirmed court’s and af- Floyd’s firmed murder conviction and The Alabama plain courts refer at-, sentence. (opin- death *33 error-generated equal protection issue as a remand, 29, 2008). on return Aug. ion claim or a claim. Powers Batson Where certiorari, equal protection gender-based, issue On writ of the Alabama Su- the courts refer to issue as a preme J.E.B. Court reversed and instructed the Alabama, claim. See J.E.B. v. of Criminal Appeals remand the 114 again ease to the trial court for findings (applying gender- Batson and Powers to law fact and conclusions of as to whether discrimination). striking based If the Court of Criminal has not to remand the case for a reason Batson hear- found sufficient create an ing. indicia to inference discrimination, of unlawful there would be no conducted, at trial must be conducted gender- were race- and

blacks and women jury-selec- contemporaneously defendant had with the whether neutral and purposeful proving subject. If the process carried his burden that is its tion — So.3d parte Floyd, Ex discrimination. jury is inquiry is launched before the (Ala. 4465562, at *6 -,-, WL excused, or sworn before venire 2012).11 Sept.28, than and retrial remedies other reversal importantly, are available. More Murdock, Ma- joined by Justices Justice cases, type inquiry contem- most Bolin, the result but concurred in lone and un- simply cannot be giving plated defendants opposed practice Powers, any meaningful way had their months who waived dertaken in opportunity at trial an objections J.E.B. trial. Pretrial re- years after the hearing in trial court for for a real-time regarding search non- having the State offer purpose may have during taken voir dire discriminatory peremptory reasons for its lost, and, un- more importantly, been opinion, Murdock’s strikes. In Justice of impressions and written memories contrary to doing what court inflections, and the body language, voice progeny: in Batson and its holdings the go into myriad of other nuances that pre- evidentiary inquiry three-step [T]he faded, jurors likely striking will have ferreting as a tool for scribed Batson counsel, judge also the only for but was in- out discrimination purposeful positions must the of both who evaluate in only during for use “real time” tended prosecutor in the the defendant and the the discrimina- alleged the trial in which of own at context his or her observations initiate right ... the a tion occurs and (and who, cases, in some will have trial is waived if not exercised inquiry Batson meantime). in left the bench the even with the selection of contemporaneously at-, ampli- *7. Murdock Id. Justice cannot be based on the revived recognition fied Batson Court’s plain-error appeal review in an after a “ finding ‘a intentional discrimination is of the trial is concluded. finding judge’s of trial fact’ and ‘the — -, 2012 WL Floyd,, ... turn evaluation findings largely will on (Murdock, J., concurring). at *6 ” at-, *8, credibility,’ with this id. Justice continued Murdock quotation Snyder from Louisiana: I have found no federal cases hold pivotal trial has a role court contrary or that stand as even evaluating Step claims. three is, precedent. That I contrary physical inquiry the Batson involves an evalua-

have no federal cases which the found credibility, tion of prosecutors “plain review court used error” discriminatory in- “the best appeal [of evidence inquiry initiate a Batson when to initiate that the defendant failed often will be the demeanor tent] appear inquiry during trial. There attorney challenge.” who exercises difficult good why to be is so addition, In race-neutral reasons for find such case. challenges often invoke his.view, nervousness, (emphasis original). (e.g., in- jurors demeanor attention), making the trial courts sound “policy” reasons [TJhere [we]re first- greater hand observations even im- why inquiry, a Batson if it is State,-So.3d Floyd v. receipt instructions. Appeals, 11. The of Criminal Court’s mandate, -, (Ala.Crim.App. 2012 WL 6554696 Court’s remanded 14, 2012). the trial with the Dec. case to situation, later portance. In this the trial would be to eliminate only the peremptory challenge court must evaluate not whether in death cases. Nothing Powers, belies a demeanor dis- or J.E.B. re- intent, quires go whether the criminatory but also Alabama courts to to that credibly can be said to extreme.13 demeanor have exhibited basis strike majority treats the Alabama Court juror by prosecutor. attributed to decision having ad recognized that determi- We have these judicated a federal constitutional claim on credibility nations and demeanor lie 2254(d) purposes merits for “peculiarly judges prov- a trial unthin State, in the District and in ince,” have that “in and we stated agreed on appeal, brief that the decision circumstances, exceptional absence of adjudicated argues a Batson claim. It would defer to [the court].” v. Nealy, United States 232 F.3d 825 1203, 1208, (11th Cir.2000), and United States Ard (internal (11th Cir.2001), L.Ed.2d 175 citations omit- ley, 242 F.3d 989 therefore ted) (emphasis original). from switching positions bar State arguing that the adjudi decision at issue

An abandoning obvious reason for cated a state law claim. plain like practice error cases Floyd the effect it must have Our in Ardley progeny decisions and its trial judges capital Nothing in cases. is involve appeals direct of federal court con judges having more for trial than onerous victions, petitions. not habeas the Ard- twice, try especially to a criminal case a ley appeal, retroactively declined to we capital case in which is seeking the State apply Supreme Ap Court’s decision in the death penalty. holdings 466, Because Jersey, v. prendi New 530 U.S. 120 Batson, Powers, 2348, (2000), and condemn J.E.B. S.Ct. which discriminatory exercise of appellant was decided after the was con challenges gender, based on race and a victed but before his conviction became not, final, judge, case the Ap to ensure will not because he had raised hearing, be will his prendi opening appeal. remanded for Batson be issue in brief tempted 991, v. require prosecutor pro- Ardley, United States 273 F.3d (11th Cir.2001). gender-neutral Ardley, vide race- or reasons for 1007 Since we many prudential if repeatedly not all the State’s strikes.12 have followed the practical of the of a rule that not consider the merits of possibility effect we will counsel, who extreme When counsel Defense like the is is this: defense does strike, object exercising peremptory a state when not actor to the defense strikes, Co., indirectly informing v. Edmonson Leesville Concrete counsel is the court that 628, 614, 500 U.S. 111 S.Ct. 114 it would the best of counsel’s be in interest (1991), venireper- venireperson L.Ed.2d challenged 660 also denies client that the not that, mind, equal protection right son the jury, service serve on the in counsel’s it is objecting appears when not to what to be an venireperson doubtful would be whether strike. The impartial unconstitutional Court’s a fair verdict. Given this reach opinion remanding Adkins’s for a Batson object case evidence—the failure to and the com- regarding relevance is silent yields inference that the munication it —the counsel, failing evidence defense venireperson being challenged in violation object, might complicit presumed problematic. be Equal Protection Clause is racial problematic, discrimination State. If that whether the inference strong enough a case inference is to establish proble- why 13. One of the reasons Pow- of unlawful discrimination is likewise ers, holdings go and J.E.B. do to such an matic.

1266 Hatch; Chancellor, brief, Lee Vice Presi- even Orrin opening raised in the issues Order, appel- dent, they be resolved Oak- would Citizens Law where anticipate Thurmond; failure to land, but for his Calif.; lant’s favor Sen. Strom opening in his brief. rule law the new Attorney Lungren, E. Daniel California 1327, Levy, v. 391 F.3d United States General). before, I have waiv- As written Cir.2004) (11th (denying appellant’s 1328 right litigant to “applies er to the of a have after his conviction rehearing petition peti- scope .... The of a his claim heard final he had failed to had become bearing on this rights tioner’s no Washington, v. Blakely claim under raise a that, beyond dispute It is power. court’s 2531, 296, 159 L.Ed.2d S.Ct. 542 U.S. have to consider general, power (2004), rehearing); until petition his appeal, raise on party issues that fails to 1261, v. Dockery, F.3d States United petitioner does not have though even (11th Cir.2005) (holding that the 1262-63 to demand consideration.” right such his claim under had abandoned appellant (11th 782, 793 Crosby, v. 371 F.3d Thomas Booker, 220, v. United States Cir.2004) J., (Tjoflat, concurring). specially (2005), by fail- L.Ed.2d said, “The Court has matter the claim Booker created ing to address up taken questions may of what be appeal); opening brief on United appeal the first is one resolved for time Vanorden, v. States left to the discretion primarily Cir.2005) (11th (holding appellant had appeals, exercised courts any Apprendi-Blakely-Booker abandoned Singleton facts individual cases.” it); failing claim to brief United States Wulff, (11th Higdon, F.3d Cir. (1976). 2877, L.Ed.2d 826 2005) (Hull, J., concurring in denial banc) rehearing (declining en reconsider in this to determine Our task case is appellant’s denial of motion to file panel’s the Alabama of Criminal whether raising a claim under supplemental brief 2254(d)(1) § Appeals decision falls within Blakely). (2).14 or In the a habeas peti- context of would Although these decisions seem tion, if did would be remiss we not first blush bar our consideration sponte petitioner sua whether the consider argument that the Court of Crimi- State’s claim. has a federal constitutional Be- adjudicate did a federal nal not object not to the alleged- cause Adkins did claim, pru- constitutional I submit strikes, discriminatory ly they rule on which are must dential based preserve did his Powers claim. The not way to the AEDPA give policies seeks adjudicated thus Alabama courts namely the interests of federal- implement, claim, grant law and we federal should ism, comity finality of state criminal under AEDPA. habeas relief Corpus See Federal Habeas convictions. sum, the Alabama Eliminating Prisoners’ Abuse of Reform: Appeals decision under consideration did Hearing the Judicial Process: before Comm, to a adjudicate contrary a claim hold- 104th Judiciary, Cong. on the S. (1995) (statements 10, 23, ing of the United States Court. 30-31 Sen. - decision; Richter, -, Harrington state court's and then must ask possible jurists it is could whether fairminded ("Under 2254(d), disagree arguments those or are a habeas court must de theories holding prior sup in a deci- arguments what inconsistent with termine theories Court.”). supported ported or ... have ... sion of this could reason, judgment the Dis- For that Court should be affirmed.

trict DELL, Petitioner-Appellant,

Edward America,

UNITED STATES

Respondent-Appellee.

No. 11-12904. Appeals,

United States Court of

Eleventh Circuit.

Feb. notes during the swered voir dire from the voir dire were into admitted evi knew about the case and because he was dence as exhibits. single. also On September several weeks Prospective number 8 ... was after the hearing, state trial struck she she stated that knew directing an order prose- issued about the case. The also had cutor to supplement the Batson record she married to or information that “explanation, any, affidavit with an if as to prosecut- lived with an individual he had Attorney’s the District contention that Bil-

Notes

8. The notes Supreme would un- proce- their 9.The Alabama free to fashion and enforce own require doubtedly agree that if were not dural rules to that defendants make Adkins 45A, objections preserve Ala- contemporaneous con- death case reviewed under Rule Procedure, claims,” Appellate stitutional ante but that Ala- bama Rules he opposite courts would not have Powers claim—because bama did the this case— any prosecutor's they object. object did excused Adkins's failure to that, my point majority province then This underscores notes that our strikes. Adkins, parte Supreme Ex to “dictate the state courts of Alabama ap- they equal protection procedural adopt.” fashioned an rule which rules should Although plies only death The rule does not at 1249. it is true that Ala- cases. Ante cases, a equal-protec- apply an non-death cases. In those bama courts are free to allow challenge for a Batson peremptory without defendant cannot seek remand tion to a strike objected contemporaneous objection unless a matter of law, empan- strike before the they not free excuse the are requirement objection as eled. of an a matter of — the case for a Ex parte Floyd, -, Court to remand ---, hearing. those courts were What WL *6-11 (Ala. 2012) (Murdock, doing resolving equal Sept.28, J., on remand was concur- ring result), any Murdock, of the laws issue—whether protection Justice criti- cizing struck from nine blacks were Court’s creation of this using equal protection due to Batson’s three- venire claim noticing plain

notes

Case Details

Case Name: Ricky D. Adkins v. Warden, Holman CF

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 27, 2013

Citation: 710 F.3d 1241

Docket Number: 11-12380

Court Abbreviation: 11th Cir.