Shawn HIGGINS, Petitioner-Appellant v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee
No. 11-30641
United States Court of Appeals, Fifth Circuit
June 18, 2013
260 F.3d 255
Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
See Trottie, 2011 WL 4591975, at *17.23 This conclusion is not debatable. Trottie offers no more than speculation that the court‘s curative instructions and its response to the jury note were insufficient to neutralize the prosecutor‘s statements. Moreover, as the district court noted, the evidence that was admitted established—over and over again—that Trottie threatened Barbara‘s life. Indeed, one witness‘s testimony included a long exchange regarding the tapes, to which defense counsel did not object. The testimony included the following:
Q: Tell the jury about the tapings.
A: On the date of the killings, he called and said that she had enough time and that he wasn‘t going to wait around anymore and that he was going to kill her.
Q: Were some of those conversations recorded on cassette tapes?
A: Yes.
...
Q: From what you listened to on the phone, what you heard when he was actually talking and then what you later heard on cassette tapes, was there any difference between what you heard Mr. Trottie saying on the phone to what was recorded on the tapes?
A: No.
Thus, much of the purported content of the tape recordings was cumulative of the evidence already in the record. Accordingly, reasonable jurists would not debate the reasonableness of the state habeas court‘s decision, and a COA is not warranted.
CONCLUSION
For the reasons stated above, we conclude that reasonable jurists would not debate the district court‘s conclusions regarding any of Trottie‘s Strickland, Brady, and prosecutorial-misconduct claims, and Trottie therefore makes no substantial showing of the denial of a constitutional right. Accordingly, we DENY Trottie‘s COA application.
William Sothern, Esq., Law Office of William M. Sothern, New Orleans, LA, for Petitioner-Appellant.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The district court granted Shawn Higgins a certificate of appealability (“COA“) regarding his claim that his appellate counsel was ineffective in not raising three Batson-related arguments on direct appeal. Persuaded that the state court did not unreasonably apply clearly established federal law in rejecting that claim, we affirm the district court‘s judgment denying habeas relief.
I. BACKGROUND AND PROCEDURAL HISTORY
Higgins was convicted of the second degree murder of Carl Jackson and sentenced to life in prison without parole. His conviction was affirmed on direct appeal. Higgins then sought and was denied post-conviction relief in state court. In addition to numerous other post-conviction claims, Higgins raised an ineffective assistance of appellate counsel claim.1 He argued that his appellate counsel was ineffective because he neither requested nor obtained a transcript of the voir dire proceedings, despite minute entries from that date indicating that trial counsel made two Batson objections, both of which were
II. STANDARD OF REVIEW
This habeas proceeding is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), and we have jurisdiction because, as stated above, the district court granted Higgins a COA.2 In a habeas corpus appeal, we review the district court‘s findings of fact for clear error and its conclusions of law de novo.3 Under AEDPA, we may not grant habeas relief on a claim that the state courts have adjudicated on the merits unless that adjudication resulted in a decision that was either (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”4 A state court‘s decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.”5 A state court‘s decision involves an “unreasonable application of clearly established federal law” if the state court “identifies the correct governing legal principle from [the Supreme Court‘s] decisions but unreasonably applies that principle to the facts of the prisoner‘s case.”6 The state court‘s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption “by clear and convincing evidence.”7
III. DISCUSSION
To make out a claim for ineffective assistance of appellate counsel, a defendant must show (1) “that counsel‘s per
In considering whether the state court‘s decision constituted an unreasonable application of clearly established federal law, “a federal habeas court is authorized by
A.
Higgins first contends that his appellate counsel was ineffective because he failed to obtain a copy of the voir dire transcript, which would have revealed three Batson-related issues, despite minute entries indicating that defense counsel made two Batson objections during voir dire, both of which were denied.14 This failure-to-investigate argument fails because Higgins has not met his burden of demonstrating prejudice. To demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.”15 That standard is not met
B.
We now turn to Higgins‘s second group of arguments—that appellate counsel was ineffective because he failed to raise three specific Batson-related arguments on direct appeal. We can meaningfully address those arguments only by considering the voir dire transcript, which was not part of the record before the state post-conviction court, notwithstanding the diligent efforts of Higgins‘s attorney in that proceeding. As a threshold matter, we must decide whether Cullen v. Pinholster16 precludes consideration of the voir dire transcript. Pinholster teaches that “evidence introduced in federal court has no bearing on
Despite that categorical holding, by which we are bound, we conclude that consideration of the voir dire transcript is not barred by Pinholster, because the transcript is not “new evidence” introduced in federal court “in the first instance.”19 In reaching that result, we follow a recent case from a sister circuit addressing a similar Batson claim. In Jamerson v. Runnels,20 the Ninth Circuit considered “enlarged driver‘s license photographs that Jamerson submitted to show the race of each venire member,” even though “the state appellate court, which issued the last reasoned opinion in this case, did not know the race of every venire member.” The Ninth Circuit explained,
Pinholster‘s concerns are not implicated here. The driver‘s license photographs depicting the racial composition of Jamerson‘s jury venire do not constitute new evidence of which the state courts were completely unaware when deciding his Batson [] claims. Instead, these photographs reconstruct physical attributes that were visible to the state court that originally ruled on Jamerson‘s Batson [] motions.21
Similarly, the voir dire transcript reconstructs testimony actually presented to the state court that originally ruled on Higgins‘s Batson motion and “represent[s] a
“A common sense reading of Pinholster leads us to this conclusion.”23 In our view, the gravamen of that decision is effecting “AEDPA‘s goal of promoting comity, finality, and federalism by giving state courts the first opportunity to review [a] claim, and to correct any constitutional violation in the first instance.”24 Most significantly, “nothing in Pinholster inherently limits this court‘s review to evidence that the state appellate court—as opposed to the state trial court—considered.... To the contrary, Pinholster itself precluded review only of evidence that was never revealed in any state court proceeding.”25
Finally, we join the Jamerson court in declining to read Pinholster “as implicitly overruling the substantive Batson requirements set forth in Miller-El [v. Dretke].”27 If Pinholster bars consideration of the voir dire transcript, “examination of the state court‘s disposition of [Higgins‘s] Batson claim ... will be virtually impossible.”28 “We do not believe that the Supreme Court had this consequence in mind when it decided Pinholster.”29 Therefore, Pinholster allows us to consider the voir dire transcript to the extent that it “merely reconstruct[s] facts [known] to the state trial court that ruled on the petitioner‘s Batson challenge.”30
To understand the specifics of Higgins‘s arguments, we begin with a brief review of Batson v. Kentucky and the voir dire proceedings in Higgins‘s case. In Batson, the Supreme Court explained that “[a]lthough a prosecutor ordinarily is entitled to exercise permitted peremptory challenges ‘for any reason at all, as long as that reason is related to his view concerning the outcome’ of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State‘s case against a black defendant.”31 Batson established a three-step process for examining whether a prosecutor has exercised peremptory challenges in a manner that violates the Equal Protection Clause. A defendant must first make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race.32 If the prima facie showing is made, then “the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in
With that legal framework in mind, we turn to the specifics of the voir dire proceedings in Higgins‘s case. The first venire panel included five African American and eight white potential jurors. The State used peremptory strikes to remove one white juror and three African American jurors. The State also successfully challenged one African American juror for cause, and the remaining African American juror was accepted onto the jury. At that point, defense counsel made a Batson objection, to which the trial court responded: “The Court doesn‘t find any pattern at this point with regard to any Batson problems. There are, as you stated, there are some African American jurors on the panel as your client‘s African American. The State has chosen to keep [one juror], who is African American. The State has also cut a white prospective juror.” The State then used peremptory strikes to remove one African American juror in the second panel and one African American juror in the third panel. Following the latter strike, defense counsel re-urged his Batson objection. Before the trial judge had an opportunity to rule on whether Higgins‘s counsel had now made out a prima facie case of discrimination, the prosecutor immediately proffered race-neutral explanations for the later two strikes. Following each of the prosecutor‘s explanations, the trial judge responded that the prosecutor had “articulated race neutral reasons” for the given peremptory challenge. The prosecutor did not offer an explanation for striking the three prospective African American jurors in the first panel. Following defense counsel‘s second Batson objection, one potential African American juror remained in the second panel; the State did not challenge that potential juror, but defense counsel used a back strike to remove her. The case thus went to trial with one African American juror.
In light of the foregoing, Higgins argues that his appellate counsel was deficient for failing to make three Batson-related arguments on direct appeal—specifically that the trial court erred (1) by failing to find a prima facie case with respect to the three African American jurors who were struck in the first round at the time defense counsel made its initial Batson objection; (2) by failing to find a prima facie case with respect to the three African American jurors who were struck in the first round once the prosecutor offered race-neutral explanations for the two later strikes; and (3) by failing to engage in the third step of Batson inquiry, which requires the trial court to evaluate whether the State‘s proffered race-neutral explanations were sufficiently persuasive to overcome a Batson challenge.
To establish deficient performance, “the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.”35 We “must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed at the time of counsel‘s conduct” to “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.”36
We find such a reasonable justification exists—given the weaknesses in those arguments, it is at least arguable that a competent attorney could decide to forgo raising them.40 Under well-established principles, appellate counsel need not “raise every nonfrivolous ground of appeal available” in order to be effective.41 Instead, appellate counsel‘s failure to raise an argument on direct appeal will be considered ineffective only when counsel fails to perform “in a reasonably effective manner.”42 This standard requires that appellate counsel “research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful.”43 “Solid, meritorious arguments based on directly controlling precedent should be brought to the court‘s attention.”44 Thus, to determine whether appellate counsel‘s performance was deficient, we must consider whether the Batson arguments are “sufficiently meritorious such that [Higgins‘s] counsel should have raised [them] on appeal.”45 We find that they are not. As such, “[h]ere it would be well within the bounds of a reasonable judicial determination for the state court to conclude that [appellate] counsel could follow a strategy that did not require” raising the Batson arguments on direct appeal.46
1.
Higgins first alleges that his appellate counsel was deficient because he did not argue that the trial court erred by failing to find a prima facie case at the time defense counsel lodged its initial Batson objection. To establish a prima facie case under Batson, “a defendant (1) must
We are persuaded that such a justification exists here. For one, in light of the deferential standard a Louisiana appellate court would employ in reviewing the trial judge‘s determination that no prima facie case existed, it is at least arguable that a competent attorney could decide to forgo raising the argument on appeal. The Louisiana Supreme Court has previously explained that when reviewing a trial court‘s finding that the defendant failed to carry its burden of establishing a prima facie case, “the appropriate inquiry ... is whether the district court committed clear error in finding the defendant failed to make a prima facie showing of discriminatory intent in the State‘s exercise of its peremptory challenges.”48 Moreover, under Batson, proof of a prima facie case is fact-intensive, and “[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances.”49 Here, at the time defense counsel raised its initial Batson objection, the State had used peremptory challenges to strike three potential African American jurors, but it had also exercised a peremptory challenge to exclude one potential white juror; one African American juror remained on the panel. In addition, the voir dire responses of two of the three African American jurors stricken by the State “made them entirely predictable targets of state peremptory challenges for specific, objective, and trial-related reasons other than race.”50 One explained that he teaches fourth grade during the day and attends school at night. The other said he would have difficulty finding child care and appeared to the prosecutor to have been falling asleep during voir dire. Both explanations gave the State reason to believe that the potential jurors in question would be tired or distracted during the trial. Finally, under Louisiana precedent, “the trial judge could take into consideration the tenor of the voir dire questioning“—specifically the fact that “[t]he prosecution used the same questions throughout its voir dire” and the fact that “[t]here is no indication that any particular prospective jurors were ‘targeted’ for more questioning in an attempt to
2.
Higgins next contends that his appellate counsel was deficient because he did not argue that once the prosecutor offered race-neutral explanations for the two later peremptory strikes, that voluntary explanation mooted the prima facie case issue for all jurors subject to Batson objections, and in turn the trial judge should have proceeded directly to step two of Batson with respect to the earlier challenges. It is true, as Higgins explains, that generally when a prosecutor voluntarily offers a race-neutral explanation for a peremptory strike, “the question of Defendant‘s prima facie case is rendered moot and our review is limited to the second and third steps of the Batson analysis.”52 However, this case presents a twist on that familiar principle because the prosecutor here offered race-neutral explanations for striking two African American jurors different from the three subject to the initial Batson objection. At least two other circuits have found that there is no authority directly addressing whether a trial court must sua sponte revisit prior Batson objections when it finds a prima facie case with respect to a juror struck after that initial objection. In Williams v. Haviland, the petitioner claimed “that the state trial court erred in refusing to reconsider its denial of his first Batson challenge given that the court subsequently found a prima facie case of discrimination with regard to the second struck juror.”53 The Ninth Circuit found that “[the petitioner‘s] procedural claim regarding sequential Batson challenges has not been squarely addressed by the United States Supreme Court, so we must defer to the state court‘s resolution of the issue.”54 Similarly, in United States v. Bernal-Benitez, the Eleventh Circuit explained that it was “unable to locate precedent” indicating “that before ruling on a Batson objection based on race, a trial court has a duty sua sponte to reconsider any ruling it previously may have made on a Batson objection based on the same race.”55 Given the want of authority directly addressing the issue of whether a trial judge faced with multiple Batson challenges is required to re-visit earlier Batson challenges, there is a reasonable argument that Higgins‘s appellate counsel satisfied Strickland‘s deferential standard, even though he did not raise the argument on appeal. It was not unreasonable for the state court to conclude, in light of the absence of precedent supporting the potential Batson argument, that Higgins had failed to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘”56
3.
Finally, Higgins argues that his appellate counsel was deficient because he
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court‘s judgment denying habeas relief.