VERNON MADISON, Petitioner-Appellant, versus COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ATTONREY GENERAL, STATE OF ALABAMA, ET AL., Respondents-Appellees.
No. 13-12348
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(August 4, 2014)
D.C. Docket No. 1:09-cv-00009-KD-B
[PUBLISH]
Appeal from the United States District Court for the Southern District of Alabama
MARTIN, Circuit Judge:
Petitioner Vernon Madison, an Alabama prisoner on death row, appeals from the District Court‘s denial of his petition for writ of habeas corpus after a federal evidentiary hearing. We granted Mr. Madison a certificate of appealability on the question of whether the prosecutor in his case engaged in racially discriminatory jury selection in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and the Fourteenth Amendment to the U.S. Constitution. After careful consideration of the record, and
I. BACKGROUND
Mr. Madison, a black man, has been tried three times for killing a white police officer in Mobile, Alabama. Madison v. State, 718 So. 2d 90, 94 (Ala. Crim. App. 1997) (Madison III).1 His first conviction and death sentence were set aside because of a Batson violation. Madison v. State, 545 So. 2d 94, 99-100 (Ala. Crim. App. 1987) (Madison I). At his second trial, he again was convicted and sentenced to death. Madison v. State, 620 So. 2d 62, 63 (Ala. Crim. App. 1992) (Madison II). His second conviction was reversed this time by the Alabama Court of Criminal Appeals because the state had elicited expert testimony based partly on facts not in evidence. Id. at 72-73.
At his third trial, which is the subject of this habeas appeal, Mr. Madison was convicted of capital murder and sentenced to death after the trial judge overrode the jury‘s 8-4 recommendation that he be sentenced to life in prison without the possibility of parole. Madison III, 718 So. 2d at 94. Mr. Madison‘s conviction and death sentence were affirmed on direct appeal by the Alabama Court of Criminal Appeals, id. at 104, and by the Alabama Supreme Court. Ex parte Madison, 718 So. 2d 104, 108 (Ala. 1998). The Supreme Court denied Mr. Madison‘s petition for writ of certiorari. Madison v. Alabama, 525 U.S. 1006, 119 S. Ct. 521 (1998). He filed a petition for state postconviction relief, which was dismissed by the state trial court and affirmed by the Alabama Court of Criminal Appeals. Madison v. State, 999 So. 2d 561 (Ala. Crim. App. 2006) (Madison IV). He then filed a petition for writ of habeas corpus under
This is the second time this Court has considered the denial of Mr. Madison‘s federal habeas petition. The first time, this Court reversed the District Court‘s denial of Mr. Madison‘s Batson claim. Madison v. Comm‘r, Ala. Dep‘t of Corr., 677 F.3d 1333, 1339 (11th Cir. 2012) (per curiam) (Madison V).2 Batson prohibits the use of peremptory challenges to exclude people from the petit jury based on their race, as a violation of the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. at 96-98, 106 S. Ct. at 1723-24. The Supreme Court has clearly established a three-step process for deciding whether a Batson violation has occurred:
First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of
the strike has proved purposeful racial discrimination.
Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 2416 (2005) (footnote, citations, and quotation marks omitted).
Our first opinion summarized the facts relevant to Mr. Madison‘s Batson claim as follows:
In this case, the venire originally consisted of sixty members, fifteen of whom were black. After strikes for cause, there were thirteen qualified black jurors. The prosecutor then used six of his eighteen peremptory strikes on the qualified black jurors. When Madison‘s counsel objected, the trial judge asked the prosecutor to provide a race-neutral explanation for the peremptory strikes of the black jurors. However, instead of doing so, the prosecutor protested that Madison had not established a prima facie case. When the trial judge asked the prosecutor what he meant, the prosecutor erroneously responded that to establish a prima facie case Madison not only had to show that he was a member of the group suffering discrimination, but “that the State has a history of racial discrimination.“[FN5]
FN5. This proffered standard requiring a “history of racial discrimination” is incorrect and mirrors the prima facie requirements under Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824 (1965), which Batson specifically overruled for being too onerous. Batson, 476 U.S. at 92, 106 S. Ct. [at 1721] (“Since this interpretation of Swain has placed on defendants a crippling burden of proof, prosecutors‘s peremptory challenges are now largely immune from constitutional scrutiny . . . . [W]e reject this evidentiary formulation“).
Madison‘s counsel responded that the prosecutor had cited the wrong test under Batson and that, under the correct test, there were sufficient relevant facts to support an inference of discrimination, which was all Madison‘s counsel had to show at this stage of the proceeding. Madison‘s counsel noted that the prosecutor had not asked meaningful questions to any of the challenged black jurors and in fact, for three such jurors, posed no questions at all. He noted that the challenged jurors only shared the common characteristic of race as they had heterogeneous backgrounds of different sexes, ages, occupations, and education. He also noted that the subject matter of the case involved racial sensitivities as the defendant was black and the victim was a white police officer. [FN6]
FN6. Madison‘s counsel also raised the possibility that the fact might come out in trial that Madison had at the time a white girlfriend.
Without addressing Madison‘s arguments or asking the prosecutor for a race-neutral reason for the strikes, the trial judge held that Madison‘s counsel had not proved “bias on the part of the State” and then denied the motion. The Court of Criminal Appeals affirmed that ruling, concluding that the trial judge had not erred in denying Madison‘s Batson claim, because Madison had not “established purposeful racial discrimination.” Madison III, 718 So. 2d at 102.
Madison V, 677 F.3d at 1337-38 (footnote omitted). We held that the Alabama Court of Criminal Appeals “reached a decision contrary to clearly established federal law under
Once we determined that the state court‘s decision was not entitled to deference under
On remand, the District Court held an evidentiary hearing. The state presented two witnesses: (1) a female juror Geraldine Adams, who is black; and (2) trial prosecutor John Cherry. The District Court also admitted into evidence three state‘s exhibits: (1) jury strike list with hand written notations of jurors’ occupations; (2) Mr. Madison‘s witness list from trial; and (3) Mr. Cherry‘s handwritten notes from voir dire.
Ms. Adams testified that at the time of Mr. Madison‘s trial her husband was a “mental health worker” at Searcy Hospital. Mr. Cherry testified that he worked with the Mobile County District Attorney‘s Office in 1994 and prosecuted Mr. Madison‘s third trial. Mr. Cherry authenticated his own handwritten notes from voir dire and confirmed these notes were made “contemporaneous” with the jury selection. Given that nineteen years had passed since the voir dire, Mr. Cherry said he would not be able to testify to the matters regarding the voir dire “fully and accurately” without his notes. Then, Mr. Cherry read into the record the last two pages of his voir dire notes, which indicate his purported reasons for exercising his peremptory strike for each of the six black jurors. Those reasons were:
[Juror] 169, Mr. Dawson, knows Cozy Brown, a defense witness, someone whose store he goes to. Felt he may give more credence to that testimony.
[Juror] 160, Ms. Smith, a therapist at Mobile area, Retarded Citizen‘s Center. Court knows that testimony as to defendant‘s mental state has been crucial in this case and even though defense withdrawn, there may very well be testimony again.
[Juror] 163, Mr. McQueen. Grew up around defendant, played with him, went to his house. Also has a 1983—and that‘s shorthand for marijuana—arrest, MJ arrest. Knows some of the witnesses. And this last line, I suppose, I‘m quoting him. At some point he must have said this. In quotations I have “I‘d rather not sit.”
[Juror] 135, Ms. Adams. Husband, married to a mental health worker. Again, mental disease or at least some mental status will be an issue in at least one phase of this trial.
[Juror] 137, Mr. Hall knew at least four of these witnesses, some of whom were defense witnesses.
[Juror] 148, Mr. Brown. Stood up and said he would have to be convinced beyond all doubt as to defendant‘s guilt. He would not follow the law.3
On cross examination, prosecutor Mr. Cherry indicated that “race” was a consideration during voir dire:
[Defense] Just a couple more questions. At the time of the trial in [19]94, was race a consideration when you struck this jury?
[Mr. Cherry] It has to be one of the factors because you know how these things turn out when the defense is striking all white and you realize where they are going with that. I‘m not sure, of course, at this point what their reasons were. I suspect if they struck all white, it had to be some indication about race there, ma‘am.
[Defense] So it was a consideration when you were doing your own striking?
[Mr. Cherry] No, ma‘am. As you can see, we were looking for folks that had prior arrests, people who grew up with Mr. Madison, people who knew witnesses, someone who knew Dr. Amyx.4 I was very much aware, of course, that we had a black defendant and a white victim, yes, ma‘am.
[Defense] And you were aware of the cases between 1985 and 1994 where the state appellate courts had reversed the Mobile County District Attorney‘s Office for violation of Batson?
[Mr. Cherry] Yes, ma‘am.
On redirect, Mr. Cherry explained that his awareness of Batson violations in his office prior to 1994 caused him to “exercise[] caution” in his decision making when striking jurors.
The defense presented the testimony of one witness, Angela Roberts, a retired director of library services and academic support services at Alabama Southern Community College. Ms. Roberts testified that Cozy Brown (who was listed as a defense witness at trial) is a prominent owner of a fish market in Prichard, Alabama, a predominantly black community, whom most black residents of Prichard would know. After Ms. Roberts testified, the defense rested and the parties presented argument. The District Court took the matter under submission and later issued a written order finding that Mr. Madison had failed to prove purposeful discrimination or pretext on the part of the prosecution.
II. STANDARDS OF REVIEW
A District Court‘s grant or denial of a habeas corpus petition is reviewed de novo. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). Although we review de novo the District Court‘s conclusions on legal questions and mixed questions of law and fact, we generally review the District Court‘s findings of fact for clear error. Terrell v. GDCP Warden, 744 F.3d 1255, 1261 (11th Cir. 2014). With respect to Batson‘s third step, the Supreme Court has “explained that the trial court‘s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct. 1859, 1868 (1991) (plurality opinion).5
Neither party has cited any Eleventh Circuit authorities applying a de novo standard of review to a district court‘s determination of purposeful discrimination at Batson‘s third step in the procedural posture of Mr. Madison‘s case. Specifically, the parties have presented no precedent governing our review of a federal district court fact finding made after its own evidentiary hearing to review a Batson challenge made many years ago before a different judge in a state criminal trial. The three Eleventh Circuit cases cited by Alabama are not controlling because each of those cases involves a federal direct appeal of a Batson claim where the same District Court judge presided over the actual jury selection in the case. See Walker, 490 F.3d 1287; Houston, 456 F.3d at 1331-33; Stewart, 65 F.3d 921. However, there is Eleventh Circuit precedent for applying the clear error standard of review to a federal district court‘s determination of a Batson claim after a federal evidentiary hearing. See Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir. 1995) (“The ultimate question of whether Cochran has established purposeful discrimination in violation of Batson is a question of fact subject to deferential review. A district court finding of purposeful discrimination in violation of Batson will not be overturned unless clearly erroneous.” (citing Hancock v. Hobbs, 967 F.2d 462, 465 (11th Cir.1992))).7
Mr. Madison relies on Holder as persuasive authority for us to review a district court‘s third step Batson determination de novo. Even assuming we were not bound to follow Cochran, we would not follow Holder. In Holder, as here, the habeas petitioner‘s case was remanded for a Batson hearing in federal District Court many years after a state trial in which the prosecutor had not given reasons supporting his strikes. Holder, 60 F.3d at 388. The Seventh Circuit recognized in Holder that ordinarily a reviewing court will only reverse the findings of a district court about whether a Batson error occurred, if these findings were clearly erroneous. Id. That is so, the Court explained, because typically the Batson findings being reviewed were made by the same trial judge who presided over the voir dire. Id. But Holder held the rationale for using the clearly erroneous standard does not apply where the Batson hearing was conducted before a federal magistrate more than eight years after the voir dire actually took place in state court. Id. The Seventh Circuit emphasized the federal magistrate judge was not in the same position as the judge who had presided. Id. Also, the Court noted the trial prosecutors who testified at the federal evidentiary hearing had to rely on the voir dire transcript and contemporaneously taken notes to testify at the federal hearing. Id. Under these circumstances, the Seventh Circuit reviewed the Batson claim de novo, reasoning no deference was due the magistrate judge‘s and District Court‘s findings because each court had essentially been provided with the same “cold record.” Id.
Unlike the Seventh Circuit in Holder, we cannot say that no deference is due the District Court‘s Batson determination in the circumstances here, especially its credibility findings about Mr. Cherry. Findings of fact are reviewed for clear error “even when the district court‘s findings are drawn solely from documents, records, or inferences from other facts.” Thompson v. Nagle, 118 F.3d 1442, 1447 (11th Cir. 1997); see also
Notably, the District Court here considered more than the prosecutor‘s trial notes and the testimony authenticating it. The District Court heard the live testimony of
In light of Mr. Cherry‘s testimony, and the fact that he was subject to cross examination by defense counsel, the District Court was in a superior position to assess Mr. Cherry‘s credibility and the genuineness of his explanations for striking black jurors at Batson‘s third step. See Batson, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21 (“Since the trial judge‘s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.“). On this record, we decline to follow Holder. We are also mindful that the Supreme Court has rejected, albeit in a different procedural context, the notion of “‘independent’ appellate review of a trial court‘s rejection of a Batson claim.” Hernandez, 500 U.S. at 366-69, 111 S. Ct. at 1870-71.
Instead, we review the District Court‘s conclusion on the ultimate question of discriminatory intent at Batson‘s third step as a finding of fact that “must not be set aside unless clearly erroneous, and [we] must give due regard to the trial court‘s opportunity to judge the witnesses’ credibility.”
III. DISCUSSION
We remanded this case “for the district court to complete the final two steps of the Batson proceedings.” Madison V, 677 F.3d at 1339. Before turning to the District Court‘s Batson analysis, we pause to emphasize that it was proper, and indeed necessary, for the District Court to conduct an evidentiary hearing on remand.
A. Necessity of Federal Evidentiary Hearing
“In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition‘s
Our previous determination that Mr. “Madison met his burden of establishing a prima facie case,” Madison V, 677 F.3d at 1339, coupled with the fact that the prosecutor stated no reasons for his peremptory strike of black jurors, required the District Court to receive and consider new evidence in order for it to conduct the analysis mandated by Batson. See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1046 n.40 (11th Cir. 2005) (recognizing that if the Batson objector‘s “evidence establishes a prima facie case, then we would need to remand to the district court for further Batson proceedings, including a statement of the reasons by the government for . . . its peremptory strikes“); Paulino v. Castro, 371 F.3d 1083, 1092 (9th Cir. 2004) (same).
In addition, the District Court properly determined that the Supreme Court‘s decision in Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011), did not apply to the remand proceedings. See id. at 1398 (holding that a federal court must determine whether a habeas petitioner has satisfied
B. Batson‘s Second Step
Under Batson, “once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two).” Elem, 514 U.S. at 767, 115 S. Ct. at 1770. Batson‘s second step “does not demand an explanation that is persuasive, or even plausible.” Id. at 768, 115 S. Ct. at 1771. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor‘s explanation. Unless a discriminatory intent is inherent in the prosecutor‘s explanation, the reason offered will be deemed race neutral.” Hernandez, 500 U.S. at 360, 111 S. Ct. at 1866.
As set out above, the state presented the prosecutor‘s notes from voir dire, the testimony of Ms. Adams, and the testimony of the prosecutor to establish that Alabama‘s reasons for striking six black jurors were valid and race-neutral. After considering the state‘s explanations, the District Court concluded the “prosecutor‘s explanations for striking jurors are credible, valid and race-neutral.”
We cannot say the District Court committed any error in finding that the state satisfied its low burden at Batson‘s second step. The explanations offered by the state for its strikes are facially valid and race-neutral.10 See Elem, 514 U.S. at 768, 115 S. Ct. at 1771 (“It is not until the third step that the persuasiveness of the justification becomes relevant . . . .“). Indeed, Mr. Madison does not dispute that the state‘s proffered reasons are race-neutral. Rather, he argues the prosecutor‘s reasons were pretextual.
C. Batson‘s Third Step
Once a race-neutral explanation is tendered at Batson‘s second step, “the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Elem, 514 U.S. at 767, 115 S. Ct. at 1770-71. The burden on Mr. Madison at Batson‘s third step is to prove purposeful discrimination by a preponderance of the
170, 125 S. Ct. at 2417 (“Thus, in describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor‘s explanation, before deciding whether it was more likely than not that the challenge was improperly motivated.”). The objecting party may satisfy its burden of persuasion by showing that the moving party‘s race-neutral reasons were pretextual. See Miller-El v. Dretke, 545 U.S. 231, 247–49, 125 S. Ct. 2317, 2329–30 (2005) (Miller-El II) (analyzing for pretext the prosecution‘s reasons for striking a prospective juror). The Supreme Court has taught us:
[T]he critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor‘s justification for his peremptory strike. . . . [T]he issue comes down to whether the trial court finds the prosecutor‘s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor‘s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.
Miller-El v. Cockrell, 537 U.S. 322, 338–39, 123 S. Ct. 1029, 1040 (2003) (Miller-El I). Again, the District Court‘s decision on the ultimate question of discriminatory intent is a finding of fact that we will not set aside unless clearly erroneous. See Section II, supra; see also Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871.
We have carefully reviewed the record and considered the totality of relevant circumstances bearing on the ultimate question of whether the prosecutor excused even a single black juror based on race. See Parker, 565 F.3d at 1270 (“It is not necessary to show that all or even a majority of the prosecutor‘s strikes were discriminatory; any single strike demonstrated to result from purposeful discrimination is sufficient.”); see also Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208 (2008) (“Because we find that the trial court committed clear error in overruling petitioner‘s Batson objection with respect to [one juror], we have no need to consider petitioner‘s claim regarding [a second juror].”). If our standard of review were de novo, this would be a difficult case. Both the state and Mr. Madison point to evidence and inferences in the record that support their respective interpretations of the prosecutor‘s motives for striking black jurors. On the one hand, the state clearly articulated facially valid race-neutral reasons to support each of its strikes. More importantly, each of the state‘s race-neutral reasons is supported by the record and “has some basis in accepted trial strategy,” at least arguably so. See Miller-El I, 537 U.S. at 339, 123 S. Ct. at 1040. This is critical because a facially race-neutral reason, “on its own, does not suffice to answer a Batson challenge.” Adkins v. Warden, Holman CF, 710 F.3d 1241, 1251 (11th Cir. 2013); see also Miller-El II, 545 U.S. at 240, 125 S. Ct. at 2325 (“If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain.”). Significantly, this is not a case where the record shows the explanations offered by the prosecutor were applied disparately to black and white prospective jurors. We are also aware that six black jurors served on the jury, 30% more than the population of African Americans in the County, and that the sixty-member jury panel was nearly 75% white. See Madison III, 718 So. 2d at 101 n.3, 102 n.5.
At the same time, the circumstances supporting Mr. Madison‘s prima facie case were strong. Relevant factors supporting purposeful discrimination include the following:
- the prosecutor peremptorily struck 6 of 13 eligible black jurors;
- the prosecutor did not ask three of these jurors any questions;
- the prosecutor refused to give reasons for his strikes at trial, despite being asked to do so, and misstated the governing law;12
- the inter-racial nature of the crime (black defendant and white police officer);13
- the heterogeneity of the struck jurors; and
- the Mobile County District Attorney‘s Office‘s well-documented history of racially discriminatory jury selection, including at Mr. Madison‘s first trial.
The history of racial discrimination at the Mobile County District Attorney‘s Office that prosecuted Mr. Madison is significant. See Miller-El I, 537 U.S. at 346–47, 123 S. Ct. at 1044–45 (according weight to historical evidence of racial discrimination by district attorney‘s office and noting that such history is “relevant to the extent it casts doubt on the legitimacy of the motives underlying the State‘s actions in petitioner‘s case”); see also Miller-El II, 545 U.S. at 266, 125 S. Ct. at 2340 (“If anything more is needed for an undeniable explanation of what was going on, history supplies it.”). In the eight years between the 1986 decision in Batson and Mr. Madison‘s third trial in 1994, Alabama appellate courts had found Batson violations by the Mobile County District Attorney‘s Office on seven different occasions, including once at Mr. Madison‘s first trial.14 Also relevant, in
Nonetheless, we defer to the findings of the District Court unless they are clearly erroneous. Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871. The District Court did not clearly err in finding Mr. Madison “failed to prove purposeful discrimination or pretext.” Neither can we say that the District Court clearly erred when, “after considering the written notes and testimony of John Cherry, [it concluded] that the prosecutor‘s explanations for striking the jurors [were] credible, valid and race-neutral.”
On remand the District Court gave both parties an opportunity to present evidence, briefing, and argument on the ultimate issue of discriminatory intent. After hearing the evidence, the District Court issued a seventeen-page order. The District Court‘s order properly noted Batson‘s third step “demands consideration of the totality of the circumstances.” See also McGahee, 560 F.3d at 1261 (“Because courts must weigh the defendant‘s evidence [of purposeful discrimination] against the prosecutor‘s articulation of a ‘neutral explanation,’ courts are directed by Batson to consider ‘all relevant circumstances’ in the third step of the Batson analysis.”). The district judge also noted “[t]he reasons stated by the prosecutor provide the only reasons on which the prosecutor‘s credibility is to be judged.” Doc. 79 at 11 (quoting Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir. 2009)). Further, the District Court correctly acknowledged the “[c]ircumstances that may support a finding of pretext are varied.” Id. at 12 (citing Parker, 565 F.3d at 1271).15
The District Court then carefully considered the state‘s proffered reasons supporting its peremptory strikes, once again grouping them into three broad categories: (1) “Employment/Occupation Based Strikes” (jurors Adams and Smith); (2) “Knew/Associated with Defendant or Defense Witness Strikes” (jurors Dawson, Hall, and McQueen); and (3) “Death Penalty Apprehension Strike (juror Brown). The District Court separately concluded that each of the three categories was generally recognized as a valid race-neutral reason for striking prospective jurors.
For example, the District Court determined “[s]trikes based on employment / occupation have generally been upheld as a valid race neutral reason for striking prospective jurors.” Doc. 79 at 13 (citing case law including J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n.14, 114 S. Ct. 1419, 1428 n.14 (1994) (suggesting that peremptory challenges based on a status or occupation do not
The District Court also considered and rejected Mr. Madison‘s arguments that the prosecutor‘s race-neutral explanations were mere pretext.16 For example, with respect to black jurors Ms. Adams and Ms. Smith—whom the prosecutor said he struck based on their occupation or spouse‘s occupation in the mental health field—the District Court considered Mr. Madison‘s argument that comparator evidence shows the prosecutor‘s reasons for these strikes “were pretext for racial discrimination.”17 Mr. Madison argued at the Batson hearing “that there was a white juror [Doss], who was not struck by the state, who indicated that she knew Dr. Brown,” a psychiatrist who the state had listed as a witness. Ms. Doss stated during voir dire that she had been a psychiatric patient of Dr. Brown. The District Court rejected Mr. Madison‘s argument because Dr. Brown was a state witness and Ms. Doss was neither a mental health worker nor married to a mental health worker. On this record, we agree with the District Court‘s implicit determination that there were relevant differences between Ms. Doss, who is white, and Ms. Adams and Ms. Smith, who are black. See Parker, 565 F.3d at 1271 (“The prosecutor‘s failure to strike similarly situated jurors is not pretextual, however, where there are relevant differences between the struck jurors and the comparator jurors.” (quotation marks omitted)).
Similarly, the District Court considered Mr. Madison‘s argument that the prosecutor‘s strikes “based on a potential juror‘s knowledge of, or association with, defense
On this record, we cannot say the District Court clearly erred in making any of its factfindings. The clearly erroneous standard is very deferential. We may not reverse a District Court under the clearly erroneous standard of review where, as here, “the district court‘s account of the evidence is plausible in light of the record viewed in its entirety.” Anderson, 470 U.S. at 574, 105 S. Ct. at 1511. This is so even if we were convinced, had we been sitting as the trier of fact, that we “would have weighed the evidence differently.” Id.
After hearing the testimony and reviewing the evidence, the District Court credited the prosecutor‘s race-neutral explanations for striking six black jurors and rejected Mr. Madison‘s arguments that the prosecutor‘s reasons were pretextual.19 In the end, and based on our review of the entire record, the dispositive question in this appeal is answered by our conclusion that there are two plausible views of the evidence, both of which have some support. “Where there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” Id.
IV. CONCLUSION
We affirm the District Court‘s judgment denying Mr. Madison‘s Batson claim on the merits.
AFFIRMED.
Notes
Id. at 1412 (Breyer, J., concurring in part and dissenting in part). Elsewhere the Supreme Court has also explained, “[w]hen a state court‘s adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth inLike the Court, I believe that its understanding of
28 U.S.C. § 2254(d)(1) does not leave AEDPA‘s hearing section,§ 2254(e) , without work to do. An offender who believes he is entitled to habeas relief must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)‘s test (or if (d) does not apply), then an (e) hearing may be needed.
Questions arise regarding the credibility of the explanation and the possibility that the explanation is pretextual (1) when the prosecutor‘s explanation for a strike is equally applicable to jurors of a different race who have not been stricken; (2) upon a comparative analysis of the jurors struck and those who remained, including the attributes of the white and black venire members; (3) or when the prosecution fails to engage in a meaningful voir dire examination on a subject that it alleges it is concerned. Evidence of purposeful discrimination may be shown through side-by-side comparisons confirming that the reasons for striking a black panelist also apply to similar non-black panelists who were permitted to serve. A prosecutor‘s reasonable explanation for objecting to a black panelist based on his or her opinions or comments may be undercut by the prosecution‘s failure to object to other white panelists who expressed similar views, and may be evidence of pretext.565 F.3d at 1271 (internal citations omitted).