     Case: 13-30493      Document: 00513132691         Page: 1    Date Filed: 07/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 13-30493                                  FILED
                                  Summary Calendar                            July 28, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
WARREN SCOTT, III,

                                                 Petitioner-Appellant

v.

CORNEL HUBERT,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:08-CV-11


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Warren Scott, III, Louisiana prisoner # 463618, filed a 28 U.S.C. § 2254
petition challenging several convictions. All but one of Scott’s claims have
previously been denied or dismissed. His one remaining claim challenges the
validity of his conviction for sexual battery. In that claim, Scott argued that
he received ineffective assistance of counsel when his trial attorney failed to
object to the prosecutor’s use of peremptory challenges during voir dire to


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 13-30493

excuse potential jurors on the basis of race. The district court dismissed the
claim on its merits. We granted Scott a certificate of appealability on his claim
that trial counsel rendered ineffective assistance by failing to make an
objection under Batson v. Kentucky, 476 U.S. 79 (1986).
      “Claims of ineffective assistance of counsel involve mixed questions of
law and fact and are governed by § 2254(d)(1).” Clark v. Thaler, 673 F.3d 410,
416 (5th Cir. 2012) (internal quotation marks and citation omitted). Under
§ 2254(d)(1), a federal court must defer to a state habeas court’s determination
of the merits of a prisoner’s claims, unless the state court decision to deny relief
“was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” § 2254(d)(1). On appeal, we review the district court’s legal rulings
de novo and its factual findings for clear error. Clark, 673 F.3d at 417. We
then apply § 2254(d)(1) deference to determine whether the petitioner was
entitled to relief. Id.
      The Equal Protection Clause forbids a prosecutor from using peremptory
strikes against prospective jurors solely on account of their race. Batson, 476
U.S. at 84. The Court held in Vasquez v. Hillery, 474 U.S. 254, 261-64 (1986),
that discrimination on the basis of race in the selection of grand jurors is a
form of structural error that voids a conviction. Since “[t]he basic principles
prohibiting exclusion of persons from participation in jury service on account
of their race are essentially the same for grand juries and for petit juries,”
Batson, 476 U.S. at 84 n.3 (internal quotation marks and citation omitted), it
follows that a Batson violation would be a structural error. In this case,
however, we must keep two things in mind. First, although it was determined
that Scott had made out a prima facie Batson claim, no purposeful Batson




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                                  No. 13-30493

violation has been proven here. Second, Scott presented his claim not as a
Batson claim but as a claim of ineffective assistance of counsel.
      To prevail on a claim of ineffective assistance of counsel, a prisoner must
show both that his counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). Strickland does not require us to address its deficient-performance
and prejudice prongs in any certain order, see id. at 697, and we turn first to
the prejudice prong.
      Citing Bell v. Cone, 535 U.S. 685, 694-98 (2002), United States v. Cronic,
466 U.S. 648, 659 & n.25 (1984), Strickland, 466 U.S. at 692, and Cuyler v.
Sullivan, 446 U.S. 335, 345-50 (1980), Scott argues that there is a narrow
category of cases in which prejudice is presumed. However, the situations that
justified a presumption of prejudice in the cases cited by Scott are not present
in this case, and Scott makes no attempt to argue otherwise. Additionally, this
court has declined to “hold that a structural error alone is sufficient to warrant
a presumption of prejudice in the ineffective assistance of counsel context.”
Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir. 2006). Thus, prejudice is not
presumed, and Scott was required to show that his counsel’s failure to raise
Batson objections during voir dire prejudiced his defense. See Strickland, 466
U.S. at 687; Virgil, 446 F.3d at 607.
      Scott asserts that, because counsel failed to make a timely Batson
objection, the State was allowed to use its peremptory challenges to eliminate
black prospective jurors from the petit jury. “In assessing prejudice under
Strickland, the question is not whether a court can be certain counsel’s
performance had no effect on the outcome” of the proceeding. Harrington v.
Richter, 562 U.S. 86, 111 (2011). Instead, the Strickland prejudice inquiry
looks to “whether it is reasonably likely the result [of the proceeding] would



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have been different.” Id. (internal quotation marks and citation omitted).
Moreover, “[t]he likelihood of a different result must be substantial, not just
conceivable.” Id. at 112. The Supreme Court has not held that prejudice is
presumed in an ineffective assistance of counsel case based upon failing to
make a meritorious Batson objection. Thus, arguably, the Louisiana courts
have not “unreasonabl[y] [applied] clearly established Federal law, as
determined by the Supreme Court of the United States” to this issue in Scott’s
case. § 2254(d)(1) (emphasis added).
      In any event, this case does not involve the failure to make a meritorious
Batson objection. Here, the state court record reveals a race-neutral basis for
each peremptory strike by the State of an African American venireperson,
although not, as Scott argues it should have been, in a Batson hearing following
a defense lawyer objection. Nonetheless, the reasons are present in the actual
voir dire record, as painstakingly examined and explained by the State in its
brief. Thus, prejudice has not been shown because the Batson challenge would
not have been successful. Scott has not met his burden of showing Strickland
prejudice. Therefore we need not consider the deficient-performance prong,
and his Strickland claim fails. See Strickland, 466 U.S. at 697. Scott thus has
not shown that the state habeas court’s denial of this claim was contrary to, or
involved an unreasonable application of, clearly established federal law. See
§ 2254(d)(1).
      Finally, the district court held an evidentiary hearing in this case. Citing
Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99 (2011), Scott argues that the
district court was precluded from considering any new evidence adduced at
that hearing. Scott is correct that the district court’s review of his § 2254 claim
was limited to the record that was before the state court. Id. But no error
occurred here as this limitation was noted in the magistrate judge’s report and



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recommendation and none of the evidence from the hearing was considered in
analyzing Scott’s claims.
      AFFIRMED.




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