                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                       Revised March 12, 2004
                                                                       February 26, 2004
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit                      Charles R. Fulbruge III
                                                                           Clerk


                              No. 00-10784



                         THOMAS JOE MILLER-EL,

                                                     Petitioner-Appellant,


                                    VERSUS


 DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                                                         Respondent-Appellee.




           Appeal from the United States District Court
                for the Northern District of Texas


          ON REMAND FROM THE UNITED STATES SUPREME COURT
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
DeMoss, Circuit Judge:
     Petitioner    brings    this     federal    habeas       corpus    petition

claiming, pursuant to Batson v. Kentucky, that the state trial

court erred in finding that there was no purposeful discrimination

in the selection of his jury. The district court denied Petitioner

relief.    The    district   court     then     denied    a    certificate      of

appealability (“COA”).       Petitioner previously appealed to this

court and we denied a COA.      The Supreme Court reversed.              We then
granted COA and now address the merits of Petitioner’s appeal.

                                   BACKGROUND

     On November 16, 1985, Thomas Jo Miller-El, his wife, and

Kenneth Flowers robbed a Holiday Inn in Dallas, Texas.                    During the

robbery two employees, Doug Walker and Donald Hall, were ordered to

lie on the floor, gagged with strips of fabric, and their hands and

feet were bound.     Miller-El shot Walker twice in the back and shot

Hall in the side.     Walker died from his wounds.

     The state indicted Miller-El for capital murder.                     He pleaded

not guilty, and jury selection took place during five weeks in

February and March 1986.            When voir dire had been concluded,

Miller-El    moved   to   strike    the       jury   on   the   grounds    that    the

prosecution    had   violated      the    Equal      Protection   Clause     of    the

Fourteenth    Amendment    by   excluding         blacks   through   the     use   of

peremptory challenges.          Miller-El’s trial occurred before the

Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986).

Therefore, Swain v. Alabama, 380 U.S. 202 (1965), was then the

controlling precedent. As Swain required, Miller-El sought to show

that the prosecution’s conduct was part of a larger pattern of

discrimination aimed at excluding blacks from jury service.                       In a

pretrial hearing held on March 12, 1986, Miller-El presented

evidence in support of his motion. The trial judge, however, found

“no evidence . . . that indicated any systematic exclusion of

blacks as a matter of policy by the District Attorney’s office;


                                          2
while it may have been done by individual prosecutors in individual

cases.”     The state court then denied Miller-El’s motion to strike

the jury.    Twelve days later, the jury found Miller-El guilty; and

the trial court sentenced him to death.

     Miller-El appealed to the Texas Court of Criminal Appeals.

While the appeal was pending, on April 30, 1986, the Supreme Court

issued    its   opinion   in    Batson   v.   Kentucky   and   established   a

three-part process for evaluating claims that a prosecutor used

peremptory challenges in violation of the Equal Protection Clause.

476 U.S. at 96-98.        First, a defendant must make a prima facie

showing that a peremptory challenge has been exercised on the basis

of race.    Id. at 96-97.      Second, if that showing has been made, the

prosecution must offer a race-neutral basis for striking the juror

in question.      Id. at 97-98.          Third, in light of the parties’

submissions, the trial court must determine whether the defendant

has shown purposeful discrimination.           Id. at 98.

     After acknowledging Miller-El had established an inference of

purposeful discrimination, the Texas Court of Criminal Appeals

remanded the case for new findings in light of Batson.             Miller-El

v. State, 748 S.W.2d 459, 461 (Tex. Crim. App. 1988)(en banc).               A

post-trial hearing was held on May 10, 1988.             There, the original

trial court admitted all the evidence presented at the Swain

hearing and further evidence and testimony from the attorneys in

the original trial.


                                         3
      On January 13, 1989, the trial court concluded that Miller-

El’s evidence failed to satisfy step one of Batson because it “did

not even raise an inference of racial motivation in the use of the

state’s peremptory challenges” to support a prima facie case.

Notwithstanding this conclusion, the state court determined that

the state would have prevailed on steps two and three because the

prosecutors had offered credible, race-neutral explanations for

each black venire member excluded.       The court further found “no

disparate prosecutorial examination of any of the venire [members]

in question” and “that the primary reasons for the exercise of the

challenges against each of the venire [members] in question [was]

their   reluctance   to   assess   or   reservations   concerning   the

imposition of the death penalty.”

      The Texas Court of Criminal Appeals denied Miller-El’s appeal,

and the Supreme Court denied certiorari.         Miller-El v. Texas,

510 U.S. 831 (1993). Miller-El’s state habeas proceedings fared no

better, and he was denied relief by the Texas Court of Criminal

Appeals.

      Miller-El filed a petition for writ of habeas corpus in

federal district court pursuant to 28 U.S.C. § 2254.1      The federal

magistrate judge who considered the merits of the Batson claim



  1
    Although Miller-El raised four issues, the petition has been
narrowed down by the Supreme Court to only the jury selection claim
premised on Batson. See Miller-El v. Cockrell, 537 U.S. 322, 329
(2003).

                                   4
recommended, in deference to the state court’s acceptance of the

prosecutors’ race-neutral justifications for striking the potential

jurors, that     Miller-El     be    denied   relief.      The   United   States

district court adopted the recommendation.              Pursuant to 28 U.S.C.

§ 2253, Miller-El sought a COA from the district court, and the

application was denied.         Miller-El renewed his request to this

Court, and we also denied a COA.           Miller-El appealed to the Supreme

Court and certiorari was granted.             534 U.S. 1122 (2002).       In an

opinion issued on February 25, 2003, the Supreme Court concluded

based on a “threshold examination” of the record, that the federal

district    court’s     rejection     of    Miller-El’s     Batson   claim   was

“debatable” and thus we had erred in not granting COA on Miller-

El’s Batson claim.       Miller-El v. Cockrell, 537 U.S. 322, 347-48

(2003).    The Supreme Court remanded the case to this Court to

determine whether Miller-El can “demonstrate that [the] state

court’s finding of the absence of purposeful discrimination was

incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1),

and that the corresponding factual determination was ‘objectively

unreasonable’ in light of the record before the court.”                   Id. at

348.    We granted COA for precisely that determination.              Miller-El

v. Johnson, 330 F.3d 690 (5th Cir. 2003)(per curiam).

                                    DISCUSSION

       Claims   of    racial   discrimination      in     jury   selection   are

evaluated according to the framework established in Batson v.


                                        5
Kentucky, which requires a three-step analysis that shifts the

burden of production between the parties.               476 U.S. at 96-98.

First, the defendant must make a prima facie showing that the

prosecution has exercised peremptory challenges on the basis of

race.   Id. at 96-97.      Second, if the requisite showing has been

made, the burden shifts to the prosecution to provide a race-

neutral explanation for striking the venire member in question.

Id. at 97-98.   Third, the defendant again has the burden, this time

of proving purposeful discrimination.            Id. at 98.    Under Batson,

the ultimate burden of persuading the court that the state’s

peremptory challenges are attributable to a discriminatory purpose

lies with and never shifts from the defendant.                Id. at 94 n.18

(citing Tex. Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 252-

56 (1981)); Purkett v. Elem, 514 U.S. 765, 768 (1995).

     In the present case, there is no dispute that Miller-El

presented a prima facie claim under Batson’s first step.               Nor is

there any dispute that the prosecution presented facially race-

neutral reasons for exercising each peremptory challenge. The only

issue   is   Miller-El’s       disagreement   with      the   trial   court’s

determination at Batson’s third step that Miller-El had failed to

show that the prosecution’s reasons for exercising the challenged

peremptory   strikes    were    not   credible    and   Miller-El     had   not

demonstrated that purposeful discrimination had occurred.                   The

federal district court has already determined on habeas review that

                                      6
Miller-El has failed to show that the state court erred, and

therefore is not entitled to habeas relief.                      Miller-El is now

appealing this determination and COA has been granted.                     Therefore

we now address the merits of Miller-El’s appeal.

        Under the current scheme for habeas review in federal court,

which was substantially updated in the Antiterrorism and Effective

Death Penalty       Act    of   1996    (“AEDPA”),   28    U.S.C.     §   2254(e)(1)

requires that we “presum[e]” the state court’s findings of fact “to

be correct” unless Miller-El can rebut the presumption “by clear

and convincing evidence.”2             As the Supreme Court has stated, the

state court’s finding at step three of Miller-El’s Batson claim was

a   finding    of   fact    and    therefore     subject    to    §   2254(e)(1)’s

presumption of correctness.              Miller-El, 537 U.S. at 339 (citing

Hernandez     v.    New    York,   500    U.S.   352,     365    (1991),    for   the

proposition that the determination made at step three of Batson is

a “‘pure issue of fact’ accorded significant deference”).

        We follow the lead of the Supreme Court in utilizing their

decisions in Hernandez v. New York, 500 U.S. 352 (1991), and



    2
        The language of § 2254(e)(1) could not be clearer:
         In a proceeding instituted by an application for a writ
         of habeas corpus by a person in custody pursuant to the
         judgment of a State court, a determination of a factual
         issue made by a State court shall be presumed to be
         correct.    The applicant shall have the burden of
         rebutting the presumption of correctness by clear and
         convincing evidence.

28 U.S.C. § 2254(e)(1).

                                           7
Purkett v. Elem, 514 U.S. 765 (1995), to guide our decision

regarding the trial court’s finding of no purposeful discrimination

at step three in this Batson claim.     These Supreme Court opinions

state that the critical question in determining whether a prisoner

has   proved   purposeful   discrimination   at   step   three    is   the

persuasiveness and credibility of the prosecutor’s justification

for his peremptory strike.     Purkett, 514 U.S. at 768; Hernandez,

500 U.S. at 364-65.   Further, these cases, applying a standard of

review even less deferential to the trial court’s finding than we

are required to apply under AEDPA, articulate that deference is

necessary because the reviewing court is not as well positioned as

the trial court to make credibility determinations, and once the

trial court has made a credibility determination concerning the

prosecutor’s state of mind regarding the peremptory strikes, the

step three determination under Batson has been decided.          Purkett,

514 U.S. at 768 (citing 28 U.S.C. § 2254(d)(8) and stating that the

standard of review for a federal habeas claim required that the

factual findings of the state court be presumed to be correct, and

“may be set aside, absent procedural error, only if they are ‘not

fairly supported by the record’”); Hernandez, 500 U.S. at 366-67

(applying, on direct review of a state court’s factual findings, a

“clearly erroneous” standard).

      Miller-El argues that the state court's finding of the absence

of purposeful discrimination was incorrect and the corresponding


                                   8
factual determinations were “objectively unreasonable” in light of

the following four areas of evidence that he claims were before the

court.    First, evidence of historical discrimination by the Dallas

County District Attorney’s office in the selection of juries.

Second, the use of the “jury shuffle” tactic by the prosecution.

Third, the alleged similarity between non-black venire members who

were not struck by the prosecution and six blacks who were.

Fourth, evidence of so-called disparate questioning with respect to

venire members’ views on the death penalty and their ability to

impose the minimum punishment.

     First, Miller-El argues that he presented evidence of the

Dallas County District Attorney’s office “unofficial policy” of

excluding blacks from jury service.           Some of this evidence was

first presented in the Swain hearing conducted by the trial court.

When Miller-El’s counsel attempted to reintroduce this historical

evidence    at   the   post-trial    Batson     hearing,    the     prosecution

objected, arguing that even if accurate the evidence was irrelevant

under Batson.      The court admitted the evidence but reserved the

right to give it no weight.

     As    the   United   States   magistrate    judge     found,    there   was

considerable evidence that the Dallas County District Attorney’s

office had an unofficial policy of excluding blacks from jury

service and that this evidence was disturbing.             The district court

accepted this finding.      But both the magistrate and district court


                                      9
noted that the historical evidence, however disturbing, is not

determinative of whether there was purposeful discrimination in the

selection of Miller-El’s jury.          We also note that the apparent

culture of discrimination that existed in the past in the Dallas

County District Attorney’s Office and the individual discriminatory

practices that may have been practiced during the time of Miller-

El’s jury selection by some prosecutors are deplorable.                      The

Supreme Court stated that proof “that the culture of the District

Attorney’s Office in the past was suffused with bias against

African-Americans in jury selection” is “relevant to the extent it

casts doubt on the legitimacy of the motives underlying the State’s

actions” in Miller-El’s case.      Miller-El, 537 U.S. at 347.          In this

case, however, the relevancy of this evidence is less significant

because Miller-El has already met the burden under the first step

of Batson and now must prove actual pretext in his case.                     This

historical   evidence   is   relevant     to   the    extent   that   it   could

undermine the credibility of the prosecutors’ race-neutral reasons.

Here, however, as explained below the race-neutral reasons are

solidly   supported   by   the   record    and   in    accordance     with   the

prosecutors’ legitimate efforts to get a jury of individuals open

to imposing the death penalty.            The state court, in the best

position to make a factual credibility determination, heard the

historical evidence and determined the prosecutors’ race-neutral

reasons for the peremptory strikes to be genuine.                     Under our


                                    10
standard of review, we must presume this specific determination is

correct and accordingly the general historical evidence does not

prove by clear and convincing evidence that the state court’s

finding of the absence of purposeful discrimination in Miller-El’s

jury selection was incorrect.

      Second, Miller-El argues that the state court erred in not

finding purposeful discrimination based on the use of the “jury

shuffle” tactic by the prosecution.              The record, however, clearly

establishes that Miller-El shuffled the jury five times and the

prosecutors shuffled the jury only twice.                   Again, Miller-El’s

circumstantial evidence of jury shuffles does not overcome the

race-neutral     reasons    for    exercising     the    challenged    peremptory

strikes articulated by the prosecutors and accepted by the state

court who   observed       the    voir    dire   process   including    the   jury

shuffles.

      Third, Miller-El argues that there were similarities between

non-black venire members who were not struck by the prosecution and

six blacks who were.        Miller-El maintains that the following six

black venire members were victims of racially motivated peremptory

strikes: Roderick Bozeman, Billy Jean Fields, Joe Warren, Edwin

Rand, Carrol Boggess, and Wayman Kennedy.

      As to each of the black venire members Miller-El claims were

the   victims    of   racially     motivated     peremptory    strikes,    it   is

important   to    identify       the     prosecution’s     stated   reasons     for



                                          11
exercising a peremptory challenge.                       Once we have identified the

reasons for the strikes, the credibility of the reasons is self-

evident. Further, we can determine from the record that there were

no unchallenged non-black venire members similarly situated, such

that their treatment by the prosecution would indicate the reasons

for striking the black members were not genuine.3

       Roderick Bozeman stated that while he believed in the death

penalty      as    a    general       proposition,         he     thought      it     was    only

appropriate “if there’s no possible way to rehabilitate a person.”

If Bozeman thought there was a chance of rehabilitation, he did not

think the death penalty was appropriate.                        He said that a “mentally

disturbed” person and “a Manson type” were examples of someone who

could not be rehabilitated.                     He said, however, that repeated

criminal acts of violence would not necessarily indicate that a

person was beyond rehabilitation.                     Bozeman classified himself as

the type of person who believed in the death penalty in principle,

but who could not actually serve on a capital jury.                               He verified

his inability to impose the death penalty by stating that even if

the evidence compelled “yes” answers to the special issues posed to

the jury at the punishment stage, he might refuse to answer the

questions honestly in order to avoid imposing the death penalty.



   3
      With the exception of black venire members Joe Warren and Paul Bailey, the prosecution set
forth its race-neutral reasons for exercising the peremptory challenges immediately after exercising
the strikes. At the subsequent Batson hearing the court took judicial notice of that prior testimony
in the voir dire record. Miller-El has not based his claim on the prosecution striking Bailey.

                                                12
The prosecution exercised a peremptory challenge to remove Bozeman,

citing his views on the death penalty and on rehabilitation, his

belief that a pattern of violent conduct would not be sufficient to

render a defendant deserving of death, and his “obvious hesitation”

concerning his ability to override his personal feelings and answer

the special issues according to the evidence.

     Venire member Billy Jean Fields stated that he believed in the

death penalty and could serve on a capital jury.      However, after

being informed that the possibility of rehabilitation would be a

factor he would need to consider in assessing whether to impose the

death penalty, Fields proclaimed that his religious belief was that

no one was beyond rehabilitation.     Fields stated, “I feel like, if

a person has the opportunity to really be talked [to] about God and

he commits himself, whereas he has committed this offense, then if

he turns his life around, that is rehabilitation.”        He further

stated, “when an individual has really been truly reached by

someone reading the word of God to him and they are repentant and

they do have a real act of contrition, they can be rehabilitated

and that’s been demonstrated.”   Additionally, Fields indicated in

his questionnaire and in response to questions by the prosecution

that his brother had been incarcerated numerous times for drug

offenses.   The prosecution exercised a peremptory challenge to

remove Fields, citing its concern that his deeply held religious

belief in the rehabilitative capacity of all persons could impact

his willingness to impose a death sentence and the fact that his

                                 13
brother had been convicted of a felony.

     Venire member Joe Warren answered questions during voir dire

in a noncommital manner and indicated ambivalence about the death

penalty and his ability to impose it.            He stated, “there are some

cases where I would agree [with the death penalty], you know, and

there are others that I don’t.” When the prosecution described the

crimes defined as capital murder under Texas law and asked whether

Warren felt the death penalty could be an appropriate punishment

for such crimes, he responded, “Well, there again, I would say it

depends on the case and the circumstances involved at the time.”

When asked whether the death penalty serves a purpose, Warren

answered, “Yes and no.       Sometimes I think it does and sometimes I

think it don’t.        Sometimes you have mixed feelings about things

like that.”   When asked whether he could make a decision between a

life sentence and a death sentence, Warren answered, “I think I

could.”   When questioned about his ability to answer the future

dangerousness special issue question, Warren responded, “I suppose

there’s   always   a    chance,   but    there   again,   you   never   know.”

Finally, Warren stated, “Well, it[’]s just like I said you know.

There are cases, I mean, personally, that I feel I wouldn’t want to

personally be, you know, involved with it if I had a choice.”              The

prosecution exercised a peremptory challenge to remove Warren.

Miller-El’s counsel did not object to the peremptory strike against

Warren contemporaneous to the strike, therefore the prosecution did



                                        14
not give its race-neutral reasons at voir dire.                   At the Batson

hearing, the prosecutor cited Warren’s hesitation about imposing

the death penalty and his inconsistent responses during voir dire

as the reasons for striking him.            The prosecutor also noted that

Warren was struck relatively early in the jury selection process

when the state had ten challenges remaining before exercising one

to remove Warren.     The prosecutor noted at the Batson hearing that

an attorney’s strategy regarding the use of peremptory challenges

necessarily changes as jury selection progresses and peremptory

challenges either remain unused or get used more rapidly. In fact,

the prosecutor on cross-examination at the Batson hearing admitted

that he     would   have   struck   non-black      jurors     Sandra    Hearn   and

Fernando Gutierrez, who also gave somewhat ambivalent answers

regarding the death penalty, before Warren had they come up earlier

in the process.

     Venire member Edwin Rand described capital punishment as a

“touchy   subject”    during    voir    dire      but   did   indicate     on   his

questionnaire that he believed in the death penalty.                   In response

to several alternative choices put to him by the prosecution, Rand

described himself as a person who may or may not be able to impose

the death penalty.         He said, “Somewhere along the line, I would

probably think to myself, you know, ‘Can I do this?’                    You know,

right now I say I can, but tomorrow I might not.”               The prosecution

exercised    a   peremptory    challenge     to    remove     Rand,    citing   his


                                       15
ambivalence about the death penalty generally and his lack of

ability to serve on a capital jury.

     Venire member Carrol Boggess indicated on her questionnaire

that she had a moral, religious, or personal belief that would

prevent her from imposing the death penalty.      During voir dire she

stated, “Well, I believe I could serve on a case like this, but

whether I want to or not is a different thing.      I wouldn’t want to

serve and I wouldn’t want to have that responsibility to do that,

but if it fell upon me, I would certainly take it and pray to the

Lord to help me get through it.”    Later she stated, “I’m not saying

that I feel like I could impose the sentence myself – or I’m not

going to be imposing the sentence, is that correct?” When directly

asked whether she could vote for a death sentence, she stated,

“I’ve never been in that situation.     I don’t feel like I would want

to be in that situation and whether I could do it or not, I’m not

real sure.”   She continued by stating “whether or not I could

actually go through with murder -       with killing another person or

taking another person’s life, I just don’t know.      I’d have trouble

with that.”   Boggess also indicated that she had testified as a

defense witness at her nephew’s theft trial.          The prosecution

exercised a peremptory challenge to remove Boggess, citing as

reasons for the strike her hesitancy about assessing a death

sentence and the fact that she had served as a defense witness in

her nephew’s trial.



                                   16
     Venire member Wayman Kennedy stated on his questionnaire he

believed in the death penalty “only in extreme cases.”     On voir

dire he stated that he believed in the death penalty only for mass

murders or cases involving mutilation.   Kennedy stated he did not

think a murder in the course of a robbery would necessitate the

death penalty because “why wouldn’t a life sentence be enough.”

Finally, when asked whether he could answer the special issues

“yes” if proved beyond a reasonable doubt, even if he personally

felt the defendant should not be sentenced to death, Kennedy

replied, “I think I could.” The prosecution exercised a peremptory

challenge to remove Kennedy, citing his hesitancy to assess the

death penalty for murder in the course of robbery, the crime

Miller-El was accused of, his view that the death penalty was only

appropriate in extreme cases, and his hesitancy in stating that he

could answer the special issues according to the evidence.

     Miller-El claims that three non-black venire members, Sandra

Hearn, Marie Mazza, and Ronald Salsini, expressed views about the

death penalty as ambivalent as those expressed by Bozeman, Fields,

Warren, Rand, Boggess, and Kennedy, but the three non-black venire

members were not struck by the prosecution. The record, especially

the voir dire transcript, does not support this assertion.

     Sandra Hearn stated in her jury questionnaire and on voir dire

that she believed in the death penalty and could assess it in

appropriate cases.   She did express the belief that someone should


                                17
not be sentenced to death on a first offense but if the person had

committed    any    prior   offense   including    robbery   or   some    other

criminal act of violence the death penalty would be appropriate.

The evidence admitted at the punishment phase of Miller-El’s trial

indicated he had committed two previous armed robberies and one

also involved a kidnaping. Hearn also stated she thought the death

penalty should be available for more than just murder but also

severe torture and extreme child abuse. She indicated that she had

respect for law officers, that her father was a retired FBI agent,

and   that   she    had   daily   contact   with   police   officers     in   her

employment.        Miller-El’s counsel must have believed Hearn was a

pro-prosecution venire member because he attempted to have her

challenged for cause on numerous grounds, and when the trial judge

found Hearn qualified, Miller-El’s counsel requested an additional

peremptory strike in order to remove her.              In fact, on direct

appeal Miller-El continued to argue that the trial court erred in

denying his challenge for cause of Hearn, so it seems disingenuous

to argue now that she was similarly situated to the black jurors

who expressed reservations about imposing the death penalty.

      Venire member Maria Mazza indicated on her juror questionnaire

that she believed in the death penalty.              When asked about her

feelings on the death penalty at voir dire, she stated, “It’s not

an easy one and I feel that it depends upon the case, the testimony

. . . .      It’s kind of hard determining somebody’s life, whether



                                       18
they live or die, but I feel that is something that is accepted in

our courts now and it is something that – a decision that I think

I could make one way or the other.”   Mazza served on Miller-El’s

jury.

     Venire member Ronald Salsini stated he believed in the death

penalty and that he could impose the death penalty.         He did

indicate imposing the death penalty would be difficult; however, he

gave a hypothetical crime based on his personal experience as a

bank teller that closely paralleled the crime Miller-El was charged

with and stated that such a criminal act was deserving of the death

penalty.   The prosecution did not strike Salsini but Miller-El’s

counsel did.

     Comparing the views expressed by Hearn, Mazza, and Salsini to

the views expressed by the challenged black venire members, it is

clear that Hearn, Mazza, and Salsini were not similarly situated

for several reasons.   First, ambivalence about the death penalty

was not the sole reason for striking Bozeman, Fields, or Boggess.

Second, Warren, Rand, and Kennedy were struck mainly because of

ambivalence about the death penalty, but they each also expressed

doubts about whether they personally could impose the death penalty

even if the evidence indicated the death penalty was appropriate.

This was not the case with Hearn, Mazza, and Salsini.       Third,

Warren refused to give a clear answer as to whether or not he could

impose the death penalty if the evidence warranted it.     Fourth,

Kennedy stated the death penalty should be limited to extreme

                                19
cases. Finally, Rand’s ambivalence was less pronounced and more in

line with the uncertainty expressed by Hearn and Mazza, although

Rand still indicated he was uncertain as to whether he could impose

the death penalty.         Under our federal habeas standard of review,

however, Miller-El has not shown by clear and convincing evidence

that the trial court, who observed the voir dire process, erred in

finding the prosecution’s reason for striking Rand or the other

black venire members credible.

      Next, Miller-El claims non-black unchallenged venire members

Hearn and Kevin Duke expressed views on rehabilitation similar to

the   views    expressed    by   the   black   challenged   venire     members.

Hearn’s views have already been discussed.           Duke expressed support

for the death penalty and said he could impose it.                    Duke made

comments      concerning     rehabilitation     in   the    context    of   the

availability of parole, not in the context of whether the death

penalty was appropriate.         Duke served on Miller-El’s jury.

      Again, the record does not support Miller-El’s assertion.

While the prosecution only cited views concerning rehabilitation as

grounds for striking Bozeman and Fields, that was not the sole

basis for exercising those strikes. As previously noted, Bozeman’s

and Fields’ views on rehabilitation were much stronger than Hearn’s

and Duke’s.      Hearn and Duke were not similarly situated to any

challenged black venire members.

      Finally, Miller-El asserts that non-black venire members Noad



                                       20
Vickery, Cheryl Davis, Chatta Nix, and Joan Weiner were similarly

situated to challenged black venire members who had family members

with a criminal background.    When Vickery was fifteen his sister

had been arrested and served time in California.     Vickery was a

strong state juror and after unsuccessfully attempting to have him

struck for cause, Miller-El used one of his preliminary strikes to

remove Vickery.    Davis’ husband had been convicted of theft ten

years earlier.     Davis was a strong state juror and Miller-El

attempted to have her struck for cause but was unsuccessful.

Therefore, Miller-El used one of his preliminary strikes to remove

her.   Nix’s brother entered a guilty plea in a high profile white-

collar crime case.    Nix, who served as an office manager for her

brother’s construction company, had been named in several civil

suits relating to the white-collar crime issues.   Nix was a strong

prosecution juror and Miller used one of his preliminary strikes to

remove her from the panel. Weiner’s ten-year-old son had once been

arrested for shoplifting.   Weiner served on Miller-El’s jury.

       Again, the record does not support Miller-El’s Batson claim.

The prosecution only cited a family member with criminal history as

grounds for striking Boggess and Fields. Furthermore, that was not

the sole basis for striking either Boggess or Fields.   In summary,

Miller-El has failed to identify any unchallenged non-black venire

member similarly situated to the six struck black venire members on

whom he is basing his Batson claim.    Therefore, he has failed to



                                 21
demonstrate by clear and convincing evidence that the state court

erred in finding the prosecution’s reasons for exercising its

preliminary challenges credible.

     Fourth, Miller-El also argues that the prosecution posed

different questions concerning the death penalty and the minimum

allowable punishment to the venire members depending on the race of

the venire member. The record, however, reveals that the disparate

questioning of venire members depended on the member’s views on

capital punishment and not race.     The prosecution used questioning

to either ferret out a venire member’s views on the death penalty

or to establish a basis to disqualify venire members who had

unfavorable views but were not subject to disqualification on those

grounds.

     One hundred and eight venire members survived the initial

round of hardship excuses.       The court excused three members for

cause prior to voir dire and the parties agreed to remove thirty-

nine others, including five blacks.        Thus, a total of sixty-six

venire members were subject to full voir dire, including fifty-one

non-blacks and fifteen blacks.

     The prosecution questioned all venire members concerning their

views of the death penalty.     A majority of the venire members were

informed   the   state   was   seeking   the   death   penalty   and   that

affirmative answers to three questions submitted to the jury at the

punishment phase would result in Miller-El being sentenced to


                                    22
death, and then asked about their views concerning the death

penalty. Prosecutors did utilize a “graphic script” to describe an

execution in detail to some venire members.    Both black and non-

black venire members who had expressed reservations never received

the script.   However, all black venire members given the graphic

script had expressed some level of reservations about the death

penalty in their juror questionnaires including Boggess, Kennedy,

Bailey, Linda Baker, Troy Woods,4 Janice Mackey, Anna Keaton, and

Jeanette Butler.5   Some of the non-black venire members questioned

with the graphic script expressed reservations including Dominick

Desinise and Clara Evans.   Non-black venire member Vivian Sztybel

did not express reservations about the death penalty yet still

received the graphic script.     Sztybel was ultimately seated on

Miller-El’s jury.

      Miller-El contends that there were ten black venire members

who expressed reservations and seven of these venire members, who

were ultimately peremptory challenged by the prosecution, got the

script, while there were ten non-black venire members who expressed



  4
    Woods’ questionnaire did not clearly indicate his views on the
death penalty and thus he received the graphic script, but on voir
dire he indicated that he fully supported the death penalty, the
state believed him to be an excellent juror and he was in fact
seated on Miller-El’s jury.
  5
    Jeanette Butler’s juror questionnaire is not contained in the
record, however, at voir dire she stated that she was unwilling to
impose the death penalty. Butler was ultimately removed for cause.


                                 23
reservations but only two got the script.    Miller-El argues this

disparity proves purposeful discrimination and therefore the trial

court erred.   A review of precisely what the prosecution did in

terms of voir dire questioning indicates the trial court, who

observed the voir dire process, did not err in finding there was no

purposeful discrimination.

     The jury questionnaire asked two questions directly relevant

to the death penalty.   Question 56 asked, “Do you believe in the

death penalty?”   Venire members could circle “yes” or “no,” and

then they were asked to “[p]lease explain your answer.”   Question

58 allowed venire members to circle “yes” or “no” in answering the

following question: “Do you have any moral, religious, or personal

beliefs that would prevent you from returning a verdict which would

ultimately result in the execution of another human being?”

     Presumably, the eight non-blacks who did not receive the

graphic script, but Miller-El thinks should have, answered “no” to

question 56 and answered to “yes” to question 58.   Questioning on

voir dire also indicates there was no uncertainty as to the views

of these eight non-black venire members.    They were so opposed to

the death penalty there was no need to give them a detailed

description in order to find out their thoughts; in fact, a

detailed description may have simply antagonized them and turned

them off to the prosecutors.   In fact, of these eight, five were

removed for cause because of their views on the death penalty,


                                24
including John Nelson, Linda Berk, Gene Hinson, Sheila White, and

Joyce Willard while one, Leta Girard, was removed by agreement of

the parties.   The two others also had strong views, making use of

the graphic script unnecessary. Margaret Gibson did not believe in

the death penalty and the state exercised a peremptory challenge to

remove her. James Holtz believed the death penalty was appropriate

only if a police officer or fireman was murdered and the state

exercised a peremptory challenge to remove him.

     The    prosecution     treated       the     black    venire    members     no

differently.     The    blacks      who     did   not     receive   the   graphic

formulation (whose questionnaires are contained in the record) all

answered “yes” to question 56, stating they believed in the death

penalty, and “no” to question 58, indicating that their beliefs

would not prevent them from imposing a death sentence.                         This

included Bozeman, Fields, Warren, and Rand.                   The black venire

members who were given the graphic formulation, by contrast, gave

ambiguous   answers    on   their    juror      questionnaires      expressing    a

combination of uncertainty and philosophical opposition to the

death penalty.    Those venire members included Boggess, Kennedy,

Baker, Woods, Mackey, Bailey, and Keaton.

     In summary, sixteen venire members for whom questionnaire

information is available, clearly indicated on the questionnaires

their feelings on the death penalty, and fifteen of them did not

receive the graphic script.         The one who did receive the script was

non-black venire member Sztybel. Eight venire members gave unclear

                                       25
answers and those eight venire members received the graphic script.

The answers given, not race, accurately indicated whether a venire

member got the graphic script, and this is confirmation of the

prosecution’s race-neutral rationale.

      The     prosecution      also     did     not   question     venire     members

differently concerning their willingness to impose the minimum

punishment for the lesser-included offense of murder.                       Different

questioning on the minimum sentence issue was used as an effort to

get venire members the prosecution felt to be ambivalent about the

death penalty dismissed for cause.              In making the decision whether

to   employ    what    Miller-El      argues     is   a   “manipulative”      minimum

punishment      script,        prosecutors       could     rely      on     both   the

questionnaires and substantial voir dire testimony, as the minimum

punishment questioning occurred much later in voir dire than the

graphic death penalty questioning.

      Seven     black    venire       members     were     given     the    allegedly

“manipulative” minimum punishment script, all of whom were opposed

to   the    death    penalty    in    varying    degrees.      These       individuals

included     Rand,    Kennedy,       Bozeman,    Warren,    Baker,    Boggess,     and

Fields.

      According to Miller-El’s argument the prosecution should have

used the “manipulative” punishment script on Woods. But Woods gave

answers indicating he would be an excellent state's juror and

therefore the prosecution had no reason to attempt to have him


                                          26
removed. Had the prosecution sought to eliminate blacks because of

race, the use of the “manipulative” script would have been deployed

against Woods.         But it was not, because the prosecution wanted

Woods on the jury.

      Likewise, there are no similarly situated non-black venire

members who, under the prosecution’s rationale, would have been

questioned about minimum sentencing.             This is true because unless

a venire member indicated he would be a poor state's juror and

would not otherwise be struck for cause or by agreement, there was

no reason to use the “manipulative” script.               Thus, of the ten non-

black venire members who expressed opposition to the death penalty,

eight    were   struck     for    cause     or   by   agreement,       meaning     no

“manipulative” script was necessary to get them removed.                        Those

struck included Desinise, Evans, Nelson, Berk, Hinson, White,

Willard, and Girard. The other two non-black venire members Gibson

and     Holtz   were    both     given    the    “manipulative”        script    and

peremptorily struck.

      In summary, none of the four areas of evidence Miller-El based

his appeal on indicate, either collectively or separately, by clear

and convincing evidence that the state court erred. Therefore, the

district court correctly denied Miller-El habeas relief.

                                   CONCLUSION

      Having    carefully      reviewed    the   record    in   this    case,     the

parties’ respective briefing and arguments, and for the reasons set



                                          27
forth above, we affirm the decision of the district court in its

denial of habeas relief to Miller-El because he has failed to show

by clear and convincing evidence that the state court erred in

finding no purposeful discrimination.

AFFIRMED.




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