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

                                                                  FILED
                                                               February 11, 2013

                                 No. 10-30665                   Lyle W. Cayce
                                                                     Clerk

BOBBY SMITH,

                                           Petitioner – Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                           Respondent – Appellee



                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      This federal habeas appeal arises from underlying proceedings in the state
courts of Louisiana, in which Bobby Smith was convicted in a 2001 jury trial of
armed robbery and conspiracy to commit armed robbery. He was sentenced by
the Louisiana court to 58 years in prison without the possibility of probation,
parole, or suspension of sentence. After exhausting his habeas claims in the
state courts, he seeks federal habeas relief. Smith argues that the jury that
convicted him was tainted by racial prejudice through the prosecution’s
discriminatory use of peremptory strikes in violation of Batson v. Kentucky, 476
U.S. 79 (1986). The district court determined that the state courts legally erred
in addressing his Batson claim, granted him a federal evidentiary hearing on the
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                                     No. 10-30665

merits of his habeas claim, and ultimately denied relief on his substantive claim.
We granted Smith a Certificate of Appealability (“COA”) on the limited issue of
comparative juror analysis required by Miller-El v. Dretke, 545 U.S. 231 (2005).
After the COA was granted, the Supreme Court decided Cullen v. Pinholster, 131
S. Ct. 1388 (2011), which called into question whether the district court could
properly grant Smith an evidentiary hearing on his Batson claim–a major issue
in this appeal.
       We hold that Pinholster’s restriction does not bar the federal evidentiary
hearing conducted in this case because the district court first concluded, solely
on the basis of the state court record, that the state courts committed legal error,
as required under 28 U.S.C. § 2254(d)(1), through the state courts’s
“unreasonable application of, clearly established Federal law.”                Thus, the
evidentiary hearing was committed to the district court’s discretion, subject to
section 2254(e)(2). Because the district court did not abuse its discretion in
conducting the hearing, we will review Smith’s substantive Batson claim in the
light of the federal evidentiary record. After reviewing the record, we hold that
Smith has failed to carry his burden of proving that the prosecutor’s race-neutral
explanations for striking the two black panelists at issue were a pretext for
purposeful discrimination, and thus AFFIRM the judgment of the district court.
                                            I.
                                            A.
       Smith’s Batson claim is premised on the state’s use of peremptory strikes
on black members of the third jury panel in his armed robbery trial before the
Louisiana state court. During voir dire, the prosecutor struck three black
panelists in a row.1 Although defense counsel did not raise a Batson objection



      1
         Smith asserts error with respect to the peremptory strike used on Flowers, but she
was not included in the COA.

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                                        No. 10-30665

to the prosecutor’s peremptory challenges,2 Smith himself engaged in an
extended colloquy with the trial judge, who treated the discussion as a Batson
challenge.3 In response to Smith’s remarks, the trial judge stated:
       Well, I understand what you are saying and we have made a record
       of your objection. And that is the best that we can do. If you’re
       objecting that the state has attempted to exclude blacks from[,]
       systematically attempted to exclude blacks from the jury[,] I will
       accept that as a Batson challenge, and I will do what I am supposed
       to do. And what I am supposed to do is first determine whether or
       not I believe there has been a systematic exclusion by race or
       gender. I do not believe there is any showing of a systematic
       exclusion based upon the order in which the strikes were made, and
       who was left on the jury at which time. . . . Because of that I am
       going to deny the motion.
Neither party disputes that the trial judge incorrectly applied the Batson test.
The trial judge also did not ask the prosecutor to explain her use of peremptory
strikes or otherwise expand the record on the Batson issue.
       The voir dire record, however, is informative with respect to the questions
posed to the struck panelists and the breakdown in both sides’ use of peremptory
strikes. The venire initially was composed of 48 individuals, of which 37
appeared for voir dire. Of the 37 potential jurors, 27 were white and 10 were
black. Each side was allocated 12 peremptory strikes. Smith used his to strike
two white males, nine white females, and one black female. The state struck five
white females, four black males, and three black females.                       The jury was
empaneled with 11 white jurors and one black juror.



       2
        When the state exercised its peremptory challenge against the three black panelists,
defense counsel stated, “That doesn’t surprise me,” to which the prosecutor replied, “I wouldn’t
think.”
       3
         During his extended conversation with the trial judge, Smith stated: “We got one
black juror on [the jury]. Out of all the juries [sic] you got you got one black juror of my peers
only that you kept and you went through at least five blacks and you just discriminated all of
them.”

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      Specifically at issue in this appeal are Ethel Norman and Ben Williams,
two of the three black panelists that the state struck from the third panel. With
respect to Williams, the trial judge, during the initial questioning of the third
panel, asked if anyone knew a member of law enforcement. Williams raised his
hand signaling that he did. The judge then questioned Williams, who stated
that he had been friends with, coached the son of, and served as an honorary pall
bearer for a murdered Louisiana police officer. Williams, however, said that he
did not associate that event with Smith’s case.
      At the conclusion of the trial judge’s questions to the third panel, the
prosecutor began questioning Norman. Norman did not self-identify as having
a problem with the law, but the prosecutor stated that Norman had been sitting
in the courtroom throughout voir dire and that she “happen[ed] to be sitting
first.” As such, the prosecutor proceeded to question Norman on the law that
would be applicable to Smith’s case. With respect to armed robbery, Norman
stated she did not understand the law, even after the prosecutor defined it for
her again. When asked about conspiracy, Norman expressly acknowledged that
she did not know the legal concept. After the prosecutor provided her an
example and asked if she then understood the concept, Norman replied, “Uh-
huh.” Lastly, the prosecutor gave Norman an example involving the law of
principals and asked her if she understood the example, to which Norman
stated, “No.”   Further conversation between Norman and the prosecutor
demonstrated that Norman had an issue with convicting a defendant under the
law of principals.
      The prosecutor then questioned Williams, because he self-identified as
having an issue with the law of principals. When asked whether he had
difficulty with the law of principals, Williams stated, “Yes. I have a problem
with it because it’s – to me it seems like it is clustered with everybody in it. And
it is just one guilty party, the one that committed the murder. Whether he acted

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                                 No. 10-30665

with someone or not[,] the one that did the crime should pay the penalty.” After
further discussion, Williams said that his disagreement was not “instilled,” and
that he could follow the judge’s instructions. But, he also stated that he
disagreed in principle with multiple murder convictions for individuals involved
in the death of his friend, the police officer, since not all of the convicted
individuals actually shot her. Williams also noted that he understood the
concepts of armed robbery and conspiracy.
                                       B.
      Following his conviction, Smith unsuccessfully pursued state habeas relief;
the courts of Louisiana denied relief. Once his state remedies were exhausted,
he sought a writ of habeas corpus in federal district court under 28 U.S.C. §
2254. Smith raised seven issues as part of his federal habeas claim, including
his Batson challenge. The magistrate judge’s report, which was adopted by the
district court, denied six of the claims, but recommended appointing Smith
counsel for an evidentiary hearing on the Batson issue. At the hearing, the
district court concluded that Smith had made the initial prima facie showing of
racial discrimination in the voir dire. The court then heard testimony from the
state prosecutor on the reasons for her use of peremptory strikes.
      The prosecutor stated that she struck Norman because she did not
understand or agree with the law of principals. In addition, the prosecutor noted
that she takes account of many factors in her use of peremptory strikes, and that
Norman further troubled her because she had been sitting in the courtroom all
day during the questioning of prior panels but appeared not to have listened or
understood what was previously discussed. The prosecutor also testified that
the record reflected Norman’s confusion over the various legal issues. With
respect to Williams, the prosecutor simply noted that, “He thought that if you
held a gun during the robbery you should be much more culpable than – than if
you had not. So that was the reason that I had struck him.”

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      Upon completion of the evidentiary hearing, the parties filed memoranda
with the district court based on the now-expanded record. Smith argued that
any race-neutral reasons for the peremptory challenges were negated by
evidence that the two black panelists had been subjected to more extensive and
in-depth questioning on their understanding of the law than any white panelists.
The district court, however, concluded that Smith did not carry his burden of
proving purposeful discrimination and denied his application for a writ of habeas
corpus. Smith then applied to this court for a COA in order to appeal the district
court’s judgment. We granted the COA, but limited it to the specific question:
whether the district court erred in finding that Smith had failed to carry his
burden of showing that the prosecutor’s race-neutral explanations for striking
venire panel members Norman and Williams were a pretext for purposeful
discrimination, in the light of the comparative juror analysis of Miller-El v.
Dretke, 545 U.S. 231, 240-41 (2005).
      After the COA was granted, but before oral argument was presented in the
case, the Supreme Court decided Pinholster. Because Pinholster addressed
evidentiary hearings in section 2254(d) cases, we ordered supplemental briefing
on whether the Pinholster limitation applied to Smith’s case.
                                   II.
      We first address Pinholster, and its potential application to the evidentiary
hearing held by the district court. In Pinholster, the Supreme Court discussed
whether federal district courts are permitted to hold supplementary evidentiary
hearings when evaluating habeas claims under 28 U.S.C. § 2254(d)(1). Section
2254(d) states:
      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be
      granted with respect to any claim that was adjudicated on the
      merits in State court proceedings unless the adjudication of the
      claim--


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      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.
Based on the statutory text, the Court held “that review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim
on the merits.” Pinholster, 131 S. Ct. at 1398. The Court found this result
compelled because the “backward-looking language requires an examination of
the state-court decision at the time it was made.” Id. Cognizant of the deference
traditionally given to state court decisions in habeas proceedings, the Court
further concluded that, “It would be contrary to . . . allow a petitioner to
overcome an adverse state-court decision with new evidence introduced in a
federal habeas court and reviewed by that court in the first instance effectively
de novo.” Id. at 1399.
      Smith argues that the district court erred in conducting an evidentiary
hearing because Pinholster limits federal habeas review to the evidence at the
disposal of the state court. Under his argument, although the state court did not
reach the second and third Batson prongs, or develop an evidentiary record on
the issue, Pinholster limited the district court to the evidence that was in the
state court record. But Smith recognizes, of course, that the state trial court did
not reasonably apply Batson when it ruled against him at the prima facie stage
of his claims; thus, in his view, he should be entitled to federal habeas relief in
the form of a remand to the state trial court.
      His argument, however, fails because we think that the district court did
what section 2254(d)(1) allows, and what Pinholster does not forbid. The
magistrate judge determined on the basis of the state court record that the state
courts’s Batson analysis “was contrary to, or at least involved an unreasonable


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                                  No. 10-30665

application of, clearly established Federal law.” After making this finding, the
magistrate judge recommended to the district judge that relief be granted in the
form of an evidentiary hearing on Smith’s Batson claim. The district court
adopted the magistrate judge’s recommendation. The Batson test is clearly
established federal law, as determined by the Supreme Court, for the purpose
of addressing claims of racial discrimination in jury selection. Smith was
entitled to have the proper legal standard applied in determining whether his
jury was the product of a racially discriminatory voir dire process. Because the
district court appropriately and correctly concluded that the state court had
unreasonably applied Batson under section 2254(d)(1) based solely on the state
court record, Pinholster is inapplicable. Thus, the hearing was in error only if
Smith failed to develop the basis of his claim as required under 28 U.S.C. §
2254(e)(2), or if the district judge otherwise abused his discretion in conducting
the hearing.
      Section 2254(e)(2) states: “If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless . . . .” Here, it was not Smith who failed
to develop the factual record; Smith made a Batson objection, but the state court
failed to provide him the opportunity to develop the factual basis of his claim
through its misapplication of the Batson standard. Under the circumstances,
section 2254(e)(2) does not bar a federal evidentiary hearing. And, when section
2254(e)(2) does not preclude the hearing, we review the district court’s decision
to conduct one for an abuse of discretion. See Clark v. Johnson, 202 F.3d 760,
765 (5th Cir. 2000) (“[T]he district court retains discretion over the decision to
grant an evidentiary hearing once a petitioner overcomes the barriers presented
by § 2254(e)(2).”); see also McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th
Cir. 1998). Based on this record, the district court did not abuse its discretion.



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       This analysis follows our recent holding in Blue v. Thaler, in which we
addressed Pinholster in the Atkins v. Virginia4 context. 665 F.3d 647 (5th Cir.
2011). In Blue, the appellant challenged the district court’s refusal to conduct
an evidentiary hearing, requiring us to discuss the application of Pinholster to
evidence introduced for the first time at the federal level. See id. at 655-57. We
stated:
       [I]f a state court dismisses a prima facie valid Atkins claim without
       having afforded the petitioner an adequate opportunity to develop
       the claim, it has run afoul of the Due Process Clause, and that due
       process violation constitutes an unreasonable application of clearly
       established federal law that is sufficient to deprive the state court’s
       decision of AEDPA deference.
Id. at 657. Under those circumstances, “a district court abuses its discretion if
it does not conduct an evidentiary hearing on an Atkins claim.” Id. We thus
found that Pinholster’s limitation on federal evidentiary hearings does not apply
once the district court concluded, solely on the basis of the state court record,
that the state trial court unreasonably applied federal law. Because the state
court decision is no longer entitled to deference, the federal court is free to
properly address the claim and grant appropriate relief. See id.; see also Wiley
v. Epps, 625 F.3d 199, 207 (5th Cir. 2010) (“When a state court’s adjudication of
a claim is dependent on an antecedent unreasonable application of federal law,
the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then
resolve the claim without the deference AEDPA otherwise requires.” (quoting
Panetti v. Quarterman, 551 U.S. 930, 944 (2007)) (internal quotation marks
omitted)).
       Consequently, the district court did not err in any respect in conducting
the evidentiary hearing.


       4
         536 U.S. 304 (2002). Atkins held that the Eighth Amendment prohibits the imposition
of the death penalty against any individual who is mentally retarded. Id. at 321.

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                                       III.
                                        A.
      We turn now to the merits of Smith’s Batson claim. There are three steps
in the Batson analysis. E.g., Reed v. Quarterman, 555 F.3d 364, 368 (5th Cir.
2009). “First, a defendant must present a prima facie case that the prosecution
exercised its peremptory challenges on the basis of race.” Id. “Second, if the
defendant meets this initial burden, the burden shifts to the prosecutor to
present a race-neutral explanation for striking the jurors in question.” Id.
Third, “the court must determine whether the defendant has carried his burden
of proving purposeful discrimination.”         Id.    “Implausible or fantastic
justifications may (and probably will) be found to be pretexts for purposeful
discrimination.” Id. (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)) (internal
quotation marks omitted). “The ultimate burden of persuasion lies with the
defendant.” Woodward v. Epps, 580 F.3d 318, 335 (5th Cir. 2009). We will only
reverse the district court’s factual findings if they are clearly erroneous. See
Wright v. Harris Cnty., 536 F.3d 436, 438 (5th Cir. 2008); United States v.
Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988).
      It is Batson’s third step that is the focus of this appeal. “When the process
reaches this step, the ‘defendant may rely on all relevant circumstances to raise
an inference of purposeful discrimination.’” Fields v. Thaler, 588 F.3d 270, 274
(5th Cir. 2009) (quoting Miller-El, 545 U.S. at 240) (internal quotation marks
omitted). We ask whether the state’s proffered, race-neutral explanations are
a pretext for purposeful discrimination based on a comparative analysis of
prospective jurors. See Miller-El, 545 U.S. at 240-41. In conducting the required
comparative analysis, we are guided by the Supreme Court’s decision in Miller-
El. See 545 U.S. at 241, 246-47, 252; see also Reed, 555 F.3d at 376. “If the State
asserts that it struck a black juror with a particular characteristic, and it also
accepted nonblack jurors with that same characteristic, this is evidence that the

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asserted justification was a pretext for discrimination.” Reed, 555 F.3d at 376.
In addition, “if the State asserts that it was concerned about a particular
characteristic but did not engage in meaningful voir dire examination on that
subject, then the State’s failure to question the juror on that topic is some
evidence that the asserted reason was a pretext for discrimination.” Id. Lastly,
“we must consider only the State’s asserted reasons for striking the black jurors
and compare those reasons with its treatment of the nonblack jurors.” Id.
                                        B.
      The district court heard the state prosecutor’s testimony firsthand and
concluded that the reasons offered were not a pretext for purposeful
discrimination. The court reviewed the voir dire record and found that it
supported the race-neutral reasons given for striking the panelists at issue: (1)
Norman had an issue with the law of principals, and she had been sitting in the
courtroom all day but remained confused about the legal issues discussed in-
depth by prior panels; and (2) Williams self-identified his issue with the law of
principals, even maintaining his disagreement in the context of the murder of
his close friend. Furthermore, the district court conducted a comparative
analysis of white and black jurors to ascertain any disparities in their treatment.
The court determined that there had been no purposeful discrimination in the
voir dire; the record showed that prior panels also had discussed and been
questioned on the legal concepts at issue. Lastly, the district court noted that
Smith had failed to specify panelists who were similarly situated but were not
questioned or struck like Norman and Williams.
                                        C.
      Based on our own review of the record, we hold that the district court did
not clearly err in its factual determinations, and that Smith has not carried his
burden of proving purposeful discrimination. On appeal, Smith has asserted
essentially the same arguments that he advanced before the district court. His

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main argument remains that the voir dire was tainted by an undercurrent of
racial bias, demonstrated by the exchange between defense counsel and the
prosecutor after she struck Norman and Williams. Defense counsel stated,
“That doesn’t surprise me,” and the prosecutor responded, “I wouldn’t think.”
His specific argument with respect to Norman and Williams is that other jurors
were not subject to the same, in-depth questioning that they were required to
undergo. As to Williams, Smith states that he was close friends with a police
officer, and that he was able to grasp the legal concepts as the questioning went
on. With respect to Norman, Smith argues that she was the only juror subjected
to a “pop quiz” on the law of armed robbery, conspiracy, and principals. He
concludes that the use of peremptory strikes on both individuals was racially
motivated.
      But this argument fails because Smith has not pointed to any similarly
situated jurors for the purpose of comparative analysis. Although the prosecutor
struck three black panelists in a row from the third panel, the use of peremptory
strikes over all three panels demonstrates that there is no evidence of general
racial bias at work during the voir dire. From the first panel, the state exercised
seven peremptory challenges, striking four white panelists and three black
panelists. From the second panel, the state struck one white panelist and one
black panelist. Lastly, the state struck three black panelists from the third
panel. The defense, however, struck four white panelists and one black panelist
from the first panel, six white panelists from the second panel, and one white
panelist from the third panel. Thus, the actual use of peremptory strikes does
not support a showing of the prosecutor’s general racial bias.
      Nor does a comparison of jury selection show that the prosecutor had one
script for white panelists and another for black panelists. During voir dire, the
panels initially were questioned by the trial judge about their basic personal
information: name; occupation; marital status; number and ages of children;

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                                  No. 10-30665

race; and gender. The trial judge also asked questions designed to reveal
possible bias: familiarity with the parties, witnesses, attorneys, or law
enforcement; past arrests of panelists or family members; and past encounters
with the police. The prosecutor, who questioned each panel before defense
counsel, would then follow up with each panel member individually, filling in
gaps and asking additional questions where needed.              After her initial
questioning, the prosecutor then would discuss the law of armed robbery,
conspiracy, and principals, all of which were applicable in Smith’s case. The
prosecutor only deviated from this process with the third panel, where she
combined her questioning to ask both personal and legal questions of each
panelist individually. Instead of racial motivation for the truncated questioning,
however, the record indicates that the voir dire of the third panel occurred late
in the day–questioning began after 7:15p.m.–and that all parties were
attempting to shorten the process.
      Furthermore, in the jury selection process, the prosecutor routinely singled
out individuals, both black and white, when they self-identified in response to
her open-ended question. For example Ms. Tynes, who is white and was on the
first panel, was asked additional questions when she acknowledged that she
watched legal television shows. The prosecutor also singled out individuals like
Mr. Rathcke, a white male, when they gave visual signs of confusion or
disagreement, such as having a puzzled look on their face or furrowing their
brow. Thus, the singling out of Williams over an issue was not restricted to him
or to black panelists generally; it was a common characteristic of the prosecutor’s
voir dire technique.
      To put a fine point on the questioning of Norman, however, it was different
when compared specifically to other panelists who sat first on their respective
panels. The prosecutor began with the same questions clarifying Norman’s
personal information, but she then deviated from her prior practice and asked

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                                  No. 10-30665

Norman to state the legal concepts in her own words. The district court credited
the prosecutor’s testimony that she struck Norman, in part, because she was
confused even after the prosecutor offered further explanation. Indeed, our
review of the record demonstrates that after Norman answered the question, the
prosecutor restated the concepts in legal terms and asked her if she understood.
Providing an explanation, and then asking whether the panelist understood, is
in line with the prosecutor’s approach during the earlier panels. The record also
shows that other members of the third panel were asked to state applicable legal
concepts in their own words. For example, Mr. Brown, a white male, was asked
to restate the concept of reasonable doubt. Additionally, Norman had been
present in the courtroom all day, and the prosecutor was concerned that she had
failed to understand any of the legal concepts relevant to the case, despite all the
preceding discussions. In short, the district court did not commit clear error in
crediting the prosecutor’s testimony with respect to Norman.
      Finally, we should note that the COA we granted was, in fact, limited to
the issue of a comparison of white and black jurors who were struck or who were
not struck, and, although Smith did not point to specific jurors for comparative
analysis, we have conducted an in-depth review of the record, as indicated above.
It is clear to us that he has not carried his burden of proving a case of purposeful
discrimination.
                                        IV.
      In this opinion, we have concluded that the evidentiary hearing was not
barred by Pinholster because the court determined that the state courts had
violated clearly established federal law through the misapplication of Batson,
based solely on the state court record; the district court therefore acted
appropriately in granting Smith relief in the form of an evidentiary hearing to
develop his claim, and then in determining in a federal forum the substantive
merits of Smith’s federal claim.      Furthermore, in the light of the federal

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                                  No. 10-30665

evidentiary record, the district court did not err in holding that Smith failed to
prove purposeful discrimination in the selection of the jury, as required under
Batson’s third step. The judgment of the district court, therefore, is
                                                                    AFFIRMED.




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