     Case: 09-11025     Document: 00511541245         Page: 1     Date Filed: 07/15/2011




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

                                                                            FILED
                                                                            July 15, 2011
                                     No. 09-11025
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONALD RAY SIMMONS,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:08-CV-442


Before WIENER, GARZA, , and CLEMENT, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant Donald Ray Simmons, Texas prisoner # 1302502, was
convicted of capital murder and attempted capital murder and was sentenced to
concurrent terms of life in prison and 70 years, respectively. The district court
dismissed Simmons’s 28 U.S.C. § 2254 petition, which included a claim of
racially motivated exclusion of an African American juror in violation of Batson
v. Kentucky, 476 U.S. 79 (1986). A judge of this court granted a certificate of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-11025

appealability (COA) on whether “the district court erred in upholding the state
courts’ determination that Simmons had failed to carry his burden of showing
that the prosecutor’s race-neutral explanations for striking [juror Shirlan] Felder
were a pretext for purposeful discrimination, in light of the comparative juror
analysis of Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005).”         Briefing is
complete, and the State has supplemented the record with the juror
questionnaires.
      In light of the COA order, we are concerned here only with the state court’s
application of the third step of the three-step Batson analysis: whether the
prosecution’s race-neutral reasons were a pretext for discrimination. Simmons
contends that the State improperly struck Felder on the basis that she was
African American. The State offered the following race-neutral reasons for
striking Felder based on her answers to the jury questionnaire: Felder had a
sister who was incarcerated; she described her sister’s incarceration as an
unpleasant experience with police; she appeared to fall asleep at times on both
days of voir dire; her son worked at the Tarrant County jail, where many of the
State’s witnesses were incarcerated; and she was a Seventh Day Adventist,
which suggested she might have difficulty sitting in judgment of others.
Simmons argued that the State had not exercised strikes against two other
venirepersons, Cindy Starrett and Frances Eldridge, who had incarcerated
relatives, nor did it do so against other venirepersons with relatives who were
jailers; that another venireperson said he might have trouble judging others; and
that counsel did not see Felder fall asleep. Finally, Simmons pointed out the
State failed to ask Felder a single question. The state trial court denied the
Batson challenge, and the state appeals court affirmed.
      In his brief, Simmons limits his argument primarily to jurors Eldridge and
Starrett, arguing that they both had incarcerated relatives, making them similar
to Felder. He further contends that Felder’s religious affiliation and her son’s
job as a jailer are merely personal issues that have nothing to do with whether

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                                  No. 09-11025

she would make a good juror. Simmons also complains that the State failed to
ask Felder any questions. Finally, Simmons suggests that Tarrant County has
a policy of excluding African Americans from juries similar to the policy cited in
the Miller-El cases.
      A federal court may not grant habeas relief on a claim adjudicated on the
merits in state court unless the state court decision was contrary to or an
unreasonable application of clearly established federal law as determined by the
Supreme Court, or was based on an unreasonable determination of the facts
given the evidence presented in the state proceedings. 28 U.S.C § 2254(d)(1)
& (2); Harrington v. Richter,     U.S.   , 131 S. Ct. 770, 786 (2011). Further, a
state court’s factual findings are presumed to be correct unless rebutted “by clear
and convincing evidence.” § 2254(e)(1). This presumption applies to the state
court’s factual finding regarding discriminatory intent. Murphy v. Dretke, 416
F.3d 427, 432 (5th Cir. 2005). We review the district court’s legal determinations
de novo and its findings of fact for clear error, applying the same deference to the
state court’s decision as the district court. See Ortiz v. Quarterman, 504 F.3d
492, 496 (5th Cir. 2007).
      In light of the foregoing standard, and after carefully reviewing the state
court record, we conclude that the state court decision to credit the prosecution’s
reasons based on the juror questionnaires was neither contrary to nor an
unreasonable application of clearly established federal law, nor was it based on
a unreasonable determination of the facts in light of the state record. See
Felkner v. Jackson,     U.S. , 131 S. Ct. 1305, 1307 (2011); Stevens v. Epps, 618
F.3d 489, 499 (5th Cir. 2010). In addition, Simmons has failed to offer clear and
convincing evidence to rebut the conclusion that the reasons for striking Felder
were not pretextual. Simmons’s assertion regarding a policy of exclusion is pure
speculation. He points to no evidence in the state record to support this claim.
We thus do not consider it. See§ 2254(d)(2); Stevens, 618 F.3d at 500-01.
      AFFIRMED.

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