     Case: 12-10540      Document: 00512618148         Page: 1    Date Filed: 05/05/2014




                             REVISED MAY 2, 2014

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

                                                                                 FILED
                                      No. 12-10540                            May 2, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
JUSTIN S. WHITE,

                                                 Petitioner-Appellant
v.

WILLIAM STEPHENS, 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. 2:09-CV-40


Before STEWART, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.
PER CURIAM:*
       A Texas jury convicted Justin S. White of murder and sentenced him to
30 years of incarceration. After exhausting state direct and collateral review,
White sought federal habeas relief in the district court, arguing, inter alia, that



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 12-10540      Document: 00512618148         Page: 2    Date Filed: 05/05/2014



                                      No. 12-10540
the state trial court violated his constitutional rights by overruling his Batson 1
challenge to the racial composition of his jury. The district court denied habeas
relief, and we granted a Certificate of Appealability (“COA”). We AFFIRM.
                                             I
       Following a fight, Davis S. Berliner was murdered outside a night club.
A police investigation linked Justin S. White to the murder. White had been
involved in the fight at the nightclub, had been seen waiving a handgun in the
air, and was thrown out of the club by the manager and bouncer shortly before
the shooting. Shortly after the shooting, White approached a vehicle leaving
the club with a handgun, and told the occupants that he thought he had just
shot either the club’s bouncer or manager.
       A Texas state jury convicted White and sentenced him to 30 years in
prison.    White timely appealed the conviction and sentence to the Texas
Seventh Court of Appeals, which affirmed the conviction and sentence by
unpublished opinion. 2
       On August 29, 2007, White filed a state habeas application, alleging
ineffective assistance of appellate counsel.              In this application, White
requested that he be permitted to file an untimely petition for discretionary
review. The Texas Court of Criminal Appeals (“CCA”) granted permission, and
White filed the petition asserting legal and factual insufficiency grounds for
reversal. The CCA then refused the petition.
       On August 14, 2008, White filed a second state habeas application,
alleging (i) that he was denied a fair trial because five of the jurors were biased
and prejudiced against him; (ii) that the state trial court violated his



       1  Batson v. Kentucky, 476 U.S. 79 (1986) (striking members of a jury based solely on
their race is a violation of the equal protection clause).
        2 White v. Texas, No. 07-05-0271-CR, 2006 WL 2612642 (Tex. App.—Amarillo 2006,

pet. ref’d).
                                             2
    Case: 12-10540       Document: 00512618148   Page: 3    Date Filed: 05/05/2014



                                  No. 12-10540
constitutional rights by overruling his Batson challenge to the racial
composition of the jury; (iii) that there was insufficient evidence to support the
murder conviction; (iv) that he was denied effective assistance of appellate
counsel; and, (v) that the trial court erred by dismissing the wrong juror when
it dismissed the alternate juror prior to deliberations. On November 5, 2008,
the CCA denied White’s application without written order.
      On February 6, 2009, White filed a timely application for federal habeas
relief in the federal district court. Over White’s objections, the district court
adopted the Report and Recommendation issued by the United States
Magistrate Judge, and denied White’s application for a federal writ of habeas
corpus. The district court then denied a COA. We granted a COA solely on the
Batson issue. White timely appeals.
                                        II
      We review the district court’s findings of fact for clear error and its legal
conclusions de novo. 3
      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
mandates deference to state court proceedings. Accordingly, if “a state court
has adjudicated a habeas petitioner’s claims on the merits, he may receive
relief in the federal courts only where the state court decision ‘resulted in a
decision that was contrary to, or involved an unreasonable application of
clearly established federal law,” or “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.” 4 In determining whether the state court’s decision




      3  Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (citing Woods v.
Quarterman, 493 F.3d 580, 584 (5th Cir. 2007)).
      4 Rivera, 505 F.3d at 355 (quoting 28 U.S.C. § 2254(d)).

                                        3
     Case: 12-10540       Document: 00512618148         Page: 4     Date Filed: 05/05/2014



                                       No. 12-10540
was reasonable, our consideration is limited to the record before the state court
at the time of the ruling. 5
       To determine whether a decision is “contrary to” or an “unreasonable
application” of clearly established federal law involves two distinct inquiries:
(i) “[a] state-court decision is ‘contrary to’ established law when a court ‘applies
a rule that contradicts the governing law’ or ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme Court] and
nonetheless arrives at a result different from [Supreme Court] precedent;” 6
and (ii) “ a state-court decision is an ‘unreasonable application’ of established
law when it ‘correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.’” 7 The touchstone of
the reasonableness inquiry is “whether the state court’s application was
‘objectively unreasonable;’” accordingly, “clear error is insufficient.” 8 Thus, if
“fairminded jurists could disagree about the correctness of the state court’s
decision, that decision was not unreasonable.” 9
                                             III
       With the AEDPA framework firmly in mind, we turn to the merits.
Under Batson, courts must engage in a three-step framework to evaluate
claims that a prosecutor used peremptory challenges in violation of the Equal
Protection Clause: (1) “a defendant must first make a prima facie showing that
the prosecutor used a peremptory challenge to strike a juror on the basis of



       5 See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011); Blue v. Thaler, 665 F.3d 647,
656 (5th Cir. 2011) (Pinholster prohibits “a federal court from using evidence that is [first]
introduced in [a federal habeas proceeding] as the basis for concluding that a state court’s
adjudication is not entitled to deference under § 2254(d).”).
       6 Coleman v. Thaler, 716 F.3d 895, 901 (5th Cir. 2013) (quoting Williams v. Taylor,

529 U.S. 362, 406 (2000)).
       7 Id. at 901–02 (quoting Williams, 529 U.S. at 407–08)).
       8 Id.
       9 Id.

                                              4
     Case: 12-10540      Document: 00512618148        Page: 5    Date Filed: 05/05/2014



                                     No. 12-10540
race;” (2) “if the defendant made such a showing, the prosecution must then
offer a race-neutral basis for the strike;” and, (3) “the district court must
determine whether the defendant has carried his burden of proving purposeful
discrimination.” 10    This ultimate conclusion of discriminatory intent is a
finding of fact. 11
       As the Supreme Court has explained, “the 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. At this stage, implausible or fantastic justifications may (and probably
will) be found to be pretexts for purposeful discrimination.” 12 The “ultimate
inquiry for the judge is not whether counsel’s reason is suspect, or weak, or
irrational, but whether counsel is telling the truth in his or her assertion that
the challenge is not race-based.” 13 And “these determinations of credibility and
demeanor lie peculiarly within a trial judge’s province, and . . . in the absence
of exceptional circumstances, we would defer to the trial court.” 14
       Here, White argues that at step 3, the state court impermissibly erred in
denying his Batson challenge to the State’s exercise of a peremptory challenge
to venire member Gerry Don Glass, an African-American male. The State
offered two reasons for challenging Glass: (i) his demeanor “during the course
of questioning, and in response to answers, was both belligerent and
reluctant[,]” and (ii) “his brother or somebody . . . had some legal problems or




       10 United States v. Thompson, 735 F.3d 291, 296 (5th Cir. 2013) (citing Batson, 476
U.S. at 93–98).
       11 Thompson, 735 F.3d at 296.
       12 Miller-El v. Cockrell, 537 U.S. 322, 338–39 (2003).
       13 United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993).
       14 Snyder v. Louisiana, 552 U.S. 472, 477 (2008).

                                            5
     Case: 12-10540       Document: 00512618148         Page: 6    Date Filed: 05/05/2014



                                      No. 12-10540
something like that.” 15 With respect to Glass’ demeanor, the State explained
that “[h]e was sitting there with his arms crossed the whole time—the physical
characteristic indication of someone who is closed off to you. We didn’t like his
demeanor in that behalf.” White argues that these reasons were pretextual.
First, White explains that the record does not convey Glass’s demeanor, and
thus, the state trial court’s failure to make any findings as to Glass’s demeanor
means that we cannot presume that the state trial court credited the
prosecutor’s assessment of demeanor; indeed, there are only a couple instances
of Glass’ testimony during voir dire in the record, and neither reflects his
demeanor. 16 Second, White argues that the State’s second race-neutral reason
was pretext, as he claims that white jurors who had relatives in jail were
allowed to serve on the jury.
       We disagree. A review of the record makes clear that the state court’s
decision was not an unreasonable application of federal law. To begin with,
Snyder does not require trial courts to make record findings regarding a juror’s
demeanor. 17 This is because “unlike the attorneys, [the trial court] may not



       15 State Trial Transcript, Vol. 4, at 120. When asked by the court to give “a racially
neutral reason . . . for you . . . exercising your preemptory [sic] challenge[,]” the State
explained as follows:
               With respect to Mr. Glass, his demeanor during the course of
               questioning, and in response to answers, was both belligerent
               and reluctant. He was sitting there with his arms crossed the
               whole time—the physical characteristic indication of someone
               who is closed off to you. We didn’t like his demeanor in that
               behalf. Additionally . . . there was some reason—his brother or
               somebody, I believe, had been—had some legal problems or
               something like that. And that’s our reasons on Mr. Glass.
       16 First, when the State asked the jurors whether they understood reasonable doubt,

Glass answered “You are for sure of it, there’s no doubt . . . You’ve got all your evidence,
there’s no doubt.” Second, when White asked whether Glass could acquit even if the guilty
party was never found, he nodded affirmatively, and when White asked whether Glass had
served on a grand jury before, he answered yes.
       17 Thompson, 735 F.3d at 301; see also Thaler v. Haynes, 559 U.S. 43, 48 (2010)

(“Batson plainly did not go further and hold that a demeanor-based explanation must be
                                             6
    Case: 12-10540      Document: 00512618148       Page: 7    Date Filed: 05/05/2014



                                    No. 12-10540
always be [in] a position to observe and record a potential juror’s demeanor.” 18
Although it might be “better practice for the court to put its findings on the
record[,] . . . Synder does not require that.” 19 Yet, because the State offered
two explanations for the strike, and the state trial judge did not specify on
which explanation he relied, “we cannot presume that the trial judge credited
the [State’s] assertion” regarding Glass’s demeanor. 20 Accordingly, we next
examine whether the State’s second reason—that Glass’ brother in law is in
prison—is pretextual.
         Here, we cannot conclude that the prosecutor’s second reason is
pretextual. First, we note that it is impossible to tell from the record whether
Glass was the unidentified veniremember who answered that he had a brother-
in-law in jail. The trial transcript only identifies an “unidentified prospective
juror” with a brother-in-law in jail. 21 Although the State makes a persuasive
argument that the answer can be attributed to him, a conclusive determination
is impossible, because the record does not disclose the identity of that juror.
But, given the deferential standard of review of AEDPA, we cannot say that
the attributing the answer to Glass is an unreasonable determination of the
facts.
         Second, White argues that this rationale must be mere pretext for
discrimination because three empanelled jurors also had relatives in jail. And
White argues that at least two of these jurors, unlike Glass, were white. But
there is no record evidence identifying the racial composition of the empaneled
jurors. Additionally, the three empanelled jurors with incarcerated relatives



rejected if the judge did not observe or cannot recall the juror’s demeanor. Nor did we
establish such a rule in Snyder.”).
       18 Id.
       19 Id.
       20 Snyder, 552 U.S. at 479.
       21 State Trial Transcript, Vol. 4, at 43.

                                          7
    Case: 12-10540      Document: 00512618148      Page: 8   Date Filed: 05/05/2014



                                    No. 12-10540
are distinguishable from Glass; all three believed that it is better that their
relatives are in jail. Juror 19, Deborah Baker, whose cousin was in jail, stated
that “[h]e probably needs to be there.” 22 Juror 32, Julia Buckstead, whose
brother was in jail, explained that she felt “like he needs to be there, and I hope
it will turn his life around.” 23 Similarly, Juror 38, Terri Mix, whose daughter’s
father was in jail, explained, “[h]opefully it will change his ways and he’ll be
able to straighten up and be able to come home and see her.” 24 In contrast to
these views, the views of the unidentified veniremember who is likely Glass
were ambivalent at best. When asked about his feelings about his brother-in-
law being incarcerated, he stated “I really don’t know. You know, I talk to him.
I really don’t know.” 25 The State followed up with that question by asking
whether he was close to the incarcerated relative, and he answered “Yeah. We
grew up together, pretty much.” 26 These answers reflect an ambivalence about
his relative’s incarceration not present in the answers of the empanelled jurors.
Because there are meaningful differences between Glass and the empanelled
jurors, and because the race of these comparator jurors cannot be determined
from the record, we cannot conclude that this explanation for the preemptory
strike was pretextual. Accordingly, because “fairminded jurists could disagree
about the correctness of the state court’s decision, that decision was not
unreasonable.” 27
      For these reasons, we AFFIRM.




      22 Id. at 42.
      23 Id. at 48.
      24 Id. at 49–50.
      25 Id. at 43.
      26 Id. at 43–44.
      27 Coleman, 716 F.3d at 901–02.

                                         8
