     Case: 11-30641      Document: 00512278976     Page: 1   Date Filed: 06/18/2013




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

                                                                    FILED
                                                                   June 18, 2013
                                    No. 11-30641
                                                                   Lyle W. Cayce
                                                                        Clerk
SHAWN HIGGINS,

                                             Petitioner - Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                             Respondent - Appellee


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


Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
          The district court granted Shawn Higgins a certificate of appealability
(“COA”) regarding his claim that his appellate counsel was ineffective in not
raising three Batson-related arguments on direct appeal. Persuaded that the
state court did not unreasonably apply clearly established federal law in
rejecting that claim, we affirm the district court’s judgment denying habeas
relief.


               I. BACKGROUND AND PROCEDURAL HISTORY
          Higgins was convicted of the second degree murder of Carl Jackson and
sentenced to life in prison without parole. His conviction was affirmed on direct
appeal. Higgins then sought and was denied post-conviction relief in state court.
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In addition to numerous other post-conviction claims, Higgins raised an
ineffective assistance of appellate counsel claim.1 He argued that his appellate
counsel was ineffective because he neither requested nor obtained a transcript
of the voir dire proceedings, despite minute entries from that date indicating
that trial counsel made two Batson objections, both of which were denied. The
state court denied Higgins’s request for post-conviction relief on that claim
without a hearing or a copy of the voir dire transcript. Higgins, through counsel,
then filed his 28 U.S.C. § 2254 application in federal court. In addition to
numerous other arguments, Higgins asserted that the state court’s rejection of
his ineffective assistance of appellate counsel claim was contrary to or an
unreasonable application of clearly established federal law. The magistrate
judge recommended that the writ be granted on Higgins’s claim of ineffective
assistance of appellate counsel. The district court rejected that recommendation
but granted Higgins a COA on the following question: “Whether the state court
unreasonably applied clearly established federal law when it determined that
petitioner’s appellate counsel did not render ineffective assistance when he failed
to raise issues with respect to Batson on direct appeal.” Higgins timely appealed
and then moved to expand the COA to include the issues of (1) whether the state
court’s ruling on his claim of ineffective assistance of appellate counsel was a
ruling on the merits and (2) whether under a de novo standard of review he
received ineffective assistance of appellate counsel. The district court and this
Court denied the motion. Accordingly, the only issue presently before us is that
presented in Higgins’s original COA.


                            II. STANDARD OF REVIEW
      This habeas proceeding is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), and we have jurisdiction because, as


      1
          See Strickland v. Washington, 466 U.S. 668 (1984).

                                              2
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stated above, the district court granted Higgins a COA.2 In a habeas corpus
appeal, we review the district court’s findings of fact for clear error and its
conclusions of law de novo.3 Under AEDPA, we may not grant habeas relief on
a claim that the state courts have adjudicated on the merits unless that
adjudication resulted in a decision that was either (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”4 A state court’s decision is “contrary to” clearly established federal
law if “the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable
facts.”5 A state court’s decision involves an “unreasonable application of clearly
established federal law” if the state court “identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.”6 The state court’s factual findings
are “presumed to be correct” unless the habeas petitioner rebuts the
presumption “by clear and convincing evidence.”7


                                    III. DISCUSSION
      To make out a claim for ineffective assistance of appellate counsel, a
defendant must show (1) “that counsel’s performance was deficient” and (2) “that

      2
          28 U.S.C. § 2253(c)(1).
      3
          Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).
      4
          28 U.S.C. § 2254(d).
      5
          Williams v. Taylor, 529 U.S. 362, 413 (2000).
      6
          Id.
      7
          28 U.S.C. § 2254(e)(1).

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the deficient performance prejudiced the defense.”8 The state post-conviction
court rejected Higgins’s ineffective assistance of appellate counsel claim, leaving
uncertain whether its rejection rested on Strickland v. Washington’s deficiency
prong or its prejudice prong. But that issue is of no moment given the Supreme
Court’s recent decision in Johnson v. Williams.9 Under Williams, when a state
court rejects some of the defendant’s claims but does not expressly address a
particular federal claim, a federal habeas court reviewing under § 2254(d) must
presume, subject to rebuttal, that the federal claim was adjudicated on the
merits.       There being no rebuttal here, we assume that the state court
adjudicated both the deficiency and prejudice prongs on the merits.
       In considering whether the state court’s decision constituted an
unreasonable application of clearly established federal law, “a federal habeas
court is authorized by Section 2254(d) to review only a state court’s ‘decision,’
and not the written opinion explaining that decision.”10 Thus, the focus of the
“unreasonable application” inquiry is “on the ultimate legal conclusion that the
state court reached,” and “the only question for a federal habeas court is whether
the state court’s determination is objectively unreasonable.”11 In conducting that
inquiry, “a habeas court must determine what arguments or theories supported
or, . . . could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of [the Supreme




       8
         Strickland, 466 U.S. at 687. The Strickland standard is used to evaluate claims for
ineffective assistance of appellate counsel. Blanton v. Quarterman, 543 F.3d 230, 240 (5th Cir.
2008).
       9
           548 U.S. ___, 133 S. Ct. 1088 (2013).
       10
            Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc).
       11
            Id.

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Court].”12 Here, because we are persuaded that “there [was] a reasonable
justification for the state court’s decision,”13 we must deny relief.


                                                A.
       Higgins first contends that his appellate counsel was ineffective because
he failed to obtain a copy of the voir dire transcript, which would have revealed
three Batson-related issues, despite minute entries indicating that defense
counsel made two Batson objections during voir dire, both of which were
denied.14 This failure-to-investigate argument fails because Higgins has not met
his burden of demonstrating prejudice.                 To demonstrate prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”15 That standard is not met here because, as we explain below, even
had Higgins’s appellate counsel investigated the Batson objections, Higgins
cannot show that such investigation would have led to solid, meritorious
arguments based on directly controlling precedent which his counsel should have
brought to the appellate court’s attention. Moreover, Higgins offered no evidence
that his appellate counsel had failed to investigate the Batson objections in some
other way. For example, we do not know whether appellate counsel contacted


       12
            Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
       13
            Id. at 790.
       14
         One could argue that Higgins’s failure to investigate argument is not within the scope
of the COA, but we find that the argument is properly before us as a part of his claim that
counsel was ineffective on direct appeal in failing to present the Batson issues. The want of
a transcript has no moment absent a Batson violation.
       15
         Strickland, 466 U.S. at 694. In articulating Strickland’s prejudice standard, the state
post-conviction court omitted the “reasonable probability” modifier on two occasions.
Assuming arguendo that omission of the “reasonable probability” language results in a
decision that is “contrary to” Supreme Court precedent, and therefore not entitled to AEDPA
deference, Higgins still would not be entitled to relief because even under de novo review he
has failed to demonstrate prejudice.

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trial counsel, inquired about the Batson objections, decided those arguments
would not succeed on direct appeal, and thus did not request the transcript. For
all these reasons, Higgins failed to show that the state habeas court was
unreasonable in rejecting his failure-to-investigate argument.


                                                B.
       We now turn to Higgins’s second group of arguments—that appellate
counsel was ineffective because he failed to raise three specific Batson-related
arguments on direct appeal. We can meaningfully address those arguments only
by considering the voir dire transcript, which was not part of the record before
the state post-conviction court, notwithstanding the diligent efforts of Higgins’s
attorney in that proceeding. As a threshold matter, we must decide whether
Cullen v. Pinholster16 precludes consideration of the voir dire transcript.
Pinholster teaches that “evidence introduced in federal court has no bearing on
§ 2254(d)(1) review.”17 “It would be contrary to th[e] purpose [of the federal
habeas scheme] 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 . . . .”18
       Despite that categorical holding, by which we are bound, we conclude that
consideration of the voir dire transcript is not barred by Pinholster, because the
transcript is not “new evidence” introduced in federal court “in the first
instance.”19 In reaching that result, we follow a recent case from a sister circuit
addressing a similar Batson claim. In Jamerson v. Runnels,20 the Ninth Circuit

       16
            131 S. Ct. 1388, 1398 (2011).
       17
            Id. at 1400.
       18
            Id. at 1399 (emphasis added).
       19
            See id.
       20
            713 F.3d 1218, 1227 (9th Cir. 2013).

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considered “enlarged driver’s license photographs that Jamerson submitted to
show the race of each venire member,” even though “the state appellate court,
which issued the last reasoned opinion in this case, did not know the race of
every venire member.” The Ninth Circuit explained,
         Pinholster’s concerns are not implicated here. The driver’s license
       photographs depicting the racial composition of Jamerson’s jury
       venire do not constitute new evidence of which the state courts were
       completely unaware when deciding his Batson[] claims. Instead,
       these photographs reconstruct physical attributes that were visible
       to the state court that originally ruled on Jamerson’s Batson[]
       motions.[21]

Similarly, the voir dire transcript reconstructs testimony actually presented to
the state court that originally ruled on Higgins’s Batson motion and
“represent[s] a part of the set of facts that the state court evaluated when
concluding that the prosecutor had genuine, race-neutral reasons for striking
each juror.”22
       “A common sense reading of Pinholster leads us to this conclusion.”23 In
our view, the gravamen of that decision is effecting “AEDPA’s goal of promoting
comity, finality, and federalism by giving state courts the first opportunity to
review [a] claim, and to correct any constitutional violation in the first
instance.”24 Most significantly, “nothing in Pinholster inherently limits this
court’s review to evidence that the state appellate court—as opposed to the state




       21
             Id. at 1226.
       22
             Id. at 1226-27.
       23
             Id. at 1226.
       24
             Pinholster, 131 S. Ct. at 1401 (internal quotation marks omitted) (alteration in
original).

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trial court—considered. . . . To the contrary, Pinholster itself precluded review
only of evidence that was never revealed in any state court proceeding.”25
       Finally, we join the Jamerson court in declining to read Pinholster “as
implicitly overruling the substantive Batson requirements set forth in Miller–El
[v. Dretke26].”27 If Pinholster bars consideration of the voir dire transcript,
“examination of the state court’s disposition of [Higgins’s] Batson claim . . . will
be virtually impossible.”28 “We do not believe that the Supreme Court had this
consequence in mind when it decided Pinholster.”29 Therefore, Pinholster allows
us to consider the voir dire transcript to the extent that it “merely reconstruct[s]
facts [known] to the state trial court that ruled on the petitioner’s Batson
challenge.”30
       To understand the specifics of Higgins’s arguments, we begin with a brief
review of Batson v. Kentucky and the voir dire proceedings in Higgins’s case. In
Batson, the Supreme Court explained that “[a]lthough a prosecutor ordinarily
is entitled to exercise permitted peremptory challenges ‘for any reason at all, as
long as that reason is related to his view concerning the outcome’ of the case to
be tried, the Equal Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race or on the assumption that black
jurors as a group will be unable impartially to consider the State’s case against


       25
         Jamerson, 713 F.3d at 1227 (citation omitted). See also Charles v. Felker, 473 F.
App’x 541, 544 (9th Cir.), cert. denied, 133 S. Ct. 424 (2012) (taking judicial notice of juror
questionnaires used in voir dire and holding that the “questionnaires are not new evidence to
be considered by the federal court as would be precluded by Pinholster, because they were
before the state trial court”).
       26
            545 U.S. 231, 241 (2004).
       27
            Jamerson, 713 F.3d at 1227.
       28
            Id.
       29
            Id.
       30
            Id.

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a black defendant.”31 Batson established a three-step process for examining
whether a prosecutor has exercised peremptory challenges in a manner that
violates the Equal Protection Clause. A defendant must first make a prima facie
showing that the prosecutor has exercised a peremptory challenge on the basis
of race.32 If the prima facie showing is made, then “the burden shifts to the
prosecutor to articulate a race-neutral explanation for striking the jurors in
question.”33 The trial court must then “determine whether the defendant has
carried his burden of proving purposeful discrimination.”34
      With that legal framework in mind, we turn to the specifics of the voir dire
proceedings in Higgins’s case. The first venire panel included five African
American and eight white potential jurors. The State used peremptory strikes
to remove one white juror and three African American jurors. The State also
successfully challenged one African American juror for cause, and the remaining
African American juror was accepted onto the jury. At that point, defense
counsel made a Batson objection, to which the trial court responded: “The Court
doesn’t find any pattern at this point with regard to any Batson problems. There
are, as you stated, there are some African American jurors on the panel as your
client’s African American. The State has chosen to keep [one juror], who is
African American. The State has also cut a white prospective juror.” The State
then used peremptory strikes to remove one African American juror in the
second panel and one African American juror in the third panel. Following the
latter strike, defense counsel re-urged his Batson objection. Before the trial
judge had an opportunity to rule on whether Higgins’s counsel had now made
out a prima facie case of discrimination, the prosecutor immediately proffered

      31
           Batson v. Kentucky, 476 U.S. 79, 89 (1986).
      32
           Hernandez v. New York, 500 U.S. 352, 358 (1991) (citing Batson, 476 U.S. at 96–97).
      33
           Id. at 358–59 (citing Batson, 476 U.S. at 97–98).
      34
           Id. at 359 (citing Batson, 476 U.S. at 98).

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race-neutral explanations for the later two strikes. Following each of the
prosecutor’s explanations, the trial judge responded that the prosecutor had
“articulated race neutral reasons” for the given peremptory challenge. The
prosecutor did not offer an explanation for striking the three prospective African
American jurors in the first panel. Following defense counsel’s second Batson
objection, one potential African American juror remained in the second panel;
the State did not challenge that potential juror, but defense counsel used a back
strike to remove her. The case thus went to trial with one African American
juror.
         In light of the foregoing, Higgins argues that his appellate counsel was
deficient for failing to make three Batson-related arguments on direct
appeal—specifically that the trial court erred (1) by failing to find a prima facie
case with respect to the three African American jurors who were struck in the
first round at the time defense counsel made its initial Batson objection; (2) by
failing to find a prima facie case with respect to the three African American
jurors who were struck in the first round once the prosecutor offered race-
neutral explanations for the two later strikes; and (3) by failing to engage in the
third step of Batson inquiry, which requires the trial court to evaluate whether
the State’s proffered race-neutral explanations were sufficiently persuasive to
overcome a Batson challenge.
         To establish deficient performance, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.”35
We “must judge the reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed at the time of counsel’s conduct” to “determine
whether, in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.”36 Our scrutiny


         35
              Strickland, 466 U.S. at 688.
         36
              Id. at 690.

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of counsel’s performance must be “highly deferential,” and, in order to avoid the
effects of hindsight bias, we “must indulge a strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be sound trial strategy.’”37 Applying AEDPA deference
to Strickland’s already deferential standard, we must deny relief if “there is any
reasonable argument that [appellate] counsel satisfied Strickland’s deferential
standard” despite failing to make the argument described above.38 In other
words, we must deny relief “if there was a reasonable justification for the state
court’s decision.”39
       We find such a reasonable justification exists—given the weaknesses in
those arguments, it is at least arguable that a competent attorney could decide
to forgo raising them.40 Under well-established principles, appellate counsel
need not “raise every nonfrivolous ground of appeal available” in order to be
effective.41 Instead, appellate counsel’s failure to raise an argument on direct
appeal will be considered ineffective only when counsel fails to perform “in a
reasonably effective manner.”42 This standard requires that appellate counsel


       37
            Id. at 689.
       38
            Richter, 131 S. Ct. at 788.
       39
            Id. at 790.
       40
         See id. at 788 (“Strickland . . . permits counsel to ‘make a reasonable decision that
makes particular investigations unnecessary.’ It was at least arguable that a reasonable
attorney could decide to forgo inquiry into the blood evidence in the circumstances here.”
(quoting Strickland, 466 U.S. at 691)).
       41
          Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998); see Jones v. Barnes, 463 U.S.
746, 751–53 (1983) (“Experienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one central issue
if possible, or at most on a few key issues. . . . A brief that raises every colorable issue runs
the risk of burying good arguments . . . in a verbal mound made up of strong and weak
contentions.”).
       42
            Green, 160 F.3d at 1043.

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“research relevant facts and law, or make an informed decision that certain
avenues will not prove fruitful.”43 “Solid, meritorious arguments based on
directly controlling precedent should be brought to the court’s attention.”44
Thus, to determine whether appellate counsel’s performance was deficient, we
must consider whether the Batson arguments are “sufficiently meritorious such
that [Higgins’s] counsel should have raised [them] on appeal.”45 We find that
they are not. As such, “[h]ere it would be well within the bounds of a reasonable
judicial determination for the state court to conclude that [appellate] counsel
could follow a strategy that did not require” raising the Batson arguments on
direct appeal.46


                                               1.
      Higgins first alleges that his appellate counsel was deficient because he
did not argue that the trial court erred by failing to find a prima facie case at the
time defense counsel lodged its initial Batson objection. To establish a prima
facie case under Batson, “a defendant (1) must show that he is a member of a
cognizable racial group, and that the prosecutor has exercised peremptory
challenges to remove members of the group from the venire; (2) is entitled to rely
on the fact that peremptory challenges constitute a jury selection practice that
permits those to discriminate who are of a mind to discriminate; and (3) must
show that these facts and circumstances raise an inference that the prosecutor
exercised peremptory challenges on the basis of race.”47                    Here, the third


      43
           United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000).
      44
           Id.
      45
           Id.; see United States v. Reinhart, 357 F.3d 521, 525 (5th Cir. 2004).
      46
           Richter, 131 S. Ct. at 789.
      47
          Price v. Cain, 560 F.3d 284, 286 (5th Cir. 2009) (citing Batson, 476 U.S. at 96)
(internal quotations omitted).

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requirement is at issue. Although demonstrating facts sufficient to raise an
inference of discrimination is a “light burden,” the question before us is not
whether we would find a prima facie case on de novo review. Instead, we are
faced with evaluating the state court’s adjudication of Higgins’s ineffective
assistance of appellate counsel claim—based on counsel’s failure to raise the
above argument—under the heightened deference AEDPA requires. In turn, we
must ask whether there is a reasonable justification for the state court’s decision
that appellate counsel’s failure to raise the argument on direct appeal did not
amount to deficient performance.
      We are persuaded that such a justification exists here. For one, in light
of the deferential standard a Louisiana appellate court would employ in
reviewing the trial judge’s determination that no prima facie case existed, it is
at least arguable that a competent attorney could decide to forgo raising the
argument on appeal. The Louisiana Supreme Court has previously explained
that when reviewing a trial court’s finding that the defendant failed to carry its
burden of establishing a prima facie case, “the appropriate inquiry . . . is
whether the district court committed clear error in finding the defendant failed
to make a prima facie showing of discriminatory intent in the State’s exercise of
its peremptory challenges.”48 Moreover, under Batson, proof of a prima facie
case is fact-intensive, and “[i]n deciding whether the defendant has made the
requisite showing, the trial court should consider all relevant circumstances.”49
Here, at the time defense counsel raised its initial Batson objection, the State
had used peremptory challenges to strike three potential African American
jurors, but it had also exercised a peremptory challenge to exclude one potential
white juror; one African American juror remained on the panel. In addition, the
voir dire responses of two of the three African American jurors stricken by the


      48
           State v. Allen, 913 So.2d 788, 802 (La. 2005).
      49
           Batson, 476 U.S. at 96.

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State “made them entirely predictable targets of state peremptory challenges for
specific, objective, and trial-related reasons other than race.”50 One explained
that he teaches fourth grade during the day and attends school at night. The
other said he would have difficulty finding child care and appeared to the
prosecutor to have been falling asleep during voir dire. Both explanations gave
the State reason to believe that the potential jurors in question would be tired
or distracted during the trial. Finally, under Louisiana precedent, “the trial
judge        could    take    into   consideration      the     tenor   of   the   voir   dire
questioning”—specifically the fact that “[t]he prosecution used the same
questions throughout its voir dire” and the fact that “[t]here is no indication that
any particular prospective jurors were ‘targeted’ for more questioning in an
attempt to provoke a certain response.”51 Given those facts, the context-specific
nature of the prima facie case determination, and the deferential standard
employed on direct review, it is at least arguable that a competent attorney could
have elected not to pursue the first Batson argument on appeal.


                                                 2.
        Higgins next contends that his appellate counsel was deficient because he
did not argue that once the prosecutor offered race-neutral explanations for the
two later peremptory strikes, that voluntary explanation mooted the prima facie
case issue for all jurors subject to Batson objections, and in turn the trial judge
should have proceeded directly to step two of Batson with respect to the earlier
challenges. It is true, as Higgins explains, that generally when a prosecutor
voluntarily offers a race-neutral explanation for a peremptory strike, “the
question of Defendant’s prima facie case is rendered moot and our review is




        50
             State v. Jacobs, 803 So.2d 933, 959 (La. 2001).
        51
             State v. Draughn, 950 So.2d 583, 604 (La. 2007).

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limited to the second and third steps of the Batson analysis.”52 However, this
case presents a twist on that familiar principle because the prosecutor here
offered race-neutral explanations for striking two African American jurors
different from the three subject to the initial Batson objection. At least two other
circuits have found that there is no authority directly addressing whether a trial
court must sua sponte revisit prior Batson objections when it finds a prima
facie case with respect to a juror struck after that initial objection. In Williams
v. Haviland, the petitioner claimed “that the state trial court erred in refusing
to reconsider its denial of his first Batson challenge given that the court
subsequently found a prima facie case of discrimination with regard to the
second struck juror.”53          The Ninth Circuit found that “[the petitioner’s]
procedural claim regarding sequential Batson challenges has not been squarely
addressed by the United States Supreme Court, so we must defer to the state
court’s resolution of the issue.”54 Similarly, in United States v. Bernal-Benitez,
the Eleventh Circuit explained that it was “unable to locate precedent”
indicating “that before ruling on a Batson objection based on race, a trial court
has a duty sua sponte to reconsider any ruling it previously may have made on
a Batson objection based on the same race.”55 Given the want of authority
directly addressing the issue of whether a trial judge faced with multiple Batson
challenges is required to re-visit earlier Batson challenges, there is a reasonable
argument that Higgins’s appellate counsel satisfied Strickland’s deferential
standard, even though he did not raise the argument on appeal. It was not
unreasonable for the state court to conclude, in light of the absence of precedent
supporting the potential Batson argument, that Higgins had failed to “overcome

      52
           United States v. Williams, 264 F.3d 561, 571 (5th Cir. 2001).
      53
           394 Fed. Appx. 397, 398 (9th Cir. 2010), cert. denied, 131 S. Ct. 929 (2011).
      54
           Id.
      55
           594 F.3d 1303, 1312–13 (11th Cir. 2010), cert. denied, 130 S. Ct. 2123 (2010).

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the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’”56


                                               3.
      Finally, Higgins argues that his appellate counsel was deficient because
he failed to argue that the trial judge erred by not engaging in the third step of
the Batson analysis.         Batson’s third step requires that after a prosecutor
articulates a race-neutral explanation for striking the jurors in question, “the
trial court must determine whether the defendant has carried his burden of
proving purposeful discrimination.”57 During voir dire in Higgins’s case, the
prosecutor offered race-neutral explanations regarding his use of peremptory
strikes against two African American jurors: one based on the juror’s potential
familiarity with the defendant and his family and one based purely on the juror’s
demeanor. Higgins argues that the trial court failed to assess the validity of
these explanations as required by Batson’s third step and that his appellate
counsel was ineffective for not raising that argument on direct appeal. But that
is not the question before us. We may grant habeas relief only if there is no
reasonable argument that counsel satisfied Strickland’s deferential standard
even though he failed to assert the argument on appeal. We find such an
argument exists here. After each of the two race-neutral explanations were
given, the trial judge stated that “the State has articulated race neutral reasons”
for challenging the particular juror. One could argue that the trial judge did in
fact reach Batson’s third step by interpreting his finding to mean that he had
implicitly considered the record before him and credited the prosecutor’s race-
neutral reasons. That argument is bolstered by the presence of a circuit split
regarding whether a trial judge must make explicit findings of fact at Batson’s


      56
           Strickland, 466 U.S. at 689.
      57
           Hernandez, 500 U.S. at 359 (citing Batson, 476 U.S. at 98).

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    Case: 11-30641          Document: 00512278976        Page: 17   Date Filed: 06/18/2013

                                         No. 11-30641

third step.58 It is worth noting that since Higgins’s direct appeal the Louisiana
Supreme Court has held that a trial judge is not required to make explicit
findings in completing the Batson step three analysis.59                  In light of the
weaknesses in Higgins’s proffered Batson argument, the state habeas court could
have reasonably concluded that appellate counsel was not deficient in failing to
raise the third step Batson argument on direct appeal.


                                    IV. CONCLUSION
       For the reasons set forth above, we AFFIRM the district court’s judgment
denying habeas relief.




       58
         See, e.g., Coombs v. Diguglielmo, 616 F.3d 255, 261 (3d Cir. 2010); Smulls v. Roper,
535 F.3d 853, 860 (8th Cir. 2008).
       59
            State v. Sparks, 68 So.3d 435, 474–75 (La. 2011).

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