     Case: 16-70019      Document: 00513822510         Page: 1    Date Filed: 01/05/2017




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

                                      No. 16-70019
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           January 5, 2017

ARTHUR WILLIAMS,                                                            Lyle W. Cayce
                                                                                 Clerk
              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-1714


Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Arthur Williams was convicted and sentenced to death for the capital
murder of a police officer. Williams unsuccessfully appealed through the Texas
judicial system and then turned to federal court for habeas relief. The federal
district court granted a conditional writ of habeas corpus as to Williams’s
sentence under Penry v. Lynaugh, 492 U.S. 302 (1989), and declined to certify



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-70019    Document: 00513822510      Page: 2   Date Filed: 01/05/2017



                                  No. 16-70019
any issue pertaining to Williams’s guilt or innocence for appeal. Williams now
applies for a Certificate of Appealability (“COA”) to appeal on a single issue,
namely, whether the prosecutor at Williams’s trial used peremptory strikes in
an unconstitutional, racially-motivated manner as described in Batson v.
Kentucky, 476 U.S. 79 (1986) and Miller-El v. Dretke, 545 U.S. 231 (2005).
Williams’s application is DENIED.
                                       I
      In 1982, Williams was on parole and living in a halfway house in
Minnesota. He left the halfway house in violation of his parole and moved to
Houston, Texas to live with his sister. Minnesota authorities issued a warrant
for his arrest, which was forwarded to the Houston Police Department.
Detective Daryl Shirley, who was assigned to Williams’s case, went to the
sister’s apartment complex in plain clothes and, seeing Williams, sought to
arrest him. A struggle ensued, and Williams shot Detective Shirley twice,
killing him. Williams was tried in 1983, found guilty of capital murder, and
sentenced to death.
      Williams appealed his conviction and sentence to the Texas Court of
Criminal Appeals (“TCCA”) on a number of grounds. See Williams v. State, 682
S.W.2d 538 (Tex. Crim. App. 1984) (“Williams I”). After a long and complicated
series of legal proceedings, one issue remains for us to address on this appeal:
whether a COA should issue to allow Williams to appeal his conviction on the
ground that the prosecution used peremptory strikes in an unconstitutional,
racially discriminatory manner.
      Detective Shirley was white; Williams is black. At Williams’s trial, the
prosecution used peremptory strikes against six prospective black jurors. The
jury that eventually convicted Williams had no black members. At each stage
of his multiple state and federal proceedings, Williams has argued that the


                                       2
     Case: 16-70019      Document: 00513822510         Page: 3    Date Filed: 01/05/2017



                                      No. 16-70019
prosecutor’s use of the strikes violated his constitutional rights. 1 The
procedural history of this case was made more complex by the Supreme Court’s
twice altering its doctrine pertaining to racially discriminatory peremptory
strikes, first in Batson in 1986, and then again in Miller-El in 2005. The district
court described how the Supreme Court’s evolving jurisprudence impacted
Williams’s case in detail; it is not necessary to recount here. See Williams v.
Davis, No. H-13-1714, 2016 WL 3523876, at *12–16 (S.D. Tex. June 28, 2016)
(“Williams III”).
       Over the course of multiple hearings on the matter, the prosecutor, Keno
Henderson, put forth three main race-neutral explanations for the six strikes:
(1) certain prospective jurors made statements and answered questions in a
way that indicated discomfort with capital punishment; (2) some prospective
jurors did not fully understand the questions they were asked; and (3) career
and personal circumstances could have impeded certain prospective jurors’
ability to focus fully on the trial. After an evidentiary hearing and extensive
record analysis, the state trial court credited Henderson’s testimony and
recommended that relief be denied. The TCCA adopted the trial court’s
recommendation and denied habeas relief. Ex parte Williams, No. WR-71404-
02, 2012 WL 4449432, at *1 (Tex. Crim. App. Sept. 26, 2012) (“Williams II”).
       Williams next turned to federal court. Williams made two distinct
arguments in federal district court as to why Henderson’s conduct violated his
constitutional rights under Batson. First, Williams argued that Henderson’s




       1  On this appeal, Williams claims that the peremptory strikes violated his Sixth,
Eighth, and Fourteenth Amendment rights. Williams offers no argument or case law to
support the Eighth Amendment claim. This court has previously rejected attempts to “dress
. . . equal-protection and sixth-amendment claims in the garb of the eighth amendment” in
the peremptory strike context. Prejean v. Smith, 889 F.2d 1391, 1397 (5th Cir. 1989). We
therefore decline to address Williams’s unsupported allegation that the strikes violated his
Eighth Amendment rights.
                                             3
    Case: 16-70019     Document: 00513822510      Page: 4    Date Filed: 01/05/2017



                                  No. 16-70019
race-neutral explanations were not viable “because not all black jurors
expressed an inability to consider a death sentence and, contrary to his
testimony, did not express difficulty understanding his questions.” Williams
III, 2016 WL 3523876, at *17. Second, Williams made the general allegation
“that all black jurors were excluded pursuant to the practice and policy of the
Harris County District Attorney[s] in general and was the regular practice of
the prosecutor in this case.” Id. (internal quotation marks omitted). The
district court disposed of Williams’s first argument easily, because Williams
never identified which specific stricken jurors’ answers and behavior did not
comport with the explanations Henderson had given as to each. Williams thus
failed to “particulariz[e] his allegations or giv[e] specific examples.” Id.
      The district court found Williams’s second argument—that Henderson
specifically, and the Harris County District Attorney’s Office more generally,
engaged in a pattern and practice of striking black jurors—more difficult,
particularly in light of a fellow district court’s decision in Rosales v.
Quarterman, No. H-03-1016, 2008 U.S. Dist. LEXIS 125130 (S.D. Tex. Dec. 12,
2008). In Rosales, another defendant who had been prosecuted by the Harris
County District Attorney’s office sought habeas relief on Batson grounds.
Henderson was not the lead prosecutor on the case, but he was involved. The
district court in Rosales ultimately discredited the prosecutors’ post-facto
justifications for peremptory strikes against prospective minority jurors, and
concluded that “the State of Texas violated the Equal Protection Clause in
selecting jurors for [Rosales’s] trial.” Id. at *75. As some evidence to support
its granting of habeas relief, the district court in Rosales pointed to
Henderson’s prosecution of Williams, noting that, “[w]hile the state courts
found no error in [Williams’s] case, the testimony given therein proved that
few minorities served on Harris County juries.” Id. at *32.


                                         4
    Case: 16-70019     Document: 00513822510      Page: 5   Date Filed: 01/05/2017



                                  No. 16-70019
      Ultimately, while the district court in Williams’s case did recognize “a
suspicious pattern in Williams’ trial” and acknowledged that “Williams has
consistently made allegations about long-standing racism in the Harris County
District Attorneys’ Office,” it nonetheless concluded that “Williams has simply
not substantiated his claim that this office pattern was the reason for the
strikes in issue.” Williams III, 2016 WL 3523876, at *18. That lack of
substantiation, combined with the deference it was required to give the TCCA’s
finding of facts and legal conclusions, led the district court to determine that it
was “constrained to conclude that Williams has not made a persuasive showing
of inferences suggesting purposeful discrimination in the use of peremptory
strikes as to specific jurors or that the prosecutor actually engaged in
discriminatory practices in his case.” Id. at *19. The district court therefore
denied habeas relief on Williams’s Batson claim, and declined to issue a COA.
                                        II
      When a defendant petitions federal court for a writ of habeas corpus in
a capital case, the standard of review is governed by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, when habeas
relief is denied by a district court, appeal to the circuit is not as of right—the
petitioner must first apply for and obtain a COA. See 28 U.S.C. § 2253(c)(1). A
COA will not be granted unless “the applicant has made a substantial showing
of the denial of a constitutional right.” Id. § 2253(c)(2). Where, as here, the
federal district court has denied habeas relief, the determination whether to
grant a COA requires “the court of appeals [to] limit its examination to a
threshold inquiry into the underlying merit of [petitioner’s] claims.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473,
481 (2000)). A COA will only be granted if the petitioner “demonstrate[s] that
jurists of reason could disagree with the district court’s resolution of his
constitutional claims.” Id.
                                        5
    Case: 16-70019     Document: 00513822510      Page: 6   Date Filed: 01/05/2017



                                  No. 16-70019
      AEDPA instructs that a state court’s findings of fact and determination
as to a claim’s merits are to be granted substantial deference in federal habeas
proceedings. When a petitioner’s claims were adjudicated on the merits in state
court, a federal writ of habeas corpus “shall not be granted . . . unless the
adjudication of the claim—(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law . . . or
(2) resulted in a decision that was based on an unreasonable determination of
the facts.” 28 U.S.C. § 2254(d)(1)–(2). A state court’s decision will only
constitute 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 applies that principle to the facts of the prisoner’s case in
an objectively unreasonable manner.” Young v. Dretke, 356 F.3d 616, 623 (5th
Cir. 2004) (internal quotation marks omitted). Furthermore, “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).
      Purposeful racial discrimination in jury selection “violates a defendant’s
right to equal protection” under the Fourteenth Amendment. Batson, 476 U.S.
at 86. Where, as here, a defendant seeks habeas relief on the ground that
prosecutors violated his constitutional rights by using peremptory strikes
against prospective jurors in a racially discriminatory manner, Batson’s three-
step burden-shifting analysis applies.
      First, the claimant must make a prima facie showing that the
      peremptory challenges have been exercised on the basis of race.
      Second, if this requisite showing has been made, the burden shifts
      to the party accused of discrimination to articulate race-neutral
      explanations for the peremptory challenges. Finally, the trial court
      must determine whether the claimant has carried his burden of
      proving purposeful discrimination.


                                         6
    Case: 16-70019      Document: 00513822510       Page: 7   Date Filed: 01/05/2017



                                     No. 16-70019
United States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000). A
determination by the district court that the petitioner did make a prima facie
showing in satisfaction of the first step will not be reviewed on appeal. See
United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998) (holding that once
a district court has reached the second step of the Batson analysis, “we no
longer examine whether a prima facie case exists”). At the second step,
“[u]nless a discriminatory intent is inherent in the [prosecutor’s] explanation,
the reason offered should be deemed race-neutral.” Id. The proffered
explanation need not be “persuasive, or even plausible. . . . [T]he issue is the
facial validity of the prosecutor’s explanation.” Purkett v. Elem, 514 U.S. 765,
768 (1995) (internal quotation marks omitted). Throughout, “[t]he party
making the claim of purposeful discrimination bears the ultimate burden of
persuasion.” Montgomery, 210 F.3d at 453. Finally, “[w]here, as in this case,
the trial judge has entertained and ruled on a defendant’s motion charging a
Batson violation, we review only [the district court’s] finding of discrimination
vel non. . . . In this regard, we apply a clearly erroneous . . . standard of review.”
United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988) (internal
citations and quotation marks omitted); see also Montgomery, 210 F.3d at 453
(“[W]e review the district court’s judgment for clear error.”).
      Williams thus faces a double hurdle: he must show that the TCCA’s
factual determinations were mistaken with clear and convincing evidence, and
he must also show that the district court’s unwillingness to reach that
conclusion was itself clear error.
                                         III
      Before reaching the substance of Williams’s application, we must
address a threshold issue. Respondent maintains that Williams has waived his
Batson claim due to inadequate briefing. Her argument on this point is twofold.
First, she contends that Williams’s brief fails to satisfy the requirements laid
                                          7
    Case: 16-70019    Document: 00513822510      Page: 8   Date Filed: 01/05/2017



                                 No. 16-70019
out in Rule 28 of the Federal Rules of Appellate Procedure. Second, she
maintains that, because Williams has failed to supply any evidence or
argument making a “side-by-side comparison” between minority jurors who
were struck and white jurors who were not, and because such evidence is “more
important to the issue of purposeful discrimination” than any other evidence,
Williams has effectively waived his Batson claim. Puckett v. Epps, 641 F.3d
657, 664 (5th Cir. 2011).
      Respondent’s second contention is easily dismissed. A key component of
Williams’s argument to the district court was precisely that submission of side-
by-side comparative evidence is not a necessary condition for finding a Batson
violation. See Williams III, 2016 WL 3523876, at *18 (noting Williams’s
argument that “a comparison to other jurors is unnecessary in light of the
record”). He appears to raise the same argument on appeal. Williams’s choice
not to provide side-by-side evidence and to instead pursue a different tack in
arguing his Batson claim cannot lead to the conclusion that he has waived that
same claim.
      Respondent’s first argument on the waiver issue is stronger. “We have
often stated that a party must ‘press’ its claims. At the very least, this means
clearly identifying a theory as a proposed basis for deciding the case—merely
intimating an argument is not the same as ‘pressing’ it.” Willis v. Cleco Corp.,
749 F.3d 314, 319 (5th Cir. 2014) (quoting United States v. Scroggins, 559 F.3d
433, 446–47 (5th Cir. 2010)). An argument on appeal is waived unless it is
argued in the body of the brief and is supported “with citation to the
authorities, statutes and parts of the record relied on.” Weaver v. Puckett, 896
F.2d 126, 128 (5th Cir. 1990); see also Fed. R. App. P. 28(a)(8)(A).
      While not a model of clarity, Williams’s brief does make out an argument,
supported by citations to case law. In particular, Williams’s contention—to be
addressed below—that the pattern of discrimination identified by the district
                                        8
    Case: 16-70019    Document: 00513822510     Page: 9   Date Filed: 01/05/2017



                                 No. 16-70019
court in Rosales calls into question Henderson’s proffered race-neutral
explanations and should have tipped the scale at the third step of the Batson
analysis, is made with some coherence. Citations to the record on appeal and
record below are present, albeit in an improper format. We therefore decline to
find that Williams waived his Batson claim due to inadequate briefing.
                                       IV
      We turn now to the substance of Williams’s application for a COA. As
noted above, Williams’s precise arguments are difficult to decipher, but upon
careful reading, he seems to make two. First, he contends that the district court
clearly erred at the second step of the Batson analysis. Second, he argues that,
even if the district court was correct in reaching Batson step three, the pattern
of discrimination acknowledged in Rosales and Henderson’s actions at
Williams’s trial were enough to make a persuasive showing of purposeful
discrimination. We address each argument in turn.
      A. Batson Step Two
      Williams argues that Henderson’s race-neutral explanations for the
peremptory strikes did not pass even the low bar set up at Batson step two,
because the proffered explanations did not align with the questions asked at
voir dire. This argument fails here for the same reasons it did below. Williams
generally asserts that “the voir dire of the black jurors do not support a
conclusion that Keno Henderson [] exercised the[] peremptory strikes for race
neutral reasons,” and then notes that “three black jurors were excluded
because they could not understand [Henderson’s] questions.” But nowhere does
Williams explain which exact stricken jurors he is referring to, nor does he
identify specific questions and/or answers at voir dire that call Henderson’s
race neutral explanations into question. Williams’s argument on this point
must therefore be denied.


                                       9
    Case: 16-70019   Document: 00513822510      Page: 10   Date Filed: 01/05/2017



                                 No. 16-70019
      B. Batson Step Three
      Williams’s central argument seems to be that the district court erred at
the third step of the Batson analysis. Specifically, Williams maintains that,
when considered in combination, the pattern of racially discriminatory
peremptory strikes in Harris County identified by the district court in Rosales,
Henderson’s use of six peremptory strikes against black prospective jurors, the
fact that no black jurors served on Williams’s jury, and the long period of time
between Williams’s trial and the hearing at which Henderson initially offered
race-neutral explanations for the strikes constitute sufficient evidence for
Williams to carry his burden at Batson step three. The district court
acknowledged “concerns about whether the prosecutors struck jurors on
account of their race.” Williams III, 2016 WL 3523876, at *19. Nevertheless,
the district court deferred to the multiple state courts’ respective
determinations after remanding twice for evidentiary reassessments, first to
apply Batson and then to apply Miller-El, that Henderson’s race-neutral
reasons for striking each black juror were credible.
      The district court was correct to defer. AEDPA sets a high bar for
defendants seeking to overturn state court fact-determinations through federal
habeas relief. Williams has not cleared that bar. He has made no substantive
argument attacking Henderson’s race-neutral explanations, except to make
general allegations supported by little or no record evidence that they were
concocted after the fact. We agree with the district court that Williams’s
arguments are simply “too conclusory to warrant relief on Batson grounds.”
Williams III, 2016 WL 3523876, at *18. Given the paucity of Williams’s
substantive analysis and the statutorily-mandated deference we owe the
respective state courts’ determinations made after multiple evidentiary
hearings and extensive probing of the record, Williams’s argument must be
rejected.
                                      10
Case: 16-70019   Document: 00513822510    Page: 11   Date Filed: 01/05/2017



                           No. 16-70019
                                     V
  Williams’s application for a COA is DENIED.




                                11
