     Case: 07-70004     Document: 00511576754         Page: 1     Date Filed: 08/19/2011




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

                                                                            FILED
                                                                          August 19, 2011

                                       No. 07-70004                        Lyle W. Cayce
                                                                                Clerk

ANTHONY CARDELL HAYNES,

                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 Southern District of Texas
                                  (4:05-CV-3424)


       ON REMAND FROM THE UNITED STATES SUPREME COURT

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        This case was remanded to us by the Supreme Court, which reversed
our decision granting habeas relief to the petitioner, Anthony Cardell Haynes.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-70004

For the reasons hereinafter assigned, we now affirm the district court’s denial
of habeas relief.
                               BACKGROUND
      On September 19, 1999, Haynes was convicted by a jury in Texas of the
capital murder of a peace officer “acting in the lawful discharge of an official
duty.” Tex. Penal Code § 19.03(a)(1). He was then sentenced to death. The
Texas Court of Criminal Appeals (TCCA) affirmed his conviction and
sentence in an unpublished opinion. Haynes v. State (Haynes I), No. 73,685
(Tex. Crim. App. Oct. 10, 2001) (unpublished). The Supreme Court then
denied his petition for a writ for certiorari. Haynes v. Texas, 535 U.S. 999
(2002). The Texas courts denied Haynes’ petition for state habeas relief, and
he subsequently filed a federal habeas petition in district court. The district
court denied the petition, and Haynes appealed to this court. We granted a
certificate of appealability regarding Haynes’ claims, pursuant to Batson v.
Kentucky, 476 U.S. 79 (1986), that “the prosecution violated his rights under
the Sixth and Fourteenth Amendments through the racially discriminatory
use of its peremptory challenge[s] as to” two potential jurors, L.V. McQueen
and B. Owens. Haynes v. Quarterman (Haynes II), 526 F.3d 189, 202-03 (5th
Cir. 2008). In our opinion granting Haynes habeas relief, we cited the
following facts:
      Two different state trial judges took turns presiding over the jury
      selection process in this case at the state court level. Judge
      Wallace presided at the beginning of the jury selection process
      when the jurors were addressed and questioned as a group; Judge
      Harper presided during the next stage in which the attorneys
      questioned the prospective jurors individually; and Judge Wallace
      presided again during the final stage in which peremptory
      challenges were exercised and when Batson challenges were
      made, considered, and ruled upon.




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Haynes v. Quarterman (Haynes III), 561 F.3d 535, 537 (5th Cir. 2009). We
reasoned that the state court decision did not warrant deference pursuant to
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
U.S.C. § 2254(d), because Judge Wallace did not personally observe the voir
dire and his position for evaluating the prosecutor’s demeanor-based reasons
for striking the potential jurors was no better than that of a reviewing court.
Id. at 541. We granted habeas relief to Haynes on the basis of his claim as to
potential juror Owens, reasoning that “no court, including ours, can now
engage in a proper adjudication of the defendant’s demeanor-based Batson
challenge as to prospective juror Owens because we will be relying solely on a
paper record and would thereby contravene Batson and its clearly-established
‘factual inquiry’ requirement.” Id. (citing Batson, 476 U.S. at 95, and Snyder
v. Louisiana, 552 U.S. 472, 477 (2008)).1
       The Supreme Court granted the State’s petition for certiorari and
reversed, “hold[ing] that no decision of this Court clearly establishes the
categorical rule on which the Court of Appeals appears to have relied.”
Thaler v. Haynes (Haynes IV), 130 S. Ct. 1171, 1175 (2010). The Court
described that apparent “categorical rule” as follows: “that a demeanor-based
explanation for a peremptory challenge must be rejected unless the judge
personally observed and recalls the relevant aspect of the prospective juror’s
demeanor.” Id. at 1174. Although “where the explanation for a peremptory
challenge is based on a prospective juror’s demeanor, the judge should take
into account, among other things, any observations of the juror that the judge
was able to make during the voir dire,” the Court held that this did not
mandate “that a [prosecutor’s] demeanor-based explanation must be rejected
if the judge did not observe or cannot recall the juror’s demeanor.” Id. The

       1
         Because we granted habeas relief on Haynes’ claim as to prospective juror Owens, we
did not address his claim as to prospective juror McQueen. Id. at 541 n.2.

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Court also noted that “Snyder quoted the observation in Hernandez v. New
York, 500 U.S. 352, 365 (1991) (plurality opinion), that the best evidence of
the intent of the attorney exercising a [peremptory] strike is often that
attorney’s demeanor” while explaining the reason for the strike. Id. at 1175
(citing Snyder, 552 U.S. at 477). Lastly, the Court remanded for us to
consider “whether the Texas Court of Criminal Appeals’ determination may
be overcome under the federal habeas statute’s standard for reviewing a state
court’s resolution of questions of fact.” Id.
                          STANDARD OF REVIEW
      “In a habeas appeal, this court reviews the district court’s findings of
fact for clear error and its conclusions of law de novo, applying the same
standard of review that the district court applied to the state court decision.”
Jones v. Cain, 600 F.3d 527, 535 (5th Cir. 2010). In applying AEDPA, we look
to the last reasoned state-court decision on the merits of Haynes’ Batson
claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (“[W]e begin by
asking which is the last explained state-court judgment on the . . . claim.”
(emphasis in original)). Here, the TCCA decision on direct appeal is the last
explained state-court decision on Haynes’ Batson claims.
      AEDPA lays out the applicable standards of review for this case.
“Under AEDPA, if a state court has adjudicated a habeas petitioner’s claims
on the merits, he may receive relief in the federal courts . . . where the state
court decision ‘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’ . . . .” Rivera v. Quarterman, 505
F.3d 349, 356 (5th Cir. 2007) (quoting 28 U.S.C. § 2254(d)(1)). “A state court’s
decision is ‘contrary to’ clearly established federal law under § 2254(d)(1) if
‘the state court applies a rule that contradicts the governing law announced
in Supreme Court cases, or . . . the state court decides a case differently than

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the Supreme Court did on a set of materially indistinguishable facts.’” Woods
v. Quarterman, 493 F.3d 580, 584 (5th Cir. 2007) (alteration in original)
(quoting Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc)).
“Before this court may grant habeas relief under the unreasonable application
clause, the state court’s application of clearly established federal law must be
more than merely incorrect or erroneous, it must be objectively
unreasonable.” Young v. Dretke, 356 F.3d 616, 623 (5th Cir. 2004).
       “Under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state
prisoner's application for a writ of habeas corpus based on a claim already
adjudicated on the merits in state court unless that adjudication ‘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.’” Wood v. Allen,
130 S. Ct. 841, 845 (2010) (quoting 28 U.S.C. § 2254(d)(2)). This standard,
like the others, is deferential to the state courts: “a state-court factual
determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance.” Id. at 849.2
                                     DISCUSSION
       As we explained in Haynes III, a Batson challenge involves three steps:
       The Supreme Court has outlined a three-step process for
       determining whether peremptory strikes have been applied in a
       discriminatory manner. 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


       2
         AEDPA also states that “‘a determination of a factual issue made by a State court
shall be presumed to be correct,’ and the petitioner ‘shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.’” Wood, 130 S. Ct. at 845
(quoting 28 U.S.C. § 2254(e)(1)). The Supreme Court “ha[s] explicitly left open the question
of whether §2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2).” Id.
at 849. However, as in Wood, we need not determine whether § 2254(e)(1) should apply,
because the TCCA’s determination, that the prosecutor’s decisions to strike potential jurors
Owens and McQueen were not purposefully discriminatory, was not an unreasonable
determination in light of the evidence presented in the proceedings.

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      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.
561 F.3d at 539 (quoting United States v. Bentley-Smith, 2 F.3d 1368, 1373
(5th Cir. 1993)). “The ‘shifting burden’ described in the Batson framework is
one of production only. The ultimate burden of persuasion always lies with
the party making the claim of purposeful discrimination.” Bentley-Smith, 2
F.3d at 1373. The trial court, at the third stage, must “decid[e] whether it
was more likely than not that the [peremptory] challenge was improperly
motivated.” Johnson v. California, 545 U.S. 162, 170 (2005).
      The TCCA outlined the following facts about the voir dire in this case:
      The record establishes that Haynes is African-American and that,
      of the fifty people in the venire, seven were African-American and
      six appeared for voir dire. The State peremptorily struck four of
      the six and accepted one venirewoman, whom the defense
      peremptorily struck; one African-American man was seated on
      the jury.
Haynes I, No. 73,685 at 14. Owens and McQueen were two of the four
African-American potential jurors who were peremptorily struck by the
prosecutor.
      The state does not contest that Haynes made a prima facie showing
that the prosecutor exercised peremptory strikes against Owens and
McQueen on the basis of race. Thus, our analysis focuses on the second and
third steps of Batson.
      At the second step of the Batson hearing, the prosecutor offered the
following explanation for striking potential juror Owens:
      During the interview, this lady’s demeanor was one, I guess, best
      I can describe it, somewhat humorous. She never did really take
      on a serious attitude during the interview. She would say one
      thing but her body language would indicate that this is not her

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      true feeling. And I’m sure that [the defense attorney] reasonably
      expected us to strike this lady after she was interviewed because
      I think [the defense attorney] voir dired her and he only talked to
      her for a very short time because he was very pleased with the
      things she said, more as she was leaning toward them. If the
      defendant was found guilty, she would certainly be leaning
      toward a life sentence. And with that, I drew a conclusion in my
      mind, based on my observation, that she already had a
      predisposition and would not look at it in a neutral fashion.
Similarly, with regard to prospective juror McQueen, the prosecutor stated:
      And where Ms. [sic3] McQueen, again, when questioned, Ms. [sic]
      McQueen would give me all the indications that in response to my
      questions by the language of demeanor that he was very weak on
      the death punishment and did not — and stated that there were
      some cases that I could not give a death sentence even if the law
      permitted such and again I struck him as well.
      The TCCA did not err in determining that the prosecutor satisfied the
second step of Batson by offering a race-neutral reason for striking each of the
two potential jurors. “The second step of [Batson] does not demand an
explanation that is persuasive, or even plausible. ‘At this [second] step of the
inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless
a discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral.’” Purkett v. Elem, 514 U.S. 765, 767-68
(1995) (second alteration in original) (quoting Hernandez, 500 U.S. at 360).
      We also conclude that the TCCA’s determination that Haynes did not
carry his burden of showing purposeful discrimination at the third Batson
step is neither contrary to, nor an unreasonable application of, clearly
established law; nor is the TCCA’s decision based on an unreasonable
determination of the facts, in light of the evidence. Haynes raises several
arguments, which we address in turn.



      3
          McQueen is male.

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                                  No. 07-70004
      First, Haynes argues that the prosecutor’s demeanor-based reasons
quoted above should not have been accepted because Judge Wallace and the
TCCA were unable to observe the demeanor of either potential juror. But this
argument was rejected by the Supreme Court in Haynes IV.
      Haynes also submits that Judge Wallace must have “fail[ed] . . . to
conduct an adequate inquiry at Batson’s third step,” Pet’r ’s Supplemental Br.
52, because all he said in rejecting the Batson challenges to the peremptory
strikes of both Owen and McQueen was, “It’s race neutral.” However, there
was no clearly established Supreme Court case law that required Judge
Wallace to say more than he did. Although the Supreme Court stated in
Batson that “a [trial] court must undertake ‘a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available,’” 476 U.S. at
93 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266
(1977)), the Court has not gone further and stated that a trial court must also
make detailed on-the record findings about that inquiry. Therefore, the fact
that Judge Wallace said very little in denying Haynes’ Batson challenges does
not render the TCCA’s decision, in affirming Judge Wallace’s denials,
“contrary to, or . . . an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
      Finally, Haynes claims that there are several factors supporting the
inference that the prosecutor’s proffered reasons were actually a pretext for
discrimination, and thus that the TCCA’s determination was an unreasonable
application of clearly established law. While some of these arguments give
some support to an inference of purposeful racial discrimination, they are not
enough, individually or together, to convince us that the TCCA’s rejection of
Haynes’ Batson claim was objectively unreasonable.



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                                     No. 07-70004
       Haynes first compares this case to Miller-El v. Dretke, 545 U.S. 231
(2005), arguing that, as in Miller-El, (1) there was a practice of excluding
minorities from juries in the county where Haynes was tried, and (2) there
was a pattern of strikes against African-American potential jurors in his case.
In Miller-El, the Supreme Court cited multiple factors that led it to grant
habeas relief based on the petitioner’s Batson claim. These factors included
evidence that “for decades leading up to the time this case was tried
prosecutors in the Dallas County office had followed a specific policy of
systematically excluding blacks from juries.” Id. at 263. There was
testimony from witnesses in Miller-El about the existence of a policy adopted
by the district attorney’s office to exclude African-Americans from juries. Id.
at 264. The Court also emphasized the importance of “evidence that the
[Dallas County] District Attorney’s Office had adopted a formal policy to
exclude minorities from jury service. . . . [namely] [a] manual entitled ‘Jury
Selection in a Criminal Case’ . . . . [which] contained an article authored by a
former prosecutor . . . under the direction of his superiors in the District
Attorney’s Office, outlining the reasoning for excluding minorities from jury
service.” Id. (second alteration in original) (quoting Miller-El v. Cockrell, 537
U.S. 322, 334-35 (2003)) (quotation marks omitted). Another factor cited by
the Court was that out of twenty African-American potential jurors, the
prosecution used peremptory strikes on ten of them, and excused nine others
for cause or by agreement. Id. at 240-41.
       The circumstantial indications of intentional racial discrimination in
this case, although not as compelling as in Miller-El, have some persuasive
value. Haynes cites to cases in which Batson violations occurred in Harris
County, where he was tried,4 as well as cases from the 1980s and early 1990s


      4
         Emerson v. State, 851 S.W.2d 269 (Tex. Crim. App. 1993); Whitsey v. State, 796
S.W.2d 707 (Tex. Crim. App. 1990); Thomas v. State, 209 S.W.3d 268 (Tex. App. 2006); Vargas

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                                        No. 07-70004
in which courts and judges observed that African-Americans were rarely part
of juries for criminal5 or capital6 cases in Harris County. Haynes, however,
was tried and convicted in 1999. He also notes that the prosecution in this
case used peremptory strikes against four of six African-American potential
jurors. Relatedly, he argues that the prosecutor had a motive to exclude
African-Americans from the jury, because Haynes was an African-American
defendant accused of shooting and killing a white police officer. Nevertheless,
these circumstantial indications are insufficient to show that the TCCA’s
determination — that the decision of the prosecutor in this case to
peremptorily strike potential jurors Owens and McQueen was not based on
purposeful racial discrimination — was objectively unreasonable.
       In addition, Haynes argues that potential jurors Owens and McQueen
gave answers that were similar to, or more favorable to the prosecution than
the answers given by some non-African-American potential jurors who were
not struck. Haynes reasons that in this respect, the record undermines the
credibility of the prosecutor’s stated reasons for striking Owens and
McQueen. But the prosecutor’s reasons involved Owens and McQueen’s
nonverbal demeanor and body language, not just their words, and the written


v. State, 859 S.W.2d 534 (Tex. App. 1993).
       5
          Harris v. Texas, 467 U.S. 1261, 1263 (1984) (Marshall, J., dissenting from denial of
certiorari) (citing the testimony of various witnesses to support the proposition that
“prosecutors in Harris County routinely employ peremptory challenges to exclude Negro jurors
in cases involving the credibility of a white complainant and a Negro defendant,” including the
testimony of “a Texas District Judge with 28 years of experience in the county’s criminal
justice system . . . . [who] stated [that] he could not recall a single instance in which a Negro
juror sat on a petit jury in a criminal case in which the complainant was white and the
defendant Negro”); Williams v. State, 804 S.W.2d 95, 107 (Tex. Crim. App. 1991) (“[S]everal
local defense attorneys . . . related that they were unaware of blacks being on any jury which
they tried in Harris County, but could not speak as to all trials.”).
       6
          Tompkins v. State, 774 S.W.2d 195, 203 (Tex. Crim. App. 1987) (“[B]lack jurors have
been relatively uncommon on capital murder juries in Harris County during the past several
years . . . .”).

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record does not allow us to compare Owens and McQueen to the other
potential jurors in those respects. Consequently, we cannot fully re-evaluate
the credibility of the prosecutor’s claim that the potential jurors he
peremptorily struck seemed particularly favorable to the defense.7 Thus,
Haynes has not shown that the TCCA’s determination was objectively
unreasonable.
      Lastly, Haynes asks us to consider, as evidence of judicial bias, the fact
that Judge Harper was cleaning pistols on his bench during the questioning
of individual potential jurors. While such behavior is not commendable, it
was Judge Wallace, not Judge Harper, who adjudicated the Batson challenges
at issue.
      In sum, on the record in this case, none of the factors cited by Haynes
are sufficient to persuade us that the TCCA’s determination that Haynes
failed to carry his burden at the third stage of the Batson inquiry, was an
objectively unreasonable application of clearly established law, or an
unreasonable determination of the facts.
      For the foregoing reasons, we AFFIRM the district court’s denial of
habeas relief to Haynes.




      7
        The impossibility of making such an evaluation on the basis of a paper record was
essentially our reason for granting habeas relief in Haynes III, but the Supreme Court
reversed us.

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