     Case: 10-41087     Document: 00512013552         Page: 1     Date Filed: 10/09/2012




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

                                                                            FILED
                                                                          October 9, 2012

                                       No. 10-41087                        Lyle W. Cayce
                                                                                Clerk

CHAD SPLAWN,


                                                  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 Eastern District of Texas
                             USDC No. 4:07-CV-292


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41087

      Petitioner-Appellant Chad Splawn, a Texas state inmate, appeals the
denial of his federal petition for a writ of habeas corpus. Because the state
court’s denial of Petitioner’s Batson challenge was not contrary to or an
unreasonable application of clearly established federal law, we AFFIRM.


                         FACTUAL BACKGROUND
      Petitioner-Appellant Chad Splawn (“Petitioner”) was charged with
aggravated sexual assault of a child and indecency with a child. During voir
dire, the prosecutor used seven out of her ten allowed peremptory strikes to
remove males from the panel. Defense counsel objected to the prosecutor’s
strikes on the ground that they violated Petitioner’s right to be tried by “a jury
whose members are selected pursuant to nondiscriminatory criteria” under
Batson v. Kentucky, 476 U.S. 79, 85–86 (1986). In response, the trial judge
incorrectly concluded that males are not a cognizable group under Batson and
denied Petitioner’s challenges. However, the judge did allow the prosecutor an
opportunity to state the reasons for her peremptory strikes to preserve the
record for appeal.
      The prosecutor used the only strike at issue here to eliminate Juror Steven
Edward Philip (“Juror Philip”) from the panel. In explaining her decision to
remove Juror Philip from the panel, the prosecutor told the court: “Stephen
Edward Philip, I really can’t recall my reasons on that one. I struck him from
the previous case last week and basically from that same feeling, although I
don’t have my records on that from last week.” The judge said “[a]ll right” and
proceeded to empanel the jury. The resulting jury consisted of seven women, five
men, and two female alternates. Petitioner was ultimately found guilty on both
counts, and, at sentencing, the jury noted that Petitioner had previously been
convicted of indecency with a child and recommended that he serve a life
sentence.

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                                             No. 10-41087

        After the Texas Court of Appeals affirmed Petitioner’s conviction and
sentence, Splawn v. State, 160 S.W.3d 103, 115 (Tex. Ct. App. 2005), Petitioner
filed an application in state court for a writ of habeas corpus. The Court of
Criminal Appeals denied the application without written order. Petitioner then
filed another habeas petition in the United States District Court for the Eastern
District of Texas that was also denied. Petitioner timely appeals.


                                   STANDARD OF REVIEW
        In an appeal from a denial of habeas relief, we review a district court’s
findings of fact for clear error and its conclusions of law de novo. Valdez v.
Cockrell, 274 F.3d 941, 946 (5th Cir. 2001). However, Petitioner’s federal habeas
claim is also governed by the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA’s heightened standard of
review, a federal court may not grant habeas relief unless the state court’s
adjudication on the merits “(1) 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, or (2) 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.” 28 U.S.C. § 2254(d).1
        A state court’s adjudication runs afoul of AEDPA’s heightened standard
when it “‘identifies the correct governing legal rule from [the Supreme Court’s]
cases but unreasonably applies it to the facts of the particular state prisoner’s
case,’ or where it ‘extends a legal principle from [Supreme Court] precedent to
a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.’” LaCaze v. Warden La. Corr.


        1
            Petitioner has only alleged that the state court’s decision violated 28 U.S.C. § 2254(d)(1).
As a result, § 2254(d)(2) is not at issue.



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                                  No. 10-41087

Inst. for Women, 645 F.3d 728, 734 (5th Cir. 2011) (alterations in original)
(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)) (internal citation omitted).
       Thus, “[a]bsent a direct conflict with Supreme Court authority, habeas
relief is available only if the state court decision is factually or legally
unreasonable in light of the evidence present[ed] in the state court proceeding.”
Moody v. Quarterman, 476 F.3d 260, 266 (5th Cir. 2007).            Moreover, “an
unreasonable application of federal law is not the equivalent of an incorrect
application of federal law.” Id. A federal court may not issue a writ of habeas
corpus where the state court’s application of federal law is merely incorrect;
instead, the application of federal law must also be unreasonable. Id. This
standard reinforces the role of habeas as a “‘guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).


                                 DISCUSSION
       Petitioner claims that the Texas appellate court’s denial of his Batson
challenge was unreasonable in light of J.E.B. v. Alabama ex rel. T.B., 511 U.S.
127, 146 (1994) (holding that males are a cognizable group for the purposes of
a Batson challenge). Although the trial court clearly erred in refusing to apply
J.E.B., that alone does not warrant a grant of habeas relief. See Early v. Packer,
537 U.S. 3, 8 (2002) (finding that a reviewing court may defer to a trial court
that has failed to acknowledge relevant Supreme Court precedent “so long as
neither the reasoning nor the result of the state-court decision contradicts” that
precedent). As such, we turn to the appellate court’s analysis of Petitioner’s
Batson challenge to determine whether the court unreasonably applied federal
law.



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                                  No. 10-41087

      In Batson, the Court delineated a three-step analysis to be used by trial
courts in evaluating a defendant’s claim that the prosecutor used a peremptory
strike in a discriminatory manner. 476 U.S. 96–98. Under this test:
            (1) a defendant must make a prima facie showing that the
            prosecutor exercised his peremptory challenges on the basis of
            [membership in a protected group];
            (2) the burden then shifts to the prosecutor to articulate a [gender]-
            neutral reason for striking the juror in question; and
            (3) the trial court must determine whether the defendant carried his
            burden of proving purposeful discrimination.

Moody, 476 F.3d at 266 (citing Batson, 476 U.S. at 96–98). The “‘shifting burden’
described in [this] framework is one of production only.” Soria v. Johnson, 207
F.3d 232, 239 (5th Cir. 2000) (citing United States v. Bentley-Smith, 2 F.3d 1368,
1373 (5th Cir. 1993)). The burden of persuasion, on the other hand, lies at all
times with the party asserting the Batson challenge. Id. At voir dire, the
prosecutor voluntarily offered gender-neutral explanations for her peremptory
strikes, rendering moot the first prong of the Batson analysis – the question of
whether the defendant established a prima facie case. See United States v.
Williams, 264 F.3d 561, 571 (5th Cir. 2008) (“Where, as here, the prosecutor
tenders a [gender]-neutral explanation for his peremptory strikes, the question
of Defendant’s prima facie case is rendered moot and our review is limited to the
second and third steps of the Batson analysis.”).
      Since Petitioner was not required to make a prima facie showing of
discrimination, we turn to the second prong. Once a defendant has satisfied the
first prong of the Batson analysis, a prosecutor must provide an explanation for
her peremptory strikes “based on something other than the [gender] of the
juror.” Id. (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)). In
reference to the only juror at issue here, the prosecutor told the court that she
struck him from the panel because of a “feeling” that was the same feeling she


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                                         No. 10-41087

had previously experienced with that juror in an earlier voir dire.2 She then
proceeded to add that she “c[ouldn’t] really recall [her] reasons on that one.”
While this explanation is clearly gender-neutral on its face, Petitioner maintains
that it was actually a pretext for discrimination. In support of this argument,
Petitioner points to evidence that the prosecutor had not actually struck that
juror from the panel in the previous week’s case. However, since we are
foreclosed from considering this evidence, we are confined in our review to the
appellate court’s findings on Petitioner’s other claims of pretext.3
       Upon review of these findings, it is our opinion that the appellate court did
not unreasonably apply federal law in holding that the prosecutor did not
discriminate on the basis of gender in issuing the peremptory strike. In order
to pass muster under Batson, a prosecutor’s explanation “need not be persuasive,
nor even plausible, but only [gender]-neutral and honest.” Williams, 264 F.3d
at 571 (emphasis added). Even if the prosecutor had been mistaken in believing
that she had previously struck Juror Philip from another panel, that alone does
not violate Batson. In addition to referencing the previous week’s voir dire, the
prosecutor also mentioned that she struck Juror Philip because of a “feeling” she
had about him.           We have previously held that “intuitive assumptions,
inarticulable factors, or even hunches can all be proper bases for rejecting a



       2
         The record indicates that some or all of the potential jurors had already gone through
the voir dire process or had actually sat on another jury in the two weeks prior to Petitioner’s
trial.
       3
          A federal court’s review of a state court decision under §§ 2254(d)(1), (2) is limited to
the record that was before the state court that adjudicated the claim on the merits. Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011); see also Blue v. Thaler, No. 10-70025, 2011 WL
6413668, at *2 (5th Cir. Dec. 22, 2011) (emphasizing that “Pinholster prohibits a federal court
from using evidence that is introduced for the first time at a federal-court evidentiary hearing
as the basis for concluding that a state court's adjudication is not entitled to deference under
§ 2254(d).”). Pursuant to this precedent, we are barred from considering Petitioner’s
appendices as they were not part of the state court record below and were offered as evidence
for the first time in this appeal.

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                                  No. 10-41087

potential juror, even in the Batson context.” United States v. Turner, 674 F.3d
420, 436 (5th Cir. 2012) (internal quotation marks omitted). Consequently, our
precedent dictates that the prosecutor’s “feeling” about Juror Philip is an
independent, acceptable, gender-neutral explanation that does not violate
Batson.
      Where a prosecutor has offered reasonable, gender-neutral reasons for the
challenged peremptory strike, the third prong of Batson requires the trial court
to evaluate whether the defendant has shown purposeful discrimination on the
part of the prosecutor. In order to assess whether the prosecutor exhibited a
discriminatory intent, the trial court looks to “the persuasiveness and credibility
of the prosecutor’s justification for his exercise of the peremptory strike.” Moody,
476 F.3d at 267. The resulting inquiry “is quintessentially a question of fact
which turns heavily on demeanor and other issues not discernable from the cold
record, such that deference to the trial court is highly warranted.” Williams, 264
F.3d at 572. Thus, even if the prosecutor’s justifications for striking the juror
were not gender-neutral, Petitioner still must demonstrate that the appellate
court erred in finding that the prosecutor did not purposefully discriminate
against Juror Philip in violation of Batson’s third prong.
      Petitioner insists that the trial court’s decision to deny his Batson
challenge is not entitled to deference since the trial court did not attempt to
make a determination under the third prong of Batson. While we acknowledge
that the trial court offered no reasoning under the third prong of its Batson
analysis, we find that the appellate court’s subsequent determination that the
prosecutor’s reasons for her peremptory strike were not discriminatory is
sufficient to justify the outcome reached by both state courts. See Splawn v.
Texas, 160 S.W.3d 103, 115 (Tex. Ct. App. 2005) (“The State gave reasons, and
they were not reasons that are constitutionally prohibited. That is all that is
required.”).

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                                  No. 10-41087

      Furthermore, the appellate court’s finding on this prong of the Batson
analysis is entitled to the same deference that we would accord a trial court’s
finding on this issue. Section 2254(d) “explicitly provides that a determination
after a hearing on the merits of a factual issue, made by a State court of
competent jurisdiction . . . shall be presumed to be correct.” Sumner v. Mata, 455
U.S. 591, 592 (1982) (emphasis added) (quoting 28 U.S.C. § 2254(d)) (internal
quotation marks omitted).       The plain language of AEDPA thus compels
deference to a state court determination on the merits of a Batson claim. In
accordance with this interpretation of AEDPA, the Supreme Court has held that
“the presumption of correctness [granted to state courts under AEDPA] is
equally applicable when a state appellate court, as opposed to a state trial court,
makes the finding of fact.” Id. at 592–93. Notwithstanding the trial court’s
failure to undertake a formal Batson analysis, the appellate court’s decision is
entitled to deference from this Court if that decision does not unreasonably apply
federal law.
      We reached the same conclusion on a similar set of facts in Moody v.
Quarterman, 476 F.3d at 268. In Moody, we confronted a situation where the
trial court erroneously determined that the defendant did not have standing to
challenge the prosecutor’s strike of a black juror and thus did not engage in any
Batson analysis whatsoever. Id. at 263. On appeal, the Texas Court of Criminal
Appeals affirmed the defendant’s conviction and sentence, acknowledging that
the trial court failed to conduct a proper Batson hearing, but nonetheless
holding, based on its own findings of fact, that the prosecutor did not strike the
juror because of his race. Id. at 264. In Moody, we held that deference was
appropriate even where the state appellate court conducted the entire Batson
analysis on its own. It is therefore not inconsonant to extend that same
deference to the appellate court’s decision in this case, where the appellate court



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                                   No. 10-41087

merely examined the trial court’s record on the first and second prongs of the
Batson analysis and reasoned that the third prong had also been satisfied.
      It is worth noting that we are not at liberty to grant Petitioner’s
application for habeas relief simply because we would prefer a more detailed
explanation of the appellate court’s decision. As the Supreme Court stated in
Neal v. Puckett:
             [W]e do not interpret AEDPA in such a way that would require a
             federal habeas court to [grant the writ] solely because it finds the
             state court’s written opinion unsatisfactory . . .. [O]ur focus on the
             ‘unreasonable application’ test under Section 2254(d) should be on
             the ultimate legal conclusion that the state court reached and not on
             whether the state court considered and discussed every angle of the
             evidence.

286 F.3d 230, 246 (5th Cir. 2002). Although the appellate court did not leave us
a lengthy record to evaluate, it did provide sufficient justification for the decision
to deny Petitioner’s Batson challenge. As a result, we hold that Petitioner has
failed to demonstrate that the appellate court unreasonably applied federal law.




                                  CONCLUSION
      Petitioner has failed to make a compelling case for habeas relief. The
prosecutor offered gender-neutral explanations for her peremptory strike and
exhibited no signs of purposeful discrimination against the male jurors. As
AEDPA requires us to defer to state courts in situations where there has been
no unreasonable application of a clearly established federal law, we hold that the
state court’s denial of Petitioner’s Batson challenge is hereby AFFIRMED.




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