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

                                                                            FILED
                                                                            July 7, 2008

                                       No. 06-70053                   Charles R. Fulbruge III
                                                                              Clerk

PAUL EVERETTE WOODWARD,

                                                  Petitioner-Appellant,
v.

CHRISTOPHER B. EPPS, Commissioner, Mississippi Department of
Corrections,

                                                  Respondent-Appellee.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                   (03-CV-529)


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       Paul E. Woodward has appealed the district court’s denial of his 28 U.S.C.
§ 2254 petition for habeas corpus as to his conviction for capital murder and
sentence of death. Before the district court, Woodward requested the issuance
of a Certificate of Appealability (“COA”) on four grounds raised in his petition.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 06-70053

The district court, however, granted a COA on only three of these grounds.1
Woodward subsequently filed a motion requesting this court to issue a
supplemental COA as to the fourth issue: whether, at Woodward’s 1995 re-
sentencing, the prosecution’s use of its peremptory challenges violated his
Fourteenth Amendment right to equal protection under Batson v. Kentucky, 476
U.S. 79 (1986).
       To obtain a COA, Woodward must make a substantial showing of the
denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
When, as here, the district court dismisses a petition on the merits, the
petitioner must show “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong” or that jurists could
conclude that the issues presented are adequate to deserve encouragement to
proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El,
537 U.S. at 327. In death penalty cases, we resolve in the petitioner’s favor any
doubt about whether a COA should issue. Pippin v. Dretke, 434 F.3d 782, 787
(5th Cir. 2005).
       Woodward was convicted of capital murder with an underlying crime of
rape, kidnaping, and oral sexual battery, and was originally sentenced to death
in 1987. His conviction and sentence were affirmed on direct appeal, Woodward
v. State, 533 So. 2d 418 (Miss. 1988), but in 1993, based on Woodward’s petition
for post-conviction relief, the Mississippi Supreme Court vacated the sentence
of death and remanded the case for a new sentencing hearing. Woodward v.
State, 635 So. 2d 805 (Miss. 1993). Upon remand, on September 20, 1995, he



       1
         These three issues are: (1) Whether defense counsel’s admission of Woodward’s guilt
in his closing argument during the guilt/innocence phase of Woodward’s trial constitutes
ineffective assistance of counsel; (2) Was Woodward’s right to due process violated when,
during Woodward’s 1995 re-sentencing, the court refused to order an independent psychiatric
evaluation; and (3) Whether defense counsel’s failure to object to the State’s introduction of
“bad acts” evidence during the 1995 re-sentencing constituted ineffective assistance of counsel.

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                                       No. 06-70053

was again sentenced to death by a jury. The sentence was again affirmed on
direct appeal, Woodward v. State, 726 So. 2d 524 (Miss. 1998), and the
Mississippi Supreme Court denied post-conviction relief on April 6, 2003. See
Woodward v. State, 843 So. 2d 1 (Miss. 2003).
       Woodward’s second sentencing proceeding forms the basis for his Batson
claim. During jury selection, the State peremptorily challenged six jurors,
including three black members of the venire panel. At this point, Woodward
raised a claim under Batson. The court then requested that the State offer
reasons for striking the three black jurors, numbers 7, 12, and 22, which the
State did.2 After a discussion of these strikes, the trial court found that the
strikes were not racially motivated, and denied Woodward’s objections.
Woodward then offered his strikes, and during the next series of strikes the
State struck four additional jurors. Among these jurors was one black juror,
Juror 56, and Woodward objected.3 The trial court denied the objection and
struck Juror 56 from the panel. Two more series of strikes followed, and the
State struck black Juror 67.4 The trial court ruled that the strike was not made
for a racially motivated reason, and struck Juror 67 from the panel. The court
then moved on to the selection of the alternates. Woodward struck the first
alternate, and the State then struck the next alternate, Juror 72, who was



       2
        With respect to Juror 7, the State gave as its reason that “she is unemployed and on
a previous case was unable to reach a verdict.” With respect to Juror 12, the State indicated
that she was unresponsive, hostile to the State during voir dire, and had a relative working
in the prison system. Finally, with respect to Juror 22, the State explained that it had
previously moved to dismiss her for cause because of Juror 22’s unresponsive answers, but that
the court had denied the request, so the State was exercising a peremptory challenge on that
basis.
       3
        The reason given by the State for the strike was that she was related to another juror
on the panel and that “her husband has had law enforcement problems at a trailer park.”
       4
          The State offered as an explanation the fact that she was a psychology major and that
it didn’t have a written response from her.

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                                       No. 06-70053

black.5 The defense then stated: “For the record, we want to note that [Juror 72]
is black. They have now struck every black juror.”
       In total, the State exercised eleven peremptory challenges to the jury pool,
five of which were for black jurors. The State also exercised one strike for each
of the two alternate juror positions; one of the potential alternates challenged by
the State was black. As a result of these challenges every black person was
removed from the jury panel, and the jury that was eventually empaneled was
composed entirely of white members.
       In Batson, the Court delineated a three-step analysis for evaluation of a
defendant’s claim that a prosecutor used a peremptory strike in a racially
discriminatory manner: (1) a defendant must make a prima facie showing that
the prosecutor exercised his peremptory challenges on the basis of race; (2) the
burden then shifts to the prosecutor to articulate a race-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.                       See
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citing Batson, 476 U.S. at
96-98). The ultimate burden of persuasion lies at all times with the defendant.
See Purkett v. Elem, 514 U.S. 765, 768 (1995).
       Woodward contends that the State’s use of the challenges to strike every
available black juror and to seat an all-white jury constitutes a violation of his
rights under Batson. He argues that the trial court erred by considering each
strike “in a vacuum” and failing to examine the strikes in light of all relevant
circumstances. He contends that the fact that the State utilized its strikes to
strike every black juror from the panel indicates that its reasons were
pretextual.



       5
         The State said that its strike was based on his response to a question about rape, as
well as the fact that his brother-in-law is a convicted felon.

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      After reviewing each strike and concluding that the State had offered a
race-neutral reason that Woodward failed to show was pretextual, both the
Mississippi Supreme Court and the district court denied relief. However,
neither the district court nor the Mississippi Supreme Court appears to have
considered Woodward’s claim that the totality of the circumstances, i.e., the
strike of every black juror, provides support for his claim that the strikes were
pretextual. In Miller-El, the Supreme Court found that the defendant should
have been granted a COA on his Batson claim where “[t]he prosecutors used
peremptory strikes to exclude 91% of the eligible African-American venire
members” and all relevant circumstances raised an inference of purposeful
discrimination. 537 U.S. at 342; see also Snyder v. Louisiana, 128 S. Ct. 1203,
1208 (2008) (“[I]n considering a Batson objection, or in reviewing a ruling
claimed to be Batson error, all of the circumstances that bear upon the issue of
racial animosity must be consulted.”). Here, Woodward has provided evidence
that the prosecution struck 100% of the eligible black jurors using its
peremptory challenges. While it is unclear at this juncture whether Woodward
has demonstrated that “all relevant circumstances” raise an inference of
purposeful discrimination, we conclude that, given the State’s strike of every
potential black juror, and the district court’s apparent failure to consider
Woodward’s “totality of the circumstances” argument, this issue is “adequate to
deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
      Accordingly, a COA is granted on the issue of whether the State’s use of
peremptory challenges at Woodward’s resentencing violated his Fourteenth
Amendment right to equal protection under Batson. The court will hear oral
arguments concerning the Batson issue and the three issues granted COA by the
district court in New Orleans on Wednesday, September 3, 2008. The parties
are directed to file supplemental briefs as to the Batson claim and the other



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three issues for which COA was previously granted in accordance with a briefing
schedule to be issued by the Clerk.
      COA GRANTED.




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