                        REVISED JANUARY 27, 2012

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

                                                                             FILED
                                       No. 09-70028                      January 26, 2012

                                                                           Lyle W. Cayce
                                                                                Clerk
WILLIE TERION WASHINGTON,


                                                  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
                            4:99-CV-140 & 4:07-CV-721


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Willie Terion Washington, a black Texas death row inmate, was convicted
of murder in 1986. At voir dire, the prosecutor struck all the minority jurors to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-70028

empanel an all-white jury. Washington filed a state petition for writ of habeas
corpus which was denied. Some years later, Washington received copies of the
prosecutor’s notes from voir dire which he claims prove racial discrimination in
the seating of his jury. He then filed a subsequent petition for habeas which was
denied under Texas’s abuse of the writ statute. The United States District Court
rejected his appeal. Before this court is whether the Texas Court of Criminal
Appeals (“TCCA”) based its decision on the independent and adequate state
ground contained within the procedural rule, or whether the decision was
intertwined with federal law. Also before this court is an application for a
Certificate of Appealability (“COA”). We AFFIRM the ruling of the District Court
and DENY Washington’s application for a COA.
                          FACTS AND PROCEEDINGS
       A.     Washington’s Habeas Corpus Claims
       Washington was convicted of capital murder and sentenced to death in
November of 1986. The facts of his crime are not before this court.1 At voir dire,
the prosecutor peremptorily excused five minority jurors and an all-white jury
was empaneled without a Batson challenge from Washington’s attorney. (Blue


       1
         The TCCA has previously summarized the facts of this case:
      The record reflects that on December 19, 1985, Yemane Kidane and
      Kifelmariam Tareh were working in Mike’s Food Market of which Kidane was
      a part owner. At approximately 8:30 p.m. that evening, [Washington] entered
      the store and went to the back where Tareh was stocking the cooler with beer.
      Holding Tareh at gunpoint, [Washington] approached the register where Kidane
      was working and said, “Give me all the money. I’m going to hurt you.” Kidane
      gave [Washington] between seventy and one hundred dollars in cash and some
      food stamps. [Washington] allegedly then moved Tareh to the right one step,
      shot Kidane in the jaw, shot Tareh in the head killing him and then left the
      store. Kidane, who was not killed by the shot to his jaw, then ran out of the
      store and fired two shots into the air from a gun that he had in his pocket.
      Kidane then went to a lounge next to the food market to ask for help in getting
      the police and an ambulance. Kidane later identified [Washington] as the
      alleged perpetrator. Kidane stated he did not know [Washington’s] name, but
      he recognized him because he came into the food market on a daily basis.
See Washington v. State, 771 S.W.2d 537, 539 (Tex. Crim. App. 1989).

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Br. 18). During voir dire, the prosecutor wrote down letters next to the names
of venire members on jury questionnaires to indicate the potential juror’s race
(such as a ‘b’ for a black venire person). (Blue Br. 16). Washington’s direct
appeal to the Texas Court of Criminal Appeals was denied, as was certiorari to
the United States Supreme Court. (Blue Br. 1-2). He filed a petition for writ of
habeas corpus in state court in 1990. In 1997, the 180th District Court of Harris
County, Texas denied relief. Washington filed a second supplemental petition
which was denied by the TCCA in early 1998. (Blue Br. 2).
      Following denial of relief, Washington filed a federal habeas petition and
an amendment to the petition in 1999. (Blue Br. 3). In 2001, Texas provided
Washington with copies of the juror questionnaires used in voir dire as well as
evidence of “criminal records of key prosecution witnesses.” (Blue Br. 3).
Washington alleges the notations on the questionnaires are “racist notations”
which establish that Washington’s attorney rendered ineffective assistance by
not raising a Batson challenge.          (Supp. Br. 24-25).      Based on this newly
discovered evidence, Washington filed a second amended petition for a writ of
habeas corpus. (Blue Br. 3). The District Court for the Southern District of
Texas dismissed the petition in 2001 so that Washington could pursue these two
claims in state court. (Blue Br. 3).
      Washington’s successive habeas application based on ineffective assistance
was dismissed by the TCCA in 2002 stating, “[t]he remaining claims fail to
satisfy the requirements of Sec. 5 and are accordingly dismissed.” (TCCA Order
No. 35,410-02).2 The TCCA denied a subsequent application for a writ of habeas
corpus in February of 2007. Washington then filed a petition for writ of habeas
corpus in federal court. (Blue Br. 4).


      2
          Section 5 of the Texas Code of Criminal Procedures, Article 11.071 sets forth the
limited circumstances in which the court may consider a subsequent habeas application. See
Tex. Code Crim. Proc. Art. 11.071.

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      The district court explained “the TCCA dismissed the claim under Texas’s
abuse of the writ statute.” (Opinion 3). The question was thus whether the
dismissal was based on a rejection of Washington’s constitutional ineffective
assistance argument, or whether it was based on an independent and adequate
state ground, namely the abuse of the writ by successive petitions. The district
court concluded “[t]here is thus no reason to believe that this dismissal by the
TCCA, like the dismissal at issue in Hughes, rested on anything other than an
independent and adequate state ground.” (Opinion 7). However, because
“reasonable jurists could disagree whether the TCCA decision in this case
[finding Washington’s state habeas claim procedurally defaulted under Tex.
Crim. Pro. art. 11.071 § 5], in light of Washington’s later-discovered evidence,
was intertwined with federal law,” the district court granted a certificate of
appealability on the independent and adequate state ground issue. (Opinion 8).
      B.    Section 5 of Texas Rules of Criminal Procedure
      The Texas Code of Criminal Procedure, article 11.071 Section 5 permits
subsequent application for a writ of habeas corpus in three limited
circumstances.
      (a) If a subsequent application for a writ of habeas corpus is filed
      after filing an initial application, a court may not consider the
      merits of or grant relief based on the subsequent application unless
      the application contains sufficient specific facts establishing that:

               (1) the current claims and issues have not been and could
            not have been presented previously in a timely initial
            application or in a previously considered application filed
            under this article or Article 11.07 because the factual or legal
            basis for the claim was unavailable on the date the applicant
            filed the previous application;

              (2) by a preponderance of the evidence, but for a violation of
            the United States Constitution no rational juror could have
            found the applicant guilty beyond a reasonable doubt; or



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               (3) by clear and convincing evidence, but for a violation of
             the United States Constitution no rational juror would have
             answered in the state’s favor one or more of the special issues
             that were submitted to the jury in the applicant’s trial under
             Article 37.071, 37.0711, or 37.072.

Tex. Code Crim. Proc. Art. 11.071 § 5. Under each subsection, the plaintiff must
allege specific facts to establish that (1) the factual or legal basis for the claim
were not previously available; (2) a United States Constitutional violation was
the but-for cause of the jury’s guilty finding; or (3) a Constitutional violation was
the but-for cause of the jury’s answers to the special issues which resulted in the
death penalty. Id. Barring these exceptions, the TCCA will dismiss a petition
as procedurally defaulted.
                           STANDARD OF REVIEW
      The parties dispute the nature of the case. Washington claims this case
raises a review of a claim for ineffective assistance of counsel. Texas correctly
articulates that this is a review of a denial of habeas corpus. (Red Br. 15). The
district court made no findings of fact or conclusions of law regarding the
effectiveness of Washington’s trial counsel but concluded “that the TCCA found
Washington’s claim procedurally defaulted under an independent and adequate
state rule of procedure.” (Opinion 8). The only legal conclusion of the district
court was that the Texas abuse of the writ statute contained an adequate and
independent state ground on which the TCCA based its dismissal of
Washington’s subsequent petition.
      This court reviews facts found by the district court for clear error and the
district court’s legal conclusions de novo. Virgil v. Dretke, 446 F.3d 598, 604-05
(5th Cir. 2006); Ward v. Dretke, 420 F.3d 479, 486-87 (5th Cir. 2005); Busby v.
Dretke, 359 F.3d 708, 713 (5th Cir. 2004) (“In a habeas corpus appeal, we review
the district court’s findings of fact for clear error and its conclusions of law de



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novo, applying the same standards to the state court’s decision as did the district
court.”).
                                 DISCUSSION
      1.    TCCA Dismissal
      The issue before us is whether the TCCA dismissed Washington’s petition
based on an adequate and independent state law ground. If so, we are barred
from reviewing the state court’s judgment. See Coleman v. Thompson, 501 U.S.
722, 750 (1991). The TCCA dismissed Washington’s claim because it did not
“satisfy the requirements of Sec. 5 [of Art. 11.071].” (Order 2). Washington
raises two contentions. First, he contends that the TCCA’s order does not clearly
indicate that the decision was based on an adequate and independent state law
ground and thus the presumption should be that it was not. Second, he alleges
that the TCCA did not base its opinion on whether the facts underlying a
potential Batson challenge were unavailable at the time of his first habeas
petition, but rather on a finding that his application did not make out a Batson
violation claim that was prima facie meritorious.
            a.     State or Federal Law Presumption
      Washington contends that the TCCA failed to include a plain statement
that its dismissal under §5 was based on adequate and independent state
grounds. He reads Michigan v. Long and its progeny to require state courts
explicitly to state their decisions rest on adequate and independent state law
ground in order to avoid a presumption that the decision is either based or relied
on federal law. See Michigan v. Long, 463 U.S. 1032 (1983); (Blue Br. 18). Texas
correctly points out that Washington’s brief was filed before Rocha v. Thaler, 626
F.3d 815 (5th Cir. 2010), and thus argues that in the absence of a clear
statement that the state court relied on federal law, this court should presume
that an adequate and independent state law ground was the basis for the
decision. (Red Br. 23-24).

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      This court is procedurally barred from hearing appeals from denial of state
habeas where the state court based its decision on an adequate and independent
state law ground. This rule is derived from the Supreme Court’s opinion in Long
which held:
      when, as in this case, a state court decision fairly appears to rest
      primarily on federal law, or to be interwoven with the federal law,
      and when the adequacy and independence of any possible state law
      ground is not clear from the face of the opinion, we will accept as the
      most reasonable explanation that the state court decided the case
      the way it did because it believed that federal law required it to do
      so.
Long, 463 U.S. at 1040-1041. Long has been refined by this circuit in the context
of the Texas abuse of the writ doctrine, most recently in Rocha. See also
Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010).
      In Rocha, this court explained that if the TCCA’s decision was based on
unavailability, the procedural bar for federal review would hold. 626 F.3d at
835. If, however, “the CCA determines that the claim was unavailable but that
the application does not make a prima facie showing of merit, a federal court can
review that determination.” Id. We have held that a claim was procedurally
barred when the TCCA issued a boilerplate abuse-of-the-writ order dismissing
a successive habeas application because “no application or interpretation of
federal law is required to determine whether a claim has, or could have, been
presented in a previous habeas application.” Hughes v. Quarterman, 530 F.3d
336, 342 (5th Cir. 2008).     Further, there was “nothing in [the TCCA’s]
perfunctory dismissal of the claims that suggest[ed] that it actually considered
or ruled on the merits.” Id. Thus, “we are required to presume that a state-court
habeas decision does not rest on an independent state-law ground only if we first
determine that the state-court decision we are reviewing ‘fairly appears to rest
primarily on federal law, or to be interwoven with the federal law.’” Rocha, 626
F.3d at 836 (quoting Coleman, 501 U.S. at 735). “A CCA decision fairly appears


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                                  No. 09-70028

to rest on state law if it dismisses a subsequent habeas application under
§ 5(a)(1) because the application does not raise a claim that was factually or
legally unavailable.”     Id. at 837.   Thus, our presumption that the TCCA
dismisses claims on state law grounds is only undermined if the opinion actually
implicates federal law.
      The TCCA order did not specify whether its dismissal was based on state
law or had some relationship to federal law. The presumption that the order
rests on adequate state law thus stands subject to our consideration of whether
the TCCA’s decision “fairly appears to rest primarily” on a determination that
Washington’s Batson challenge was not prima facie meritorious.
            b.    Availability of Batson at First Habeas Application
      Washington claims that the TCCA necessarily dismissed his claim based
on the merits of his Batson challenge because the evidence of racial
discrimination by the prosecutor at voir dire was not available at the time of his
first habeas petition. (Blue Br. 30-31). He claims he “first became aware of the
prosecutor’s invidious discriminatory intent when the state’s jury questionnaires
were provided for the first time in 2000.” (Blue Br. 30). Because this specific
evidence was not previously available, Washington alleges that his Batson
challenge was unavailable at the time of his first habeas petition. (Blue Br. 30-
32). Texas claims Washington’s ineffective assistance claim was previously
available even without the jury questionnaires. (Red Br. 33-35). Texas quotes
the district court to argue that the facts necessary to raise an ineffective
assistance claim for failure to allege a Batson violation–that the prosecutor used
peremptory challenges to remove black venire members and that his trial
counsel did not object–were available at the time of Washington’s initial state
habeas application. (Red Br. 34).
      We have held that a determination of whether a TCCA decision was based
on the unavailability or merits of the claim follows a sequential pattern.

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      [T]he two requirements of § 5(a)(1) should be applied sequentially.
      The CCA first examines whether the factual or legal basis of the
      claim was unavailable at the time of the original application. Only
      if the applicant can surmount the unavailability hurdle does the
      CCA proceed to ask whether the application makes out a claim that
      is prima facie meritorious . . . If an applicant fails to satisfy the
      unavailability requirement, the § 5(a)(1) inquiry is over, and no
      merits determination takes place.
Rocha, 626 F.3d at 834. “No application or interpretation of federal law is
required to determine whether a claim has, or could have, been presented in a
previous habeas application.”     Hughes, 530 F.3d at 342.       Thus, we must
determine whether Washington’s claim of ineffective assistance for failure to
raise a Batson challenge at voir dire was available prior to the discovery of the
jury questionnaires–whether the TCCA dismissed Washington’s claim for
unavailability (state law) or on its merits (federal law).
      Such analysis does not require checking “our common sense at the door
when we read an opinion of the CCA with an eye toward ascertaining its
decisional basis. . . . When the CCA dismisses a successive habeas application
on the ground that it does not satisfy § 5(a)(1), we can–and should–read its order
of dismissal to determine which of the two elements of § 5(a)(1) was the basis of
the court’s dismissal.” Rocha, 626 F.3d at 837. We may consider arguments or
theories that support or could support the state court’s decision. Harrington v.
Richter, 131 S. Ct. 770, 786 (2011); (Red Br. 17).
      Batson challenges require a three part test to determine if peremptory
challenges were used in a discriminatory manner.
      First, the defendant must make a prima facie showing that the
      prosecutor’s use of peremptory challenges excluded members of a
      certain race from serving on the jury. Second, once the defendant
      makes that prima facie showing, the burden shifts to the state to
      provide a neutral explanation for the strikes related to the
      particular case being tried. Once the state offers an explanation for
      its challenges, the trial court must determine whether the


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      defendant has established purposeful discrimination in the jury
      selection process. The ultimate burden of persuasion stays with the
      defendant throughout.
Puckett v. Epps, 641 F.3d 657, 663 (5th Cir. 2011) (internal citations omitted).
Washington alleges that he was not able to establish a prima facie case prior to
the discovery of the jury questionnaires. (Blue Br. 30-31). To establish a prima
facie case:
      a defendant: (1) must show that . . . the prosecutor has exercised
      peremptory challenges to remove members of [a cognizable racial
      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.
Price v. Cain, 560 F.3d 284, 286 (5th Cir. 2009). This court has held that the
facts required to raise an inference are a “light burden.” Id. at 287. Thus, we
must determine whether, but for the evidence that the prosecutor indicated
potential jurors’ race on the questionnaires, Washington could have established
a prima facie case.
      At Washington’s jury selection, the prosecutor exercised peremptory
challenges to remove black and Hispanic venire members which resulted in an
all-white jury. (Blue Br. 18). The questionnaires were not necessary to make
this showing. Second, the prosecutor’s behavior in removing black and Hispanic
venire members to leave a completely white jury could certainly “constitute[] a
jury selection practice that permits ‘those to discriminate who are of a mind to
discriminate.’” Price, 560 F.3d at 286 (quoting Batson v. Kentucky, 479 U.S. 79,
96 (1986)). Finally, the removal of non-white jurors from the venire raises “an
inference that the prosecutor exercised peremptory challenges on the basis of
race.” Id. The actions at voir dire, even without the questionnaires would
constitute the time Washington “first became aware of the prosecutor’s invidious

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discriminatory intent,” (Blue Br. 30), and thus provided sufficient evidence to
raise a Batson challenge.          Even assuming, arguendo, that the jury
questionnaires strengthen Washington’s prima facie case, they are unnecessary
to overcome the light burden this circuit requires a party to show a prima facie
case for the first step of a Batson claim.
      The TCCA based its dismissal on the fact that Washington’s attorney did
not need the questionnaire evidence which tends to show racial discrimination
at voir dire, but could have raised a Batson challenge based on the race-based
strikes at the trial. The failure to raise a Batson challenge at voir dire may have
been ineffective assistance.      However, Washington’s failure to raise the
ineffective assistance claim in his first habeas application cannot be excused for
lack of the necessary evidence to raise the Batson claim. Thus, there was no
“factual or legal basis” “unavailable on the date the applicant filed the previous
application,” Sec. 5(1), and we hold that the TCCA’s dismissal was based on the
prior availability of his ineffective assistance claim.
      2.     Certificate of Appealability
      Washington also seeks a COA from the district court’s denial of habeas
corpus relief on two issues. “A COA will be granted only if the petitioner makes
‘a substantial showing of the denial of a constitutional right.’” Shishinday v.
Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (quoting 28 U.S.C. § 2254(c)(2)).
“To make such a showing, a petitioner ‘must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to deserve encouragement
to proceed further.’” Id. (alterations in original) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). Because Washington has failed to make a substantial
showing of a denial of a constitutional right or otherwise meet the qualifications
for his application, we deny his application for a COA.
             a.    Ineffective Assistance

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      Washington argues that a COA should issue on whether the district court
properly analyzed his claims of ineffective assistance at trial. He argues his trial
counsel rendered ineffective assistance because (1) counsel’s fee arrangement
created a conflict of interest, (2) counsel executed a second affidavit regarding
his representation of Washington after discussions with the judge and assistant
district attorney, and (3) counsel’s trial preparation and court performance were
deficient. These claims lack sufficient merit to warrant a COA, and that
application is denied for essentially the same reasons recited by the district court
in its order filed August 3, 2009.
      Washington first claims his trial counsel’s fee agreement which assigned
the $5,000 proceeds from Washington’s pending workers’ compensation
settlement to counsel in addition to a $3,000 payment from Washington’s family
created an unethical conflict of interest. The state court concluded there was no
conflict of interest and the district court found no established law to support
granting a COA.       The claim was rejected by the district court because
Washington lacked evidence that any deficiency in his trial counsel’s
performance was caused by the fee arrangement and there is no presumption
that an alleged conflict of interest is prejudicial. Washington does not make
additional arguments before this court.          The fee arrangement, even if
questionable, does not prove that Washington’s trial counsel had a conflict of
interest which prejudiced Washington. His arguments on appeal, without more,
do not show he was prejudiced by the fee arrangement and thus a COA is not
appropriate on this issue.
      Second, Washington alleges that his trial counsel’s filing of two affidavits
regarding the actions taken in Washington’s defense, including one influenced
by ex parte communications with the trial judge and prosecutor, show
Washington’s case was treated in a cursory and unfair manner in state court.
However, Washington was permitted to cross examine his trial counsel before


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the district court and fails to identify any specific constitutional rights affected
by the hearing or the affidavits and thus a COA is not appropriate on this issue.
      Third, Washington alleges that his trial counsel was inadequate, but
generally fails to allege facts to support the allegations. As the district court
noted, Washington failed to identify any non-defaulted instance of ineffective
assistance which resulted in prejudice. By failing to provide reasons for relief,
Washington cannot show he was prejudiced by his trial counsel’s decisions at
trial and thus a COA is inappropriate.
            b.     Criminal Records of Government Witnesses
      Washington also seeks a COA on whether the district court properly
analyzed his claims regarding the state’s failure to provide defense counsel the
criminal records of punishment-phase witnesses. He contends evidence of Ella
Miller and Linda Desso’s prior convictions was improperly withheld during the
penalty phase, prejudicing Washington. These claims lack sufficient merit to
warrant a COA, and that application is denied for essentially the same reasons
recited by the district court in its order filed August 3, 2009.
      The district court concluded that the possible evidence to impeach Miller’s
testimony was inadmissible evidence and therefore could not be material. It also
concluded that Washington could not identify any perjured testimony from
Desso. Thus, Washington cannot show he was prejudiced by the state’s failiure
to provide the criminal records of the witnesses at sentencing and a COA is
inappropriate.
                                 CONCLUSION
      Washington raised a successive petition for a writ of habeas corpus in
Texas state court which was dismissed for abuse of the writ. The TCCA
dismissed his claim under Section 5. The TCCA was not required to explicitly
state its basis for dismissal was an adequate and independent state law ground.
Further, we can consider the arguments that support the TCCA’s decision and


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recognize the basis for any Batson challenge was sufficiently present at voir dire
and thus Washington’s failure to raise the ineffective assistance claim in his first
habeas corpus petition triggered the procedural bar of Section 5. We AFFIRM
the district court’s holding that the TCCA found Washington’s claim
procedurally defaulted under an independent and adequate state rule of
procedure and DENY Washington’s application for a COA.




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