     Case: 08-30721     Document: 00511076098          Page: 1    Date Filed: 04/09/2010




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

                                                  FILED
                                                                             April 9, 2010

                                       No. 08-30721                         Lyle W. Cayce
                                                                                 Clerk

RAYMOND WADE,

                                                   Petitioner - Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 5:05-cv-876


Before DeMOSS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        Raymond Wade was convicted of second-degree murder and sentenced to
life imprisonment. After exhausting his state court remedies, Wade filed a
habeas petition in the federal district court.            The district court denied the
requested relief, and Wade appealed. We issued a certificate of appealability
(“COA”) on several issues related to the alleged denial of Wade’s Fourteenth
Amendment right to equal protection under Batson v. Kentucky, 476 U.S. 79
(1986), including the issue of whether a comparative juror analysis supports

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Wade’s Batson claims. Because a comparative juror analysis does not support
Wade’s Batson claims, we affirm.
                                        I.
      As alleged, Wade may only obtain habeas relief on his Batson claims by
showing that the Louisiana Supreme Court’s decision denying his Batson
challenge was based on an “unreasonable determination of the facts in light of
the evidence presented.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting
28 U.S.C. § 2254(d)(2)). The state court’s factual findings are presumed to be
sound unless rebutted with clear and convincing evidence.          Id. (quoting §
2254(e)(1)).
      The Supreme Court articulated a three-step process for adjudicating a
claim that a peremptory challenge was based on race—a Batson challenge.
      First, a defendant must make a prima facie showing that a
      peremptory challenge has been exercised on the basis of race;
      second, if that showing has been made, the prosecution must offer
      a race-neutral basis for striking the juror in question; and third, in
      light of the parties’ submissions, the trial court must determine
      whether the defendant has shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (quoting Miller-El, 545 U.S. at
277) (Thomas, J., dissenting)) (internal marks omitted). On appeal, we evaluate
“whether the trial court’s determination of the prosecutor’s neutrality with
respect to race was objectively unreasonable and has been rebutted by clear and
convincing evidence to the contrary.” Murphy v. Dretke, 416 F.3d 427, 432 (5th
Cir. 2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)).
      After the State used three of four peremptory challenges to strike African-
American veniremen, defense counsel made his first Batson challenge. He
argued that the high percentage of peremptory challenges used against African-
Americans established a pattern of excluding African-Americans. The trial
judge noted that he paid extremely close attention to the voir dire proceedings,


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took copious notes, and was sensitive to the Batson issue. He found no prima
facie showing that the State used peremptory challenges on the basis of race.
However, to preserve the record for review, he noted that he would have the
State articulate reasons for striking the jurors at a later time. He further
mentioned that the State could keep its voir dire notes.
      The State used its next peremptory challenge to strike another African-
American, and defense counsel made another Batson challenge. Defense counsel
stated that the State had used four to five challenges on prospective African-
American males. He asserted that this particular panel had nine Caucasians
and three African-Americans before challenges for cause and the other panels
had been predominately Caucasian.       He noted that there were no African-
American males on the jury and only two African-American females. Again, the
judge found that the first step in Batson had not been met and denied Wade’s
challenge.
      After the twelfth member of the jury had been selected, the State used its
only peremptory challenge for the alternate jurors to strike another African-
American. Defense counsel again objected to the use of the challenge, and the
judge noted defense counsel’s position and summarily denied the objection.
Wade’s jury consisted of ten Caucasians and two African-Americans.
      The jury found Wade guilty of the lesser included crime of second-degree
murder and sentenced him to life imprisonment. He then moved for a new trial
on the basis that the State used peremptory challenges to systematically exclude
African-Americans from the jury. The judge again found that Wade failed to
make a prima facie showing of discriminatory use of peremptory challenges.
However, “for appellate purposes,” the judge instructed the State to articulate
its reasons for striking the African-American veniremen. For each of the struck
veniremen, the Stated identified several reasons justifying its use of the strike.



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The judge found the State’s reasons to be race-neutral and denied Wade’s motion
for new trial. He appealed.
       On appeal, Wade specifically complained that the State’s reasons for
striking Kerrick Martin, Clarence Bell, Sandra Smith Bell, and Foster Dukes,
“were not sufficiently race neutral and appeared to be a veiled effort to exclude
individuals of the same color as defendant.” Agreeing with the trial court, the
Louisiana Second Circuit Court of Appeal found the State’s reasons for striking
the four African-American veniremen to be race-neutral.                  The Louisiana
Supreme Court denied Wade’s petition for writ of certiorari.
       Wade then sought habeas relief in the Louisiana state courts on various
other grounds and after exhausting those claims, moved for federal habeas relief
under 28 U.S.C. § 2254 in the Western District of Louisiana. The district court
denied all relief.
                                            II.
       The only issue on appeal is whether Wade demonstrated that his Batson
challenge was denied because of an unreasonable determination of the facts.1
Although the trial court denied Wade’s Batson challenge because Wade failed to
establish Batson’s first step, we have held that “appellate review should not
become bogged down on the question of whether the defendant made a prima
facie showing in cases where the district court has required an explanation.”
United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987). When the trial
court requires the State to articulate its reasons for striking a venireman, even
when the trial court does not believe defense counsel met Batson’s first step, the
appellate court should review the district court’s findings on purposeful
discrimination. Id.; accord Hernandez v. New York, 500 U.S. 352, 359 (1991)
(plurality) (“Once a prosecutor has offered a race-neutral explanation for the

       1
        Because the comparative juror analysis resolves all outstanding issues, we need not
separately consider each point on which we granted a COA.

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peremptory challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant had
made a prima facie showing becomes moot.”). Accordingly, our focus is on
whether Wade has shown purposeful discrimination.
       Wade argues that although the State’s reasons for striking the African-
American veniremen appear race-neutral, when the court compares the
responses of the struck African-American veniremen with the responses of the
Caucasian jurors, the State’s reasons for striking the African-American
veniremen are unpersuasive and not credible.2 He asks the court to conduct a
comparative analysis of the struck veniremen and the Caucasian veniremen.3
       The Supreme Court articulated a few guiding principles for the court to
consider when conducting a comparative analysis which we explained as follows:
       First, we do not need to compare jurors that exhibit all of the exact
       same characteristics. . . . Second, if the State asserts that it was
       concerned about a particular characteristic but did not engage in
       meaningful voir dire examination on that subject, then the State’s


       2
         Wade also asserts that the “bare statistics” in this case support a finding of purposeful
discrimination. Wade alleges that his venire panel consisted of sixty-six people, twenty of
whom where African-American. There is no evidence in the record to support Wade’s
proposition that his venire panel included twenty African-Americans. Further, the trial court
explained any disparity by stating that “there were a number of prospective jurors who were
African-American, who indicated that under no way and under no circumstance would they
impose the death penalty, which means that they [were] excused for cause pursuant to the
law.” Wade also argues that there was a jury shuffle and that the State asked juror Ivy
Woodard-Latin, a Caucasian woman, the fewest number of questions. The State avers that
no jury shuffle occurred and that Woodard-Latin was an African-American woman. Wade
failed to direct the court to the portion of the record that supports his position and we have
found no indication that a jury shuffle occurred or that Woodard-Latin was Caucasian. Wade’s
arguments are without merit.
       3
         The State argues that we should not consider Wade’s comparative analysis argument
because Wade never presented the argument to the state court. The State’s argument is
foreclosed. See Reed v. Quarterman, 555 F.3d 364, 374-75 (5th Cir. 2009) (explaining that
because the “comparative analysis rests on the entire voir dire transcript” and the voir dire
transcript was part of the evidence before the state court, “the comparative analysis, which
is a theory that relies upon the voir dire—is properly before this court on habeas review,” even
if the argument was not made to the state court).

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       failure to question the juror on that topic is some evidence that the
       asserted reason was a pretext for discrimination. . . . Third, we must
       consider only the State’s asserted reasons for striking the black
       jurors and compare those reasons with its treatment of the nonblack
       jurors.

Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009) (emphasis in original)
(citing Miller-El, 545 U.S. at 246, 247 n.6, 252). With these principles in mind,
we compare struck veniremen Martin, Bell, Smith Bell, and Dukes with the non-
African-American veniremen accepted by the State.4
                                               A.
       Regarding venireman Martin, the State asserted at the Batson hearing
that it struck Martin because he “indicated by his mannerisms and responses
that he was unwilling to impose the death penalty” and he seemed “quite weak,”
“to prefer a sentence of life in prison,” and uncomfortable with the death penalty.
The judge found the State’s reasons to be race-neutral.
       Wade was indicted for the first-degree murder of Carlos Wheeler on the
theory that Wade killed Wheeler during the course of a robbery. The State
sought the death penalty and extensively questioned the venire panels about the


       4
         Wade also argues that the State impermissibly struck possible alternate juror Vickie
Breakenridge. This claim was not exhausted in state court because Wade failed to present the
claim to the highest Louisiana court. See Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999).
Additionally, Wade has forfeited any error for failing to present the claim to the district court.
See United States v. Cherry, 50 F.3d 338, 342 (5th Cir. 1995). However, even if the alleged
error was exhausted and preserved, Wade’s argument is without merit. The State moved to
exclude Breakenridge for cause. During voir dire, Breakenridge indicated that the evidence
would have to be “outstanding” for her to consider the “extreme” penalty of death. Although
the trial judge denied the State’s challenge for cause, he found that the question of whether
Breakenridge should be struck for cause was “a close, close call” and that he “certainly
[thought] a peremptory challenge should be issued, if there is any doubt by the State . . . .”
Given the judge’s findings, we cannot hold the state court’s denial of Batson relief was based
on an unreasonable determination of the facts. See Forbes, 816 F.2d at 1010 (holding that the
district court’s observation that “a challenge for cause might have been justified” as to this
juror was more than sufficient under Batson, which emphasized that “the prosecutor’s
explanation need not rise to the level justifying exercise of a challenge for cause” (quoting
Batson, 476 U.S. at 97)).

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issue. Venireman Martin, when questioned, first indicated that he did not think
he would vote against the death penalty. When the judge questioned him
further about his position, he stated he was against the imposition of the death
penalty. He later stated that he had no strong opinions about the death penalty
and that he could consider the death penalty if the evidence called for it. Later,
in explaining his position he stated that he could understand the death penalty
in a situation with Jeffrey Daumer and Adolf Hitler “[b]ut then in another
situation, I am not here as God, and I’m not here to judge anybody, I prefer not
death to life imprisonment.” Martin’s waffling justified the State’s conclusion
that he would make a weak juror and that he seemed uncomfortable with giving
the death penalty.
      Wade argues that Clifford Escoval, a Caucasian juror, expressed similar
hesitations about the death penalty. The record fails to support this position.
Escoval’s responses to the voir dire questions consistently demonstrated that he
was open to considering the death penalty. The state court’s finding of no
discriminatory intent in the State’s use of a peremptory strike to exclude Martin
is not unreasonable in light of the evidence presented.
                                        B.
      As to venireman Clarence Bell, the State asserted several reasons for
striking Bell including Bell’s failure to fill out the juror questionnaire,
evasiveness, and inattention. The trial judge found the State’s reasons to be
race-neutral and specifically noted that Bell was the only juror who failed to fill
out the questionnaire.
      Wade did not identify another juror the State allowed to serve that
exhibited characteristics similar to Bell.    Rather, Wade argues that Bell’s
“failure to fill out the questionnaire could have simply been an [sic] confusion on
his part as to whether he was required to complete it prior to or during voir
dire.” There is no evidence in the record to support that position. Bell’s failure

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to fill out the questionnaire, however, supports the State’s conclusion that Bell
seemed evasive. The record also supports the State’s position that Bell might
not have been paying attention. After extensive questioning about whether he
and his fellow veniremen could impose the death penalty, he questioned whether
the jury decides punishment. Based on the record before us, we cannot say that
the state court unreasonably found no race discrimination as to this venireman.
                                            C.
       After Clarence Bell, the State struck Sandra Smith Bell, an African-
American woman. The State alleged that it struck Sandra Smith Bell because
she had a ninth grade education and it was concerned that she would have
difficulty understanding the concepts involved with DNA evidence. Wade does
not dispute that Bell only had a ninth grade education. He instead argues that
Bell met the requirements to be a juror, nothing in a death penalty case requires
a juror to understand DNA evidence, no juror was questioned about whether
they understood such evidence, and Escoval, like Bell, had not graduated high
school.
       In this case, DNA evidence was crucial to connecting Wade to Wheeler’s
murder.     A juror’s ability to understand DNA evidence was undoubtedly
important to the State. Although the State did not explicitly question the panel
about their ability to understand such evidence, we cannot hold that the State’s
conclusion that someone with a ninth grade education would be less likely to
understand DNA evidence was merely a pretext for discrimination. As to Wade’s
argument that juror Escoval had not graduated high school, his allegation has
no record support.5


       5
         Wade asks the court to consider the juror questionnaires as part of the record on
appeal. He argues that the questionnaires would support his position that Escoval and others
did not graduate high school. Neither party has submitted the questionnaires. Without the
questionnaires we are unable to evaluate whether the questionnaires would support Wade’s
position. Moreover, it is questionable whether this court could properly consider the

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       The State also indicated that it struck Bell because she generally leaned
towards giving a defendant a sentence of life imprisonment as opposed to the
death penalty. Her voir dire answers support this conclusion. For example, Bell
answered “Yes” in response to the question “Would it also be fair to say that if
a person intentionally killed another person that you would be more inclined or
lean towards giving them a life sentence as opposed to a death sentence?” Wade
does not refute this additional reason for striking Bell. The record supports the
trial court’s finding that the State did not strike Bell for a racially motivated
reason. Accordingly, the decision to deny Wade’s Batson challenge as to Bell was
not based on an unreasonable determination of the facts.
                                             D.
       Finally, as to Dukes, the State asserted that it struck Dukes because he
leaned towards a life sentence in cases where the victim fought back. According
to the State, “[a]ny juror who could not intuitively grasp the concept that a
person being robbed and attempting to arm themselves in defense is not the
aggressor is in my view unfit from the State’s prospective [sic] to serve on a
capital jury.” The State also stated that it believed that if it struck Dukes,
Stephanie Losey would become the twelfth juror. Juror Losey consistently
stated that she was for the death penalty and could consider it. Venireman
Dukes indicated that the only way he could consider the death penalty was if the
murder was “preplanned.”
       Wade admits that “Dukes’ voir dire responses may have tended to favor
life imprisonment over the death penalty.” He argues, however, that the State’s
explanation that it preferred Losey, a Caucasian woman, to sit as the twelfth


questionnaires that were not presented as evidence before the Louisiana Second Circuit Court
of Appeal or the Louisiana Supreme Court. See Miller-El, 545 U.S. at 241 n.2; Reed, 555 F.3d
at 374 n.6. Before the Louisiana Second Circuit Court of Appeal, Wade supplemented the
record with the voir dire transcripts. He failed to utilize that opportunity to supplement the
record with the questionnaires.

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juror demonstrates that the State’s reason for striking Dukes was a pretext for
discrimination. The State never referred to Losey’s race when it explained why
it preferred her over Dukes. The State’s desire to have a juror that never
wavered on the death penalty question over one who had does not compel a
finding of discriminatory motive. The state court’s finding of no discriminatory
intent in the State’s use of this peremptory strike is not unreasonable.
                                      III.
      Wade has failed to demonstrate that the state court’s denial of his Batson
claim was based on an unreasonable determination of the facts in light of the
evidence presented. Accordingly, Wade is not entitled to habeas relief.
      AFFIRMED.




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