                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0753n.06

                                           No. 11-3663                                    FILED
                          UNITED STATES COURT OF APPEALS                              Jul 12, 2012
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk

MARCUS L. HARRIS,                                )
                                                 )
       Petitioner-Appellant,                     )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
v.                                               )    SOUTHERN DISTRICT OF OHIO
                                                 )
MICHAEL SHEETS, Warden,                          )
                                                 )
       Respondent-Appellee.                      )
                                                 )



       Before: SUTTON and GRIFFIN, Circuit Judges; HOOD, District Judge.*

       SUTTON, Circuit Judge.         A jury convicted Marcus Harris of aggravated murder,

kidnapping, aggravated burglary, aggravated robbery and felonious assault. After pursuing his

appeals in state court, Harris filed a petition for a writ of habeas corpus raising a Batson claim

and a claim of ineffective assistance of appellate counsel. The district court denied the petition.

We affirm.

                                                 I.

       On September 11, 2003, two masked men entered the home of Scott and Angela

Mellinger. State v. Harris, No. 06 JE 36, 2007 WL 1806057, at *1 (Ohio Ct. App. June 21,

2007). One of the intruders held the Mellingers’ eleven-year-old son on the floor at gunpoint

while the other, later identified as Harris, entered the master bedroom. Id. Once in the room,


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Harris tried to hold Angela and Scott Mellinger at gunpoint. State v. Harris, No. 04 JE 44, 2006

WL 1868322, at *1 (Ohio Ct. App. June 27, 2006). Scott began wrestling with Harris. Id.

Harris shot Scott twice, first superficially across the abdomen, then fatally in the head. Harris,

2007 WL 1806057, at *1.

       The State charged Harris with aggravated murder with prior calculation and design, and

with aggravated murder while committing or attempting to commit kidnapping, robbery or

burglary. Id. Death specifications were added to the latter charge. Id. Harris also was charged

with two counts of kidnapping, two counts of aggravated burglary, four counts of aggravated

robbery and two counts of felonious assault. Id.

       During voir dire, the prosecutor used a peremptory challenge to remove Delores

Livingston, an African-American, from the jury. Harris, 2006 WL 1868322, at *2, 5–6. Harris

challenged the strike, and the trial court rejected the challenge. Id. at *2.

       The jury found Harris not guilty of aggravated murder with prior calculation and design,

but guilty of aggravated murder during a robbery, kidnapping and burglary and guilty of the

death specifications. Harris, 2007 WL 1806057, at *1. The jury also found Harris guilty of the

remaining offenses. Id. Following a mitigation hearing, the jury recommended a sentence of

life without parole. Id. The trial court imposed the recommended sentence for the aggravated

murder conviction and added 61 years for the remaining offenses. Id.

       Harris timely appealed his conviction and sentence.            The state courts affirmed his

conviction but eventually modified his sentence so that the firearm-specification sentences ran

concurrently with each other. Harris filed a § 2254 habeas petition. The district court rejected

the petition and granted a certificate of appealability on the Batson claim and an ineffective-

assistance claim.

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                                                 II.

       Under the Antiterrorism and Effective Death Penalty Act, a federal court may not grant a

writ of habeas corpus unless the state court’s adjudication of the claim “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established” Supreme

Court precedent or “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).

                                                 A.

       Harris claims that the state court’s rejection of his Batson claim meets this high standard.

Batson v. Kentucky, 476 U.S. 79 (1986); see also Miller-El v. Dretke, 545 U.S. 231 (2005).

       The Equal Protection Clause forbids prosecutors from using race-based peremptory

challenges. Batson, 476 U.S. at 89. A three-part test applies: the defendant must make a prima

facie showing that the prosecutor made a race-based peremptory challenge; the burden shifts to

the prosecutor to give a race-neutral explanation for the strike; and the burden shifts back to the

defendant to show that the prosecutor engaged in purposeful discrimination. Id. at 95–98.

       The Ohio Court of Appeals held that Harris failed at the last stage—that he did not show

that the prosecutor struck Livingston from the venire based on race. In doing so, it credited the

prosecutor’s explanation: Livingston’s son had been convicted of numerous crimes, including

aggravated drug trafficking and burglary; her son was last convicted the year before Harris’s

trial; Livingston’s sister also had an extensive criminal history in the county; and, in view of this

family history, it was reasonable to question whether Livingston could be a fair and impartial

juror. Harris, 2006 WL 1868322, at *6. The state court added that the prosecutor’s failure to

question Livingston about her sister during voir dire was not evidence of pretext because

Livingston did not mention her sister in the juror questionnaire or during voir dire. Id. The

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court also rejected Harris’s argument that the prosecutor’s failure to strike other members of the

venire who had friends and family with criminal histories was evidence of pretext. Id. at *7.

“[A]ll but one of the prospective jurors [Harris] identifie[d],” the court explained, “were never

actually sworn in as jurors in [his] case,” and the one juror identified by Harris who was

impaneled had only a nephew and distant cousins who had been convicted of crimes—far fewer

crimes, it turns out, than those committed by Livingston’s more-direct family members. Id.

       This reasoning does not contradict Batson or Miller-El—for the reasons mentioned above

and a few others mentioned below. During voir dire, Livingston testified that she recognized the

name of one of the potential law enforcement witnesses from a prior incident in which her son

had been arrested.    Livingston added that she might know one other witness.            When the

prosecutor asked if the prospective jurors had any prior contact with his office, Livingston

replied that, in addition to the situation with her son, several members of her family had suffered

from drug addiction or been involved in drug trafficking; as a result, she recognized the names of

several police officers and judges. After questioning Livingston during voir dire, the prosecutor

confirmed that his office had secured convictions against Livingston’s son for drug offenses as

recently as the year before Harris’s trial. When Harris challenged the State’s attempt to strike

Livingston, the prosecutor cited Livingston’s family’s extensive contact with the criminal justice

system as his reason for doubting her capacity to judge the prosecution’s case fairly.

       This justification is facially race-neutral, clear and specific. Batson, 476 U.S. at 98 &

n.20. The trial court and Ohio Court of Appeals reasonably credited the prosecutor’s race-

neutral explanation. Harris does not identify any juror whose family had a comparable history of

criminal convictions to Livingston’s family, much less a juror with a son against whom the

prosecutor’s office had just obtained a conviction and a sister with a twenty-one-year history of

                                                 4
criminal convictions. Other prospective jurors noted that relatives or friends had been arrested

or convicted, but none had a sibling or child who had been arrested and prosecuted. For

example: jurors Neil and Balvin had cousins, and Jurors Kendle and Washel had nieces and

nephews who had been arrested and prosecuted for crimes; Juror Moustaader knew the son of a

co-worker who had been imprisoned; Juror Smith’s father-in-law had been imprisoned before his

marriage; Jurors Ammons and Cline had friends who had been convicted of crimes; Juror

Ingram had been arrested but not prosecuted for a crime. These are all materially different

interactions with the criminal justice system. Juror Mumaw did have a son who was imprisoned

but she was stricken for cause. Accordingly, it was reasonable for the Ohio Court of Appeals to

conclude that the failure to use peremptory strikes against these other prospective jurors did not

amount to race discrimination. Harris, 2006 WL 1868322, at *7.

       Harris insists that the prosecutor’s reliance on Livingston’s sister’s criminal record is

implausible given that the prosecutor failed to question Livingston about her sister during voir

dire even though she disclosed her sister’s criminal record on her juror questionnaire. To the

extent Harris’s argument relies on the contents of Livingston’s juror questionnaire, we cannot

consider it because the questionnaire was not part of the record before the state appellate court.

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“We now hold that review under §

2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on

the merits.”). The broader point is that the recent conviction of Livingston’s son, after an

investigation by the same prosecutor’s office, alone would give a prosecutor race-neutral doubts

about impartiality.

       Nor did the prosecutor’s questioning of Livingston regarding her views about the death

penalty show pretext. Harris argues that the prosecutor questioned Livingston longer and in

                                                5
more depth than he questioned other jurors on the issue of possible penalties. Not only is the

disparity in questioning less pronounced than Harris suggests, but there is also a rational

explanation for the length of the prosecutor’s inquiry: Livingston was an evangelical minister,

giving the prosecutor a reason to inquire about her capacity to impose a death sentence in light of

her faith. The Ohio Court of Appeals reasonably rejected Harris’s Batson claim.

                                                  B.

       Harris also claims he was deprived of the effective assistance of appellate counsel

because his attorney failed to make the juror questionnaires part of the appellate record that was

before the Ohio Court of Appeals.          To succeed, Harris must show that his attorney’s

performance was deficient and prejudiced Harris’s defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). As for prejudice, Harris must show that there is a reasonable possibility that,

but for counsel’s errors, the result of the proceeding would have been different. Id. at 694.

Harris’s burden is not light, as we apply a “doubly deferential” standard of review when

analyzing counsel’s performance in the context of a § 2254 petition. Cullen, 131 S. Ct. at 1403

(internal quotation marks omitted).

       The key problem is prejudice. Even if we assume Harris’s counsel was deficient in

failing to designate the juror questionnaires as part of the appellate record, a point we need not

resolve, Harris has no reasonable prospect that the decision would have come out differently. As

shown, Harris has not established that any prospective juror had similarly close family members

with similar criminal records as those in Livingston’s family. On this record, the state court

reasonably concluded that Harris was not prejudiced by his counsel’s failure to designate the

questionnaires as part of the appellate record.



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                                        III.

For these reasons, we affirm the judgment of the district court.




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