             Case: 11-15235    Date Filed: 03/07/2013   Page: 1 of 5

                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 11-15235
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 2:09-cv-00631-RDP-JEO


GERALD DEWAYNE BREWSTER,

                                                        Petitioner-Appellant,

                                     versus

WARDEN BOYD, et al.,

                                                        Respondents-Appellees.

                       ___________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                      ____________________________

                              (March 7, 2013)

Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:

      The district court denied the habeas corpus petition filed by Gerald

Brewster, see 28 U.S.C. § 2254, ruling that Mr. Brewster’s claim under Batson v.
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Kentucky, 476 U.S. 79 (1986), was procedurally barred and in any event failed on

the merits. This is Mr. Brewster’s appeal from that ruling. We affirm, concluding

that the magistrate judge and the district court did not clearly err in finding, after

an evidentiary hearing, that the prosecutor’s use of peremptory strikes was not the

result of racial discrimination.1

       An Alabama jury convicted Mr. Brewster, who is African-American, of

attempted murder and third-degree theft.               The trial court sentenced him to

imprisonment for life plus 12 months.

       Mr. Brewster’s Batson claim revolves around the prosecutor’s failure to use

a peremptory strike on a white juror, Dolores Aultman, whose deceased brother

had served two years in prison for auto theft some 30 years ago. Mr. Brewster

contends that the prosecutor’s striking of the only three African-American

prospective jurors on the panel was based on race because the prosecutor had

explained at the time that he had struck one of the three—Brandi Cole—because

she had relatives who had been convicted of crimes. Mr. Brewster argues that this

explanation for the strike of Ms. Cole was false because the prosecutor, had he

been telling the truth about his jury selection theory, would also have struck Ms.



1
  Given our disposition, we do not reach the other issues on which we granted a certificate of
appealability. It is unnecessary to decide whether the Batson claim is procedurally defaulted
because the claim fails on the merits. And because we conclude that the Batson claim fails on
the merits, it follows that Mr. Brewster’s appellate counsel did not render ineffective assistance
of counsel by failing to more clearly raise that claim on appeal.

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Aultman. 2

       The magistrate judge held an evidentiary hearing, at which the prosecutor

testified, and issued a report recommending that the district court find the Batson

claim procedurally defaulted or alternatively deny that claim on the merits.             The

magistrate judge found that the prosecutor had failed to strike Ms. Aultman

because he had been unaware of the sidebar disclosure by Ms. Aultman of her

deceased brother’s conviction. Thus, the prosecutor’s strike of Ms. Cole, and

failure to strike Ms. Aultman, was not based on discrimination, but was rather due

to a mistake.     After conducting a de novo review of the record—including the

transcript of the evidentiary hearing before the magistrate judge—the district court

adopted the report and recommendation and denied Mr. Brewster’s habeas corpus

petition.

       In cases involving an alleged Batson violation, “a trial court’s ruling on the

issue of discriminatory intent must be sustained unless it is clearly erroneous.”

Snyder v. Louisiana, 552 U.S. 472, 477 (2008). See also United States v. Walker,

490 F.3d 1282, 1291 (11th Cir. 2007) (“[T]he district court’s determination

concerning the actual motivation behind each challenged strike amounts to pure

factfinding, and we will reverse only if the decision is clearly erroneous.”).

2
  The prosecutor explained that he struck the other two African-American jurors because one of
them served on a jury that returned a not guilty verdict and lived in the area of the alleged
offenses, and the other had a father who lived on the same street where the offenses allegedly
took place.

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Because it was supported by the evidence, we cannot say that the finding of the

magistrate judge and the district court on the issue of intent amounted to clear

error.

          First, the prosecutor testified that, though he did not have an independent

recollection of the jury selection in Mr. Brewster’s case, his normal practice was to

write down on a yellow sheet of paper the names of all prospective jurors who

spoke to the court at sidebar as well as what they told the court. The prosecutor

believed that he had not realized that Ms. Aultman had approached the court

sidebar (and had not heard her speak to the court) because (1) his yellow sheet

from Mr. Brewster’s case did not list Ms. Aultman, (2) he did not face the bench in

the courtroom and may not have seen Ms. Aultman approach, and (3) he was deaf

in one ear and partially deaf in the other and may not have heard what she had to

say. The magistrate judge and the district court credited this testimony, and we see

no basis for overturning that credibility determination.                     See United States v.

Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (credibility determination will

be upheld unless lower court’s understanding of the facts was “unbelievable”). 3

          Second, the prosecutor struck a prospective white juror who, like Ms. Cole,

disclosed that a relative (his mother-in-law) had been convicted of a crime

(murder). Though not dispositive, this use of a peremptory strike in a race-neutral


3
    The prosecutor also testified that he did not strike prospective jurors on the basis of race.

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fashion supports the finding that the prosecutor did not engage in purposeful

discrimination when he struck Ms. Cole and did not strike Ms. Aultman.

      The district court’s denial of Mr. Brewster’s habeas corpus petition is

affirmed.

      AFFIRMED.




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