     Case: 14-70035   Document: 00513120094    Page: 1   Date Filed: 07/17/2015




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

                                                                          FILED
                                No. 14-70035                          July 17, 2015
                                                                     Lyle W. Cayce
GUSTAVO JULIAN GARCIA                                                     Clerk


                                          Petitioner – Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                          Respondent – Appellee




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Gustavo Garcia was convicted of capital murder by a Texas jury and
sentenced to death. This is his second federal habeas petition. The district
court denied relief on the merits, ordered the case dismissed with prejudice,
and did not issue a certificate of appealability (COA). Garcia now requests a
COA from this court pursuant to 28 U.S.C. § 2253(c)(1) to appeal the district
court’s denial of relief. Having carefully reviewed the record, we hold that
Garcia failed to exhaust state court remedies with regard to one of the claims
he now raises. To the extent Garcia’s remaining claims might be barred by
AEDPA’s procedural strictures we invoke the statutory discretion afforded us
to decline to address that possibility and proceed to deny those claims on the
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                                       No. 14-70035
merits. 1 We hold that reasonable jurists could not debate the district court’s
conclusions as to Garcia’s remaining claims and accordingly DENY Garcia’s
request for a COA.
                                I. Procedural History
       In 1991, a Texas jury found Garcia guilty of capital murder for shooting
and killing Craig Turski in the course of committing a robbery at a liquor store
where Turski worked. 2 The jury sentenced Garcia to death. On automatic
direct appeal, the Texas Court of Criminal Appeals (CCA) initially reversed
Garcia’s conviction and ordered a new trial, holding that a written confession
signed by Garcia violated Texas Code of Criminal Procedure article 38.22 §
2(b), which “requires that no written statement made by the defendant be
admitted into evidence unless, on its face, the statement contains a knowing,
intelligent, and voluntary waiver of the rights set forth in [section 2(a), which
operationalizes a standard Miranda warning].” 3 Although Garcia had initialed
“G.G.” before numbered warnings mirroring the rights listed in section 2(a)
and had signed his name adjacent to additional language reinforcing those
warnings, the CCA concluded that the written confession did not include “on
its face” an express waiver of those rights. 4
       The CCA subsequently granted a motion for rehearing and reversed
course, affirming the trial court and holding, “though a close call,” that Garcia’s
individual initialing beside the warnings, taken in context with his signature
adjacent to the additional reinforcing language, constituted sufficient evidence



       1  See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies available
in the courts of the State.”).
        2 Tex. Penal Code Ann. § 19.03(a)(2).
        3 Garcia v. State, 919 S.W.2d 370, 383 (Tex. Crim. App. 1996) (reversing and

remanding on original submission; affirming on rehearing).
        4 Id. at 385.

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that Garcia “did, on the face of his voluntary statement, knowingly,
voluntarily, and intelligently waive his [s]ection 2(a) rights in a manner
sufficient to comply with the legislature’s intent when it enacted [s]ection
2(b).” 5 Garcia did not file a petition for certiorari with the Supreme Court.
       Garcia filed his first application for a writ of habeas corpus in state court
in 1997. 6 In 1998, the state habeas court issued findings of fact and conclusions
of law, recommending that the application be denied. In February 1999, the
CCA adopted the state habeas court’s findings and conclusions and denied
habeas relief without written order. 7 The state trial court set Garcia’s
execution date for March 31, 1999. In March 1999, the United States District
Court for the Eastern District of Texas, Judge Schell, granted a motion to
appoint new counsel and stayed Garcia’s execution.
       Garcia filed his first federal habeas petition in August 1999, which was
supplemented in 2000. 8 In response, the state confessed error as to Garcia’s
claim that the trial court allowed improper testimony by the state’s expert
witness during the punishment phase of the trial—so-called Saldano error. 9


       5 Id. at 387 (“We agree that appellant’s statement, while sufficient to comply with
Article 38.22, Section 2(b), is by no means a model of clarity on this point. The clearly
preferable practice is for a written statement, to meet unambiguously the requirements of
Section 2(b), to contain the following language, near or adjacent to the signature of the
individual giving the statement: ‘I knowingly, voluntarily and intelligently waived the rights
described above before and during the making of this statement.’”) (citations omitted).
       6 See Garcia v. Director, TDCJ-CID, NO. 1:08-cv-720, 2014 WL 5846377, at *1 (E.D.

Tex. Nov. 10, 2014) (unpublished).
       7 Ex parte Garcia, No. WR–40,214–01 (Tex. Crim. App. Feb. 10, 1999) (unpublished).
       8 See Garcia v. Director, TDCJ-CID, NO. 1:08-cv-720, 2014 WL 5846377, at *1 (E.D.

Tex. Nov. 10, 2014) (unpublished).
       9 See Saldano v. Texas, 530 U.S. 1212 (2000) (mem. op.). The error involved the state’s

use of a psychologist who testified that one factor predictive of future dangerousness is the
defendant’s race, and that Garcia’s Hispanic ethnicity portended future violence. In Saldano,
the Supreme Court vacated a death sentence after the Texas attorney general confessed that
substantially similar testimony from the same psychologist had been improperly admitted.
“Following the Supreme Court's ruling in Saldano, four other state inmates, [including
Garcia,] each of whom had been sentenced to death as a result of punishment-phase hearings
in which [the psychologist] gave substantially similar testimony, petitioned for federal writs
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                                       No. 14-70035
On September 6, 2000, the federal district court issued a conditional writ of
habeas corpus, requiring the state to conduct a new sentencing hearing.
       The state trial court held a second jury trial on sentencing in February
and March of 2001, and the jury again sentenced Garcia to death. 10 On
automatic direct appeal, the CCA affirmed Garcia’s sentence. 11 The CCA
denied Garcia’s motion for rehearing. Garcia filed a petition for certiorari. The
Supreme Court denied certiorari on October 4, 2004, and subsequently denied
Garcia’s motion for rehearing. 12
       Meanwhile, Garcia filed a second application for a writ of habeas corpus
in state court. On February 12, 2008, the state trial court issued findings of
fact and conclusions of law recommending that relief be denied. 13 The CCA
denied relief in a brief written order on October 15, 2008. 14
       Garcia began the instant proceedings on November 27, 2008 in United
States District Court for the Eastern District of Texas; he sought and received
appointment of counsel by Judge Heartfield. He filed his second federal habeas
petition on October 11, 2009. The district court denied relief in a 163-page
opinion on November 10, 2014, dismissing the case and declining to grant a




of habeas corpus. The Attorney General confessed error in each case and, in each, the federal
court vacated the death sentence and granted a new sentencing hearing.” Saldano v. Roach,
363 F.3d 545, 549 n.2 (5th Cir. 2004).
       10 1 RR (2001) at 20-26. Citations to “RR” herein refer to the “Reporter’s Records” for

Garcia’s 1992 and 2001 trials, respectively. Similarly, citations to “CR” refer to “Clerk’s
Records” for Garcia’s 1992 and 2001 trials, respectively.
       11 Garcia v. State, No. 71417, 2003 WL 22669744 (Tex. Crim. App. Nov. 12, 2003)

(unpublished).
       12 Garcia v. Texas, No. 03-10873, 543 U.S. 855 (Oct. 4, 2004).
       13 See Appellant’s Record Excerpts at Tab 4.
       14 Ex Parte Garcia, No. WR-40214-02, 2008 WL 4573962 (Tex. Crim. App. Oct. 15,

2008).
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                                       No. 14-70035
certificate of appealability (COA). 15 Garcia now requests a COA from this court
pursuant to 28 U.S.C. § 2253.
                               II. Facts of the Offense
       We rely on the CCA’s factual recitation, 16 which summarized the facts of
the offense as follows:
             The evidence at trial established that on December 9, 1990
       [Garcia] and Christopher Vargas entered a liquor store, Beverage
       Warehouse, in the city of Plano. [Garcia] was armed with a single
       shot .20 gauge sawed-off shotgun and had additional shells in his
       possession. [Garcia] ordered the clerk, Craig Turski, to give him
       the money from the cash register. At the same time, Vargas took
       beer from the store and put it in their car. A female customer
       walked in the store, saw [Garcia], and immediately left.

             [Garcia] shot Turski at close range in the abdomen. Turski
       fled outside the store, pursued by [Garcia]. [Garcia] then reloaded
       the shotgun and shot Turski in the back of the head. The female
       customer, Donna Delozier Sawtelle, subsequently returned to the
       store with her husband. Finding the store deserted, they called the
       police. Turski was found and was transported to the hospital,
       where he later died from gunshot wounds.

              On January 5, 1991 at about 12:30 a.m., Vargas, [Garcia]
       and [Garcia’s] girlfriend (Sheila Phanae Loe) stopped at a Texaco
       station in Plano. While Loe pumped gas, [Garcia] and Vargas
       entered the station with the same .20 gauge shotgun used to kill
       Turski. The clerk, Gregory Martin, was on the phone with his
       girlfriend. As he saw them enter, he informed her he thought he
       was about to be robbed and asked her to call the police. Martin was
       taken into a back room and shot at point blank range in the back
       of the head. He died at the scene.

              [Garcia] claimed Vargas shot Martin. Evidence introduced
       at trial, however, indicated Vargas was carrying beer to their car


       15  Garcia v. Director, TDCJ-CID, NO. 1:08-cv-720, 2014 WL 5846377 (E.D. Tex. Nov.
10, 2014) (unpublished).
        16 See Reed v. Stephens, 739 F.3d 753, 760-61 (5th Cir. 2014) (relying on CCA’s factual

recitation).
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                            No. 14-70035
 (as he did in the earlier robbery) while [Garcia] shot the clerk. In
 addition, the shotgun was found near the freezer in close proximity
 to [Garcia] at the time of his capture. Two firearms experts
 testified at trial that the shotgun found at the scene of Martin’s
 murder was the same weapon used in Turski’s murder.

       Alerted by Martin’s girlfriend, the police arrived at the scene
 to find [Garcia], Vargas and Loe still present, Vargas was found,
 unarmed, standing over Martin’s body. He claimed to have just
 entered the store and found Martin lying there. [Garcia] was found
 hiding in the freezer area close to where the shotgun was found.

       [Garcia] was transported to the Plano Police Department. He
 was read his “Miranda” warnings repeatedly. He subsequently
 confessed, both orally and in writing, to the murders of both Turski
 and Martin. His confessions were videotaped, and a separate
 written confession was prepared for each offense.

        [Garcia’s] written statement regarding the killing of Turski
 in its entirety reads as follows:


       Det. Wilson is writing my statement. Approx. 3–4
       weeks from today's date, Chris Vargas & I robbed a
       liquor store & I killed the clerk. The liquor store was
       behind a 7–11 store at Plano Pkwy. & Ave. K. I was
       driving Sheila's Chev. Monza. We waited in the liquor
       store parking lot until the customers all left. Both
       Chris & I pulled a 20 ga. sawed-off shotgun on the
       clerk. I had the clerk give me the money out of the cash
       register & it was about $500. Chris was grabbing up
       beer. Chris went outside to pull the car up to the front
       door. I had the clerk go into a little room next to the
       cash register & I had him get on his knees. A customer,
       a white woman walked in the store & saw me & she
       walked back out. I then panicked and I shot the clerk
       with the shotgun. The clerk started coming at me &
       threw a chair at me and then he ran outside. I loaded
       the shotgun & shot the clerk again outside the store.
       The clerk had jumped over the fence & was in some
       grass when I shot him the 2nd time. I then ran to the

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                                       No. 14-70035
              car & we drove off. I told Sheila my common-law wife
              about the robbery after we did it. End—G.G. 17

             The statement was completed at 9:05 a.m. on January 5,
       1991. Each page is signed by [Garcia] and two witnesses. The
       statement was taken by Det. David Wilson of the Plano Police
       Department. . . .

              At trial, an acquaintance of [Garcia], Bobby Flores, testified
       he was at Vargas' house the night of the Turski murder. Flores
       testified that Vargas and [Garcia] left the house and subsequently
       returned with beer and a lot of money. Flores asked [Garcia] where
       he got the beer and money. [Garcia] in response stated he went
       into a store, took the beer and money, shot the clerk and left. 18

                               III. Standard of Review
       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996,
28 U.S.C. §§ 2244, 2253-2266 (“AEDPA”), a prisoner seeking postconviction
habeas relief under 28 U.S.C. § 2254 may appeal a district court’s dismissal of
his petition only if he first seeks and obtains a COA from the district court or
the court of appeals. 19 To obtain a COA, the petitioner must make “a
substantial showing of the denial of a constitutional right.” 20 “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” 21




       17  75 RR (1991) at 111-12 (State’s Ex. No. 3). The written statement regarding the
killing of Martin is also contained in the record. 75 RR (1991) at 107-09 (State’s Ex. No. 2).
        18 Garcia, 919 S.W.2d at 383-85.
        19 28 U.S.C. § 2253(c)(1)(A).
        20 Id. at § 2253(c)(2).
        21 Miller-El v. Cockrell (“Miller-El I”), 537 U.S. 322, 327 (2003).

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                                       No. 14-70035
       In considering an application for a COA, we limit our “examination to a
threshold inquiry into the underlying merit of [the petitioner’s] claims.” 22 “This
threshold inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims. In fact, the statute forbids it.” 23 In
death penalty cases, “any doubts as to whether a COA should issue must be
resolved in [the petitioner’s] favor.” 24
       Under AEDPA, a district court may not grant habeas relief with respect
to any claim that was adjudicated on the merits in state court proceedings,
unless the state court’s denial of habeas relief:
       (1) resulted in a decision that was contrary to, or involved an
           unreasonable application of, clearly established Federal law,
           as determined by the Supreme Court of the United States; or


       (2) resulted in a decision that was based on an unreasonable
           determination of the facts in light of the evidence presented in
           the State court proceeding. 25

       “A state court's decision is ‘contrary to’ clearly established federal law if
‘the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially
indistinguishable facts.’” 26 “A state court's decision involves an ‘unreasonable
application’ of clearly established federal law if ‘the state court identifies the
correct governing legal principle from [the Supreme Court's] decisions but




       22 Id. (quoting Slack v. McDaniel, 529 U.S. 473, 481 (2000)).
       23 Id. at 336.
      24 Reed v. Stephens, 739 F.3d 753, 764 (5th Cir. 2014) (alteration in original) (citation

omitted).
      25 28 U.S.C. § 2254(d)
      26 Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014) (alterations in original) (quoting

Williams v. Taylor 529 U.S. 362, 413 (2000)).
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                                      No. 14-70035
unreasonably applies that principle to the facts of the prisoner's case.’” 27
Finally, we presume correct any factual findings made by the state court unless
the petitioner “rebut[s] the presumption of correctness by clear and convincing
evidence.” 28
                                    IV. Discussion
      Garcia presents four claims in his COA application: (1) a claim that the
admission into evidence at trial of two written confessions violated his rights
under Miranda; (2) a claim of ineffective assistance of counsel based on a
contention that trial counsel unreasonably failed to object at trial to the
admission of Garcia’s confessions on the basis that he was legally blind and
could not read printed Miranda warnings or the confessions themselves; and
(3)-(4) a pair of Batson claims that the state prosecution based its use of
peremptory challenges during voir dire on impermissible racial characteristics
in violation of the Equal Protection Clause.
                  A. Miranda and the Written Confessions
      Garcia requests a COA for his claim that the admission into evidence of
his two written confessions violated the requirements set out by the Supreme
Court in Miranda v. Arizona. 29 The state trial court found that “[t]here is no
evidence that [Garcia] was compelled in any way to give a confession or that
his will was overborne by the police officers in any way.” 30 We presume the
correctness of this finding. 31 Garcia has not offered clear and convincing
evidence to rebut it and he thus fails to make a substantial showing that the
admission of his confessions violated a constitutional right.




      27 Id. (alterations in original) (quoting Williams v. Taylor 529 U.S. 362, 413 (2000)).
      28 28 U.S.C. § 2254(e)(1).
      29 384 U.S. 436 (1966).
      30 4 CR (1992) at 128.
      31 28 U.S.C. § 2254(e)(1).

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                                      No. 14-70035
                1. Texas Code of Criminal Procedure Article 38.22
       As an initial matter, Garcia urges that the merits of his Miranda claim
are fairly debatable by reasonable jurists because the CCA initially overturned
his conviction on grounds that one of the written confessions violated a Texas
statute that operationalizes Miranda. 32 Garcia argues in essence that the
CCA’s reversal necessarily indicates that jurists have disagreed about the
merits of his Miranda claim. This argument is misplaced, as “federal habeas
corpus relief does not lie for errors of state law.” 33 The relevant question before
this court is not whether reasonable jurists could disagree about whether the
written confessions complied with a Texas statute. Rather, we must consider
whether reasonable jurists could disagree about whether the admission of the
statements violated the Constitution. 34
                             2. Waiver of Miranda Rights
       Miranda requires that prior to a custodial interrogation an accused
person must be warned: (1) that he has a right to remain silent; (2) that any
statement he makes can and will be used as evidence against him in court; (3)
that he has a right to consult with counsel prior to questioning; (4) that he has
a right to have counsel present during any questioning; and (5) that if he
cannot afford an attorney a lawyer will be appointed to represent him. 35 “If the
individual indicates in any manner, at any time prior to or during questioning,
that he wishes to [invoke any of these rights], the interrogation must cease.” 36


       32  See Garcia v. State, 919 S.W.2d 370, 383 (Tex. Crim. App. 1996) (reversing and
remanding on original submission; affirming on rehearing); see supra Part I.
        33 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (quoting Estelle v. McGuire, 502 U.S.

62, 67 (1991)).
        34 See Miller-El I, 537 at 328 (requiring “a substantial showing of the denial of a

constitutional right”); Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993) (“To obtain
review of a state court judgment under [section] 2254, a [petitioner] must assert a violation
of a federal constitutional right.”).
        35 Id. at 468-74.
        36 Id. at 473-74.

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                                      No. 14-70035
       Although an accused “may waive effectuation of the rights conveyed in
[these] warnings,” 37 the Supreme Court has held that statements made “during
a custodial interrogation [are] inadmissible at trial unless the prosecution can
establish that the accused ‘in fact knowingly and voluntarily waived Miranda
rights’ when making the statement.” 38 This is a two-part inquiry, considered
under the “totality of the circumstances surrounding the interrogation.” 39
First, the waiver must have been “the product of free and deliberate choice
rather than intimidation, coercion, or deception.” 40 Second, “the waiver must
have been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” 41
       The trial court found that Garcia “was twice read his Miranda warnings”
orally and “did not invoke his right to remain silent or his right to counsel,”
nor did he “indicate in any manner that he desired to do so.” 42 This in addition
to the fact that Garcia placed his initials beside language tracking Miranda on
the face of each written confession. 43 Garcia does not dispute that he received
a proper Miranda warning before offering his confessions and that he did not
invoke any Miranda right. He contends only that a reasonable jurist could
conclude that Garcia did not voluntarily waive his Miranda rights under the
totality of the circumstances. In support, Garcia cites the following factual
circumstances: “Garcia was only four months past his 18th birthday, with
moderate education, interrogated by experienced police[,] exhausted,



       37Moran v. Burbine, 475 U.S. 412, 421 (1986).
       38Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (alterations omitted) (quoting
North Carolina v. Butler, 441 U.S. 369, 373 (1979)).
      39 Burbine, 475 U.S. at 421.
      40 Id.
      41 Id.
      42 4 CR (1992) at 128.
      43 75 RR (1991) at 111-12 (State’s Ex. No. 3); 75 RR (1991) at 107-09 (State’s Ex. No.

2).
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                                    No. 14-70035
hungover, lacking his glasses, and unable to read adequately the statements
written for him.” 44
      Garcia also cites two cases: Mincey v. Arizona 45 and United States v.
Murphy. 46 The factual circumstances of these cases are easily distinguished
from the circumstances surrounding Garcia’s confessions. In Mincey, the
Supreme Court held that a confession was involuntary where the accused: “had
been seriously wounded just a few hours” before confessing; was in
“unbearable” pain; was “in the intensive care unit . . . lying on his back on a
hospital bed, encumbered by tubes, needles, and [a] breathing apparatus;” was
“confused and unable to think clearly about either the events . . . or the
circumstances of his interrogation;” gave incoherent answers; and even “[in]
his debilitated and helpless condition . . . clearly expressed his wish not to be
interrogated.” 47 In Murphy, the Second Circuit held that a waiver was not
knowing where the interrogating officer had given an “incomprehensible
instruction” that “strongly suggest[ed] that the [accused] should talk if they
wished to exercise their rights—or, put another way, that they would waive
their rights if they remained silent.” 48 The factual circumstances to which
Garcia points fall short of the egregious conditions present in Mincey and
Murphy. By contrast to these cases, Garcia was given multiple correct Miranda
warnings before confessing. Even assuming that Garcia was young, exhausted,
and without his glasses, Garcia cannot show that he failed to understand the
warnings or that he attempted to invoke his rights in any way.
      Garcia’s Miranda claim is without merit. “[A] suspect who has received
and understood the Miranda warnings, and has not invoked his Miranda


      44 Application for COA at 18.
      45 437 U.S. 385 (1978).
      46 703 F.3d 182 (2d Cir. 2012).
      47 437 U.S. at 398-401 (emphasis added).
      48 703 F.3d at 193.

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                                          No. 14-70035
rights, waives the right to remain silent by making an uncoerced statement to
the police.” 49 Moreover, “waivers may be direct or, in some instances, they may
‘be clearly inferred from the actions and words of the person interrogated.’” 50
“Once it is determined that a suspect's decision not to rely on his rights was
uncoerced, that he at all times knew he could stand mute and request a lawyer,
and that he was aware of the State's intention to use his statements to secure
a conviction, the analysis is complete and the waiver is valid as a matter of
law.” 51 No reasonable jurist could conclude that the evidence Garcia offers
clearly and convincingly rebuts the state habeas court’s finding that Garcia
received, understood, and voluntarily waived his Miranda rights.
                          B. Ineffective Assistance of Counsel
        Garcia requests a COA for his claim that trial counsel unreasonably
failed to challenge the voluntariness of Garcia’s confessions on the basis that
Garcia is “legally blind” and without his glasses could not read the printed
Miranda warnings or the written statements. 52 In light of the record and our
controlling precedents, no reasonable jurist could conclude that Garcia’s
counsel rendered constitutionally deficient performance.
        As an initial matter, Garcia argues that “no reasonable jurist could agree
with the [district court’s] legal conclusion that factually established blindness
fails to go to the heart of whether one signed a knowing waiver of rights.” 53
This argument misconstrues both the district court’s holding and the relevant
ineffective assistance of counsel framework. The district court held that Garcia
had not met his burden under section 2254(d) because “the trial court



        49   Berghuis, 560 U.S. at 388-89.
        50   United States v. Collins, 40 F.3d 95, 99 (5th Cir. 1994) (quoting Butler, 441 U.S. at
373).
        51 Burbine, 475 U.S. at 422-23.
        52 Application for COA at 21-23.
        53 Id. at 23.

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                                      No. 14-70035
reasonably found that Garcia had not shown that his trial attorneys were
ineffective on this issue.” 54 We construe Garcia’s application for COA as
regarding the district court’s ineffective assistance of counsel holding
generally.
                                             1.
       For ineffective assistance of counsel (IAC) claims, “the clearly
established federal law against which we measure the state court’s denial of
relief is the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984).” 55 “The metric is now rote.” 56 To succeed on this claim, Garcia must
show: (1) that counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense. 57 A petitioner must make both showings;
otherwise “it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.” 58
       “To satisfy the deficient performance prong, ‘the defendant must show
that   counsel’s     representation      fell     below     an   objective   standard     of
reasonableness.’” 59 This is a “highly deferential” inquiry, attended by “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 60 “To satisfy the prejudice prong, the defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been




       54  Garcia v. Director, TDCJ-CID, 2014 WL 5846377, at *67 (Nov. 10, 2014).
       55  Ward v. Stephens, 777 F.3d 250, 263 (5th Cir. 2015) (internal quotation marks and
citation omitted).
        56 Hoffman v. Cain, 752 F.3d 430, 439 (5th Cir. 2014).
        57 Strickland, 466 U.S. at 687.
        58 Id. at 688.
        59 Hoffman, 752 F.3d at 440 (quoting Strickland, 466 U.S. at 688) (internal quotation

marks omitted).
        60 Id. (quoting Strickland, 466 U.S. at 689) (internal quotation marks omitted).

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                                         No. 14-70035
different.” 61 Finally, while “[s]urmounting Strickland’s high bar is never an
easy task,” 62 “[t]he standards created by Strickland and [section] 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’
so.” 63 To the extent Garcia’s claim arrives as a challenge to the state court’s
application of Strickland under section 2254(d)(1), as opposed to a challenge
under section 2254(d)(2) to its determination of the facts, Garcia’s burden “is
all the more difficult.” 64
                                                2.
       We are persuaded that no reasonable jurist could conclude that Garcia
has made a substantial showing of constitutionally ineffective assistance under
Strickland. Trial counsel did move to suppress the written confessions on the
basis of voluntariness generally, 65 and during the suppression hearings
counsel did explore a line of inquiry related to Garcia’s ability to see and read
(excerpt below). These circumstances alone arguably place counsel’s conduct
within “the wide range of reasonable professional assistance,” 66 relevant to
Strickland’s first prong. That counsel did not specifically object on the basis of
Garcia’s alleged blindness therefore cannot support the issuance of a COA on
Garcia’s IAC claim.
       In addition, the issue of Garcia’s ability to read the written statements
was fully developed before the trial court and the record overwhelmingly belies
Garcia’s assertion that he could not have read and understood the written



       61   Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks and alternations
omitted).
       62 Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
       63 Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at 689,
Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)).
       64 Id.
       65 4 CR (1992) at 709.
       66 Hoffman, 752 F.3d at 440.

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                                    No. 14-70035
statements without his glasses. On cross-examination of the officer who
obtained Garcia’s confession, defense counsel elicited testimony regarding
whether Garcia had his glasses when he confessed and whether the officer
knew that Garcia might need them to read the written statements:
      [After playing a video recording of the interview.]
      [Defense Counsel]: [Garcia] is not wearing his glasses in that
                          interview, is he?

      [Detective Wilson]: I don’t see him wearing any glasses.

      [Defense Counsel]: Did you know he needs glasses?

      [Detective Wilson]: If he needs them?

      [Defense Counsel]: Did you know?

      [Detective Wilson]: You know, I’d have to go through the whole
                                tape to listen to what he says to know
                          that because I have not reviewed the tape . . .

      [Defense Counsel]: I’m asking you now. Did you know that he
                          needed glasses at the time?

      [Detective Wilson]: If he did, I don’t remember is all I can answer—

      [Defense Counsel]: Okay.

      [Detective Wilson]: Is all—the only way I can answer that
                           question. 67

Subsequently, the following exchange took place during the prosecution’s
redirect examination of the same officer:


      [Prosecution]: Did you hand that statement back to him and tell




      67   9 RR (1991) at 492-93.
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                             No. 14-70035
                 him to check it to make sure [you] haven’t switched
                 things up on [him] or altered it in some way?

  [Detective Wilson]: Yes, sir.

  [Prosecution]: Did he appear to do that?

  [Detective Wilson]: Yes.

  [Prosecution]: Did he appear to be satisfied that it was the same
                 statement?

  [Detective Wilson]: Yes.

  [Prosecution]: Had you altered it or modified it or changed it in any
                 way?

  [Detective Wilson]: No, sir.

  [Prosecution]: You recall those questions about how close he had
                 to get to the paper in order to read the warnings?

  [Detective Wilson]: Yes, sir.

  [Prosecution]: Those warnings are printed in rather small
                 type, aren’t they?

  [Detective Wilson]: Yes, sir.

  [Prosecution]: Did he tell you whether or not he thought he could
                 read them?

  [Detective Wilson]: He told me he could read them.

  [Prosecution]: All right. Did he appear to read them?

  [Detective Wilson]: Yes, sir.

  [Prosecution]: All right. Did he read the statement after you had
                 written it?


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                                       No. 14-70035
       [Detective Wilson]: Yes.

       [Prosecution]: Did you watch him read it?

       [Detective Wilson]: Yes, sir.

       [Prosecution]: Did he appear to you to understand it?

       [Detective Wilson]: Yes.

       [Prosecution]: Did you notice at any time while you were talking to
                      him whether he made any nodding motions with his
                      head as he was reading which would indicate to
                      most observers that he did understand what he was
                      reading and probably approved of it?

       [Detective Wilson]: Yes, I did. 68


       Based on the record, the trial court concluded that Garcia “read his
written statements before signing them” and that “[t]here is no evidence that
[Garcia] was unable to read the English language or to read or understand [the
Miranda warnings] or written statements.” 69 These conclusions are entitled to
a presumption of correctness. 70 Although Garcia claims without citation that
he is “legally blind,” he offers no evidence—much less clear and convincing
evidence—to rebut the trial court’s findings and conclusions. As this court has
interpreted Strickland, “counsel is not required to make futile motions or
objections.” 71 Garcia cannot meet even the first of Strickland’s two prongs.



       68  12 RR (1991) at 1036-38; see also 62 RR (1991) at 62 (Consistent testimony by
Detective Wilson), 69 RR (1991) at 748 (same).
        69 4 CR (1992) at 712. Moreover, when this issue was revisited during the first state

habeas proceedings, the trial court found that Garcia “could, and did, read the warnings and
his statement of confession without his glasses” and that Garcia’s “counsel did raise the issue
of [Garcia’s] ability to read without his glasses during the motion to suppress.” R.889 (citing
SHCR-01 at 96).
        70 28 U.S.C. § 2254(e)(1).
        71 Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (citation omitted).

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                                    No. 14-70035
                                 C. Batson Claims
      Garcia requests a COA for a pair of claims that the state prosecution
based its use of peremptory challenges on impermissible racial characteristics
in violation of equal protection as articulated in Batson v. Kentucky. 72
Specifically, these claims relate to peremptory challenges used by the state
during voir dire at the 1991 trial to strike from the venire potential jurors
Hazel Holmes, an African American, and Albert Diaz, a Hispanic American.
Viewing the voir dire process “in hindsight,” Holmes and Diaz were “the only
two qualified racial minority members of the entire venire panel that came on
individual voir dire.” 73 Garcia urges, as he must, that reasonable jurists could
disagree with the district court’s conclusion that his Batson claims fall short
under AEDPA’s deferential standard. 74
      A Batson claim involves three steps. First, the defendant must make a
prima facie showing to the trial court that the prosecutor has exercised a
peremptory strike at the defendant’s trial on the basis of race. 75 Second, if a
requisite showing is made, the burden shifts to the prosecutor to produce a
race-neutral explanation for striking the venireperson at issue and thus rebut
the defendant’s prima facie case. 76 “At this [second] step of the inquiry, the
issue is the facial validity of the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason
offered will be deemed race neutral.” 77 Third, if the prosecution tenders a race-




      72  476 U.S. 79, 95-98 (1986).
      73  61 RR (1991) at 32-34
       74 Miller-El I, 537 U.S. 322, 327 (2003). For the district court’s reasoning and

conclusion on these claims, see Garcia v. Director, TDCJ-CID, 2014 WL 5846377, at *9-*12
(Nov. 10, 2014).
       75 Batson, 476 U.S. at 93-94, 96-97.
       76 Id. at 94, 97-98.
       77 Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality op.).

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                                      No. 14-70035
neutral explanation, “the trial court must determine whether the defendant
has carried his ultimate burden of proving purposeful discrimination.” 78
       To be clear, Garcia does not argue that the state trial court unreasonably
applied Batson. 79 Nor could he, as the trial court employed the proper steps in
evaluating Garcia’s claims. 80 Rather, he claims that in light of the evidence
presented the trial court unreasonably determined that the prosecutor offered
legitimate and racially neutral reasons for striking Holmes and Diaz. 81
       Garcia lodged objections to both of the state’s peremptory challenges
before the trial court on grounds that the strikes were racially motivated. 82 In
both cases, the trial court asked the prosecutor to state his reasons for the
challenge. 83 Where a trial court has called on the prosecutor to provide race-
neutral justifications for the use of its peremptory strikes, we assume for
purposes of review on appeal that the defendant made the requisite prima facie
showing under Batson step one. 84 We therefore consider: (1) whether the
prosecution articulated race-neutral explanations for the exercise of its
challenges and (2) whether the defendant demonstrated that those
justifications were pre-textual and that the prosecutor engaged in purposeful
discrimination.




       78 Id. (citing Batson, 476 U.S. at 94 & n.18, 98).
       79 See 28 U.S.C. § 2254(d)(1).
       80 36 RR (1991) at 3760 (Holmes), 39 RR (1991) at 4358-66 (Diaz); see Garcia, 919

S.W.2d at 394-95.
       81 See 28 U.S.C. § 2254(d)(2).
       82 36 RR (1991) at 3759-60, 3765-67 (Holmes); 39 RR (1991) at 4366 (Diaz). Garcia

unsuccessfully raised both claims on direct appeal to the CCA. Garcia v. State, 919 S.W.2d
370, 394-95 (Tex. Crim. App. 1994) (decision on rehearing).
       83 Id.
       84 United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998); see Hernandez v. New

York, 500 U.S. 352, 359 (1991) (plurality op.) (“Once a prosecutor has offered a race-neutral
explanation for the 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.”).
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                                     No. 14-70035
      The state trial court ultimately found that the prosecution offered
legitimate and racially neutral reasons for striking Holmes and Diaz, and that
the challenges lacked a discriminatory intent. 85 Garcia faces a high hurdle
under section 2254(d)(2), as we accord “great deference” to a trial court’s
findings in these circumstances. 86 Were we to grant a COA and proceed to the
merits, our role would be “to ‘determine 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.’” 87
                                  1. Hazel Holmes
      We address first Garcia’s Batson claim with regard to prospective juror
Hazel Holmes. The prosecution offered the following race-neutral explanations
for striking Holmes: (1) her “unequivocal opposition to the death penalty” as
stated in her initial juror questionnaire; (2) “that [she] had . . . a son who [had]
been subjected . . . to multiple prosecutions[,] some of which occurred in [the
instant county];” (3) that she “expressed at least once that she [felt] that her
son was not fairly treated either by police officers or the criminal justice
system;” and (4) that she vacillated in response to questioning 88 about whether
she could ever answer “no” to the special mitigation question. 89 The
prosecution noted further “that we requested that this juror be stricken for
cause” and directed the court to its “prior reasons.” 90




      85  36 RR (1991) at 3763-65 (Holmes); 39 RR (1991) at 4365 (Diaz).
      86  Hoffman v. Cain, 752 F.3d 430, 448-49 (5th Cir. 2014).
       87 Id. (quoting Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005)).
       88 Although the prosecution referred to “special issue number two” in offering this

explanation, 36 RR (1991) at 3764, it is clear from the record that he was referencing his
colloquy with Holmes regarding special issue number three, the mitigation question. 36 RR
(1991) at 3754-55.
       89 Id. at 3763-64.
       90 Id. at 3763.

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                                         No. 14-70035
       The record amply supports each of the prosecution’s proffered
explanations. 91 The trial court expressly found “that [these reasons were]
legitimate and racially neutral” 92—a finding to which this court must accord
“great deference.” 93 Moreover, during voir dire the prosecution attempted three
times to strike Holmes for cause. 94 The trial court noted that, although it
denied each for-cause challenge, the decision was “a close call.” 95
       Garcia now claims that the prosecution singled out Holmes on the basis
of her race and purposefully used a threatening Holocaust analogy to describe
the role of a juror in handing down a death sentence—an analogy not used in
questioning any other veniremember—to elicit responses unfavorable to the
state’s position. The prosecution did in fact use a graphic Holocaust analogy in
questioning Holmes. 96 And the Supreme Court has recognized that in some
cases the disparate use of a “so-called graphic script, describing the method of
execution in rhetorical and clinical detail . . . to prompt some expression of
hesitation to consider the death penalty,” can constitute clear and convincing
evidence that a prosecution’s proffered justifications are pretextual. 97



       91 See id. at 3676-77 (unequivocal opposition to death penalty in questionnaire and
testimony); id. at 3689 (Q: “Could you [answer questions that result in death sentence]?” A:
“That’s a hard one to answer.”); id. at 3689-90 (indicating she would answer in such a way as
to “make sure that the defendant received a life sentence and make sure that he is not
executed”); id. at 3716 (“I do not believe in the death penalty.”); id. at 3734 (“I don’t feel like
I can [answer the mitigation question ‘no’].”); id. at 3748 (son’s prosecution); id. at 3750-51
(unfairly treated; prosecuted in Collin County); id. 3754-55 (final vacillating answer); 61 RR
(1991) at 35 (testimony regarding questionnaire).
       92 36 RR (1991) at 3765.
       93 Hoffman v. Cain, 752 F.3d 430, 448-49 (5th Cir. 2014).
       94 36 RR (1991) at 3710; id. at 3745; id. at 3759.
       95 Id. at 3765; see id. at 3759 (“[E]ven though [Holmes] has expressed continued

opposition to the death penalty and although she has vacillated back and forth, depending
on who was asking her the questions, I deny the State’s motion for challenge, because she
essentially has answered, albeit reluctantly, that she could follow her oath and what she
understands to be the law.”).
       96 See id. at 3683-86.
       97 Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231, 255-60, 66 (2005).

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                                       No. 14-70035
Nevertheless, Garcia did not raise this claim in his second state habeas
petition. 98 We hold therefore that Garcia failed to exhaust state court remedies
with regard to this claim and it is consequently procedurally barred under
AEDPA. 99
                                      2. Albert Diaz
       The prosecution offered several race-neutral explanations for striking
Diaz: (1) Diaz “expressed a real concern with . . . participating in a capital
murder case with a youthful defendant;” 100 (2) Diaz was hesitant about
imposing the death penalty in a random 7-Eleven robbery situation; 101 (3) Diaz
indicated—both “verbally” and by his “demeanor”—that he would impose an
increased burden of proof at the punishment phase relative to the guilt-
innocence phase; 102 (4) Diaz’s standard of “beyond a reasonable doubt” was
extremely high; 103 and (5) the defense “really like[d]” Diaz. 104 We address each
proffered justification in turn.
       a. Diaz expressed concern about sentencing a youthful defendant
to death.
   The prosecution’s first proffered justification was that Diaz “expressed a
real concern with youth and participating in a capital murder case with a
youthful defendant. For the record, our defendant is eighteen or nineteen. I
don’t remember if he’s had a birthday since he’s been incarcerated, but we’re
dealing with a youthful defendant. That concerns me.” 105 This justification


       98 See 1 WR (40,214) at 297-306.
       99 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus . . . shall not
be granted unless it appears that . . . the applicant has exhausted the remedies available in
the courts of the State . . . .”).
       100 39 RR (1991) at 4359.
       101 Id. at 4360.
       102 Id.
       103 Id. at 4361.
       104 Id. at 4362.
       105 Id. at 4359.

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                                      No. 14-70035
finds support in the voir dire transcript. When asked whether he might find it
difficult to sentence a youthful defendant to death, Diaz expressed hesitation:
      I’d be strongly opposed to giving someone the death penalty and
      more prone to giving them life if that’s the law rendered under the
      facts, but I also have to say that I’m not one that feels much
      sympathy for hardship of upbringing or environment. I’m sensitive
      to it . . . Somebody very youthful, I would have a real hard time
      sentencing him to death, but if that person was so dangerous and
      the crime was such that it was so terrible, I would not have a
      problem doing it.” 106

Later, however, Diaz indicated that he would be able to do so, “[i]f necessary”
to uphold the law:
      [Prosecutor]: So then you don’t have a bias or prejudice against a
                    law that allows a youthful defendant to be executed?

      [Diaz]:         No. I do not.

      [Prosecutor]: And you can see yourself honestly and realistically
                    participating in a process that would lead to the
                    execution of a youthful defendant?

      [Diaz]:         If necessary. 107


      Garcia asserts that because Diaz ultimately indicated that he would be
able to participate in a capital murder trial involving a youthful defendant, the
prosecution’s explanation is based on an “untrue” characterization of the
record. 108 We disagree. We have upheld peremptory strikes as race-neutral on
the basis of a prospective juror’s hesitation, even where the juror ultimately




      106 Id. at 4290 (emphasis added).
      107 Id. at 4291.
      108 Application for COA at 45.

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                                       No. 14-70035
indicated he could vote to impose death. 109 It is not fairly debatable that Diaz’s
earlier statement—“Somebody very youthful, I would have a real hard time
sentencing him to death”—posed a legitimate reason for the prosecution’s
strike, even taking into account his ultimate affirmative answer.
       b. Diaz was hesitant about imposing the death penalty in a
random 7-Eleven robbery situation.
       The prosecution’s second proffered justification was that “[w]hile he
stated that the death penalty for a random killing would be fine, he also
state[d] a real concern about [the] death penalty in a 7-Eleven holdup. We are
dealing essentially with . . . a beer and wine store, convenience store situation,
very similar situation. That concerns me.” 110 Again, this justification finds
support in the voir dire transcript. Diaz stated he “would be less inclined to
sentence someone to death unless [that person] was really in [his] opinion a
person who [he] felt was of extreme danger [judging] from the [person’s] acts,”
but that it would “[j]ust depend[ ] on the facts.”
       Garcia asserts that the prosecution’s second justification is also “untrue,”
but he offers no relevant evidence in support; he cites to an unrelated portion
of the voir dire transcript dealing with the prosecutor’s discussion of mitigating
circumstances. 111 Garcia cannot meet his burden. Reasonable jurists could not
disagree as to whether Garcia has provided clear and convincing evidence to
show that the trial court’s ruling was objectively unreasonable because Garcia
has offered no relevant evidence whatsoever.
       c. Diaz indicated he would apply an increased burden of proof in
the punishment phase relative to the guilt-innocence phase.


       109 See Hoffman, 752 F.3d at 449 (upholding peremptory strikes as race-neutral where
potential juror initially hesitated before giving a “very weak ‘I think I could’” when asked if
he could consider a death penalty).
       110 39 RR (1991) at 4360.
       111 See Application for COA at 45 (quoting 39 RR (1991) at 4334).

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                                     No. 14-70035
      The prosecution’s third proffered justification was that Diaz verbally and
by his demeanor indicated that he would apply an increased burden of proof in
the punishment phase relative to the guilt-innocence phase; Diaz indicated
that his definition of “beyond a reasonable doubt” was “a very extreme
standard. I don’t know if any prosecutor could meet it[,] especially at the
punishment phase of a trial.” 112 Again, this justification finds support in the
voir dire transcript. The prosecutor engaged in an extended back-and-forth
discussion with Diaz regarding Diaz’s conception of the prosecution’s burden
of proof. 113 First, as to the guilt-innocence phase, Diaz stated that he “would
not feel like it has to be proved perfect certainty[,] . . . [b]ut if it was of extreme
certainty. . . . I would be very much inclined to feel very certain the facts that
somebody was guilty.” 114 Subsequently, as to the punishment phase:
      [Prosecutor]: [B]ut when we get into the punishment phase . . .
                    my question to you is are you one of those people in
                    the punishment phase of a capital murder case. Does
                    my burden of proof go up?

      [Diaz]:          Absolutely.

      [Prosecutor]: Okay. I want to make sure we’re communicating.

      [Diaz]:          I would -- I would feel that it would be of much more
                      importance for me to have a strong feeling about each
                      one of those questions so I would have to say that it
                      is of a higher degree of concern to me that I feel very
                      strongly about each one of those three questions being
                      beyond a reasonable doubt.

      [Prosecutor]: Okay. Again I’m not sure if we’re miscommunicating
                    or not so I want to press you a little bit. Are you
                    telling me that . . . I would have to convince you with


      112 39 RR (1991) at 4360-61.
      113 See id. at 4308-17.
      114 Id. at 4309.

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                                       No. 14-70035
                       one hundred percent certainty in the punishment
                       phase . . . that the answer should be yes before you
                       would be willing to return a yes verdict on this?

       [Diaz]:         Not with a hundred percent certainty. No sir.

       [Prosecutor]: All right. Will you recognize my burden of proof in
                     [the guilt and punishment phases is] . . . [t]he same
                     legal standard?

       [Diaz]:         Yeah. I realize that beyond a reasonable doubt is in
                       my mind just as important at every phase but
                       emotionally I would probably feel -- not probably. I
                       would feel a lot more inclined to say that my degree of
                       beyond a reasonable doubt would increase. 115


       Although Diaz ultimately indicated that he “would try to maintain the
same measurement standard” in both phases, 116 we have upheld as legitimate
similar explanations proffered by the prosecution in similar circumstances. 117
Moreover, we also take into consideration the prosecution’s additional
justifications related to Diaz’s “demeanor”:
       [H]is initial responses indicated that he would, and from his
       demeanor, which is not reflected in the record, while I understand
       that intellectually he will do it, it was apparent that there was that
       more concern going and that argument going on in his brain. It
       could be read in his eyes. I was standing five feet away from him
       when he said it. I certainly—I am convinced that my burden of




       115 Id. at 4311-14 (emphasis added).
       116 Id. at 4314.
       117 See Jackson v. Dretke, 181 F. App’x 400, 408 (5th Cir. 2006) (“Even though [the

prospective juror] softened his statement that he would require proof of guilt to a certainty,
the state was entitled to conclude that he might require it to prove guilt by an elevated
standard even if that burden were something less than metaphysical certainty.”); see also
White v. Thaler, 522 F. App’x 226, 229-30 (5th Cir. 2013) (per curiam) (upholding dismissals
for cause where prospective jurors indicated that they would “hold the [s]tate to a higher
burden of proof with regard to punishment”).
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                                      No. 14-70035
     proof will increase in the punishment phase of a trial versus a
     guilt-innocence phase. 118
In Wainwright v. Witt, 119 the Supreme Court observed that “determinations of
demeanor and credibility” in the voir dire context “are peculiarly within a trial
judge’s province.” 120 This court later underscored this principle:
       A stranger to the trial reading the bare transcript is left with
       incomplete sentences and elliptic answers with no reconciling
       theme. Yet one present at trial may well have had a quite different
       picture. Inflection of voice and body movements of each cast
       member, absent from the transcript, are present at trial. 121

       Here, the trial judge, who oversaw and observed the voir dire
proceedings, accepted as legitimate the prosecution’s explanation that Diaz
indicated he would apply a higher standard of proof at the punishment
phase 122—an explanation based in part on the prosecution’s assertion that it
was supported by Diaz’s demeanor. In doing so the trial judge emphasized that
he had “listened carefully, particularly carefully . . . to [Diaz’s] voir dire.” 123
The district court’s conclusion is thus bolstered by the language of Witt and
Ruiz, both of which emphasize the trial judge’s peculiar ability to discern such
things. Garcia offers no rebuttal evidence whatsoever to demonstrate that
reasonable jurists could disagree as to whether the district court’s conclusion
was objectively reasonable.
       d. Diaz indicated he would require a significant track record of
violence.



       118 39 RR (1991) at 4360.
       119 469 U.S. 412 (1985).
       120 Id. at 428; see id. at 428 n.9 (“[T]he manner of the juror while testifying is

oftentimes more indicative of the real character of his opinion than his words. That is seen
[by the trial court below], but cannot always be spread upon the record.”) (quoting Reynolds
v. United States, 98 U.S. 145, 156-57 (1879)).
       121 Ruiz v. Quarterman, 460 F.3d 638, 646 (5th Cir. 2006).
       122 39 RR (1991) at 4365.
       123 Id. at 4364.

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                                        No. 14-70035
       The prosecution’s fourth proffered justification was that Diaz “expressed
a . . . willingness to answer questions that would lead to the death penalty if
there was a significant track history of violence. I don’t know what he meant
by that. I can certainly show some violent acts, but I don’t know if it will
certainly meet his extreme definition beyond a reasonable doubt.” 124 Garcia
again asserts that this explanation is “untrue,” and that “Diaz said just the
opposite . . . .” 125
       This justification finds some support in the voir dire transcript. Diaz
indicated that he favored rehabilitation up to a point where “there’s enough
certainty that there’s some type of hope,” and that no such hope would exist “if
there’s such a track record and such a history of tremendous violence and crime
in [a] defendant’s past.” 126 When read in context, however, these statements
do not overwhelmingly indicate that Diaz would have required the prosecution
to show a significant track record of violence in order to vote for a death
sentence:
       [Prosecutor]: Along the line of rehabilitation, how much import-
                     ance do you place on the mindset of the individual to
                     be rehabilitated? Do you think that that plays a role
                     if any in the process and if so how big a role?

       [Diaz]:          I’d probably weigh that the heaviest that if someone
                        is at a point in their life where they can be
                        rehabilitated and there’s enough certainty that
                        there’s some type of hope then absolutely but if
                        there’s such a track record and such a history of
                        tremendous violence and crime in their past I’d be a
                        little bit concerned that there’s not a lot of hope for
                        rehabilitation at least not that person to be
                        rehabilitated and put back in society. So I guess what
                        I’m trying to say is that I believe everybody should

       124 39 RR (1991) at 4361.
       125 Application for COA at 45.
       126 39 RR (1991) at 4293.

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                                       No. 14-70035
                      be tried to go through extreme rehabilitation but not
                      everybody should be given the right to come back in
                      society. 127

But even so, in light of the reasons discussed above and below, which provide
strong support for the trial court’s ultimate conclusion that the strike was
legitimate and race neutral, no reasonable jurist could conclude that the trial
court’s acceptance of this justification was objectively unreasonable.
      e. Defense counsel liked Diaz.
      The prosecution’s fifth and final proffered justification was that the
defense “obviously like[d] [Diaz]. They spent thirty minutes questioning him
and did not ask him really any . . . serious questions along the lines to develop
anything . . . close to a challenge for cause. The questions that I [had] asked
[him would have provided] a viable reason . . . to develop a challenge for cause
if [d]efense counsel was so inclined . . . [But they didn’t.] . . . [T]hat indicates to
me that they really like this guy . . . Anyone that a defense attorney wants that
much and feels will be favorable to the defense, I have a serious problem
with.” 128 Garcia asserts that this “is not a race-neutral reason” because “[i]f the
reason the defense liked Diaz was because he shared the same race as Garcia,
or could appreciate Garcia’s family experiences, then liking the juror is
confirmation that race motivated the [prosecution’s] strike.” 129
      Garcia’s argument is without merit and in any event he offers no
relevant countervailing evidence. As the prosecutor explained from the stand
at the Batson hearing, this justification was tied to strategy and tact. The trial
judge apparently agreed:
      [Prosecutor]: I don’t want anybody that the defense counsel in any



      127 Id. (emphasis added).
      128 Id. at 4361-62.
      129 Application for COA at 45.

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                                      No. 14-70035
                       trial wants that badly. There has to be a reason for
                       it. You have an investigator. I don’t know what your
                       investigator is turning up. I assume you had your
                       reasons, but whatever, you know, it may have been
                       a great, you know, feint.

      [The Court]: Faked me out of my shoes. 130


      As discussed above, we accord deference to a trial judge’s conclusion,
especially when it attends the type of determination peculiarly within his
province. Garcia provides no reason to depart from this principle here, much
less a clear and convincing one. Reasonable jurists could not disagree.
      f. Trial Court findings as to Batson claim regarding Albert Diaz.
      Having heard the prosecution’s proffered justifications, the trial court
expressly found that the reasons were racially neutral 131:
       . . . I have listened carefully, particularly carefully . . . to this voir
      dire. I believe that there were ample reasons for either side to have
      exercised a peremptory strike in this particular instance, although
      he was not challenged for cause and he would otherwise be a
      qualified juror, but the Court is of the opinion that either side could
      have legitimately and from a racially neutral standpoint exercised
      a peremptory strike . . . and so any objections to the State’s being
      able to exercise its peremptory strike are overruled. 132

      Garcia does not purport to offer significant contrary evidence—at most,
he musters disagreement with these findings. But “[m]ere disagreement with
the state court factual findings is not sufficient to overcome those findings.” 133
Reasonable jurists could not disagree, and therefore Garcia is not entitled to a
COA on his Batson claim regarding Albert Diaz.



      130 61 RR (1991) at 91.
      131 39 RR (1991) at 4365.
      132 Id. at 4363-65.
      133 Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995) (citation omitted).

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                           No. 14-70035
                                 V.
  Garcia’s request for a COA is DENIED as to all claims.




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