     Case: 16-30332       Document: 00514147729          Page: 1     Date Filed: 09/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                       No. 16-30332                                    FILED
                                                                               September 8, 2017

AARON WILSON,
                                                                                  Lyle W. Cayce
                                                                                       Clerk

               Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

               Respondent - Appellee



                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:12-CV-310


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant, convicted of first degree murder, now appeals only the state
court’s ruling on racial discrimination in the jury selection, 1 specifically, a
Batson challenge as to certain potential jurors, primarily potential jurors




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1  Neither side challenges the district court’s conclusion that Wilson, a juvenile at the
time of the offense in question, is entitled to a resentencing under Montgomery v. Louisiana,
136 S. Ct. 718 (2016), after having received a sentence of life without possibility of parole.
However, Wilson’s Batson challenge, if successful, would result in a new trial as to guilt or
innocence, so it is not mooted by the Montgomery determination.
     Case: 16-30332        Document: 00514147729          Page: 2     Date Filed: 09/08/2017



                                        No. 16-30332


Maxile and Mitchell. 2 Batson v. Kentucky, 476 U.S. 79 (1986). The underlying
facts and somewhat tortured procedural background of this case are well-
stated in the Magistrate Judge’s Report and Recommendations, Wilson v. Cain,
2016 U.S. Dist. LEXIS 47904 (W.D. La. 2016) and in the Louisiana state
appellate decision, State v. Wilson, 938 So. 2d 1111 (La. Ct. App. 2006)
(“Wilson”), writ denied, 954 So. 2d 159 (La. 2007), cert. denied, 552 U.S. 917
(2007), so we will not recount them in detail here.
       As demonstrated by Wilson, 938 So. 2d at 1122-36, the Batson challenges
were exhausted on direct appeal to the state intermediate appellate court; the
writ was denied by the Louisiana Supreme Court, and the United States
Supreme Court denied certiorari. Thus, we are constrained by well-settled law
requiring great deference to state court determinations. 28 U.S.C. § 2254(d);
Harrington v. Richter, 562 U.S. 86 (2011); see also Thaler v. Haynes, 559 U.S.
43, 47-48 (2010) (reversing appellate court’s grant of habeas relief based solely
upon a “general requirement” rather than a specific clearly established rule).
To grant relief here, we must conclude that the state court’s adjudication:
       (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.


       28 U.S.C. § 2254(d).




       2  Wilson also challenges the denial of relief with respect to several other jurors. We
affirm the district court’s ruling as to those jurors as well. We also conclude that the district
court did not err in failing to permit an expansion of the record.
                                               2
    Case: 16-30332    Document: 00514147729     Page: 3   Date Filed: 09/08/2017



                                 No. 16-30332


      We agree with the district court that the state appellate court’s decision
was neither an unreasonable application of clearly established federal law as
determined by the Supreme Court nor an unreasonable determination of the
facts. As the Supreme Court has explained, our deferential review is different
from simply analyzing the Batson challenge as valid or not as if we were the
state appellate court. Richter, 562 U.S at 101. “Unreasonable” requires more
than merely “incorrect.” Id.; see also White v. Woodall, 134 S. Ct. 1697, 1703
(2014) (“We need not decide here . . . whether the conclusion . . . would be
correct in a case not reviewed through the lens of § 2254(d)(1).”). Here, the
prosecutor explained the state’s race neutral reason for preemptory strikes of
these women. Specifically as to Maxile, the reason given was that she was a
volunteer teacher at the very school that Wilson had attended, and as to
Mitchell, the proffered reason was that she was married to a minister, matters
the prosecutor argued bore upon the potential legal penalty (at that time, the
death penalty was being sought).
      The problem lies in the confusing decision of the state trial court which
alternately seemed to find pretextual reasons for strikes by both the prosecutor
and the defense counsel while at the same time denying any relief. The state
trial judge orally stated that he was troubled by these strikes by the prosecutor
(of African-American women) and the defense (of women, particularly
Caucasian women), but then ultimately stated that “the exclusion of certain
jurors by peremptory challenges in this particular case does not raise [sic] to a
level to constitute a violation.” The state trial court’s analysis seemed focused
on what it perceived as a pattern as well as examining the stated reasons
themselves; no finding was made regarding credibility or demeanor of any of
the individual attorneys. The state trial court’s written opinion concluded that
the “‘pretextual’ [quotation marks in the original] explanations given by the
                                       3
     Case: 16-30332       Document: 00514147729           Page: 4     Date Filed: 09/08/2017



                                        No. 16-30332


Defendant and State, especially the State” were not “significantly faulty . . .
to constitute a violation.”
       The state appellate court addressed this problem of inconsistencies in
the state trial court ruling head-on and at length, applying appropriate
Supreme Court authority. Wilson, 938 So. 2d at 1122-36. Wilson faults the
state appellate court for failing to give deference to the state court’s fact
findings, but the state appellate court carefully analyzed that very issue. Id. at
1132-34. In so doing, it concluded that the prosecutor’s proffered reasons for
striking these prospective jurors was facially race neutral. 3 Id. at 1132-33. 4


       3 The state appellate court also considered whether the prosecutor applied the state’s
proffered reasons for striking Mitchell and Maxile to white prospective jurors. See Miller-El
v. Dretke, 545 U.S. 231, 241 (2005). As to Mitchell, where the proffered reason was that she
was married to a minister, the state appellate court noted that the prosecutor struck a white
prospective juror because he was a minister. Wilson, 938 So. 2d at 1128, 1130. Wilson argues
that this reason was shown to be pretextual because a deacon and a ministry graduate (who
was not employed as a minister) were not struck, but we conclude that lay members of a
church are not the same as ministers and spouses of ministers. At the very least, this
argument does not demonstrate that the state appellate court unreasonably applied Supreme
Court precedent. As to Maxile, where the proffered reason was that she was a volunteer
teacher at the very school that Wilson had attended, the state appellate court noted that the
prosecutor challenged a white female teacher. Id. at 1134. Wilson mentions a coach that was
not struck, but, among other things, he had a relative who had been murdered, so he is not a
true comparator.

       4 Specifically as to these two jurors, the state appellate court stated:
               Although we are mindful of the great deference owed by an appellate
       court to the trial court's findings of fact, this record leads us to the conclusion
       that the trial court, largely due to the manner in which it held the hearing and
       allocated the burden of persuasion, confounded the racially disproportionate
       effect of the prosecutor's race-neutral reasons for the strikes with an invidious
       intent to discriminate on the basis of race. The record demonstrates, however,
       that the prosecutor struck those jurors whom it believed would be less inclined
       to impose the death penalty. It supported its beliefs as to each juror based on
       both voir dire and other reasons that were facially race-neutral, including the
       common sense concerns of the circumstances of Ms. Mitchell's marriage to a
       minister and Ms. Maxile's relationship with the school for troubled youths in
       which the appellant had attended. The end result of the prosecutor's jury
       selection strategy was to excuse perhaps one more African-American juror
       than one might expect through an entirely random selection process.
                                               4
     Case: 16-30332   Document: 00514147729     Page: 5   Date Filed: 09/08/2017



                                 No. 16-30332


After carefully examining the state court record, the state appellate court
determined that, even granting deference to the state trial court, the factual
determinations (though not the ultimate legal conclusion) were clearly
erroneous. This conclusion was neither an unreasonable determination of the
facts nor an unreasonable application of clearly established federal law. See
Splawn v. Thaler, 494 F. App’x 448, 452-53 (5th Cir. 2012) (deferring to state
appellate court’s determination of factual underpinnings in a Batson challenge
case). “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington, 562 U.S. at 101. Many jurists have
reviewed this record and not disturbed the ultimate state trial court holding of
no Batson violation. We have independently reviewed the relevant portions of
the record and conclude that, under the great deference owed to the state
appellate court’s determination, the district court’s judgment must be
affirmed.
       AFFIRMED.




Id. at 1132.
                                       5
