     Case: 08-10057       Document: 00511007241          Page: 1   Date Filed: 01/19/2010




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

                                                   FILED
                                                                          January 19, 2010

                                       No. 08-10057                    Charles R. Fulbruge III
                                     Summary Calendar                          Clerk



CECIL KEITH HAYES,

                                                      Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                      Respondent - Appellee




                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:05-CV-01974


Before KING, STEWART, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
        In this habeas case, Cecil Keith Hayes (“Hayes”) challenges his state-court
conviction following a jury trial before a jury selected in a process he contends
was tainted by Batson 1 violations. The district court granted a Certificate of
Appealability (COA) on this question with respect to the prosecution’s striking



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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
            Batson v. Kentucky, 476 U.S. 79 (1986).
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of Juror #15, Cynthia Richard. We granted a COA on the same question as to
Juror #16, Linda Jackson. Our review is limited to these questions under the
applicable AEDPA 2 deferential review standards. For the reasons set forth
below, we REVERSE and REMAND with instructions.
                I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2002, Hayes was tried in a Dallas County state district court on the
charge of aggravated robbery. During the jury selection process, Hayes objected
to the prosecution’s use of eight of its eleven peremptory strikes to remove all
eligible African-American venire members from the panel that was ultimately
seated. Following a Batson hearing, the trial court judge sustained the Batson
challenge regarding the striking of one potential juror, Juror #6, Gertrude
Hashaway, but overruled it as to the remaining jurors, including the two in
question here, Richard and Jackson.
      With respect to Hashaway, the prosecutor contended that she was sleeping
during voir dire and was “grandmotherly and careless in her appearance.” The
trial court concluded that she was not sleeping and that being “grandmotherly”
and careless in one’s appearance was not a “proper reason” for a peremptory
strike. She was then reinstated to the jury.
      With respect to Richard, the prosecution claimed that she was struck for
five different reasons: (1) she was “hostile”; (2) she failed to respond to the
judge’s questions; (3) she had a “bad juror rating”; (4) she was employed as a
teacher; and (5) she selected “rehabilitation” as an important goal of the criminal
justice system.      During the Batson hearing, the trial judge dismissed the
assertion that Richard was non-responsive and focused on the “hostility” prong.
The trial judge concluded that, while he noticed no such hostility, hostility is a
legitimate reason for striking a juror. Notably, the prosecution did not strike



      2
          Anti-Terrorism and Effective Death Penalty Act § 104, 28 U.S.C. §2254 (2006).

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two people who were white teachers and served as jurors nor did it strike a white
juror who also had a “bad juror rating”; additionally, Richard actually did not
mention rehabilitation as a goal of the criminal justice system.
      With respect to Jackson, the prosecution claimed that she was struck for
three reasons: (1) she had a cousin with a pending criminal case in the same
county; (2) she allegedly gave conflicting answers about whether she would need
to see the gun that was used in the robbery; and (3) she chose rehabilitation as
a goal of the criminal justice system. In response, the defense noted that other
individuals were selected for the jury who also had relatives with criminal cases
and who chose rehabilitation as a goal of the criminal justice system. The
defense also pointed out that Jackson’s seeming “conflicting answers” about the
gun actually reflected confusion about the original question; once clarified, she
indicated she did not need to see the gun.
      Following his conviction, Hayes appealed the denial of his objections to the
state’s intermediate court of appeals, as well as the Texas Court of Criminal
Appeals. Both affirmed. Hayes v. State, No. 11-02-00348-CR, 2003 WL 22064066
(Tex. App. – Eastland Sept. 4, 2003) (unpublished), aff’d, No. PD-16556-03 (Tex.
Crim. App. March 3, 2004) (unpublished). The record does not indicate that a
petition for writ of certiorari was filed in the United States Supreme Court.
      Having thus exhausted his state court appeals, Hayes sought a writ of
habeas corpus from the United States District Court. The magistrate judge
conducted two hearings and first recommended denial of habeas relief before
subsequently recommending granting habeas relief with respect to the strike of
Richard. After hearing oral argument, the district judge concluded that relief
should not be granted and denied Hayes’s petition. Both judges expressed
concern about the fact that 100% of the African-American venire members were
struck by the State and opined that this was a difficult case. This appeal
followed.

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                          II. STANDARD OF REVIEW
      Our standard of review in an AEDPA case is well-established: deference
must be given to factual findings of the state court in the absence of clear and
convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). Because the Batson
claims were adjudicated in state court, the district court, as well as our court,
must defer to the state court’s resolution unless its determination was “contrary
to” or an “unreasonable application of” clearly established federal law as
determined by the United States Supreme Court. § 2254(d); see also Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision is contrary to
clearly established federal law if it “applies a rule that contradicts the governing
law set forth in [Supreme Court] cases,” Williams v. Taylor, 529 U.S. 362, 405
(2000), or “if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [the Court’s] precedent.” Id. at 406. A state
court decision involves an unreasonable application of clearly established federal
law if the state court “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case . . . .” Id. at 407-08. The
Supreme Court has articulated the governing standards for evaluating whether
peremptory strikes were race-based in several cases, including Batson and
Miller-El v. Dretke (Miller-El II), 545 U.S. 231 (2005). The most recent Supreme
Court pronouncement on this subject was Snyder v. Louisiana, 128 S. Ct. 1203
(2008).
      While AEDPA review is highly deferential, we note that it is not
perfunctory. The Supreme Court has stressed that “[e]ven in the context of
federal habeas, deference does not imply abandonment or abdication of judicial
review. Deference does not by definition preclude relief.” Miller-El v. Cockrell
(Miller-El I), 537 U.S. 322, 340 (2003); see also Panetti v. Quarterman, 551 U.S.
930, 953 (2007) (AEDPA does not “prohibit a federal court from finding an

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application of a principle unreasonable when it involves a set of facts different
from those of the case in which a principle is announced. The statute recognizes,
to the contrary, that even a general standard may be applied in an unreasonable
manner.”) (internal quotation marks and citation omitted); Taylor, 529 U.S. at
377 (AEDPA “directs federal courts to attend to every state-court judgment with
utmost care, but it does not require them to defer to the opinion of every
reasonable state-court judge on the content of federal law.”).
        Mindful of these precedents, our court addressed the application of Batson
in a § 2254 proceeding in Reed v. Quarterman, 555 F.3d 364 (5th Cir. 2009) and
Haynes v. Quarterman, 561 F.3d 535 (5th Cir. 2009). These cases further
inform our analysis.
                                III. DISCUSSION
        A. Standards for a Batson Inquiry
        The Equal Protection Clause forbids a prosecutor from challenging
potential jurors solely on account of their race.         Batson, 476 U.S. at 89.
Batson outlined a three-step process for evaluating claims that a prosecutor used
peremptory challenges in a manner that violated the Equal Protection Clause:
(1) a defendant must make a prima facie showing that the prosecutor has
exercised his peremptory challenges on the basis of race; (2) the burden then
shifts to the prosecutor to articulate a race-neutral reason for striking the juror
in question; and (3) the trial court must determine whether the defendant has
carried his burden of proving purposeful discrimination. Snyder, 128 S. Ct. at
1207.
        The Supreme Court explained the third step in the following manner:
        Step three of the Batson inquiry involves an evaluation of the
        prosecutor’s credibility, and the best evidence of discriminatory
        intent often will be the demeanor of the attorney who exercises the
        challenge.    In addition, race-neutral reasons for peremptory
        challenges often invoke a juror’s demeanor (e.g., nervousness,


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      inattention), making the trial court’s first-hand observations of even
      greater importance.

Id. at 1208 (internal quotation marks and citations omitted). The ultimate
conclusion of discriminatory intent is a factual finding. Ladd v. Cockrell, 311
F.3d 349, 356 (5th Cir. 2002). “[T]he critical question in determining whether
a prisoner has proved purposeful discrimination at step three is the
persuasiveness of the prosecutor’s justification for his peremptory strike. At this
stage, implausible or fantastic justifications may (and probably will) be found to
be pretexts for purposeful discrimination.”      Miller-El I, 537 U.S. at 338-39
(internal quotation marks and citation omitted). “[T]he ultimate inquiry for the
judge is not whether counsel’s reason is suspect, or weak, or irrational, but
whether counsel is telling the truth in his or her assertion that the challenge is
not race-based.” United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.
1993).    The “decisions of this court have made it plain that the process of
choosing a jury may be influenced by the ‘intuitive assumptions’ of the
attorneys.” Id. at 1374. “We have recognized that these determinations of
credibility and demeanor lie peculiarly within a trial judge’s province, and we
have stated that in the absence of exceptional circumstances, we would defer to
[the trial court].” Snyder, 128 S. Ct. at 1208 (internal quotation marks and
citations omitted).    When reviewing a Batson ruling, because “all of the
circumstances that bear upon the issue of racial animosity must be consulted,”
this court may consider the strike of one juror for any relevance it might have
regarding the strike of another juror. Id.
      Our review is further informed by various post-Batson Supreme Court
decisions. In Miller-El II, a Texas defendant sought federal habeas corpus relief
on the ground that the trial court should have sustained his objection to the
prosecutor’s discriminatory use of peremptory strikes against African-American
jurors.   545 U.S. at 236-37.     The Supreme Court conducted “side-by-side

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comparisons of some black venire panelists who were struck and white panelists
allowed to serve.” Id. at 241. The Court noted that “[i]f a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Id. The Miller-El II
majority rejected the dissent’s assertion that “‘similarly situated’ does not mean
matching any one of several reasons the prosecution gave for striking a potential
juror-it means matching all of them.” Id. at 247 n.6. The majority stated:
         None of our cases announces [sic] a rule that no comparison is
         probative unless the situation of the individuals compared is
         identical in all respects, and there is no reason to accept one. . . . A
         per se rule that a defendant cannot win a Batson claim unless there
         is an exactly identical white juror would leave Batson inoperable;
         potential jurors are not products of a set of cookie cutters.
Id.
         The Court then considered two specific African-American jurors who had
been struck by the prosecution: Billy Jean Fields and Joe Warren. Id. at 242-52.
The prosecutor’s proffered reason for striking Fields was that he had concerns
with Fields’s statements indicating that he could not impose the death penalty
because the defendant could possibly be rehabilitated. Id. at 243. After that
strike was challenged by defense counsel, the prosecutor added that Fields was
struck because his brother had a prior conviction. Id. at 246. The Court noted
that the prosecutor mischaracterized Fields’s statements and that the prosecutor
accepted several non-African-American venire members who expressed
reservations about imposing the death penalty on a person who could be
rehabilitated. Id. at 244-45. The Court discredited the prosecutor’s secondary
basis for the strike because it “reek[ed] of afterthought,” as Fields stated that he
was not close to his brother, and the prosecutor did not ask whether his brother’s
criminal history would influence him if he were to serve as a juror. Id. at 246.



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       The prosecutor in Miller-El II provided three reasons for striking Joe
Warren: (1) Warren provided inconsistent responses and implied that the death
penalty may be a more lenient punishment than imprisonment for life;
(2) Warren was struck when the State still had ten peremptory challenges left
and could afford to be more liberal in striking potential jurors; and (3) Warren
had a brother-in-law who had been convicted of a crime involving food stamps.
Id. at 248-52. The Court noted that three unstruck venire members expressed
similar opinions regarding the death penalty being more lenient than life
imprisonment and that one of those unstruck members was accepted before
Warren was struck, thereby obviating the prosecutor’s second proffered reason.
Id. at 248-49. As for the third justification, the Court held that the prosecutor’s
failure to ask any questions about Warren’s brother-in-law undermined the
validity of that reason. Id. at 250 n.8. The Court further noted that other
unstruck panel members also had relatives who had criminal histories. Id. In
light of these comparisons, the Court found the prosecutor’s race-neutral reasons
to be implausible, thereby supporting the defendant’s Batson challenge. Id. at
247, 251-52. However, the Court’s ultimate conclusion that a Batson violation
had occurred was also supported by the Court’s determinations that (1) the
prosecutor engaged in purposeful discrimination by shuffling the jury panel3 and
posing contrasting questions to the jurors regarding minimum sentences and (2)




       3
         Texas has a unique procedure allowing attorneys to “view the array” and then request
that the venire be “shuffled.” Enacted at a time when questions could be raised as to the
randomness of the venire panel’s assembly, its continued use has been questioned in light of
Batson and modern selection processes. See Michael Gallagher, Abolishing the Texas Jury
Shuffle, 35 ST . MARY ’S L. J. 303 (2004); Elaine Carlson, Batson, J.E.B., and Beyond: The
Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 BAYLOR
L. REV . 947, 981-82 (1994). There is no indication that such a shuffle played a part in this
case.

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the Dallas County District Attorney’s office manual4 advocating the exclusion of
minorities from jury service had been made available to at least one of the
prosecutors in Miller-El’s trial. Id. at 253-66.
       In Snyder, a Louisiana defendant argued on appeal that the trial judge
erred in rejecting his objection to the prosecutor’s discriminatory use of
peremptory strikes against African-American jurors.                  128 S. Ct. at 1207.
Although the defendant’s Batson claim centered on two African-American venire
members, the Supreme Court upheld the claim as to one, Jeffrey Brooks, and
therefore found it unnecessary to consider the claim as to the other African-
American panelist. Id. at 1208. The prosecutor in Snyder provided two reasons
for striking Brooks: (1) he looked very nervous throughout the questioning; and
(2) he was a student teacher who expressed concern about missing class and the
prosecutor was worried that Brooks might vote for the defendant’s guilt on a
lesser verdict in order to avoid a penalty phase. Id.
       The Court noted that, although deference is due to a trial judge’s finding
regarding a panelist’s demeanor, the trial judge did not make any explicit
determination as to Brooks’s demeanor and simply overruled the Batson
objection without explanation. Id. at 1209. It therefore held that “we cannot
presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks
was nervous.” Id. The Court held that the prosecutor’s second proffered reason
for striking Brooks was implausible because (1) Brooks was one of more than
fifty venire members (many of whom were accepted as jurors by the prosecution)
who expressed concern that jury service could interfere with their other


       4
         No evidence was presented in Hayes’s case that the now-notorious Sparling Manual
continued to be in use at the time of his 2002 trial, by which time a new District Attorney was
in place in Dallas County. See Fields v. Thaler, 588 F.3d 270, 281 (5th Cir. 2009) (noting with
regard to another trial in 2002 that “long after the trials of Miller-el and Reed in 1986 and
1983, respectively. . . . There is no evidence that the now infamous Sparling Manual, outlining
the reasoning for excluding minorities from jury service, was still in use by Dallas County
prosecutors when [defendant’s] case was tried.”)

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obligations, (2) the prosecutor’s outlined scenario was highly speculative, and
(3) Brooks’s concern regarding his teaching requirements was resolved by the
trial judge during voir dire.    Id. at 1209-12.     The Court held that “[t]he
prosecution’s proffer of this pretextual explanation naturally gives rise to an
inference of discriminatory intent.”    Id. at 1212.      The Court held that the
prosecution would only be able to salvage the strike against Brooks by showing
that the pretextual factor was not determinative, but that, in light of the
circumstances at issue in that case, “the record does not show that the
prosecution would have preemptively challenged Mr. Brooks based on his
nervousness alone.” Id. Accordingly, the Snyder Court upheld the defendant’s
Batson challenge and vacated the Louisiana Supreme Court’s judgment. Id.
      In Reed, we recently granted federal habeas relief in a case that was very
similar to Miller-El II. Reed argued that the State’s race-neutral reasons for
excluding African-American jurors were pretextual because the State had
accepted many white jurors who had the same characteristics as the excluded
African-American jurors. Reed, 555 F.3d at 368. We first concluded that, based
upon Texas case law, Reed’s comparative analysis argument was not
procedurally barred in the Texas Court of Criminal Appeals and, hence, was
subject to review by this court. Id. at 369-71. We then decided that, even
though a comparative analysis argument had not been considered by the state
courts, it could be considered in a federal habeas proceeding. Id. at 371-75. This
court supported its conclusion by reviewing the procedural history of Miller-El
II. Id. at 370-75.
      The Reed court stated that we had recently agreed that Miller-El II
requires us to consider a comparative analysis in a Batson claim. Id. at 373
(citing United States v. Brown, 553 F.3d 768, 797 (5th Cir. 2008) (direct appeal));
cf. United States v. Guerra-Marez, 928 F.2d 665, 673 n.9 (5th Cir. 1991) (when
considering an allegation of pretext, defendant must convince the district court

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that the prosecution’s proffered reasons are pretextual by introducing “evidence
of comparability”). Specifically, the Reed court noted that the Brown court
determined “there [was] some indication that both the prosecution and the court
failed to take the comparative features of two venire members into account,” and
it concluded, after comparing those two members, that, under Miller-El II, a
further explanation from the prosecution for the dismissal of the excluded juror
was necessary.     Id. at 373-74.   The Reed court ultimately concluded, after
considering, among other things, Reed’s comparative juror analysis, that Reed
was entitled to habeas relief with respect to his Batson claim. Id. at 375-82.
This court therefore reversed the district court’s decision denying relief and
remanded the case to the district court with instructions to grant the writ. Id.
at 382.
      When reviewing a Batson ruling regarding purposeful discrimination, the
Supreme Court has initially considered statistical evidence when considering
whether the prosecution used its peremptory strikes in a discriminatory manner.
See Miller-El I, 537 U.S. at 342; Miller-El II, 545 U.S. at 240-41. In Miller-El I,
prosecutors used ten of their fourteen peremptory strikes against African-
American venire members, thereby excluding ninety-one percent of the eligible
African-American venire members. Miller-El I, 537 U.S. at 342. The Court
concluded that “[h]appenstance is unlikely to produce this disparity.” Id. In the
instant case, the prosecutor used eight of his eleven peremptory strikes against
African-American venire members, thereby excluding 100% of the eligible
African-American venire members.         While we agree with the district and
magistrate judges that this fact alone is not dispositive, see Fields, 588 F.3d at
281, it is unlikely to be the product of happenstance and is indicative of
discriminatory intent. Miller-El I, 537 U.S. at 342.
      “More powerful than these bare statistics, however, are side-by-side
comparisons of some black venire panelists who were struck and white panelists

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allowed to serve.” Miller-El II, 545 U.S at 241. “[W]e are also cognizant that the
Supreme Court has made plain that appellate review of alleged Batson errors is
not a hollow act.” United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008)
(addressing a Batson challenge on direct criminal appeal).        Sometimes the
reasons given for striking jurors are “race-neutral” when “[v]iewed in isolation.”
Id. at 275. “However, the explanation[s] [may] falter[] upon closer examination.”
Id. In order to engage in the appropriate analysis, we will examine both jurors
and then compare them to other non-African-American jurors who were not
struck.
      B. Prospective Juror Jackson
      After Hayes objected that all eligible African-American venire members
were struck in a discriminatory manner in violation of Batson, the prosecutor
proffered numerous “race-neutral” explanations. With respect to Juror # 16
Jackson, the prosecutor asserted the following explanations: (1) Jackson gave
inconsistent answers to questions regarding whether she would require the
State to introduce a firearm into evidence to convict Hayes, thus indicating she
might hold the State to a higher burden of proof; (2) Jackson stated that a
primary goal of the criminal justice system was rehabilitation; and (3) at the
time of the trial, Jackson had a cousin who was out on bond in a pending
criminal case in Dallas County, Texas. Hayes’s defense counsel responded that
the State’s reasons for striking Jackson were pretextual. He argued that the
State used hypothetical questions regarding the need to see a weapon as a cover
for impermissibly striking jurors by presenting a slanted one-sided explanation
of the weapon requirement without fully exploring it. The prosecutor argued
that she presented the questions fairly; that all of the jurors who gave
inconsistent answers regarding the firearm were struck; that punishment was
the major focus in this case; and that those jurors who responded that
punishment and rehabilitation were important were not struck because the

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State had only ten strikes and that was all the State had to justify striking those
jurors. The state trial court overruled Hayes’s objection as to Jackson, finding
that Jackson gave inconsistent answers regarding whether she would require
the State to introduce a firearm into evidence to convict Hayes.
      In the federal district court, Hayes focused on a comparative analysis of
the pool. He argued that non-African-American Juror #5 Newsome, who was not
struck by the prosecution, also gave inconsistent answers concerning the need
to introduce a firearm to convict.     Hayes argued that several non-African-
American jurors, who were not struck, stated that rehabilitation was one of the
important goals of the criminal justice system (Stanton #7, Stevens #18, Fain
#25, Sapp #27, Olivares #28, Ryan #41, Doyle #42, Crump #44, and Noble #45).
Hayes also argued that several non-African-American jurors, who were not
struck, had relatives who had been prosecuted for crimes and had stated that
they believed that their relatives had received excessive sentences (Keeble #29,
Artieschoufsky #40, Ryan #41), whereas Jackson stated that her cousin had been
treated fairly by the criminal justice system.
      The district court rejected these arguments and found that the reasons the
State gave for striking Jackson were distinguishable from the characteristics of
the seated jurors. Specifically, the district court determined that the State
struck Jackson in part because she had a cousin who had pending criminal
charges in Dallas County, and none of the seated jurors had a relative with
pending criminal charges in Dallas County. The district court determined that
the record indicated that Jackson did give inconsistent answers when asked if
she would require the State to introduce a firearm in order to convict Hayes.
The district court also determined that Jackson was distinguishable from Juror
# 5 Newsome because, in the district court’s view, Jackson gave arguably
inconsistent answers concerning the need to produce a firearm even after the
law was explained. The district court did not address the prosecutor’s third

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reason for striking Jackson, her statement that rehabilitation was an important
goal of the criminal justice system.
       We disagree with the conclusions of the district court. Hayes has shown
that the State’s reasons for striking Jackson were implausible or invalid and,
therefore, were pretexts for discrimination.                 First, regarding the alleged
inconsistency, Jackson initially stated that she thought the State should produce
a firearm in order to convict Hayes. After the trial court explained the law to the
jury, the State did not question Jackson further concerning introduction of the
firearm. In response to defense counsel’s questions, Jackson at first stated that
she would need to see the firearm if she did not believe the eyewitness; she then
stated that the State need not produce a firearm if she believed the eyewitness
testimony.       Accordingly, Hayes has shown that Jackson’s answers to the
questions were not inconsistent 5 and that she ultimately answered that the
State would not need to produce a firearm if it presented credible eyewitness
testimony.6 Moreover, the prosecutor attempted to challenge Jackson for cause


       5
           It should be noted that the federal district court may have confused Juror #16
Jackson with Juror # 46, whose last name was also Jackson. After the trial court explained
the law, the State questioned Juror #46 Jackson concerning the need to produce the firearm;
even after the law was explained, Juror #46 Jackson stated to the prosecutor that she “would
want to see the gun” and “I would require it.”
       6
           During the prosecution’s questioning about the gun, Jackson (#16) responded:

       Q: Ms. Jackson, okay, you want that gun, you’re going to require the State to bring that
          gun in?

       A: If the State says that it was used, I’d like to see it.

       Q: Sure you’d like it. And that’s the thing, it’s definitely – as a juror, there’s all kinds
          of things you’d like to get. You know, I’d like to know why, I’d like to understand,
          I’d like to see the gun, I’d like to see the bloody shirt, I’d like to see that knife. You
          know, that would make, you know, your job a lot easier, but – and I understand that,
          but you understand that the State is not required to bring that in. And that’s okay.
          There’s all kind of – you know, there are people that say, “I’m sorry, I just absolutely
          have to have it.” That’s okay if you feel that way. You feel that way, Ms. Jackson,
          Juror No. 16?

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on precisely these grounds before using a peremptory strike and the trial court
ruled that Jackson remained qualified for the jury due to the fact that she
affirmatively stated she would accept testimony in lieu of physical evidence. As



       A: (Nods head affirmatively.)

        Thereafter, the judge interjected that the law should be explained to the jury and
proceeded to explain that the element of a firearm being used could be proved in various ways
“but it’s not necessary that they actually bring a physical firearm into the courtroom and show
it to you. They can do that by evidence, description, if a person is familiar with handguns or
whatever, . . . .”
        The prosecutor did not thereafter question Jackson, but the defense did so yielding this
discussion:

       Q: Well, yeah, the question is, when that witness testifies and they – you know, if they
          convince you that they saw a pistol and there was a pistol, would you still have to
          see the pistol?

       A: I would want to.

       Q: Well, sure. Really, we’d all like to have a video of it, so then we’d know – so then
          we’d know because we could see it, you know. Then we wouldn’t have to guess. But
          there isn’t one. But – and – I mean, really, see the question? Do you believe the
          witness and does that prove the case beyond a reasonable doubt? Do you believe her
          or him when they say they saw a pistol? If you do, then you don’t need to see the
          pistol.

       A: Well, yeah, that’s right I would need to see the pistol.

       Q: You would need to?

       A: If I didn’t believe that person.

       Q: Of course, if you don’t believe the person, they haven’t proved their case beyond a
          reasonable doubt.

       A: Right.

       Q: So you could get along without the pistol if you were convinced a pistol was used?

       A: I guess.

       Q: Well, you can’t guess.

       A: Okay. Yes, if he were believable, yes.

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                                  No. 08-10057

such, any misperception that Jackson was inconsistent was put to rest by the
trial court well before the prosecutor advanced inconsistency as the justification
for the State’s strike. Nonetheless, even if the “inconsistency” justification was
plausible notwithstanding all of the above, Hayes correctly notes that the trial
court failed to follow the Supreme Court’s clearly established Batson protocol.
The required comparative analysis would have demonstrated that non-African
American Juror Newsome also gave inconsistent answers to the same series of
questions. In short, a proper application of Miller El II in the broader context
of this voir dire would have required Jackson’s reinstatement.
      Second, the prosecutor’s “pending charges” justification similarly lacks
credibility, and the trial court’s contrary conclusion runs afoul of clearly
established federal law under the required comparative framework. Although
Jackson had a cousin with pending criminal charges, she also stated that she
believed her cousin was being treated fairly in the criminal justice system.
Moreover, Jackson stated that her cousin’s pending case would not affect her
jury service. Although no other jurors had family members or friends with
pending criminal cases, numerous jurors had family members or friends who had
criminal convictions. As Hayes pointed out, some of these non-African-American
potential jurors had relatives that the potential jurors believed were treated
unfairly by the system or received harsh sentences (Keeble #29, Artieschoufsky
#40, and Ryan #41). While the district court divorced the question of pendency
from the question of fairness/severity, we find that these two concerns are
inextricably intertwined because the quality of each juror’s prior experience
directly informs the credibility of using that experience as a justification to
strike. Viewed in that way, the decision to strike Jackson, with her favorable
view of the justice system, rather than Keeble, Artieschoufsky, or Ryan, who had
personal objections to that same system, cannot be justified under comparative



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                                  No. 08-10057

analysis.   Again, properly applying Miller El II, the trial court had clear
Supreme Court guidance mandating Jackson’s reinstatement.
      Hayes has thus shown that the reasons given by the State for striking
Jackson also applied to non-African-American jurors who were not struck. In
particular, Juror # 5 Newsome, a non-African-American prospective juror, gave
inconsistent answers concerning the need to see a firearm to convict. Numerous
non-African-American jurors, who were not struck, stated that rehabilitation
was a primary goal of the criminal justice system. (Stanton #7, Stevens #18, Fain
#25, Sapp #27, Olivares #28, Ryan #41, Doyle #42, Crump #44, and Noble #45).
Several non-African-American jurors, who were not struck, had relatives who
had been prosecuted for crimes. (Keeble #29, Artieschoufsky #40, Ryan #41).
When these non-African-Americans were questioned further concerning their
relatives with criminal convictions, they stated that they believed their relatives
received harsh sentences. (Keeble #29, Artieschoufsky #40, Ryan #41). Juror
# 41 Ryan was ultimately chosen to serve on the jury.            In view of these
comparisons, Hayes has shown that the state trial court unreasonably applied
clearly established federal law in examining the prosecutor’s reasons for striking
Jackson. See Miller-El II, 545 U.S. at 247, 251-52.
C. Prospective Juror Richard
      With respect to Juror # 15 Cynthia Richard, the district court erred in
deferring to the state court’s decision to a greater degree than directed by Miller-
El and Snyder. The district court stated that “based on all of the circumstances,
a trial court could have found that the prosecutor lacked credibility in her
explanation of why she struck Richard. However, the Court does not agree that
the trial court was obliged to so find.”        The district court’s analysis is
inconsistent with the analysis in Miller-El II, Snyder, and Reed in its approach
to reviewing the state court’s determination in those cases.



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                                        No. 08-10057

       The    prosecutor      advanced      three    allegedly     race-neutral subjective
explanations for striking Richard: (1) she was “hostile,” (2) she failed to respond
to the judge’s questions 7 ; and she had a “bad juror rating.” The prosecutor also
offered two “objective” justifications: (1) Richard was employed as a teacher and
(2) she selected “rehabilitation” as an important goal of the criminal justice
system. The “objective” factors are quickly dispatched: two white jurors were
teachers and served on the jury; other persons who selected rehabilitation served
on the jury and, notably, Richard did not in fact select the “rehabilitation”
option.8
       The state trial judge also did not appear to credit these reasons but,
instead, focused on the “hostility” prong.9 While Snyder requires deference to a
state trial court’s finding of credibility, the state trial judge here did not
expressly find that the explanation was truthful. See Snyder, 128 S. Ct. at 1209.
Instead, the trial court focused on the concept that hostility is a valid basis for



       7
        The state trial judge rejected this reason stating, “The few questions I had dealt with
the qualifications of the jurors, and just general questions that was [sic] directed to the entire
panel as to whether or not they could accept certain propositions of the law.”
       8
          Appellee makes much of the fact that Hayes has supplemented the record to include
the juror cards from the trial and a juror rating form to assist the comparative analysis.
Appellee claims we are barred from considering this information as it was not presented to the
state appellate courts. This argument is without merit. We have held that we will consider
additional information where evidence presented supplements but does not fundamentally
alter the claim presented to the state courts. Anderson v. Johnson, 338 F.3d 382, 386-87 (5th
Cir. 2003). Hayes has consistently argued that the prosecutor offered pretextual justifications
for striking the African-American jurors. In providing the juror cards and printouts, Hayes
merely added evidentiary support to the claim he has raised in every court to address his case.
Id. at 387-88 (holding that presenting a habeas claim in a “stronger evidentiary posture” does
not trigger an exhaustion dismissal where the petitioner does not seek to advance “a ground
[for relief] that is entirely independent of the grounds presented in the state courts.” (internal
quotation marks and citations omitted)). Furthermore, these juror cards are not case
dispositive.
       9
         The state trial judge also discounted the “bad juror rating” justification. Hayes notes
that another non-African-American prospective juror, Deborah Noble, had a “bad juror rating”
but sat as an alternate.

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                                       No. 08-10057

striking a juror. But the state trial judge stated that he observed no such
hostility from Richard. More importantly, he never made any finding regarding
whether “hostility” was the prosecutor’s true motive. Taken against the trial
court’s statements with respect to both Juror Hashaway and Juror Jackson, it
appears that the trial judge’s analysis was based upon whether the proffered
explanation was a “valid” reason to strike a juror peremptorily, not on whether
the reason given was “true” or, more pointedly, whether the prosecutor was
telling the truth. In this respect, then, the state trial judge unreasonably failed
to apply clearly established law to the facts by failing to examine not just the
validity of the reason but the credibility of the prosecutor.10 This is particularly
a problem because neither the judge nor defense counsel observed this supposed
hostility. Thus, while it is true that hostility towards a lawyer could be a valid
race-neutral reason to strike a prospective juror, we have no clear answer to the
question of whether Richard was actually hostile. The answers to the voir dire
questions evince no hostility.          The judge saw none.           The judge did not
affirmatively find the prosecutor’s testimony credible, only the reason given to
be one that, if true, is a valid reason to strike. This case is thus similar to
Snyder where no finding as to demeanor was made, and the United States
Supreme Court found no deference could thus be given. 128 S. Ct. at 1209.
Accordingly, the state court’s failure to overrule the strike of Richard represents
an unreasonable application of clearly established law to the facts.
                                   IV. CONCLUSION




       10
          Any sense that the state trial judge implicitly found the prosecutor to be generally
credible and free from race-based bias is undermined by the sustaining of the Batson challenge
as to Hashaway. It is inconsistent to say the prosecutor is always credible about motivations
and yet say that the prosecutor was not credible as to the motive in striking Hashaway.
Additionally, the trial judge discounted other proffered reasons as to Richard, such as her
alleged non-responsiveness to his questions.

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                                 No. 08-10057

      The district court correctly noted the highly deferential AEDPA review
standard for this case. However, as numerous cases from the Supreme Court
and our court have made clear, the deference is not unlimited. Where, as here,
the state court unreasonably applied Supreme Court precedent to the facts, the
federal courts must act to correct the error. Therefore, we REVERSE and
REMAND with instructions to grant the writ, set aside Hayes’s conviction and
sentence, and order Hayes’s release from custody unless the State grants Hayes
a new trial within a reasonable time to be set as a date certain by the federal
district court in its order on remand.
      REVERSED and REMANDED with instructions.




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