     Case: 16-70021         Document: 00513927843      Page: 1   Date Filed: 03/27/2017




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                       No. 16-70021                             FILED
                                                                          March 27, 2017

RICK ALLEN RHOADES,
                                                                           Lyle W. Cayce
                                                                                Clerk

                  Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                  Respondent - Appellee




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


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
         Rick Allen Rhoades murdered two men on September 12, 1991. Roughly
one month later, while in custody for burglarizing a school, he confessed to the
murders. A Harris County jury convicted him of capital murder and sentenced
him to die. The Texas Court of Criminal Appeals (“CCA”) affirmed Rhoades’s
conviction and sentence on direct appeal. 1 He unsuccessfully petitioned a
Texas state court for a writ of habeas corpus. 2 Having exhausted his state



         1   Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996).
         2   Ex parte Rhoades, No. WR-78,124-01, 2014 WL 5422197 (Tex. Crim. App. Oct 1,
2014).
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                                       No. 16-70021
remedies, Rhoades petitioned a federal district court for federal habeas corpus
relief. The district court rejected all of Rhoades’s claims and declined to issue
a certificate of appealability (“COA”). He now asks this court for a COA to
appeal the district court’s resolution of his claims. We will grant a COA in part.
                                              I.
       “A state prisoner whose petition for a writ of habeas corpus is denied by
a federal district court does not enjoy an absolute right to appeal.” 3 Federal
law requires that he first obtain a COA. 4 A COA may issue “only if the
applicant has made a substantial showing of the denial of a constitutional
right.” 5 Until the applicant secures a COA, we may not rule on the merits of
his case. 6
       The COA inquiry . . . is not coextensive with a merits analysis. At
       the COA stage, the only question is whether the applicant has
       shown 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.” This threshold question should
       be decided without “full consideration of the factual or legal bases
       adduced in support of the claims.” “When a court of appeals
       sidesteps [the COA] process by first deciding the merits of an
       appeal, and then justifying its denial of a COA based on its
       adjudication of the actual merits, it is in essence deciding an
       appeal without jurisdiction.” 7

We limit our examination “‘to a threshold inquiry into the underlying merit of
[the] claims,’ and ask ‘only if the District Court’s decision was debatable.’” 8




       3 Buck v. Davis, No. 15-8049, 2017 WL 685534, at *11 (U.S. February 22, 2017).
       4 28 U.S.C. § 2253(c)(1).
       5 Id. § 2253(c)(2).
       6 Buck, 2017 WL 685534, at *11 (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
       7 Id. (citations omitted).
       8 Id. (quoting Miller-El, 537 U.S. at 327, 348).

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                                       No. 16-70021
       “Where the petitioner faces the death penalty, ‘any doubts as to whether
a COA should issue must be resolved’ in the petitioner’s favor.” 9 When the
district court denied relief on procedural grounds, the petitioner seeking a COA
must further show that “jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” 10
                                             II.
       Rhoades seeks a COA on five claims for federal habeas relief:
(1) that the convicting court unconstitutionally prevented him from presenting
mitigating childhood photographs of himself to the jury during the sentencing
phase;
(2) that the convicting court unconstitutionally permitted the jury to hear
testimony about the possibility of release on furlough for capital defendants
sentenced to life in prison;
(3) that the convicting court unconstitutionally prevented him from informing
the jurors about the parole implications of a life sentence;
(4) that his trial counsel provided constitutionally ineffective assistance by
failing to object to (a) comments by the prosecutor supposedly implicating
Rhoades’s right not to testify and (b) the guilt/innocence-phase discussion of
Rhoades’s extraneous offenses; and
(5) that the State violated Batson when it exercised racially motivated
peremptory strikes against two prospective jurors.
We will grant a COA on Rhoades’s claims 1, 2, and 5, but deny a COA on his
claims 3 and 4.
                                             1.



       9 Allen v. Stephens, 805 F.3d 617, 625 (5th Cir. 2015) (quoting Medellin v. Dretke, 371
F.3d 270, 275 (5th Cir. 2004)).
       10 Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).
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      Rhoades’s first claim is that the convicting trial court unconstitutionally
prevented him from presenting mitigating childhood photographs of himself to
the jury during the sentencing phase of his trial. During sentencing, the
defense’s theory was that Rhoades was generally nonviolent and would do well
in a prison environment. Rhoades called his adoptive mother to testify about
his troubled childhood. Prior to her testimony, the defense offered into evidence
eleven photographs depicting a young Rhoades doing normal, happy childhood
things (like fishing, holding a trophy, and going to a dance). The trial court
excluded the photographs as irrelevant.
      The CCA affirmed. 11 It said that Rhoades had no constitutional right to
introduce the photographs because they were not relevant to Rhoades’s moral
blameworthiness for the murders, relying on Justice O’Connor’s concurring
opinion in Franklin v. Lynaugh. 12 Judges Clinton and Overstreet dissented,
pointing out that the relevant-to-moral-blameworthiness standard embraced
by the CCA majority had never been adopted by the Supreme Court in a
majority holding. 13 They further observed that Skipper v. South Carolina
seems to say that mitigating evidence can be relevant even when it does not
touch on the defendant’s culpability for the crime committed. 14 Those
dissenting judges would have found that Rhoades had a constitutional right to
introduce the photographs “even if the only purpose of their introduction was
to solicit the mercy of the jury.” 15
      Rhoades contends on federal habeas that the state court unreasonably
applied the Supreme Court’s standard for what mitigating evidence capital



      11 Rhoades, 934 S.W.2d at 125-26.
      12  Id. at 126 (quoting 487 U.S. 164, 184 (1988) (O’Connor, J., concurring in the
judgment)).
      13 Id. at 130-31 (Clinton, J., dissenting).
      14 Id. at 131 (citing 476 U.S. 1 (1986)).
      15 Id.

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                                     No. 16-70021
defendants have a right to present to the jury. The district court analyzed the
Supreme Court’s jurisprudence in this area and found that it permitted state
courts “to exclude, as irrelevant, evidence not bearing on the defendant’s
character, prior record, or the circumstances of his offense.” 16 According to the
district court, the state court could have reasonably applied that standard to
find the photographs irrelevant, and in any event the exclusion of the
photographs did not affect Rhoades’s sentence, rendering any error harmless.
      Persuaded that Rhoades has made a substantial showing of the denial of
a constitutional right, we grant a COA on this claim. In particular, we note the
challenge of determining what information is “relevant to the sentencing
decision” within the meaning of the Supreme Court’s cases 17—a challenge that
divided the Texas CCA on this issue. “When a state appellate court is divided
on the merits of the constitutional question, issuance of a certificate of
appealability should ordinarily be routine.” 18 A COA is granted on Rhoades’s
claim 1.
                                            2.
      Rhoades’s second claim is that the State presented false or misleading
sentencing evidence. During the sentencing phase of Rhoades’s trial, the State
put on testimony that Texas inmates convicted of capital murder but sentenced
to life imprisonment are “eligible for furloughs”—the theory apparently being
that the jury would be more likely to sentence Rhoades to death if it thought
that sentencing him only to life imprisonment meant that he could take
furloughs. Defense counsel objected, and the trial judge called for a bench



      16  Lockett v. Ohio, 438 U.S. 586, 604 n.12 (1978).
      17  Kansas v. Marsh, 548 U.S. 163, 175 (2006) (“In aggregate, our precedents confer
upon defendants the right to present sentencers with information relevant to the sentencing
decision and oblige sentencers to consider that information in determining the appropriate
sentence. The thrust of our mitigation jurisprudence ends here.”).
       18 Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011).

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                                      No. 16-70021
conference to which the court reporter was evidently not invited; the record
does not show what counsel said at the bench. At some point, the court reporter
was summoned to the bench, whereupon defense counsel wrapped up his
argument and the judge overruled any objection, noting “I don’t know where
your objection is in there.”
       Rhoades raised this point on his direct appeal to the CCA, but it found
the objection not preserved because “he failed to object to the line of
questioning with ample specificity to notify the trial court of his contention.” 19
Because the CCA held any objection to the furlough testimony defaulted, it did
not reach the merits. 20 Rhoades nonetheless raised this claim on state habeas.
The state habeas court recognized that the CCA’s procedural ruling barred
Texas habeas review, but went on to rule, in the alternative, that “the applicant
fails to show that such claims have merit.” On federal habeas, the district court
avoided the procedural-bar issue, choosing instead to reject this claim on the
merits.
       Rhoades seeks a COA to challenge the district court’s determination that
his challenge to the furlough testimony lacks merit. Texas maintains that the
claim is both procedurally barred and should be rejected on the merits. We
grant a COA for both the merits and procedural issues.
Merits
       Capital defendants have the constitutional right to reliable sentencing
proceedings, 21 which precludes the State from presenting false or misleading




       19 Rhoades, 934 S.W.2d at 127.
       20 Id.
       21 See California v. Ramos, 463 U.S. 992, 998-99 (1983) (“[T]he qualitative difference

of death from all other punishments requires a correspondingly greater degree of scrutiny of
the capital sentencing determination.”).
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                                      No. 16-70021
evidence to the sentencing jury. 22 The merits issue is whether the state court’s
factual finding that the furlough testimony was not false or misleading was “an
unreasonable determination of the facts.” 23 We presume that finding to be
correct, and Rhoades bears the burden of rebutting it by clear and convincing
evidence. 24
       In support of this claim, Rhoades has offered evidence that,
notwithstanding the nominal rule permitting Texas inmates serving a life
sentence for capital murder to go on furlough, it was the de facto policy of the
Texas Department of Criminal Justice (“TDCJ”) not even to consider such
inmates for any type of furlough. This evidence includes the affidavit of a TDCJ
officer saying as much and the fact that at the time of Rhoades’s trial, no Texas
inmate serving a life sentence for capital murder had ever been granted a
furlough of the kind that they are supposedly eligible for.
       We find that Rhoades has made a substantial showing of the denial of a
constitutional right and grant a COA on the merits of this claim. Telling the
jury that its giving Rhoades a life sentence would qualify him for furloughs in
order to make it more likely to give him a death sentence, when in reality he
would never be considered for a furlough, raises serious questions about the
reliability of Rhoades’s sentencing determination.
Procedural Bar
       The district court opted to reach the merits of Rhoades’s furlough-
testimony claim, but Texas insists that we should deny a COA because it is
procedurally barred as a result of the CCA’s holding. The unique procedural
posture of this claim gives rise to some ambiguity. The Texas CCA denied it


       22 See Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) (“[W]e conclude that it is
constitutionally impermissible to rest a death sentence on a determination made by a
sentencer who has been [misled.]”).
       23 28 U.S.C. § 2254(d)(2).
       24 Id. § 2254(e)(1).

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                                       No. 16-70021
solely on state procedural grounds, the contemporaneous-objection rule, and
made no mention of the merits. 25 Then the state habeas court acknowledged
the CCA’s holding as a bar to state habeas review, but reached the merits
anyway as an alternative holding.
       “When a state-law default prevents the state court from reaching the
merits of a federal claim, that claim can ordinarily not be reviewed in federal
court.” 26
       State procedural bars are not immortal, however; they may expire
       because of later actions by state courts. If the last state court to be
       presented with a particular federal claim reaches the merits, it
       removes any bar to federal-court review that might otherwise have
       been available. 27

       Here, it appears that the Texas CCA created a procedural bar to federal
habeas review of Rhoades’s furlough-testimony claim. 28 However, it is not clear
whether the state habeas court’s subsequently reaching the merits as an
alternative holding “removes any bar to federal-court review that might
otherwise have been available.” 29 We grant a COA on this issue.
                                              3.
       Rhoades’s third claim is that the trial court unconstitutionally prevented
him from informing the jury, if it sentenced him to life in prison instead of
death, how long he would be imprisoned before becoming eligible for parole. In
Texas at the time that Rhoades was convicted and sentenced, inmates



       25 Rhoades, 934 S.W.2d at 127.
       26 Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (citing Wainwright v. Sykes, 433 U.S.
72, 87-88 (1977)).
       27 Id. (citing Harris v. Reed, 489 U.S. 255, 262 (1989)).
       28 See Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999) (stating that Texas’s

contemporaneous-objection rule is an “independent and adequate state-law procedural
ground sufficient to bar federal court habeas review of federal claims” (quoting Amos v. Scott,
61 F.3d 333, 345 (5th Cir. 1995))).
       29 See Ylst, 501 U.S. at 801.

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                                       No. 16-70021
convicted of capital murder but sentenced to life imprisonment would be
eligible for parole after thirty-five years. 30 Prior to jury selection, the State
moved in limine to prevent Rhoades from informing the jury of that fact—the
theory being that the jury might feel more comfortable imposing a life sentence
if the defendant’s incarceration were guaranteed for thirty-five years. The trial
court granted that motion. Rhoades’s jury never knew about the parole
implications of choosing a life sentence over a death sentence.
       On direct appeal, the Texas CCA affirmed based on state precedent. 31
Judge Overstreet dissented, penning a thorough analysis of why the CCA’s
ruling misapplied federal law. 32 The district court rejected this challenge on
the merits. It noted that several capital habeas petitioners prior to Rhoades
had made the same argument for the extension of Simmons to Texas’s pre-
2005 parole eligibility scheme, 33 but that the Fifth Circuit rejected them all.
       The Supreme Court said in Simmons v. South Carolina that when a
capital defendant sentenced to life in prison will never be eligible for parole
under state law, the jury must be informed of that fact. 34 Rhoades seeks to
extend that reasoning to Texas’s parole scheme as it existed at the time of his
conviction, which forbade parole for thirty-five years for capital defendants
sentenced to life in prison. Rhoades’s argument is foreclosed by circuit
precedent. In Kinnamon v. Scott, the habeas petitioner “assert[ed]
constitutional error in his inability to argue to the jury in sentencing that if
spared the death penalty [he] would be required to serve a minimum of 20




       30   Rhoades, 934 S.W.2d at 128.
       31   Id. (citing Smith v. State, 898 S.W.2d 838 (Tex. Crim. App. 1995) and Broxton v.
State, 909 S.W.2d 912 (Tex. Crim. App. 1995)).
         32 Id. at 131-44 (Overstreet, J., dissenting).
         33 In 2005, Texas eliminated the possibility of parole for capital defendants sentenced

to life in prison. Tex. Code. Crim. P. art. 37.071 § 2(g).
         34 512 U.S. 154, 162-64 (1994).

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                                         No. 16-70021
calendar years without good time before becoming eligible for parole.” 35 He
“rest[ed] this claim upon Simmons v. South Carolina,” just as Rhoades does. 36
We said “we would not extend Simmons beyond cases in which the sentencing
alternative to death is life without parole.” 37
         Because Rhoades’s claim 3 challenge is foreclosed, jurists of reason would
not debate the district court’s resolution of it. We deny a COA on claim 3.
                                                4.
         Rhoades’s fourth claim is that he was denied effective assistance of trial
counsel. To demonstrate a claim of ineffective assistance of trial counsel under
Strickland v. Washington, the defendant must show both that counsel
rendered deficient performance and that counsel’s actions resulted in actual
prejudice. 38 To demonstrate deficient performance, the defendant must show
that, in light of the circumstances as they appeared at the time of the conduct,
“counsel’s representation fell below an objective standard of reasonableness”
as measured by “prevailing professional norms.” 39 There is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 40 Trial counsel’s strategic decisions must be given a
strong degree of deference. 41 On habeas review, if there is any “reasonable
argument that counsel satisfied Strickland’s deferential standard,” the state
court’s denial must be upheld. 42 Therefore, the question is whether jurists of




         35 40 F.3d 731, 733 (5th Cir. 1994).
         36 See id.
         37 Kinnamon, 40 F.3d at 733. See also Montoya v. Scott, 65 F.3d 405, 416-17 (5th Cir.

1995).
         38 466 U.S. 668, 687 (1984).
         39 Id. at 687-88.
         40 Id. at 689.
         41 Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993).
         42 Harrington v. Richter, 562 U.S. 86, 105 (2011).

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                                    No. 16-70021
reason would debate the district court’s resolution of this claim in light of these
standards.
       To demonstrate prejudice under Strickland, Rhoades must show that
counsel’s deficient performance was “so serious as to deprive [him] of a fair
trial, a trial whose result is reliable.” 43 This requires the showing of a
reasonable probability that but for counsel’s deficiencies, the result of the
proceeding would have been different. 44 Rhoades alleges two instances of
ineffectiveness: first, in failing to object to a portion of the prosecutor’s closing
argument that he claims was an impermissible comment on his failure to
testify; and second, in failing to object to other-bad-act evidence during the
guilt/innocence phase of trial.
Comment on Failure to Testify
       Rhoades did not testify at trial. During the prosecutor’s closing
argument, she said:
       When you talk about whether one intentionally killed, it doesn’t
       mean he had to enter that house with the intent to kill. In fact, I
       mean, why he went into the house? Why he killed those two young
       men? I know we would all love to know. Ask Mr. Stafford to tell
       you why he would do a thing like that.

“Mr. Stafford” was Rhoades’s trial defense counsel. Counsel did not object that
the prosecutor’s comment was an impermissible reference to Rhoades’s failure
to testify. 45
       Rhoades argued in his state habeas application that his trial defense
counsel’s failure to object that those comments were an impermissible
reference to his failure to testify constituted ineffective assistance of trial



       43 Strickland, 466 U.S. at 687.
       44 Id. at 694.
       45 Defense counsel did object that some of the statements were unsupported by the

evidence, but that objection was overruled.
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                                      No. 16-70021
counsel, but the state habeas court denied that claim. The district court found
that the prosecutor’s comment was not a comment on Rhoades’s failure to
testify, so Rhoades’s trial counsel was not ineffective for failing to have objected
to it.
         “[T]he Fifth Amendment . . . forbids either comment by the prosecution
on the accused’s silence or instructions by the court that such silence is
evidence of guilt.” 46 “[T]he test for determining whether the prosecutor’s
remarks were constitutionally impermissible is: (1) whether the prosecutor’s
manifest intent was to comment on the defendant’s silence or (2) whether the
character of the remark was such that the jury would naturally and necessarily
construe it as a comment on the defendant’s silence.” 47 Rhoades does not rely
on the first prong of that test, opting instead to argue that the prosecutor’s “ask
Mr. Stafford to tell you” comment would naturally and necessarily be construed
by the jury as a comment on the defendant’s silence.
         Rhoades has not made a substantial showing of the denial of a
constitutional right on this portion of his ineffective-assistance-of-counsel
claim. Counsel is not ineffective for failing to raise an unmeritorious objection.
The prosecutor’s argument explicitly referred to and invited defense counsel to
respond to her challenge, not Rhoades himself. This rhetorical flourish does
not foul the Fifth Amendment. 48 Rhoades has presented us with no colorable
argument that the jury would naturally and necessarily construe the remark
as a comment on Rhoades’s failure to testify. We deny a COA on this portion of
Rhoades’s ineffective-assistance-of-counsel claim.
Other-Bad-Act Evidence



          Griffin v. California, 380 U.S. 609, 615 (1965).
         46

          United States v. Bohuchot, 625 F.3d 892, 901 (5th Cir. 2010) (quoting United States
         47

v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996)).
       48 Rivera v. Collins, 934 F.2d 658, 661 (5th Cir. 1991).

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                                 No. 16-70021
      A month after Rhoades committed the murders for which he was
convicted, he was arrested for burglarizing a school. While in custody for that
offense, he confessed to the murders. During that confession, Rhoades also
detailed other crimes and bad acts, such as other burglaries and auto thefts.
Defense counsel did not object to the references to Rhoades’s burglarizing a
school or prior burglaries and auto thefts. In fact, defense counsel specifically
told the prosecutor and the trial court that he was taking a “let it all hang out
approach,” with no intent to object to any of the prior acts.
      Rhoades argued in his state habeas petition that failure to object to these
other bad acts was ineffective assistance of counsel. Rhoades’s trial counsel
submitted affidavits in which they explained that their primary trial strategy
was to save Rhoades’s life.
      Not only did we not object to this [other-bad-act] evidence, we told
      the jury of these facts in our opening statement. As previously
      stated, from the outset this was primarily a case to save
      [Rhoades’s] life. Our prominent focus was on punishment. As a
      part of the trial strategy, we decided to let the jury know of these
      very aggravating facts early on in an attempt to “de–sensitize”
      them. We feared that if this information was heard for the first
      time at punishment, that the jury would find it difficult to give
      proper weight to all of our punishment evidence and would be so
      incensed that the death penalty would be nearly automatic. We
      had put substantial time and energy into developing evidence of
      [Rhoades’s] tortured background, his medical, brain abnormality
      and the fact that he was non–violent in prison. We felt that if the
      jury learned of his prior arrest and parole immediately prior to our
      evidence, that this mitigation evidence would fall on deaf ears. In
      retrospect, I stand by that decision.

Under Texas Rule of Evidence 404(b), “Evidence of a crime, wrong, or other act
is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” The
State here admits that the other-bad-act evidence was perhaps objectionable

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                                      No. 16-70021
under TRE 404(b), but points out the reasonableness of counsel’s trial strategy
not to object to the evidence and allow the jury to hear it early.
       Rhoades has not made a substantial showing of the denial of a
constitutional right on this portion of his ineffective-assistance-of-counsel
claim. Our federal habeas review of a state court’s denial of an ineffective-
assistance-of-counsel claim is “doubly deferential” because we take a highly
deferential look at counsel’s performance through the deferential lens of
§ 2254(d). 49 “[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” 50
       Counsel . . . may reasonably decide to focus on the trial's penalty
       phase, at which time counsel’s mission is to persuade the trier that
       his client’s life should be spared. Unable to negotiate a guilty plea
       in exchange for a life sentence, defense counsel must strive at the
       guilt phase to avoid a counterproductive course. 51

Rhoades presents us with no colorable argument that the state court’s finding
defense counsel’s trial strategy reasonable was unreasonable. We also deny a
COA on this portion of Rhoades’s ineffective-assistance-of-counsel claim.
                                            5.
       Rhoades’s fifth and final claim is that the prosecutor violated Batson by
using peremptory strikes against two black jurors. Rhoades himself is white,
but the defendant need not be in the same protected class as stricken jurors to
raise Batson. 52 Under the rule established by Batson v. Kentucky, peremptory
strikes may not be racially motivated. 53 Proof of a Batson violation proceeds in
three steps: first, the defendant must make a prima facie case of racial



       49 Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)).
       50 Strickland, 466 U.S. at 690.
       51 Florida v. Nixon, 543 U.S. 175, 191 (2004).
       52 Powers v. Ohio, 499 U.S. 400, 410-16 (1991).
       53 476 U.S. 79, 85 (1986).

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                                        No. 16-70021
discrimination in connection with the prosecutor’s use of a peremptory strike. 54
Then the burden shifts to the State to come forward with a race-neutral
explanation for exercising the strike. 55 The prosecutor’s explanation “need not
rise to the level justifying exercise of a challenge for cause.” 56 Finally, the
burden      shifts    back     to    the    defendant       to    “establish[]     purposeful
discrimination.” 57
       At the third step, the defendant may rely on “all relevant circumstances”
to show purposeful discrimination. 58 “[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.’” 59
       A state court’s Batson ruling is a finding of fact that we afford a
presumption of correctness unless the petitioner rebuts it with clear and
convincing evidence. 60 Therefore, the question is whether jurists of reason
would debate the district court’s resolution of this claim in light of these
standards. Rhoades challenges his prosecutor’s use of peremptory strikes with
respect to two potential jurors: Berniece Holiday and Gregory Randle.
Berniece Holiday
       One of Rhoades’s prospective jurors was Berniece Holiday, a black
woman. The prosecutor exercised one of her peremptory strikes to dismiss Ms.


       54  Id. at 96-97
       55  Id. at 97. When the state trial court called on the government to provide race-neutral
justifications, we assume that the defendant satisfied his or her initial burden. United States
v. Webster, 162 F.3d 308, 349 (5th Cir. 1998).
        56 Batson, 476 U.S. at 97.
        57 Id. at 98.
        58 Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Batson, 476 U.S. at 96-97).
        59 Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2003) (quoting Purkett v. Elem, 514 U.S.

765, 768 (1995)).
        60 28 U.S.C. § 2254(e)(1); Hernandez v. New York, 500 U.S. 352, 366 (1991).

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                                         No. 16-70021
Holiday, then Rhoades immediately objected under Batson. The trial court
found that Rhoades could not establish a prima facie case of racial selection,
but ordered the State to offer race-neutral reasons for striking the prospective
juror anyway “[o]ut of an abundance of caution.”
      The prosecutor offered several race-neutral reasons for using her strike.
As summarized by the Texas CCA on direct appeal:
      (a) Holiday “dozed off” during the State's group voir dire
      examination; (b) Holiday’s answers were very succinct, in a way
      which demonstrated a lack of candor; (c) Holiday only answered
      three of seventeen questions on a particular page of her juror
      questionnaire; (d) Holiday’s facial expressions led the prosecutor
      to believe that she was saying what she believed the prosecutor
      wanted to hear; (e) Holiday was an elementary school teacher and
      might identify too closely with evidence of [Rhoades]'s difficult
      childhood; (f) Holiday indicated, with a tone of pride, that, while
      previously serving on a jury, she “set free” the defendant; (g)
      Holiday had a first cousin who was in prison. 61


After giving the defense a chance to respond, the trial court denied the Batson
challenge. The Texas CCA affirmed, saying that “Appellant’s showing of
purposeful      discrimination     was      minimal[,]    [t]he    State’s   race-neutral
explanations were not whimsical, . . . and the record does not reflect that the
State demonstrate a disparate pattern of strikes against any suspect class.” 62
The district court ruled: “Given the numerous race-neutral reasons proffered
by the State, Rhoades’ weak showing of disparate questioning, and the absence
of any meaningful evidence of discriminatory intent, the Court finds that
Rhoades has not met his AEDPA burden with regard to Ms. Holiday.”
      We are persuaded that Rhoades has made a substantial showing of the
denial of a constitutional right in connection with the strike of this prospective



      61   Rhoades, 934 S.W.2d at 124.
      62   Id.
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                                      No. 16-70021
juror. Rhoades cites significant evidence that Ms. Holiday was a strong juror
for the prosecution, but that she was treated differently than the white jurors
questioned before her. She said that she was “strongly in favor of the death
penalty.” Rhoades points out that the prosecutor questioned her more
extensively than the previous, white jurors. He also notes that the prosecutor’s
proffered race-neutral reasons for striking Ms. Holiday are unsupported by the
record. We find this claim at least debatable, and we grant a COA.
Gregory Randle
      The prosecutor also exercised one of her peremptory strikes against
Gregory Randle, a black man, and Rhoades again objected under Batson. The
trial court asked the prosecutor to state her race-neutral reasons for exercising
the strike, and she did so. As summarized by the Texas CCA on direct appeal:
      (a) Randle had a brother in prison, and although Randle had
      visited him recently, Randle professed that he did not know what
      crime his brother committed. The prosecutor professed that she
      was concerned Randle was being disingenuous, and down-playing
      the effect his relationship with his brother would have on him; (b)
      Randle vacillated on the kind of evidence he would require to find
      future danger. Although this vacillation was not legally sufficient
      to subject Randle to a challenge for cause, he nevertheless
      occasionally articulated that he would prefer evidence of past
      violent behavior to find future danger (the State had no evidence
      of past violent behavior); (c) Randle indicated during voir dire that
      he thought the death penalty was wrong, although he conceded
      that it might be necessary for some crimes. 63


      The trial court found that the prosecutor had struck the prospective juror
for race-neutral reasons. The Texas CCA affirmed. 64 The federal district court
concluded that “Rhoades has not shown that the state courts were
unreasonable in their assessment of the State’s peremptory strike against


      63   Id. at 124-25.
      64   Id. at 125.
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                                  No. 16-70021
Gregory Randle.” We are persuaded that Rhoades has made a substantial
showing of the denial of a constitutional right. Like Ms. Holiday, Mr. Randle
articulated a pro-prosecution perspective. He said he would not insist on
evidence of motive to impose a death sentence. The prosecutor cited, as one of
her race-neutral reasons for striking Mr. Randle, that he had a brother in
prison; but other white jurors who went unchallenged by the State also had
family members in prison. Rhoades also points out that Mr. Randle never
actually made one of the statements that the prosecutor cited as a reason for
striking him. Taken together, we find this evidence to be a substantial showing
of the denial of a constitutional right under Batson. We grant a COA.
                                       III.
      In sum, we grant a COA on Rhoades’s claims 1, 2, and 5 for habeas relief
involving the exclusion of mitigating photographs, the admission of furlough
testimony, and two Batson challenges. We deny a COA on Rhoades’s claims 3
and 4 involving ineligibility for parole and ineffective assistance of counsel.




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