United States Court of Appeals Fifth Circuit F I L E D Revised March 12, 2004 February 26, 2004 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 00-10784
THOMAS JOE MILLER-EL,
Petitioner-Appellant,
VERSUS
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas
ON REMAND FROM THE UNITED STATES SUPREME COURT Before DAVIS, JONES, and DeMOSS, Circuit Judges. DeMoss, Circuit Judge: Petitioner brings this federal habeas corpus petition
claiming, pursuant to Batson v. Kentucky, that the state trial
court erred in finding that there was no purposeful discrimination
in the selection of his jury. The district court denied Petitioner
relief. The district court then denied a certificate of
appealability (“COA”). Petitioner previously appealed to this
court and we denied a COA. The Supreme Court reversed. We then granted COA and now address the merits of Petitioner’s appeal.
BACKGROUND
On November 16, 1985, Thomas Jo Miller-El, his wife, and
Kenneth Flowers robbed a Holiday Inn in Dallas, Texas. During the
robbery two employees, Doug Walker and Donald Hall, were ordered to
lie on the floor, gagged with strips of fabric, and their hands and
feet were bound. Miller-El shot Walker twice in the back and shot
Hall in the side. Walker died from his wounds.
The state indicted Miller-El for capital murder. He pleaded
not guilty, and jury selection took place during five weeks in
February and March 1986. When voir dire had been concluded,
Miller-El moved to strike the jury on the grounds that the
prosecution had violated the Equal Protection Clause of the
Fourteenth Amendment by excluding blacks through the use of
peremptory challenges. Miller-El’s trial occurred before the
Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986).
Therefore, Swain v. Alabama, 380 U.S. 202 (1965), was then the
controlling precedent. As Swain required, Miller-El sought to show
that the prosecution’s conduct was part of a larger pattern of
discrimination aimed at excluding blacks from jury service. In a
pretrial hearing held on March 12, 1986, Miller-El presented
evidence in support of his motion. The trial judge, however, found
“no evidence . . . that indicated any systematic exclusion of
blacks as a matter of policy by the District Attorney’s office;
2 while it may have been done by individual prosecutors in individual
cases.” The state court then denied Miller-El’s motion to strike
the jury. Twelve days later, the jury found Miller-El guilty; and
the trial court sentenced him to death.
Miller-El appealed to the Texas Court of Criminal Appeals.
While the appeal was pending, on April 30, 1986, the Supreme Court
issued its opinion in Batson v. Kentucky and established a
three-part process for evaluating claims that a prosecutor used
peremptory challenges in violation of the Equal Protection Clause.
476 U.S. at 96-98. First, a defendant must make a prima facie
showing that a peremptory challenge has been exercised on the basis
of race. Id. at 96-97. Second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking the juror
in question. Id. at 97-98. Third, in light of the parties’
submissions, the trial court must determine whether the defendant
has shown purposeful discrimination. Id. at 98.
After acknowledging Miller-El had established an inference of
purposeful discrimination, the Texas Court of Criminal Appeals
remanded the case for new findings in light of Batson. Miller-El
v. State, 748 S.W.2d 459, 461 (Tex. Crim. App. 1988)(en banc). A
post-trial hearing was held on May 10, 1988. There, the original
trial court admitted all the evidence presented at the Swain
hearing and further evidence and testimony from the attorneys in
the original trial.
3 On January 13, 1989, the trial court concluded that Miller-
El’s evidence failed to satisfy step one of Batson because it “did
not even raise an inference of racial motivation in the use of the
state’s peremptory challenges” to support a prima facie case.
Notwithstanding this conclusion, the state court determined that
the state would have prevailed on steps two and three because the
prosecutors had offered credible, race-neutral explanations for
each black venire member excluded. The court further found “no
disparate prosecutorial examination of any of the venire [members]
in question” and “that the primary reasons for the exercise of the
challenges against each of the venire [members] in question [was]
their reluctance to assess or reservations concerning the
imposition of the death penalty.”
The Texas Court of Criminal Appeals denied Miller-El’s appeal,
and the Supreme Court denied certiorari. Miller-El v. Texas,
510 U.S. 831 (1993). Miller-El’s state habeas proceedings fared no
better, and he was denied relief by the Texas Court of Criminal
Appeals.
Miller-El filed a petition for writ of habeas corpus in
federal district court pursuant to 28 U.S.C. § 2254.1 The federal
magistrate judge who considered the merits of the Batson claim
1 Although Miller-El raised four issues, the petition has been narrowed down by the Supreme Court to only the jury selection claim premised on Batson. See Miller-El v. Cockrell, 537 U.S. 322, 329 (2003).
4 recommended, in deference to the state court’s acceptance of the
prosecutors’ race-neutral justifications for striking the potential
jurors, that Miller-El be denied relief. The United States
district court adopted the recommendation. Pursuant to 28 U.S.C.
§ 2253, Miller-El sought a COA from the district court, and the
application was denied. Miller-El renewed his request to this
Court, and we also denied a COA. Miller-El appealed to the Supreme
Court and certiorari was granted. 534 U.S. 1122 (2002). In an
opinion issued on February 25, 2003, the Supreme Court concluded
based on a “threshold examination” of the record, that the federal
district court’s rejection of Miller-El’s Batson claim was
“debatable” and thus we had erred in not granting COA on Miller-
El’s Batson claim. Miller-El v. Cockrell, 537 U.S. 322, 347-48
(2003). The Supreme Court remanded the case to this Court to
determine whether Miller-El can “demonstrate that [the] state
court’s finding of the absence of purposeful discrimination was
incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1),
and that the corresponding factual determination was ‘objectively
unreasonable’ in light of the record before the court.” Id. at
348. We granted COA for precisely that determination. Miller-El
v. Johnson, 330 F.3d 690 (5th Cir. 2003)(per curiam).
DISCUSSION
Claims of racial discrimination in jury selection are
evaluated according to the framework established in Batson v.
5 Kentucky, which requires a three-step analysis that shifts the
burden of production between the parties. 476 U.S. at 96-98.
First, the defendant must make a prima facie showing that the
prosecution has exercised peremptory challenges on the basis of
race. Id. at 96-97. Second, if the requisite showing has been
made, the burden shifts to the prosecution to provide a race-
neutral explanation for striking the venire member in question.
Id. at 97-98. Third, the defendant again has the burden, this time
of proving purposeful discrimination. Id. at 98. Under Batson,
the ultimate burden of persuading the court that the state’s
peremptory challenges are attributable to a discriminatory purpose
lies with and never shifts from the defendant. Id. at 94 n.18
(citing Tex. Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 252-
56 (1981)); Purkett v. Elem, 514 U.S. 765, 768 (1995).
In the present case, there is no dispute that Miller-El
presented a prima facie claim under Batson’s first step. Nor is
there any dispute that the prosecution presented facially race-
neutral reasons for exercising each peremptory challenge. The only
issue is Miller-El’s disagreement with the trial court’s
determination at Batson’s third step that Miller-El had failed to
show that the prosecution’s reasons for exercising the challenged
peremptory strikes were not credible and Miller-El had not
demonstrated that purposeful discrimination had occurred. The
federal district court has already determined on habeas review that
6 Miller-El has failed to show that the state court erred, and
therefore is not entitled to habeas relief. Miller-El is now
appealing this determination and COA has been granted. Therefore
we now address the merits of Miller-El’s appeal.
Under the current scheme for habeas review in federal court,
which was substantially updated in the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(e)(1)
requires that we “presum[e]” the state court’s findings of fact “to
be correct” unless Miller-El can rebut the presumption “by clear
and convincing evidence.”2 As the Supreme Court has stated, the
state court’s finding at step three of Miller-El’s Batson claim was
a finding of fact and therefore subject to § 2254(e)(1)’s
presumption of correctness. Miller-El, 537 U.S. at 339 (citing
Hernandez v. New York, 500 U.S. 352, 365 (1991), for the
proposition that the determination made at step three of Batson is
a “‘pure issue of fact’ accorded significant deference”).
We follow the lead of the Supreme Court in utilizing their
decisions in Hernandez v. New York, 500 U.S. 352 (1991), and
2 The language of § 2254(e)(1) could not be clearer: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
7 Purkett v. Elem, 514 U.S. 765 (1995), to guide our decision
regarding the trial court’s finding of no purposeful discrimination
at step three in this Batson claim. These Supreme Court opinions
state that the critical question in determining whether a prisoner
has proved purposeful discrimination at step three is the
persuasiveness and credibility of the prosecutor’s justification
for his peremptory strike. Purkett, 514 U.S. at 768; Hernandez,
500 U.S. at 364-65. Further, these cases, applying a standard of
review even less deferential to the trial court’s finding than we
are required to apply under AEDPA, articulate that deference is
necessary because the reviewing court is not as well positioned as
the trial court to make credibility determinations, and once the
trial court has made a credibility determination concerning the
prosecutor’s state of mind regarding the peremptory strikes, the
step three determination under Batson has been decided. Purkett,
514 U.S. at 768 (citing 28 U.S.C. § 2254(d)(8) and stating that the
standard of review for a federal habeas claim required that the
factual findings of the state court be presumed to be correct, and
“may be set aside, absent procedural error, only if they are ‘not
fairly supported by the record’”); Hernandez, 500 U.S. at 366-67
(applying, on direct review of a state court’s factual findings, a
“clearly erroneous” standard).
Miller-El argues that the state court's finding of the absence
of purposeful discrimination was incorrect and the corresponding
8 factual determinations were “objectively unreasonable” in light of
the following four areas of evidence that he claims were before the
court. First, evidence of historical discrimination by the Dallas
County District Attorney’s office in the selection of juries.
Second, the use of the “jury shuffle” tactic by the prosecution.
Third, the alleged similarity between non-black venire members who
were not struck by the prosecution and six blacks who were.
Fourth, evidence of so-called disparate questioning with respect to
venire members’ views on the death penalty and their ability to
impose the minimum punishment.
First, Miller-El argues that he presented evidence of the
Dallas County District Attorney’s office “unofficial policy” of
excluding blacks from jury service. Some of this evidence was
first presented in the Swain hearing conducted by the trial court.
When Miller-El’s counsel attempted to reintroduce this historical
evidence at the post-trial Batson hearing, the prosecution
objected, arguing that even if accurate the evidence was irrelevant
under Batson. The court admitted the evidence but reserved the
right to give it no weight.
As the United States magistrate judge found, there was
considerable evidence that the Dallas County District Attorney’s
office had an unofficial policy of excluding blacks from jury
service and that this evidence was disturbing. The district court
accepted this finding. But both the magistrate and district court
9 noted that the historical evidence, however disturbing, is not
determinative of whether there was purposeful discrimination in the
selection of Miller-El’s jury. We also note that the apparent
culture of discrimination that existed in the past in the Dallas
County District Attorney’s Office and the individual discriminatory
practices that may have been practiced during the time of Miller-
El’s jury selection by some prosecutors are deplorable. The
Supreme Court stated that proof “that the culture of the District
Attorney’s Office in the past was suffused with bias against
African-Americans in jury selection” is “relevant to the extent it
casts doubt on the legitimacy of the motives underlying the State’s
actions” in Miller-El’s case. Miller-El, 537 U.S. at 347. In this
case, however, the relevancy of this evidence is less significant
because Miller-El has already met the burden under the first step
of Batson and now must prove actual pretext in his case. This
historical evidence is relevant to the extent that it could
undermine the credibility of the prosecutors’ race-neutral reasons.
Here, however, as explained below the race-neutral reasons are
solidly supported by the record and in accordance with the
prosecutors’ legitimate efforts to get a jury of individuals open
to imposing the death penalty. The state court, in the best
position to make a factual credibility determination, heard the
historical evidence and determined the prosecutors’ race-neutral
reasons for the peremptory strikes to be genuine. Under our
10 standard of review, we must presume this specific determination is
correct and accordingly the general historical evidence does not
prove by clear and convincing evidence that the state court’s
finding of the absence of purposeful discrimination in Miller-El’s
jury selection was incorrect.
Second, Miller-El argues that the state court erred in not
finding purposeful discrimination based on the use of the “jury
shuffle” tactic by the prosecution. The record, however, clearly
establishes that Miller-El shuffled the jury five times and the
prosecutors shuffled the jury only twice. Again, Miller-El’s
circumstantial evidence of jury shuffles does not overcome the
race-neutral reasons for exercising the challenged peremptory
strikes articulated by the prosecutors and accepted by the state
court who observed the voir dire process including the jury
shuffles.
Third, Miller-El argues that there were similarities between
non-black venire members who were not struck by the prosecution and
six blacks who were. Miller-El maintains that the following six
black venire members were victims of racially motivated peremptory
strikes: Roderick Bozeman, Billy Jean Fields, Joe Warren, Edwin
Rand, Carrol Boggess, and Wayman Kennedy.
As to each of the black venire members Miller-El claims were
the victims of racially motivated peremptory strikes, it is
important to identify the prosecution’s stated reasons for
11 exercising a peremptory challenge. Once we have identified the
reasons for the strikes, the credibility of the reasons is self-
evident. Further, we can determine from the record that there were
no unchallenged non-black venire members similarly situated, such
that their treatment by the prosecution would indicate the reasons
for striking the black members were not genuine.3
Roderick Bozeman stated that while he believed in the death
penalty as a general proposition, he thought it was only
appropriate “if there’s no possible way to rehabilitate a person.”
If Bozeman thought there was a chance of rehabilitation, he did not
think the death penalty was appropriate. He said that a “mentally
disturbed” person and “a Manson type” were examples of someone who
could not be rehabilitated. He said, however, that repeated
criminal acts of violence would not necessarily indicate that a
person was beyond rehabilitation. Bozeman classified himself as
the type of person who believed in the death penalty in principle,
but who could not actually serve on a capital jury. He verified
his inability to impose the death penalty by stating that even if
the evidence compelled “yes” answers to the special issues posed to
the jury at the punishment stage, he might refuse to answer the
questions honestly in order to avoid imposing the death penalty.
3 With the exception of black venire members Joe Warren and Paul Bailey, the prosecution set forth its race-neutral reasons for exercising the peremptory challenges immediately after exercising the strikes. At the subsequent Batson hearing the court took judicial notice of that prior testimony in the voir dire record. Miller-El has not based his claim on the prosecution striking Bailey.
12 The prosecution exercised a peremptory challenge to remove Bozeman,
citing his views on the death penalty and on rehabilitation, his
belief that a pattern of violent conduct would not be sufficient to
render a defendant deserving of death, and his “obvious hesitation”
concerning his ability to override his personal feelings and answer
the special issues according to the evidence.
Venire member Billy Jean Fields stated that he believed in the
death penalty and could serve on a capital jury. However, after
being informed that the possibility of rehabilitation would be a
factor he would need to consider in assessing whether to impose the
death penalty, Fields proclaimed that his religious belief was that
no one was beyond rehabilitation. Fields stated, “I feel like, if
a person has the opportunity to really be talked [to] about God and
he commits himself, whereas he has committed this offense, then if
he turns his life around, that is rehabilitation.” He further
stated, “when an individual has really been truly reached by
someone reading the word of God to him and they are repentant and
they do have a real act of contrition, they can be rehabilitated
and that’s been demonstrated.” Additionally, Fields indicated in
his questionnaire and in response to questions by the prosecution
that his brother had been incarcerated numerous times for drug
offenses. The prosecution exercised a peremptory challenge to
remove Fields, citing its concern that his deeply held religious
belief in the rehabilitative capacity of all persons could impact
his willingness to impose a death sentence and the fact that his
13 brother had been convicted of a felony.
Venire member Joe Warren answered questions during voir dire
in a noncommital manner and indicated ambivalence about the death
penalty and his ability to impose it. He stated, “there are some
cases where I would agree [with the death penalty], you know, and
there are others that I don’t.” When the prosecution described the
crimes defined as capital murder under Texas law and asked whether
Warren felt the death penalty could be an appropriate punishment
for such crimes, he responded, “Well, there again, I would say it
depends on the case and the circumstances involved at the time.”
When asked whether the death penalty serves a purpose, Warren
answered, “Yes and no. Sometimes I think it does and sometimes I
think it don’t. Sometimes you have mixed feelings about things
like that.” When asked whether he could make a decision between a
life sentence and a death sentence, Warren answered, “I think I
could.” When questioned about his ability to answer the future
dangerousness special issue question, Warren responded, “I suppose
there’s always a chance, but there again, you never know.”
Finally, Warren stated, “Well, it[’]s just like I said you know.
There are cases, I mean, personally, that I feel I wouldn’t want to
personally be, you know, involved with it if I had a choice.” The
prosecution exercised a peremptory challenge to remove Warren.
Miller-El’s counsel did not object to the peremptory strike against
Warren contemporaneous to the strike, therefore the prosecution did
14 not give its race-neutral reasons at voir dire. At the Batson
hearing, the prosecutor cited Warren’s hesitation about imposing
the death penalty and his inconsistent responses during voir dire
as the reasons for striking him. The prosecutor also noted that
Warren was struck relatively early in the jury selection process
when the state had ten challenges remaining before exercising one
to remove Warren. The prosecutor noted at the Batson hearing that
an attorney’s strategy regarding the use of peremptory challenges
necessarily changes as jury selection progresses and peremptory
challenges either remain unused or get used more rapidly. In fact,
the prosecutor on cross-examination at the Batson hearing admitted
that he would have struck non-black jurors Sandra Hearn and
Fernando Gutierrez, who also gave somewhat ambivalent answers
regarding the death penalty, before Warren had they come up earlier
in the process.
Venire member Edwin Rand described capital punishment as a
“touchy subject” during voir dire but did indicate on his
questionnaire that he believed in the death penalty. In response
to several alternative choices put to him by the prosecution, Rand
described himself as a person who may or may not be able to impose
the death penalty. He said, “Somewhere along the line, I would
probably think to myself, you know, ‘Can I do this?’ You know,
right now I say I can, but tomorrow I might not.” The prosecution
exercised a peremptory challenge to remove Rand, citing his
15 ambivalence about the death penalty generally and his lack of
ability to serve on a capital jury.
Venire member Carrol Boggess indicated on her questionnaire
that she had a moral, religious, or personal belief that would
prevent her from imposing the death penalty. During voir dire she
stated, “Well, I believe I could serve on a case like this, but
whether I want to or not is a different thing. I wouldn’t want to
serve and I wouldn’t want to have that responsibility to do that,
but if it fell upon me, I would certainly take it and pray to the
Lord to help me get through it.” Later she stated, “I’m not saying
that I feel like I could impose the sentence myself – or I’m not
going to be imposing the sentence, is that correct?” When directly
asked whether she could vote for a death sentence, she stated,
“I’ve never been in that situation. I don’t feel like I would want
to be in that situation and whether I could do it or not, I’m not
real sure.” She continued by stating “whether or not I could
actually go through with murder - with killing another person or
taking another person’s life, I just don’t know. I’d have trouble
with that.” Boggess also indicated that she had testified as a
defense witness at her nephew’s theft trial. The prosecution
exercised a peremptory challenge to remove Boggess, citing as
reasons for the strike her hesitancy about assessing a death
sentence and the fact that she had served as a defense witness in
her nephew’s trial.
16 Venire member Wayman Kennedy stated on his questionnaire he
believed in the death penalty “only in extreme cases.” On voir
dire he stated that he believed in the death penalty only for mass
murders or cases involving mutilation. Kennedy stated he did not
think a murder in the course of a robbery would necessitate the
death penalty because “why wouldn’t a life sentence be enough.”
Finally, when asked whether he could answer the special issues
“yes” if proved beyond a reasonable doubt, even if he personally
felt the defendant should not be sentenced to death, Kennedy
replied, “I think I could.” The prosecution exercised a peremptory
challenge to remove Kennedy, citing his hesitancy to assess the
death penalty for murder in the course of robbery, the crime
Miller-El was accused of, his view that the death penalty was only
appropriate in extreme cases, and his hesitancy in stating that he
could answer the special issues according to the evidence.
Miller-El claims that three non-black venire members, Sandra
Hearn, Marie Mazza, and Ronald Salsini, expressed views about the
death penalty as ambivalent as those expressed by Bozeman, Fields,
Warren, Rand, Boggess, and Kennedy, but the three non-black venire
members were not struck by the prosecution. The record, especially
the voir dire transcript, does not support this assertion.
Sandra Hearn stated in her jury questionnaire and on voir dire
that she believed in the death penalty and could assess it in
appropriate cases. She did express the belief that someone should
17 not be sentenced to death on a first offense but if the person had
committed any prior offense including robbery or some other
criminal act of violence the death penalty would be appropriate.
The evidence admitted at the punishment phase of Miller-El’s trial
indicated he had committed two previous armed robberies and one
also involved a kidnaping. Hearn also stated she thought the death
penalty should be available for more than just murder but also
severe torture and extreme child abuse. She indicated that she had
respect for law officers, that her father was a retired FBI agent,
and that she had daily contact with police officers in her
employment. Miller-El’s counsel must have believed Hearn was a
pro-prosecution venire member because he attempted to have her
challenged for cause on numerous grounds, and when the trial judge
found Hearn qualified, Miller-El’s counsel requested an additional
peremptory strike in order to remove her. In fact, on direct
appeal Miller-El continued to argue that the trial court erred in
denying his challenge for cause of Hearn, so it seems disingenuous
to argue now that she was similarly situated to the black jurors
who expressed reservations about imposing the death penalty.
Venire member Maria Mazza indicated on her juror questionnaire
that she believed in the death penalty. When asked about her
feelings on the death penalty at voir dire, she stated, “It’s not
an easy one and I feel that it depends upon the case, the testimony
. . . . It’s kind of hard determining somebody’s life, whether
18 they live or die, but I feel that is something that is accepted in
our courts now and it is something that – a decision that I think
I could make one way or the other.” Mazza served on Miller-El’s
jury.
Venire member Ronald Salsini stated he believed in the death
penalty and that he could impose the death penalty. He did
indicate imposing the death penalty would be difficult; however, he
gave a hypothetical crime based on his personal experience as a
bank teller that closely paralleled the crime Miller-El was charged
with and stated that such a criminal act was deserving of the death
penalty. The prosecution did not strike Salsini but Miller-El’s
counsel did.
Comparing the views expressed by Hearn, Mazza, and Salsini to
the views expressed by the challenged black venire members, it is
clear that Hearn, Mazza, and Salsini were not similarly situated
for several reasons. First, ambivalence about the death penalty
was not the sole reason for striking Bozeman, Fields, or Boggess.
Second, Warren, Rand, and Kennedy were struck mainly because of
ambivalence about the death penalty, but they each also expressed
doubts about whether they personally could impose the death penalty
even if the evidence indicated the death penalty was appropriate.
This was not the case with Hearn, Mazza, and Salsini. Third,
Warren refused to give a clear answer as to whether or not he could
impose the death penalty if the evidence warranted it. Fourth,
Kennedy stated the death penalty should be limited to extreme
19 cases. Finally, Rand’s ambivalence was less pronounced and more in
line with the uncertainty expressed by Hearn and Mazza, although
Rand still indicated he was uncertain as to whether he could impose
the death penalty. Under our federal habeas standard of review,
however, Miller-El has not shown by clear and convincing evidence
that the trial court, who observed the voir dire process, erred in
finding the prosecution’s reason for striking Rand or the other
black venire members credible.
Next, Miller-El claims non-black unchallenged venire members
Hearn and Kevin Duke expressed views on rehabilitation similar to
the views expressed by the black challenged venire members.
Hearn’s views have already been discussed. Duke expressed support
for the death penalty and said he could impose it. Duke made
comments concerning rehabilitation in the context of the
availability of parole, not in the context of whether the death
penalty was appropriate. Duke served on Miller-El’s jury.
Again, the record does not support Miller-El’s assertion.
While the prosecution only cited views concerning rehabilitation as
grounds for striking Bozeman and Fields, that was not the sole
basis for exercising those strikes. As previously noted, Bozeman’s
and Fields’ views on rehabilitation were much stronger than Hearn’s
and Duke’s. Hearn and Duke were not similarly situated to any
challenged black venire members.
Finally, Miller-El asserts that non-black venire members Noad
20 Vickery, Cheryl Davis, Chatta Nix, and Joan Weiner were similarly
situated to challenged black venire members who had family members
with a criminal background. When Vickery was fifteen his sister
had been arrested and served time in California. Vickery was a
strong state juror and after unsuccessfully attempting to have him
struck for cause, Miller-El used one of his preliminary strikes to
remove Vickery. Davis’ husband had been convicted of theft ten
years earlier. Davis was a strong state juror and Miller-El
attempted to have her struck for cause but was unsuccessful.
Therefore, Miller-El used one of his preliminary strikes to remove
her. Nix’s brother entered a guilty plea in a high profile white-
collar crime case. Nix, who served as an office manager for her
brother’s construction company, had been named in several civil
suits relating to the white-collar crime issues. Nix was a strong
prosecution juror and Miller used one of his preliminary strikes to
remove her from the panel. Weiner’s ten-year-old son had once been
arrested for shoplifting. Weiner served on Miller-El’s jury.
Again, the record does not support Miller-El’s Batson claim.
The prosecution only cited a family member with criminal history as
grounds for striking Boggess and Fields. Furthermore, that was not
the sole basis for striking either Boggess or Fields. In summary,
Miller-El has failed to identify any unchallenged non-black venire
member similarly situated to the six struck black venire members on
whom he is basing his Batson claim. Therefore, he has failed to
21 demonstrate by clear and convincing evidence that the state court
erred in finding the prosecution’s reasons for exercising its
preliminary challenges credible.
Fourth, Miller-El also argues that the prosecution posed
different questions concerning the death penalty and the minimum
allowable punishment to the venire members depending on the race of
the venire member. The record, however, reveals that the disparate
questioning of venire members depended on the member’s views on
capital punishment and not race. The prosecution used questioning
to either ferret out a venire member’s views on the death penalty
or to establish a basis to disqualify venire members who had
unfavorable views but were not subject to disqualification on those
grounds.
One hundred and eight venire members survived the initial
round of hardship excuses. The court excused three members for
cause prior to voir dire and the parties agreed to remove thirty-
nine others, including five blacks. Thus, a total of sixty-six
venire members were subject to full voir dire, including fifty-one
non-blacks and fifteen blacks.
The prosecution questioned all venire members concerning their
views of the death penalty. A majority of the venire members were
informed the state was seeking the death penalty and that
affirmative answers to three questions submitted to the jury at the
punishment phase would result in Miller-El being sentenced to
22 death, and then asked about their views concerning the death
penalty. Prosecutors did utilize a “graphic script” to describe an
execution in detail to some venire members. Both black and non-
black venire members who had expressed reservations never received
the script. However, all black venire members given the graphic
script had expressed some level of reservations about the death
penalty in their juror questionnaires including Boggess, Kennedy,
Bailey, Linda Baker, Troy Woods,4 Janice Mackey, Anna Keaton, and
Jeanette Butler.5 Some of the non-black venire members questioned
with the graphic script expressed reservations including Dominick
Desinise and Clara Evans. Non-black venire member Vivian Sztybel
did not express reservations about the death penalty yet still
received the graphic script. Sztybel was ultimately seated on
Miller-El’s jury.
Miller-El contends that there were ten black venire members
who expressed reservations and seven of these venire members, who
were ultimately peremptory challenged by the prosecution, got the
script, while there were ten non-black venire members who expressed
4 Woods’ questionnaire did not clearly indicate his views on the death penalty and thus he received the graphic script, but on voir dire he indicated that he fully supported the death penalty, the state believed him to be an excellent juror and he was in fact seated on Miller-El’s jury. 5 Jeanette Butler’s juror questionnaire is not contained in the record, however, at voir dire she stated that she was unwilling to impose the death penalty. Butler was ultimately removed for cause.
23 reservations but only two got the script. Miller-El argues this
disparity proves purposeful discrimination and therefore the trial
court erred. A review of precisely what the prosecution did in
terms of voir dire questioning indicates the trial court, who
observed the voir dire process, did not err in finding there was no
purposeful discrimination.
The jury questionnaire asked two questions directly relevant
to the death penalty. Question 56 asked, “Do you believe in the
death penalty?” Venire members could circle “yes” or “no,” and
then they were asked to “[p]lease explain your answer.” Question
58 allowed venire members to circle “yes” or “no” in answering the
following question: “Do you have any moral, religious, or personal
beliefs that would prevent you from returning a verdict which would
ultimately result in the execution of another human being?”
Presumably, the eight non-blacks who did not receive the
graphic script, but Miller-El thinks should have, answered “no” to
question 56 and answered to “yes” to question 58. Questioning on
voir dire also indicates there was no uncertainty as to the views
of these eight non-black venire members. They were so opposed to
the death penalty there was no need to give them a detailed
description in order to find out their thoughts; in fact, a
detailed description may have simply antagonized them and turned
them off to the prosecutors. In fact, of these eight, five were
removed for cause because of their views on the death penalty,
24 including John Nelson, Linda Berk, Gene Hinson, Sheila White, and
Joyce Willard while one, Leta Girard, was removed by agreement of
the parties. The two others also had strong views, making use of
the graphic script unnecessary. Margaret Gibson did not believe in
the death penalty and the state exercised a peremptory challenge to
remove her. James Holtz believed the death penalty was appropriate
only if a police officer or fireman was murdered and the state
exercised a peremptory challenge to remove him.
The prosecution treated the black venire members no
differently. The blacks who did not receive the graphic
formulation (whose questionnaires are contained in the record) all
answered “yes” to question 56, stating they believed in the death
penalty, and “no” to question 58, indicating that their beliefs
would not prevent them from imposing a death sentence. This
included Bozeman, Fields, Warren, and Rand. The black venire
members who were given the graphic formulation, by contrast, gave
ambiguous answers on their juror questionnaires expressing a
combination of uncertainty and philosophical opposition to the
death penalty. Those venire members included Boggess, Kennedy,
Baker, Woods, Mackey, Bailey, and Keaton.
In summary, sixteen venire members for whom questionnaire
information is available, clearly indicated on the questionnaires
their feelings on the death penalty, and fifteen of them did not
receive the graphic script. The one who did receive the script was
non-black venire member Sztybel. Eight venire members gave unclear
25 answers and those eight venire members received the graphic script.
The answers given, not race, accurately indicated whether a venire
member got the graphic script, and this is confirmation of the
prosecution’s race-neutral rationale.
The prosecution also did not question venire members
differently concerning their willingness to impose the minimum
punishment for the lesser-included offense of murder. Different
questioning on the minimum sentence issue was used as an effort to
get venire members the prosecution felt to be ambivalent about the
death penalty dismissed for cause. In making the decision whether
to employ what Miller-El argues is a “manipulative” minimum
punishment script, prosecutors could rely on both the
questionnaires and substantial voir dire testimony, as the minimum
punishment questioning occurred much later in voir dire than the
graphic death penalty questioning.
Seven black venire members were given the allegedly
“manipulative” minimum punishment script, all of whom were opposed
to the death penalty in varying degrees. These individuals
included Rand, Kennedy, Bozeman, Warren, Baker, Boggess, and
Fields.
According to Miller-El’s argument the prosecution should have
used the “manipulative” punishment script on Woods. But Woods gave
answers indicating he would be an excellent state's juror and
therefore the prosecution had no reason to attempt to have him
26 removed. Had the prosecution sought to eliminate blacks because of
race, the use of the “manipulative” script would have been deployed
against Woods. But it was not, because the prosecution wanted
Woods on the jury.
Likewise, there are no similarly situated non-black venire
members who, under the prosecution’s rationale, would have been
questioned about minimum sentencing. This is true because unless
a venire member indicated he would be a poor state's juror and
would not otherwise be struck for cause or by agreement, there was
no reason to use the “manipulative” script. Thus, of the ten non-
black venire members who expressed opposition to the death penalty,
eight were struck for cause or by agreement, meaning no
“manipulative” script was necessary to get them removed. Those
struck included Desinise, Evans, Nelson, Berk, Hinson, White,
Willard, and Girard. The other two non-black venire members Gibson
and Holtz were both given the “manipulative” script and
peremptorily struck.
In summary, none of the four areas of evidence Miller-El based
his appeal on indicate, either collectively or separately, by clear
and convincing evidence that the state court erred. Therefore, the
district court correctly denied Miller-El habeas relief.
CONCLUSION
Having carefully reviewed the record in this case, the
parties’ respective briefing and arguments, and for the reasons set
27 forth above, we affirm the decision of the district court in its
denial of habeas relief to Miller-El because he has failed to show
by clear and convincing evidence that the state court erred in
finding no purposeful discrimination.
AFFIRMED.
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