Moody v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 17, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 02-21245

STEPHEN LINDSEY MOODY,
Petitioner-Appellee,

versus

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

Respondent-Appellant.

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

Before JONES, Chief Judge, and STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The Director of the Texas Department of Criminal Justice, Nathaniel Quarterman (“the

State”), appeals from the district court’s provisional grant of habeas relief in favor of Stephen Lindsey

Moody (“Moody”). Moody filed the underlying petition for habeas relief asserting ineffective

assistance of counsel and violation of his equal protection rights pursuant to Batson v. Kentucky, 476

U.S. 79 (1986). The district court denied relief on Moody’s ineffective assistance of counsel claims

and denied his request for a COA; however, the court granted Moody’s request for habeas relief
based on his Batson claim. The district court held that the Texas trial court improperly denied

Moody’s request for a Batson challenge to contest the State’s use of peremptory strikes during jury

voir dire. The district court reasoned that the Texas trial court failed to properly apply the Supreme

Court’s holding in Powers v. Ohio, 499 U.S. 400 (1992). Because we conclude that the district court

failed to give proper deference to the Texas Court of Criminal Appeals’ findings of fact pursuant to

28 U.S.C. § 2254, the order granting Moody’s petition for habeas corpus on his equal protection

claim is VACATED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings in the District Court

Because our review of this appeal pertains solely to the issue of whether the Texas trial court

and the Texas Court of Criminal Appeals committed reversible error in failing to allow Moody’s

Batson challenge, we limit our recitation of the facts and proceedings to those germane to the

resolution of that issue.

In 1993, Moody was indicted on a charge of capital murder for the death of Joseph Franz

Hall. The death occurred during the commission of a botched armed robbery in 1991. A jury

subsequently found Moody guilty of the offense in 1993. After answering Texas’s special issues in

the affirmative during a separate punishment phase of the trial, the jury sentenced Moody to death

by lethal injection.

During voir dire, the State used four of its thirteen peremptory challenges to strike four out

of eight (50%) of the African-Americans on the venire. Moody objected to one of those strikes when

the State used a peremptory strike to exclude Jerome Hightower. At the close of the voir dire, Moody

requested a Batson hearing to challenge the propriety of the State’s exclusion of Hightower. The trial

2
judge denied Moody’s request, explaining that because Moody was white he had no standing to raise

a Batson equal protection claim when the excluded venireperson was of a different race. The State

agreed with the state trial court’s reasoning, but nevertheless volunteered a race-neutral explanation

for its striking of Hightower; mainly, that Hightower had two brothers-in-law in prison. The State

argued that Hightower’s family circumstances would have adversely affected his beliefs concerning

whether a defendant could be rehabilitated by a long prison sentence. Disregarding Moody’s request

for a Batson hearing, the trial court dismissed Hightower without conducting any step of the three-

part Batson analysis, solely on the basis that Moody had no standing to challenge the striking of a

black juror.

On direct appeal to the Texas Court of Criminal Appeals, Moody raised seven claims of error,

including the equal protection claim at issue here. Moody argued that the state trial court failed to

conduct a Batson hearing as he requested in violation of the Supreme Court’s decision in Powers v.

Ohio, which has long since resolved the issue of whether a defendant could raise a Batson claim to

contest the State’s use of a peremptory strike when a venireperson is of a different race from the

challenging defendant. In 1996, the Texas Court of Criminal Appeals affirmed Moody’s conviction

and sentence, stating that although the state trial court improperly failed to conduct a proper Batson

hearing, the prosecutor’s race-neutral proffer was sufficient for a lawful exclusion of Hightower and

that the prosecutor did not strike Hightower because of his race. Moody v. State, No. 71, 687 (Tex.

Crim. App. Jan. 17, 1996) (unpublished).

In 1997, Moody filed an application for a state writ of habeas corpus in the Texas trial court.

Moody did not assert his Batson claim in his state habeas petition. In 1999, the state trial court denied

Moody’s request for habeas relief and entered findings of fact and conclusions of law in support of

3
its ruling. The Texas Court of Criminal Appeals denied relief holding that the trial court’s findings

of fact and conclusions of law were supported by the record. Ex parte Moody, No. 71,687 (Tex.

Crim. App. Nov. 3, 1999) (unpublished).

Moody subsequently petitioned for habeas relief in federal court. Moody raised the same

claims he raised on direct appeal–two ineffective assistance of trial counsel claims and the equal

protection claim at issue here. The State filed a motion for summary judgment, and Moody filed a

cross motion for summary judgment. The district court granted summary judgment to the State on

Moody’s ineffective assistance of counsel claim and denied Moody’s request for a COA;1 however,

it ordered additional briefing on the equal protection issue, including evidence and arguments as to

the proper remedy that should be ordered to rectify the error, i.e., whether it should issue an order

of remand to conduct a proper Batson hearing or an order of remand for a new trial.

In a renewed motion for summary judgment, the State argued that the state trial court’s

decision denying Moody’s request for a Batson hearing should be affirmed because (1) the erroneous

ruling did not prevent Moody from fully developing his Batson claim in the state trial court; (2)

Moody did not establish a prima facie case of discrimination; and (3) Moody did not meet his burden

of establishing discriminatory intent. In response to the State’s arguments the district court concluded

that:

[w]ell after the Supreme Court had ruled on the issue [of the irrelevance of a
prospective juror’s race when a defendant raises a Batson claim,] the trial court
committed the error denounced by Powers. The trial court abdicated its duty to make
an inquiry into alleged racial discrimination by failing to recognize Petitioner’s

1
Following the district court’s denial of relief on his ineffective assistance claim, Moody
sought a COA before this court solely on that issue. We denied Moody’s application as to each
of the arguments in support of that claim and dismissed his petition as to that claim. See Moody
v. Dretke, 2003 WL 22296947 (5th Cir. Oct. 2003) (unpublished).

4
 standing to contest the issue. [The State] now argues that, the trial court’s erroneous
ruling notwithstanding, Petitioner should have proceeded to a Batson inquiry by
attempting to prove intentional discrimination. [The State] trivializes the practical
effect of the trial court’s ruling that Petitioner lacked standing to raise a Batson issue.
As a practical matter, any attempt to analyze the merits of a Batson claim in that
forum would have been pointless; the trial court had already erroneously prevented
Petitioner from developing the issue. Any attempt to make an extensive record or
persist in his claim would have been a waste of judicial resources.

As part of the Batson analysis, a “trial court . . . will have the duty to determine if the
defendant has established purposeful discrimination.” Batson, 476 U.S. at 98. In
ignoring its obligation through an inaccurate standing ruling, the trial court disabled
Petitioner’s efforts to comply with his burden. [The State] now asks this Court, on the
basis of a cold record alone, to consider the Batson framework and the petition.
[However,] [t]he trial court prevented Petitioner from making a case under Batson;
[furthermore,] the record is silent as to the prosecutor’s true intent, demeanor, or
credibility. [Therefore,] [t]he Court of Criminal Appeals’ failure to apply fully Powers
to this case was both contrary to and an unreasonable application of Supreme Court
precedent.

Moody v. Dretke, H-00-CV-1450, at 2 (S.D. Tex. Sep. 30, 2002) (supplemental memorandum

opinion and order). Based on these findings, the district court provisionally granted habeas relief on

the equal protection claim.

In the same supplemental memorandum opinion and order, the district court addressed the

issue of the correct remedy needed to rectify the state trial court’s violation of Moody’s equal

protection rights. The court stated:

In its earlier order, this Court instructed the parties to address what relief is available
in this case. [The State] only argues that a federal evidentiary hearing is unavailable.
Petitioner contends that this Court should order a new trial. In support of his
argument, Petitioner submits an affidavit by the trial prosecutor. . . . There, the
prosecutor states that any hearing would be unproductive as he has no recollection
of his motive in peremptorily striking [Mr. Hightower] eight years ago. As it appears
that a hearing at this late date would not be feasible, the State of Texas must retry
Petitioner.

5
Id. at 3. Faced with the futility of ordering a remand to reconstruct the Batson hearing, the district

court ordered the State to either retry Moody within 180 days from its ruling, or release him from

custody. In December of 2002, that order was stayed by the district court pending the outcome of

this appeal.

The State now urges us to reverse the district court’s final judgment provisionally granting

Moody’s petition for habeas corpus. The State’s sole basis for reversal is that Moody failed to rebut

the race-neutral explanation voluntarily proffered by the prosecutor. Moody, on the other hand,

vigorously contends that the decision of the district court should be affirmed.

II. DISCUSSION

A. Standard of Review

In reviewing a grant of the writ of habeas corpus, this court reviews a district court’s findings

of fact for clear error and reviews de novo the district court’s disposition of pure issues of law and

mixed issues of law and fact. Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001). Because

Moody’s petition was filed after the effective date of the enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, our review is governed by a more

heightened standard of review. Accordingly, a federal writ of habeas corpus may not issue to a

petitioner seeking relief under AEDPA, unless the state adjudication of his claim,

(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Ogan v. Cockrell, 297 F.3d 349, 355 (5th Cir. 2002). Moreover, a writ

of habeas corpus pursuant to § 2254 should not issue solely on the basis that the state court

6
committed error. Rather, the writ should be granted only if the state court “arrive[d] at a conclusion

opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d]

a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000).

Absent a direct conflict with Supreme Court authority, habeas relief is available only if the

state court decision is factually or legally unreasonable in light of the evidence present in the state

court proceeding. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Notwithstanding, an

unreasonable application of federal law is not the equivalent of an incorrect application of federal law.

Williams v. Taylor, 529 U.S. 362, 412 (2000). Indeed, a federal writ may not issue merely because

the state court incorrectly applied federal law; the application must also be unreasonable. Id. at 411.

An unreasonable application occurs “if the state court identifies the correct governing legal principles

from [the Supreme Court’s] decision, but unreasonably applies that principle to the facts of the

[petitioner] prisoner’s case.” Id.

In the instant case, our focus is on the third step of the Batson inquiry, the court’s

determination as to whether the defendant carried his burden of proving purposeful discrimination.

This determination is a question of fact. United States v. Kelley, 140 F.3d 596, 606 (5th Cir. 1998)

(“The district court’s determination that a party has used peremptory strikes in a discriminatory

manner is a finding of fact and thus cannot be overturned by this Court absent clear error.”).

Accordingly, Moody is only entitled to relief if the state court’s determination constituted “an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

B. Equal Protection Under Batson

7
 The Supreme Court has long since made clear that the Equal Protection Clause of the

Fourteenth Amendment prohibits prosecutors from striking prospective jurors solely on the basis of

race. Batson v. Kentucky, 476 U.S. 79, 89 (1986); accord United States v. Webster, 162 F.3d 308,

349 (5th Cir. 1998) (recognizing that the Fifth Amendment prohibits use of peremptory strike of

prospective jurors solely on the basis of race). In Batson, the Court delineated a three-step analysis

for evaluation of a defendant’s claim that a prosecutor used a peremptory strike in a racially

discriminatory manner: (1) a defendant must make a prima facie showing that the prosecutor

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 carried his burden of proving purposeful discrimination. See

Hernandez v. New York, 500 U.S. 352, 358-59 (citing Batson, 476 U.S. at 96-98). The ultimate

burden of persuasion lies at all times with the defendant. See Purkett v. Elem, 514 U.S. 765, 768

(1995); see also Miller-El v. Dretke, 361 F.3d 849, 853 (5th Cir. 2004), rev’d on other grounds, 545

U.S. 231(2005).

For the second step of the analysis, a prosecutor is not allowed to merely deny that he did not

have a discriminatory motive; he must provide a specific explanation that is clear and reasonable.

Elem, 514 U.S. at 768. Although the prosecutor’s explanation must be clear and reasonable, the

explanation is not required to be persuasive or even plausible. Id. at 767-68; see also United States

v. Huey, 76 F.3d 638, 640-41 n.12 (5th Cir. 1996). The question is the “facial validity” of the

explanation. Elem, 514 U.S. at 768. Therefore, “[u]nless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered [by the prosecutor] will be deemed race neutral.” Id. at

768.

8
 Whether a defendant has carried his burden under Batson’s third step to prove purposeful

discrimination is based on the persuasiveness and credibility of the prosecutor’s justification for his

exercise of the peremptory strike. Id. This step of the analysis is extremely fact intensive. Because of

the importance of demeanor and credibility evidence in making such determinations, this step of the

analysis should lie solely in the province of the trial judge. Id. Indeed, it is at this stage that the

persuasiveness of a prosecutor’s explanation becomes relevant. Accordingly, “implausible or fantastic

justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id.

1. Texas Trial Court

As stated, “[u]nder the AEDPA deference scheme, pure questions of law and mixed questions

of law and fact are reviewed under § 2254(d)(1), and questions of facts are reviewed under §

2254(d)(2).” Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir. 1999). Accordingly, Moody is not

entitled to habeas relief unless the state court’s decision is “based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.Ӥ 2254(d)(2). Further,

a state court’s factual findings are presumed to be correct unless contravened by clear and convincing

evidence. § 2254(e)(1). With this standard of deference in mind, we consider Moody’s equal

protection claim.

From our review of the record, it is patently clear that the state trial court’s ruling was

contrary to clearly established Supreme Court law. The trial court did not even consider Moody’s

request for a Batson hearing because it incorrectly concluded that Moody had no standing to

challenge the prosecution’s exclusion of Hightower. As noted above, the Supreme Court has held that

defendants have standing to raise a prospective juror’s equal protection claim by way of a Batson

9
challenge, even if the prospective juror is of a different race. Powers, 499 U.S. at 415. Because of the

trial court’s erroneous ruling in contravention of Powers, it did not broach the three-step analysis

required to evaluate a defendant’s Batson challenge. Given the Supreme Court’s holding in Powers,

we find that the state trial court’s ruling was an unreasonable application of clearly-established

Supreme Court law. As to AEDPA’s requirement that this court defer to the state trial court’s

findings of fact, this directive is not applicable as to this state trial court because it failed to make any

findings of fact relative to the heart of Moody’s claim.

2. Texas Court of Criminal Appeals

Essentially acknowledging that the state trial court’s decision is not entitled to deference

under AEDPA, the State contends alternatively that the district court should have denied relief based

on the Texas Court of Criminal Appeals’ holding regarding Moody’s Batson claim. It contends that

the Texas Court of Criminal Appeals’ rejection of Moody’s Batson claim was proper because the

prosecutor’s reason for striking Hightower was a valid race-neutral explanation. The State argues that

because of AEDPA’s deferential standard requiring that reviewing federal courts defer to the factual

findings of state courts, the district court committed error when it failed to accede to the Texas

Court of Criminal Appeals’ factual findings that the prosecutor’s race-neutral explanation was

sufficient and that Moody failed to prove discriminatory intent. We agree.

The Supreme Court has held that “the presumption of correctness is equally applicable when

a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata,

455 U.S. 591, 592-93 (1982); see also Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir. 2006) (applying

presumption of correctness to appellate court’s findings of fact where petition was filed after the

effective date of AEDPA); Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003) (same); Bugh v. Mitchell,

10
329 F.3d 496, 501 (6th Cir. 2003) (same). In the instant case, we have already determined that the

state trial court did not conduct the three-step Batson test. Nevertheless, the Texas Court of Criminal

Appeals on direct appeal did so in its stead. First, the Texas Court of Criminal Appeals presumed that

Moody made the requisite showing necessary to establish a prima facie case to challenge the

prosecutor’s peremptory strike of Hightower. The Texas Court of Criminal Appeals next concluded

that the State had volunteered a valid race-neutral explanation sufficient to meet its burden under step

two of the analysis. Based upon its review of the record, the court concluded that Moody failed to

prove that the prosecutor was motivated by discriminatory intent and thus failed to satisfy his burden

under step three of the Batson analysis.

In considering Moody’s petition for federal habeas relief, instead of determining whether the

record supported the Texas Court of Criminal Appeals’ finding that the prosecutor was not motivated

by discriminatory intent, the district court essentially concluded that the Texas Court of Criminal

Appeals erred by not remanding the case to the state trial court to conduct a proper Batson hearing.

Recognizing the futility of ordering a remand to reconstruct the Batson hearing, the district court

ordered a new trial.

Given the Supreme Court’s directive in Batson that the third step of the analysis should lie

solely in the province of trial judges, 476 U.S. at 98, it is easy to understand the district court’s

analysis of this claim. The district court found that the Texas state courts erred, first by failing to

recognize that Moody had standing under Powers to challenge the prosecutor’s use of peremptory

strikes, and second, by failing on direct appeal to remand the case back to the state trial court to

11
conduct a proper Batson hearing.2 Nevertheless, the district court’s task was not to assess whether

it agreed with the state court’s ruling, but to determine whether the state court’s finding was entitled

to the presumption of correctness and to decide whether that determination was unreasonable in light

of the evidence presented. Cf. Rice v. Collins, 126 S. Ct. 969, 973 (2006) (“Though it recited the

proper standard of review, the panel majority improperly substituted its evaluation of the record for

that of the state trial court.”); Brown v. Payton, 544 U.S. 133, 143 (2005) (“Even on the assumption

that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision

that AEDPA shields on habeas review.”).

In Elem, 514 U.S. 765, the Supreme Court considered the Eighth Circuit’s reversal of a

district court’s denial of habeas relief in similar circumstances. During jury selection for Jimmy Elem’s

(“Elem”) trial, a defendant charged with second degree robbery for snatching a young woman’s

purse, Elem objected to the prosecutor’s use of peremptory strikes to exclude two prospective black

jurors, prospective jurors 22 and 24. Id. at 766. The prosecutor, without request from the state trial

judge, offered explanations for its strikes of the two prospective jurors. Id. With regard to prospective

juror 22, the prosecutor explained that he struck the juror because he had “long, unkempt hair, a

mustache, and a beard.” Id. at 769. Prospective juror 24 was struck because the juror had previously

been robbed with a sawed-off shotgun. Id. at 766. The prosecution’s rationale was that because juror

2
Indeed we agree that the better practice would have been for the Texas Court of Criminal
Appeals to remand the case to the trial court to conduct a Batson hearing. In Wardlow v. State, 6
S.W. 3d 786 (Tex. App. 1999), the trial court overruled the defendant’s Batson violation,
acknowledging that it was irrelevant but noting that the defendant was white and concluding
based on the trial judge’s experience with the prosecutors that they were not striking the jurors
based on race. The appellate court noted the Supreme Court’s decision in Powers and reversed
and remanded the case to the trial court, holding that the prosecution’s peremptory strike of the
only remaining black venire-member established a prima facie case of a Batson violation. Id. at
787-88.

12
number 24 was robbed with an actual gun, he would not be able to find Elem guilty of robbery

because Elem did not use a gun to commit his offense. Id. “The state trial court, without explanation,

overruled [Elem’s Batson] objection and empaneled the jury.” Id. In other words, the state trial judge,

concluding that Elem did not establish a prima facie case of race discrimination, failed to engage any

of the three-step Batson analysis. See id. at 770 (Stevens, J., dissenting). On direct appeal, the state

appeals court affirmed the state trial court’s judgment, finding that the “‘state’s explanation

constituted a legitimate ‘hunch’ and that ‘[t]he circumstances fail[ed] to raise the necessary inference

of racial discrimination.’” Id. at 766 (majority opinion) (quoting State v. Elem, 747 S.W.2d 772, 775

(Mo. App. 1988)).

On federal habeas review, the district court, applying the deferential standard required under

§ 2254(d), affirmed the state appeals court, holding that based on the record “the Missouri courts’

determination that there had been no purposeful discrimination was a factual finding entitled to a

presumption of correctness.” Id. at 767. On review to the Eighth Circuit Court of Appeals, the panel

reversed the district court’s decision and remanded the case with instructions that the district court

grant Elem’s petition for writ of habeas corpus. Id. The Eighth Circuit essentially concluded that the

prosecution’s explanation for striking prospective juror 22 was pretextual. Id.

The Supreme Court granted certiorari and reversed the Eighth Circuit, concluding that the

panel had conflated steps two and three of the Batson analysis. Id. 768. The Court stated that the

panel erred by “requiring that the justification tendered at the second step be not just neutral but also

at least minimally persuasive.” Id. The Court admonished the panel stating, “[i]t is not until the third

step that the persuasiveness of the justification becomes relevant–the step in which the trial court

determines whether the opponent of the strike has carried his burden of proving purposeful

13
discrimination.” Id. (citing Batson, 476 U.S. at 98). The Court stated that the prosecutor’s

explanation for striking prospective juror 22, i.e., that “he had long, unkempt hair, a mustache, and

a beard,” was a sufficient race-neutral basis to satisfy the prosecution’s burden under step-two of the

analysis. Id. at 669. The Court then concluded that from the prosecutor’s race-neutral explanation,

“the inquiry properly proceeded to step three, where the state court found that the prosecutor was

not motivated by discriminatory intent.” Id.

On remand, the Eighth Circuit followed the Supreme Court’s instructions “to reevaluate,

under the proper § 2254(d) standard, [the Missouri Court of Appeal’s] ‘finding of no racial motive.’”

Elem v. Purkett, 64 F.3d 1195, 1200 (8th Cir. 1995) (quoting Purkett v. Elem, 514 U.S. at 769). The

court’s review of the record revealed the following:

When petitioner’s counsel objected to the prosecutor’s use of peremptory strikes to
eliminate jurors 22 and 24, the trial judge noted, and then the prosecutor argued, that
there was no evidence that jurors 22 and 24 were in fact African American. The
prosecutor nonetheless stated that he struck jurors 22 and 24 because of their
mustaches and beards, which “look[ed] suspicious,” and because of their hair, which
the prosecutor “[didn’t] like.” Responding to the trial court’s comment and the
prosecutor’s responsive argument, the defense attorneyrequested that the court either
allow him to ask the two jurors if they were black or take judicial notice of the fact
that they were black, in order to establish a record of the jurors’ race. The trial court
responded, “I am not going to do that, no, sir.”

Elem, 64 F.3d at 1199 (alterations in original) (citations omitted). The Eighth Circuit explained that

“after the prosecution offered its reasons for striking jurors 22 and 24, petitioner made no attempt

to persuade the trial court that the prosecutor’s reasons for striking juror 22 were merely a pretext

for purposeful discrimination.” Id. at 1201. Indeed, defense counsel’s response to the trial court’s

refusal of his request was: “Okay. Nothing further.” Id. at 1200 n.7. Accordingly, the Eighth Circuit

held that

14
 because the prosecutor proffered reasons for striking juror 22 that were facially
race-neutral, and petitioner made no attempt to persuade the state trial court that the
prosecutor’s reasons for striking juror 22 were merely a pretext for purposeful
discrimination, the trial court’s finding of no racial motive is fairly supported by the
record, and petitioner is not entitled to habeas relief on his Batson claim.

Id. at 1201.

In the instant case, when the trial court erroneously stated that Moody could not assert a

Batson claim, defense counsel responded “Thank you. Note our exception.”3 The judge then

indicated that Mr. Hightower was free to go; however, the prosecutor immediately offered his race-

neutral reason for dismissing Hightower. The judge once again stated that Mr. Hightower was free

to leave. Defense counsel did not respond. We understand why defense counsel may have been

reluctant to pursue the issue before the trial court; nevertheless, we conclude that Moody’s failure

3
The colloquy transpired as follows:

MR. GUERINOT: We would like the record to reflect that this juror is a black male, and
we would ask the State to specifically state in the record, after your voir dire and mine, the
racially impartial reason that they are exercising a strike.

THE COURT: That will be denied, being the fact that the Defendant in this case is white.
He is not part of any racial minority.

MR. GUERINOT: Thank you. Note our exception.

THE COURT: Give the gentleman an excuse and tell him he is free to go.

MR. MORRIS: In addition to that, if it be needed–probably doesn’t need to–our point
would be, of course, the records of the two brother-in-laws [sic], one robber and one dope
pusher, and he says they can be rehabilitated, even though they have been up twice before.

THE COURT: Tell him he’s free to go and thank him for being with us.

15
to argue on appeal that the prosecution’s reasons were pretextual is fatal to any argument that he was

denied an opportunity to carry his burden.

On appeal to the Texas Court of Criminal Appeals, defense counsel did not even attempt to

argue that the prosecution’s reasons for striking Hightower were pretextual. Instead, counsel argued

only that “[t]he State failed to articulate a racially neutral reason, or any other reason, for exercising

a peremptory strike on Mr. Hightower.” But, as we noted above, the prosecutor’s stated reason for

striking Hightower was that he had two brothers-in-law that had been imprisoned and who he

believed could be rehabilitated. It is understandable that defense counsel did not attempt to respond

to the prosecutor’s stated reasons following the trial judge’s ruling that Moody lacked standing;

nevertheless, we hold that Moody’s failure to do so before the Texas Court of Criminal Appeals

precludes a finding that the Texas Court of Criminal Appeals’ determination was unreasonable.

Our conclusion is bolstered by defense counsel’s objection to the prosecution’s strike of a

second juror on Batson grounds. In an effort to preempt a second erroneous ruling that Batson did

not apply, defense counsel established a prima facie case that the prosecutor exercised a peremptory

strike on the basis of race. The prosecutor then articulated several reasons for the strike including

the juror’s memory loss and her statement that she could not follow the evidence. Defense counsel

responded by arguing that the prosecutor’s explanation was not supported by the witness’s testimony.

The trial judge then made a finding that the juror was not struck because of her race. In his brief to

the Texas Court of Criminal Appeals, Moody contended that there was nothing in the record to

support the prosecutor’s stated reasons for striking Lathon; however, he did not point to any

evidence, or lack thereof, with regard to the prosecutor’s stated reasons for striking Hightower. The

Texas Court of Criminal Appeals found that the prosecutor’s stated reasons for striking Hightower

16
are supported by the record and that Hightower was struck for those reasons and not because of his

race. Moody has not rebutted these findings by clear and convincing evidence. See 28 U.S.C. §

2254(e)(1).

The district court’s opinion and Moody’s argument that the third stage of the Batson test

necessarily requires a trial judge, not a reviewing appellate court, to scrutinize the demeanor, and

thereby, the credibility of a prosecutor’s offering are quite forceful and are indeed supported by the

Supreme Court’s own admonition. See Batson, 476 U.S. at 98; Hernandez v. New York, 500 U.S.

352, 365 (1991) (plurality opinion) (“In the typical peremptory challenge inquiry, the decisive

question will be whether counsel’s race-neutral explanation for a peremptory challenge should be

believed. There will seldom be much evidence bearing on that issue, and the best evidence often will

be the demeanor of the attorney who exercises the challenge.”). Further, we are mindful that the

Supreme Court has observed that “[t]here might be instances, however, in which the presumption [of

correctness] would not apply to appellate factfinding . . . . For example, the question . . . . might in

a given case turn on credibility determinations that could not be accurately made by an appellate court

on the basis of a paper record.” Cabana v. Bullock, 474 U.S. 376, 388 n.5 (1986), overruled in part

on other grounds, Pope v. Illinois, 481 U.S. 497 (1987); see also Buxton v. Lynaugh, 879 F.2d 140,

146 (5th Cir. 1989). But Moody did not argue that the prosecutor’s demeanor demonstrated that his

reasons for striking Mr. Hightower were pretextual; indeed, Moody has made no argument that the

prosecutor’s reasons were pretextual. Consequently, we cannot conclude that the state court’s

determination that the prosecutor did not strike Hightower because of his race was unreasonable in

light of this record.

17
 Accordingly, although we might disagree with the Texas Court of Criminal Appeals’ failure

to remand the case to the trial court, the Texas Court of Criminal Appeals’ finding that the

prosecutor’s striking of prospective juror Hightower was not a violation of Moody’s equal protection

rights was not unreasonable and is therefore not grounds for habeas relief. The district court’s

determination to the contrary is VACATED.

III. CONCLUSION

For the foregoing reasons, the order of the district court granting Moody’s petition for habeas

relief is VACATED. This case is REMANDED for further proceedings consistent with this opinion.

VACATED AND REMANDED.

18
DENNIS, Circuit Judge, dissenting:

When Moody’s state trial counsel made a Batson objection to

the state prosecutor’s peremptory challenge of a black juror, the

state trial court cut him off at the knees, ruling sua sponte that

Moody did not have standing to object because Moody is white.

Undisputedly, the state trial court’s no-standing decision was

contrary to the rule of federal law clearly established by the

Supreme Court in Powers v. Ohio. 499 U.S. 400 (1991) (holding that

under the Equal Protection Clause, a criminal defendant may object

to race-based exclusions of jurors effected through peremptory

challenges whether or not the defendant and the excluded jurors

share the same race).

The state trial court’s ruling foreclosed any opportunity for:

(1) Moody to make a prima facie showing of discrimination; (2) the

State to make a valid proffer of a race-neutral basis for the

challenge; or (3) Moody to show that the State’s proffer would have

been pretextual and that the challenge was race-based. Thus, the

state trial court’s immediate, sua sponte ruling also precluded the

making of a record from which an appellate court could reasonably

make a factual finding of racial discrimination vel non or a

determination that the legal errors and omissions were harmless.

19
 All this is evident from the unbroken train of events that

rapidly followed Moody’s objection to the peremptory challenge: (1)

the trial court immediately ruled sua sponte that Moody did not

have standing to object; (2) defense counsel noted his exception to

the court’s ruling; (3) the trial court excused the black juror

from further jury service; (4) the prosecutor agreed with and

accepted the benefit of the trial court’s no-standing ruling, but

interjected a reference to his reasons for the strike, stating that

“[i]n addition to that, if it be needed - probably doesn’t need to

- . . . the records of the two brother-in-laws [of the juror], one

robber and one dope pusher, and he says they can be rehabilitated,

even though they have been up twice before . . . ;” and (5) the

trial court signified his insistence on his no-standing ruling and

sustained the prosecutor’s peremptory challenge by directing that

the black juror be told that he was “free to go” and thereby

released from further jury duty.

The district court correctly determined that a writ of habeas

corpus must be granted because (1) the state trial court

unquestionably violated the clear, firm rule of Powers by holding

that Moody lacked standing to object to the race-based exclusion of

a black juror through peremptory challenge because Moody “is white

. . . [and] not part of any racial minority”;” (2) the state trial

court compounded its Powers error by also violating the clearly

established rules of Batson v. Kentucky, 476 U.S. 79 (1986), when

20
it failed to conduct any of the three steps required by Batson

after Moody objected that the state prosecutor had used a race-

based peremptory challenge to exclude a black juror; (3) the Texas

Court of Criminal Appeals (“CCA”), despite its recognition that the

state trial court’s decision was contrary to Powers, acted contrary

to or unreasonably applied Batson by purporting to find as a fact

that the prosecution’s peremptory challenge had not been based on

racial discrimination, although the record before it was completely

devoid of any semblance of the state trial court’s compliance with

any of the three clearly established steps and procedures required

by Batson.

The majority scouts for a way to say that the CCA’s decision,

although flatly contrary to Batson, was not unreasonable. But each

theory it advances is itself contrary to or an unreasonable

application of those clearly established Supreme Court holdings.

First, the majority vaguely suggests that the collection of

decisions related to Purkett v. Elem is a reasonable basis to think

that a state appellate court might decide a Batson challenge

originally and ab initio despite the trial court’s failure to

undertake any of the three steps. See Purkett v. Elem, 514 U.S. 765

(1995); Elem v. Purkett, 64 F.3d 1195 (8th Cir. 1995) ; State v.

Elem, 747 S.W.2d 772 (Mo. Ct. App. 1988). But the Elem gestalt is

diametrically different and inapposite at every juncture: there,

after the trial court accepted the defendant’s prima facie showing

21
and the prosecution’s making of a valid race-neutral proffer, the

defendant failed to prove that the proffered reason was a pretext

for racial discrimination. Elem affirms and follows Batson. Here,

contrary to the Elem decisions, as the majority repeatedly admits,

Moody was not allowed to broach any of the Batson phases; and the

prosecutor’s interjection, coming after he agreed that Moody lacked

standing to complain about the State’s racially based peremptories,

was tacitly but clearly rejected by the trial court as an invalid

and unnecessary proffer. Second, the majority’s notion that in the

state appellate court Moody somehow waived his right to object to

race based peremptories that he was denied the standing to assert

in the trial court is also incorrect. Neither the CCA opinion nor

the State’s briefs there or here even hint at a waiver, as the

majority in effect holds, in the sense of an express or implicit

failure to avail oneself of a known right or to assert a claim, and

the majority’s opinion presents no reasonable basis for supposing

that Moody somehow declined to assert his Batson claim in the CCA

while at the same time complaining vigorously that he had been

denied standing to assert it below.

In my opinion, Powers and Batson clearly establish that Moody

had standing to object to the peremptory challenge, to make a prima

facie case and to prove racial discrimination on the merits in the

trial court, and Batson unmistakably does not allow a state

appellate court to make the factual determination of racial

22
discrimination in peremptory challenges vel non in the absence of

a record of such a previous finding by the trial court. In Batson,

the Supreme Court applied by analogy from its equal protection

jurisprudence a burden-shifting framework for the analysis of

objections to peremptory strikes as discriminatory. It established

a three-step analysis: first, the defendant must make a prima facie

showing that the peremptory challenge was racially motivated;

second, the prosecutor must then articulate a race-neutral reason

for the strike; and third, the trial court must determine whether

the defendant has established purposeful discrimination. Batson,

476 U.S. at 96-98. Batson noted that at the third step, “[s]ince

the trial judge’s findings in the context under consideration here

largely will turn on evaluation of credibility, a reviewing court

ordinarily should give those findings great deference.” Id. at 98

n.21. Batson involved a virtually identical fact pattern, and the

court remanded to the trial court “[b]ecause the trial court flatly

rejected the objection without requiring the prosecutor to give an

explanation for his action.” Id. at 100.

Batson plainly does not authorize an appellate court to take

evidence or to act as the initial fact-finder regarding whether a

peremptory challenge was racially motivated. Nor does it allow

appellate judges to speculate as to what would have happened in the

absence of the trial court’s Batson error or to hypothesize a

record for review in a case in which the trial court failed to make

23
findings as to whether the defendant made out a prima facie case of

racial discrimination, whether the prosecution had proffered a race

neutral explanation, and whether the defendant prevailed on the

ultimate issue of intentional racial discrimination. In the final

analysis, the CCA’s decision in the present case is, at best, a

review of a hypothesized three-step inquiry that was never made by

the state trial court, or, at worst, rank speculation that the

prosecutor’s uninvited, unaccepted, and untraversed faux-proffer

concerning Hightower’s brothers-in-law must have been the true

basis for the prosecutor’s peremptory challenge.

Nothing in AEDPA or the Supreme Court’s jurisprudence

reasonably supports the CCA in making credibility calls on

peremptory challenges against black jurors based on a trial record

devoid of evidence, traverse, contradictory hearing, or judicial

questioning. It was well settled prior to AEDPA that, in habeas

corpus proceedings in federal courts, the factual findings of state

courts were presumed to be correct, but that the presumption was

rebuttable and the findings could be set aside if they were “‘not

fairly supported by the record.’” Purkett, 514 U.S. at 769 (citing

28 U.S.C. § 2254(d)(8); Marshall v. Lonberger, 459 U.S. 422, 432

(1983)). Under this rebuttable presumption rule, it was not

material that the factual findings were made by a state reviewing

court rather than a trial court. See Sumner v. Mata, 455 U.S. 591,

592-93 (1982); Sumner v. Mata, 449 U.S. 539, 546 (1981).

24
 However, the Supreme Court held that although the Sumner cases

established that the presumption applies to facts found by

appellate as well as trial courts, there were instances in which

the presumption would not arise with respect to appellate fact-

finding — for example, in a case which turned on credibility

determinations that could not be accurately made by an appellate

court on the basis of a paper record. See Cabana v. Bullock, 474

U.S. 376, 388 n.5 (1986) (citing Anderson v. Bessemer City, 470 US.

564, 575 (1985); Wainwright v. Witt, 469 U.S. 412, 429 (1985)).

In Childress v. Johnson, 103 F.3d 1221, 1226 n.7 (5th Cir.

1997), this court held that AEDPA retained the traditional

presumption of correctness afforded to state court factual

determinations, id. at 1225 (citing 28 U.S.C. § 2254(e)(1)), but

that the presumption continues to be rebuttable because, post-

AEDPA, “[s]ection 2254(d)(2) authorizes issuance of the writ if the

state court decision ‘was based on an unreasonable determination of

the facts in light of the evidence presented.’” Id. at 1226 n.7.

Consequently, section 2254(d) does not require this court to defer

to the CCA’s finding of fact exonerating the State of racial bias

in striking Hightower, the black juror. That finding lacks support

in the record and was thus an ”unreasonable determination of the

facts in light of the evidence.” Id. Moreover, that unsupported

finding appears to have been designed to improperly shield and

25
excuse the trial court’s clear violation of the constitutional

requirements set forth in Batson and Powers.

The trial court in this case never initiated the Batson

inquiry, and the record does not contain even a first-step

analysis. Rather, the trial court refused to consider the issue on

the ground that Moody lacked standing to make the objection. We

have previously described Batson findings by the trial court as a

“prerequisite for proper appellate review.” United States v.

Romero-Reyna, 889 F.2d 559, 560 (5th Cir. 1989). The Supreme Court

has made the importance of these findings taking place at the trial

court level plain in Hernandez v. New York, 500 U.S. 352, 365

(1991), which held that:

In the typical peremptory challenge inquiry, the decisive
question will be whether counsel’s race-neutral
explanation for a peremptory challenge should be
believed. There will seldom be much evidence bearing on
that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge. As
with the state of mind of a juror, evaluation of the
prosecutor’s state of mind based on demeanor and
credibility lies “peculiarly within a trial judge’s
province.” Wainwright v. Witt, 469 U.S. 412, 428 (1985),
citing Patton v. Yount, 467 U.S. 1025, 1038 (1984).

The trial court’s Powers error here led it to default completely on

its duty under Batson to make a three-step analysis. The CCA here

attempted to conduct the third step of the Batson analysis on its

own, despite the Supreme Court’s admonition in Hernandez that this

role was peculiarly within the trial judge’s province and despite

the trial judge’s failure to make findings as to any of the three

26
steps. It based its findings on a cold, woefully incomplete record

and an uninvited, equivocal, unaccepted and unexamined proffer of

a race-neutral reason by the prosecutor. It had no opportunity to

observe the demeanor of the prosecutor, described by Hernandez as

often the “best evidence” in this situation. The CCA was required

to remand for a three-step analysis as per Batson, and to do

anything else was contrary to or an unreasonable application of

Batson.

Finally, while Moody may not have gone outside of the trial

court record before the CCA to identify a particular aspect of the

prosecutor’s demeanor which suggested racial motivation in this

case, as the majority surmises, this does not detract from the

general rule that an appellate court errs by attempting to make a

credibility determination at the appellate level on a cold or

hollow record.

Subtle and nonverbal cues such as a wink, a glance, or a brief

hesitation are often perceived by a fact-finder only indirectly and

subconsciously. The rule requiring that it be a trial judge who

scrutinizes the demeanor of a witness is in place precisely because

these cues would be difficult, if not impossible, to identify on

appeal. “A transcript cannot reveal tone, speech inflections, mood

and other indicia of a mental state and certainly cannot pick up

subtle but crucial changes in [the prosecutor’s] demeanor.” Bruce

v. Estelle, 536 F.2d 1051, 1062 (5th Cir. 1976). Moreover, such an

27
appellate credibility determination based on a trial court record

devoid of judicial inquiry, contradictory hearing or evidence is

patently devoid of fairness and due process.

Moody plainly preserved this argument by, at the first

available opportunity in his briefs to the federal district court,

arguing that a “[t]rial judge at least might recall the demeanor of

the prosecutor and prospective jurors while reviewing the record.

The CCA absolutely could not.” After citing law to the effect that

only a trial court may make in-person credibility assessments,1

Moody argued that “the TCCA did not, and could not, make an ‘in

person credibility assessment,’ and there was no such assessment in

front of it for review. This means, the TCCA could not make a

reasonable assessment of racial discrimination vel non.”

The majority’s further contention that Moody failed to argue

that the prosecutor’s stated reasons for striking Hightower were

pretextual is also troubling. First, Moody was not required to make

such an argument, considering the trial court’s clear legal errors

in its ruling and proceedings contrary to Powers and Batson.

Second, Moody’s briefs to the district court certainly made this

argument anyway, flatly stating that “[t]he record of individual

voir dire proves, however, that the prosecution[’s] explanation for

its strike was pretextual.” Moody pointed both to statistical

1
See United States v. Montgomery, 210 F.3d 446, 453 (5th
Cir. 2000) (citing United States v. Wallace, 32 F.3d 921, 925
(5th Cir. 1994)).

28
evidence of a disproportionate number of black jurors being struck

from the venire in this case and to several white jurors who Moody

argues stated similar views and yet were not struck by the

prosecutor. While Moody’s briefs before the CCA did not detail the

reasons why Moody believed the strike of Hightower to be

pretextual, this failure certainly does not amount to a waiver, as

implied by the majority. In response to Moody’s briefs identifying

a clear error and requesting remand (which the majority concedes is

the appropriate remedy), the CCA on its own initiative chose to

engage in appellate fact-finding. Moody could hardly have been

expected to foresee and brief this sua sponte action by the court.

Furthermore, we cannot state with certainty that Moody did not

challenge the strike as pretextual because the record on appeal

does not contain a transcript of any oral proceedings before the

Texas Court of Criminal Appeals and contains no indication that an

evidentiary hearing was held prior to the appellate fact-finding.

We have no indication that Moody was ever permitted to offer

evidence that the strike was pretextual, as he requested of the

district court. In fact, it appears that this appellate finding of

fact was made without an evidentiary hearing - which, given the

refusal of the trial court to allow the Batson inquiry to proceed

to even the first step, gave Moody no opportunity to meet his

burden at the unreached third step by introducing evidence

29
challenging the State’s backhanded proffer of a reason for the

strike as pretextual.

The burden of proving any waiver by Moody of his arguments

lies on the State. See, e.g., 31 C.J.S. Estoppel and Waiver § 213

(2006) (“The burden of proving waiver is on the party claiming or

asserting it, or alleging and relying on it, or raising an issue as

to it.”). The State’s brief to the district court describes the

facts as if no evidentiary hearing ever occurred, arguing in a

footnote that the only “hearing” necessary for a state appellate

court to make a finding of fact is to allow the parties opportunity

for written and oral argument. The State’s briefs before us contain

no allegation of waiver and do not give us any indication as to

whether oral argument occurred in the CCA or what was said at any

hearing. We cannot, on the incomplete record before us and on our

own initiative, presume a waiver. Moody’s first opportunity to

challenge the CCA’s sua sponte effort to reach the third step of

the Batson inquiry was before the district court, and it is plain

that he argued there that the state’s proffered reason was

pretextual.

For these reasons, I respectfully dissent from the majority's

reversal of the district court's judgment. Ordinarily, I believe a

remand to re-conduct the Batson analysis is the most appropriate

remedy. However, in this case the hearing took place over a decade

ago, and the prosecutor has submitted an affidavit stating that he

30
does not remember the reasons motivating his strike and could not

now testify to them. On these circumstances, I cannot say that the

district court erred in ordering a new trial. See Barnes v.

Anderson, 202 F.3d 150, 157 (2d Cir. 1999) (ordering a new trial

instead of a hearing on the Batson issues because the passage of

time and an incomplete record made a hearing unlikely to allow a

reliable analysis of the voir dire); Riley v. Taylor, 277 F.3d 261,

293 (3d Cir. 2001) (holding that the passage of time rendered

remand for a Batson hearing inappropriate as a remedy and that

“statistical evidence, which might be the subject of some analysis

at such a hearing, is relevant but not dispositive to our decision”

and could not alone justify a remand over a new trial); Brown v.

Kelly, 973 F.2d 116, 121-22 (2d Cir. 1992) (holding that, by

contrast, an evidentiary hearing was a more appropriate remedy

where the prosecutor testified that he vividly remembered his

reasons for striking the jurors and testified about them in detail,

the defense counsel had contemporaneous notes taken at the voire

dire, and only six years had passed).

For these reasons, I respectfully dissent.

31