[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 21, 2008
THOMAS K. KAHN
No. 07-14902
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-02075-CV-LSC-S
MARCUS PRESLEY,
Petitioner-Appellant,
versus
RICHARD ALLEN,
Commissioner, Alabama Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 21, 2008)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Marcus Presley appeals the district court’s denial of his petition for writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2254 and arguing that the state
violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
and J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89
(1994), during jury selection. For the reasons discussed below, we affirm.
I.
According to the record, Presley is a black male who was charged with
murder by an Alabama state court when he was 16 years old and pled not guilty.
During jury selection, 5, or 8%, of the 57 venire members were black (after
challenges for cause). Of its 23 peremptory challenges, the state used 4, or 17% of
its challenges, to strike blacks. In comparison, Presley used all 23 of his
peremptory challenges to strike whites. After these strikes, 1, or 8%, of the jurors
were black. Also, 59, or 67%, of the 87 venire members were female (before
challenges for cause). Of its 23 peremptory challenges, the state used 18, or 78%
of its challenges, to strike females. In comparison, Presley used 15, or 68%, of his
peremptory challenges to strike males. After these strikes, 9, or 75% of the jurors
were female.
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Approximately halfway through exercising these peremptory challenges, the
state indicated that it wished to preserve a “reverse Batson motion,” on the grounds
that Presley had used most of his peremptory challenges to strike white males.
Presley also indicated that he wished to preserve a Batson motion, on the grounds
that the state had used most of its peremptory challenges to strike females. At the
conclusion of jury selection, the state made a formal reverse Batson motion.
Presley also made a formal Batson motion, arguing that the state had used its
peremptory challenges to exclude blacks and females from the jury. In response to
Presley’s motion, the state explained:
[T]he purpose of the State putting on the record the indication that the
defendant was in – was violating Batson at that point is because the
State is being forced into striking females because the defendant was
excusing all the white males. If the State had excused any white
males there would be no white males on this jury. . . . If we had struck
even two strikes against white males there would be none on the jury,
virtually none.
The state then asked the trial court judge if it should explain its choices. The trial
court judge did not respond, but rather asked if the parties had further evidence
supporting their motions. When they responded in the negative, the trial court
judge denied both motions.
After a trial, the selected jury found Presley guilty of murder. He was
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sentenced to life in prison without the possibility of parole.1
On direct appeal to an Alabama appellate court, Presley argued that the
pattern of the state’s challenges established a prima facie case of discriminatory
striking. The Alabama appellate court affirmed his convictions and sentences. On
appeal to the Alabama Supreme Court, Presley again raised this argument and
added that the prosecutor’s comments demonstrated an inappropriate concern with
the jury’s gender and race makeup. The Alabama Supreme Court also affirmed his
convictions and sentences.
In its affirmance, the Alabama Supreme Court reasoned that “[s]tanding
alone, given the factual circumstances of this case, the fact that the State struck
four of [five blacks] from the venire and used some of its peremptory strikes to
remove females from the venire [was] insufficient [to raise an inference of
discriminatory striking].” The Alabama Supreme Court also reasoned that the
prosecutor’s comment that he had to strike females or else there would be no white
males on the jury was not an explanation of the state’s reasons and did not clearly
indicate that gender was a factor in the state’s choices. Rather, the comment
simply may have been an explanation that the state only had females from which to
1
Presley originally was sentenced to death, but an Alabama circuit court later vacated the
death sentence pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1
(2005), because Presley was only 16 years old at the time of the crime.
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choose for challenges.
Presley then filed the instant § 2254 petition, again raising his Batson and
J.E.B. argument. The district court adopted and approved a magistrate judge’s
recommendation to deny the petition. The magistrate had found that the Alabama
Supreme Court’s conclusion that Presley failed to establish a prima facie case of
discrimination neither was contrary to, nor involved an unreasonable application
of, clearly established federal law. The magistrate had reasoned that no Supreme
Court case held that a certain pattern of striking is sufficient to raise an inference of
discrimination. The magistrate also had reasoned that the prosecutor’s ambiguous
statement indeed could be interpreted simply as an explanation that, with each of
Presley’s strikes of males, the venire became increasingly female and the state’s
choice of venire members to strike became more weighed toward females.
On Presley’s motion for a certificate of appealability (“COA”), the district
court granted a COA on the limited issue of
Whether the determination by the Alabama Supreme Court in January
2000 that petitioner failed to establish a prima facie showing of racial
and or gender discrimination under [Batson] and [J.E.B.] was contrary
to or an unreasonable application of clearly established federal law as
determined by the United States Supreme Court, within the meaning
of 28 U.S.C. § 2254(d).
Before us on appeal, Presley argues that, because the prosecutor explained
the reasoning behind his peremptory challenges by way of his remarks, the
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question of whether Presley established a prima facie case of discriminatory
striking was moot. Presley also argues that, because these comments demonstrated
a discriminatory motive, they, along with the pattern of the state’s strikes,
established a violation of Batson and J.E.B.. Presley further argues that, even if the
comments and statistics did not establish a violation, they were sufficient to raise
an inference of discrimination and, therefore, shifted the burden to the state to
provide neutral reasons for the challenges.
II.
Pursuant to § 2254,
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the 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)(1) and (2). Also pursuant to § 2254, the state court’s
determination of any “factual issue. . . shall be presumed to be correct,” and the
petitioner “shall have the burden of rebutting the presumption of correctness by
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clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Under this standard, a state court decision is “contrary to” clearly established
federal law “if either (1) the state court applied a rule that contradicts the governing
law set forth by Supreme Court case law, or (2) when faced with materially
indistinguishable facts, the state court arrived at a result different from that reached
in a Supreme Court case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).
A state court conducts an “unreasonable application” of clearly established
federal law “if it identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s case” or if it
“unreasonably extends, or unreasonably declines to extend, a legal principle from
Supreme Court case law to a new context.” Id. We have cautioned that “an
‘unreasonable application’ is an ‘objectively unreasonable’ application.” Id.
Indeed, the Supreme Court has instructed that the question is not whether the state
“correctly” decided the issue, but whether its determination was “reasonable,” even
if incorrect. See Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152
L.Ed.2d 914 (2002).
As it applies to the § 2254 standard, “clearly established federal law” “refers
to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of
the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,
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412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). When no Supreme Court
precedent is on point, a state court’s conclusion cannot be “contrary to clearly
established Federal law as determined by the U.S. Supreme Court.” Washington v.
Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003).
In Batson, the Supreme Court held that a defendant may challenge the state’s
use of its peremptory challenges when the state’s strikes reveal a pattern of
purposeful racial discrimination in the selection of the jury. 476 U.S. at 96, 106
S.Ct. at 1723. In J.E.B., the Supreme Court extended this rule to purposeful
discrimination on the basis of gender. 511 U.S. at 146, 114 S.Ct. at 1430. The
Supreme Court explained that “[a] person’s race [or gender] simply is unrelated to
his fitness as a juror.” See Batson, 476 U.S. at 87, 106 S.Ct. at 1718.
To prevail on a claim of race or gender discrimination, the defendant first
must make a prima facie showing that the state has stricken venire members on the
basis of race or gender. Batson, 476 U.S. at 96, 106 S.Ct. at 1723; J.E.B., 511 U.S.
at 144-45, 114 S.Ct. at 1429-30. If the defendant makes such a prima facie
showing, the burden shifts to the state to come forward with a neutral explanation
for its choices. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. If a race-neutral
explanation is tendered, the trial court then must decide whether the defendant has
proved purposeful racial discrimination. Id. The Supreme Court has held that if a
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prosecutor offers a race-neutral explanation for the peremptory challenges and the
trial court rules on the ultimate question of intentional discrimination, the
preliminary issue of whether the defendant has made a prima facie showing is
moot. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114
L.Ed.2d 395 (1991).
To establish a prima facie case of discriminatory striking, the defendant only
must produce evidence sufficient to “give rise to an inference of discriminatory
purpose.” Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162
L.Ed.2d 129 (2005). The Supreme Court explained that,
[i]n deciding whether the defendant has made the requisite showing,
the trial court should consider all relevant circumstances. For
example, a “pattern” of strikes against black jurors included in the
particular venire might give rise to an inference of discrimination.
Similarly, the prosecutor’s questions and statements during voir dire
examination and in exercising his challenges may support or refute an
inference of discriminatory purpose. These examples are merely
illustrative.
Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.
III.
As an initial matter, the prosecutor’s comment was not a means of offering
race- and gender-neutral reasons for his challenges. Thus the Alabama Supreme
Court was correct in requiring Presley to establish a prima facie case of
discriminatory striking. See Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866.
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Immediately after making the comment, the state asked the trial court judge if it
should explain its choices. The state would not have asked this of the trial court
judge had it intended the comment as an explanation of its choices.
The question before us, then, is whether the Alabama Supreme Court’s
decision that Presley had not raised an inference of discrimination was contrary to,
or based on an unreasonable application of, Supreme Court law as it existed in
January 2000. See Williams, 529 U.S. at 412, 120 S.Ct. at 1523; 28 U.S.C.
§ 2254(d)(1). Two pieces of evidence shape this inquiry. The first is the state’s
pattern of strikes. The second is the prosecutor’s comment at the summation of
jury selection.
The Alabama Supreme Court’s decision was not based on the wrong rule of
law and did not differ from a Supreme Court holding based on similar facts. See
Putman, 268 F.3d at 1241. Presley has not presented, and independent research
does not reveal, a case in which the Supreme Court was faced with similar statistics
or a similar comment from the challenging party as those presented here. Thus,
because there is no Supreme Court precedent on point, an Alabama Supreme
Court’s conclusion that the state’s pattern of strikes and the prosecutor’s comment
were insufficient is not contrary to clearly established federal law within the
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meaning of § 2254. See Washington, 324 F.3d at 1265.2
The Alabama Supreme Court also did not unreasonably apply Batson. See
Putman, 268 F.3d at 1241. Although the statistics presented are suggestive of
discrimination, in that the state struck all but one of the black members of the
venire and used 78% of its strikes against females, the Alabama Supreme Court’s
determination that the statistics were not enough given the facts of this case was
not objectively unreasonable. See id.
Also, although the prosecutor’s comment is perhaps more troubling, in that
the prosecutor arguably admitted that race and gender were concerns of his in
choosing whom to challenge, the Alabama Supreme Court’s decision that the
comment was not an admission of bias was not objectively unreasonable. See id.
Before he made the comment, the prosecutor had preserved a reverse Batson
motion. Although he made the comment in question after Presley raised his own
Batson motion, the prosecutor referred back to his reverse Batson motion and
explained that he wished to make such a motion because Presley was excluding
white males from the jury. Although the state went on to discuss the potential
2
Presley also argues on appeal that the Alabama State court effectively held that the
pattern of the state’s strikes could never alone raise an inference of discriminatory striking.
Presley contends that the Alabama Supreme Court therefore contradicted the Supreme Court’s
suggestion in Batson to consider the statistics. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.
However, the Alabama Supreme Court clearly stated that it found that the statistics alone were
insufficient “given the factual circumstances of this case.”
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absence of white males on the jury, the Alabama Supreme Court’s interpretation
that this portion of the prosecutor’s comment was merely an extension of his
explanation for making a reverse Batson motion was not unreasonable.
While we may have reached a different result when faced with similar
statistics and commentary, the “correctness” of the Alabama Supreme Court’s
decision is not at issue. See Bell, 535 U.S. at 694, 122 S.Ct. at 1850.
Therefore, because the Alabama Supreme Court’s decision was not contrary
to, or an unreasonable application of, Supreme Court precedent, it did not err in
finding that Presley failed to establish a prima facie case of discriminatory striking.
See 28 U.S.C. § 2254(d)(1) and (2). Accordingly, we affirm the district court’s
denial of Presley’s § 2254 petition.
AFFIRMED.
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