Blanton v. Quarterman

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

FILED
September 19, 2008

No. 07-70023 Charles R. Fulbruge III
Clerk

REGINALD W BLANTON

Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

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

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Reginald W. Blanton, a Texas state prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In
seeking habeas relief, Blanton challenges his conviction for capital murder and
his sentence of death. The district court granted a certificate of appealability
(“COA”) on two issues regarding ineffective assistance of counsel raised in
Blanton’s federal habeas petition, and we granted COA on a third ineffective
assistance of counsel issue. Blanton argues that (1) trial counsel was ineffective
in his investigation and presentation of mitigation evidence during the
sentencing phase of Blanton’s trial, (2) trial counsel was ineffective in his failure
to properly preserve Blanton’s Batson claim, and (3) appellate counsel was
 No. 07-70023

ineffective in her presentation of his Batson claim on direct appeal to the Texas
Court of Criminal Appeals (“CCA”). For the following reasons, we affirm the
judgment of the district court denying habeas relief.
I
Blanton seeks habeas corpus relief from his conviction for the murder of
Carlos Garza. Blanton broke into Garza’s San Antonio apartment, shot Garza
twice in the head, and stole several pieces of jewelry and one hundred dollars.
A Texas jury convicted Blanton of capital murder for killing Garza while
committing robbery or burglary. See TEX. PEN. CODE § 19.03(a)(2) (defining
capital murder). At the punishment phase of Blanton’s trial, the jury returned
a verdict finding that (1) there was a probability that Blanton would commit
criminal acts of violence constituting a continuing threat to society, and (2)
taking into consideration all of the evidence, including the circumstances of the
offense and the petitioner’s character, background, and personal moral
culpability, there were insufficient mitigating circumstances to warrant a life
sentence for petitioner. See TEX. CODE CRIM. PROC. art. 37.071, § 2(g). The trial
judge sentenced Blanton to death.
Blanton appealed his conviction and sentence to the CCA. He argued,
inter alia, that the trial court erred by overruling his Batson objections. The
CCA affirmed Blanton’s conviction and sentence, holding that the trial court did
not err in overruling Blanton’s objections to the prosecution’s peremptory strikes
because the strikes were supported by race-neutral justifications. See Blanton
v. State, No. 74214, 2004 WL 3093219, *10-*12 (Tex. Crim. App. June 30, 2004)
(unpublished).
Blanton then filed a state habeas petition. Among the numerous claims
raised, Blanton contended that his trial and appellate counsel were ineffective
for failing to argue his Batson claim fully, and for failing to preserve the record
for the Batson claim. Blanton also argued that his trial counsel was ineffective

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in his investigation and presentation of mitigating evidence that could have been
used during the punishment phase of Blanton’s trial.
The state habeas court judge, the same judge who had presided over
Blanton’s trial, recommended denial of habeas relief on all grounds. The state
habeas court concluded that Blanton had not established that his trial or
appellate counsel performed deficiently, nor had he established that he was
prejudiced as a result of his representation at trial or on direct appeal. The CCA
denied Blanton’s habeas application in an unpublished order adopting the
habeas trial court’s recommendation, findings of fact, and conclusions of law.
See Ex Parte Blanton, WR-61,443-01 (Tex. Crim. App. June 22, 2005).
Blanton then filed a federal habeas petition. He raised twenty claims,
including ineffective assistance of trial and appellate counsel, but not a Batson
claim. In a thorough and well-reasoned opinion, the district court denied habeas
relief on all grounds. See Blanton v. Quarterman, 489 F. Supp. 2d. 621 (W.D.
Tex. 2007). However, the district court granted COA on two issues raised by
Blanton’s petition: (1) whether habeas relief is warranted based on trial counsel’s
failure to investigate and present adequate mitigating evidence regarding
Blanton’s background; and (2) whether habeas relief is warranted based on
appellate counsel’s failure to present Blanton’s Batson claim adequately on
direct appeal. See id. at 714. We subsequently granted COA on a third issue:
whether habeas relief is warranted based on trial counsel’s failure to properly
preserve Blanton’s Batson claim, namely by objecting to the State’s use of a jury
shuffle and preserving evidence concerning the discriminatory nature of the jury
shuffle. See Blanton v. Quarterman, No. 07-70023, 2008 WL 2871683, at *2 (5th
Cir. July 24, 2008). We first address Blanton’s two claims regarding the
ineffectiveness of trial counsel, and then move to his claim regarding the
ineffectiveness of appellate counsel.

II

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We apply the standards of review set forth in the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA, when
a federal habeas petitioner’s claim has been adjudicated on the merits in a state
court proceeding, a federal court may only grant habeas relief if the state court’s
adjudication of the claim either (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established federal law as
determined by the United States Supreme Court, or (2) resulted in a decision
that was based on an unreasonable interpretation of the facts in light of evidence
presented in the state court proceeding. See 28 U.S.C. § 2254(d). A state court’s
decision is contrary to clearly established Supreme Court precedent if it applies
a rule that contradicts the governing law set forth in Supreme Court cases, or
if it confronts a set of facts that are materially indistinguishable from a Supreme
Court decision and arrives at a different result. See Williams v. Taylor, 529 U.S.
362, 405-06 (2000). A state court unreasonably applies clearly established
federal law if it identifies the correct governing principle, but unreasonably
applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133,
141 (2005). An unreasonable application is different from an incorrect or
erroneous application. See Schriro v. Landigran, 127 S. Ct. 1933, 1939 (2007).
We defer to the state court’s factual findings unless Blanton rebuts those
findings with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro,
127 S. Ct. at 1939-40.
In reviewing the district court’s application of § 2254(d) to the state court
decision, we review the district court’s findings of fact for clear error and its
conclusions of law de novo. See, e.g., Foster v. Johnson, 293 F.3d 766, 776 (5th
Cir. 2002).

III

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Blanton’s ineffective assistance arguments, regarding both trial and
appellate counsel, are governed by the Supreme Court’s clearly established
standard in Strickland v. Washington, 466 U.S. 668 (1984). See Henderson v.
Quarterman, 460 F.3d 654, 665 (5th Cir. 2006) (recognizing that Strickland
applies to ineffective assistance of appellate counsel claims). Strickland provides
a two-pronged standard, and the petitioner bears the burden of proving both
prongs. 466 U.S. at 687. Under the first prong, Blanton must show that
counsel’s performance was deficient. See id. To establish deficient performance,
Blanton must show that counsel’s representation “fell below an objective
standard of reasonableness.” Id. at 688. This objective standard carries a strong
presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance. Id. at 687-91. In reviewing counsel’s performance, we
make every effort to eliminate the distorting effects of hindsight, and attempt
to adopt the perspective of counsel at the time of the representation. See id. at
690.
Under the second prong, Blanton must show that his counsel’s deficient
performance resulted in prejudice. See id. at 687. To satisfy the “prejudice”
prong, Blanton must establish that, but for his counsel’s deficient performance,
there is a reasonable probability that the outcome of the proceeding would have
been different. Id. at 694. Blanton’s Strickland claim fails if he cannot establish
either the deficient performance or prejudice prong; a court need not evaluate
both if a he makes an insufficient showing as to either. See id. at 697; Foster v.
Johnson, 293 F.3d 766, 782 n.10 (5th Cir. 2002).
The state habeas court concluded that Blanton established neither
deficient performance nor prejudice with respect to his Strickland claims. The
district court, applying the standard set forth in AEDPA, found that this
conclusion was not unreasonable. Blanton argues that the state habeas court
unreasonably applied Strickland to the facts of his case. Therefore, the question

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before us is whether the state habeas court reasonably concluded that Blanton’s
ineffective assistance claims failed to satisfy either prong of Strickland. See
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). In exercising our habeas
review under § 2254(d), we review only the ultimate decision of the state court,
and not the specific contents of its reasoning or opinion. See St. Aubin v.
Quarterman, 470 F.3d 1096, 1100 (5th Cir. 2006), cert. denied, 127 S. Ct. 2133
(2007); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc).
A
The district court granted COA on the issue of whether Blanton’s trial
counsel was ineffective in his investigation and presentation of mitigating
punishment-phase evidence. In assessing counsel’s performance in this context,
we look to how counsel prepared for sentencing, what mitigating evidence
counsel accumulated, what additional leads counsel had, and what results
counsel could have reasonably expected from those leads. See Neal, 286 F.3d at
237. The reasonableness of counsel’s investigation involves “not only the
quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.” Wiggins v.
Smith, 539 U.S. 510, 527 (2003). Looking to the ABA Guidelines, the Supreme
Court has recognized that “investigation into mitigating evidence should
comprise efforts to discover all reasonably available mitigating evidence.” Id. at
524. In reviewing the issue of prejudice at capital sentencing we weigh the
quality and quantity of the available mitigating evidence, including that
presented in post-conviction proceedings, along with the any aggravating
evidence. See Williams, 529 U.S. at 397-98. We then ask whether the changes
to the mitigation case would have a reasonable probability of causing a juror to
change his or her mind about imposing the death penalty. See TEX. CODE CRIM.
PROC. art. 37.071, § 2(f)(2) (stating that the jury must unanimously answer “no”

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to the mitigation special issue to impose the death penalty); Neal, 286 F.3d at
241.
The State’s punishment evidence included a long history of Blanton’s
trouble with the law, including participation in gang activity, theft, unlawful
possession of a handgun, and possession of marijuana. The State also presented
evidence of Blanton’s failure to abide by the conditions of his juvenile probation,
his long history of abusing marijuana and alcohol, and his assault of another
inmate while awaiting his capital murder trial.
Blanton’s trial counsel prepared his mitigation case by interviewing
Blanton and his family members, and having Blanton examined by Dr.
Schroeder, a court appointed psychological expert. Dr. Schroder found that
Blanton possessed average mental and academic capabilities, and she described
him as highly manipulative and unforthcoming during his interview. She
concluded that Blanton’s past indicated long-term impulsiveness and a failure
to conform to social norms of lawful behavior, suggesting a pervasive pattern of
disregard for the rights of others. Dr. Schroeder diagnosed Blanton as likely
suffering from antisocial personality disorder, and told Blanton’s trial counsel
that she would “not be much help” in terms of mitigation. Trial counsel decided
not ask Dr. Schroeder to testify, and did not have Blanton evaluated by any
other psychological professional. Counsel also utilized a court-appointed
mitigation expert. According to testimony during the state habeas proceeding,
this was the first use of a mitigation expert for a capital trial in Bexar County.
The mitigation expert obtained and reviewed some of Blanton’s medical, prison,
and social services records; she also interviewed members of Blanton’s family.
In total, the mitigation expert spent over sixty hours preparing her report.
At punishment, trial counsel presented the following evidence. A church
pastor who had known Blanton and his family opined that Blanton is a “God-
fearing person” who knows right from wrong. The mitigation expert testified as

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to the results of her investigation into Blanton’s background. Specifically, she
stated that Blanton’s mother was pushed down a flight of stairs while pregnant
with Blanton. Blanton had an unsupervised adolescence, began smoking
marijuana at age eleven, and experienced violence on a daily basis. The
mitigation specialist believed Blanton abused drugs to escape from his difficult
life, and joined a gang to replace the safety and protection his family did not
provide. Blanton’s drug addiction was not treated during his previous periods
of detention. Still, the mitigation specialist found Blanton “very intelligent,” as
he had earned his GED and attempted to inquire into joining the military or
attending college. The prosecution conducted a skillful cross-examination of the
mitigation specialist, focusing on her lack of experience.
Mrs. Blanton testified regarding her difficult pregnancy with Blanton,
including the physical and verbal abuse she suffered at the hands of her
husband and stepfather while pregnant. She stated that Blanton was born
“breech,” swallowed fluid and was blue at birth. As a child, Blanton was smart
but had trouble sitting still, so she allowed the school to place him on Ritalin.
Her children witnessed her husband physically abuse her and assault Blanton’s
older sister. After his parents divorced, Blanton began having trouble at school
and his relationship with his mother suffered. Blanton also had a bad
relationship with his father and possessed significant anger towards him.
In his habeas petition, Blanton argues that trial counsel was ineffective
for (1) failing to provide Dr. Schroeder with complete copies of Blanton’s birth
records and childhood medical records with which to conduct her evaluation, and
(2) failing to investigate and present evidence of Blanton’s background,
specifically with respect to prior medical issues, drug abuse, and abusive family
life during childhood. According to Blanton, the evidence that trial counsel
failed to uncover would have established that he suffered from organic brain
damage. Blanton attached exhibits to his state habeas filing, including

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childhood medical records concerning his difficult birth and childhood injuries,
school records, and reports from two psychological professionals, Gordon Potter
and Dr. Jim Cox. Mr. Potter and Dr. Cox concluded that Blanton likely suffered
from organic brain damage. They reached this conclusion based on the combined
effects of Blanton’s childhood injuries (including a childhood bike accident where
Blanton injured his head), his difficult upbringing, and his abuse of damaging
inhalants. According to Mr. Potter’s report, organic brain damage to the frontal
lobe of Blanton’s brain would fundamentally alter how he perceived the world,
reacted to stress, controlled impulses, and conformed to social norms.
During Blanton’s state habeas proceeding, lead trial counsel testified that
he and the mitigation specialist had trouble obtaining some of Blanton’s medical
records from another state. He admitted that if they had looked sooner, they
likely could have obtained them. Lead trial counsel admitted that the
prosecution “shredded” his mitigation expert on cross examination, but stated
that the mitigation expert provided the jury with useful information nonetheless.
In hindsight, trial counsel would have used the mitigation expert’s findings but
not called her as a witness because of her inexperience.
Blanton also called Mr. Potter as a witness at the state habeas hearing to
explain why he felt Blanton had organic brain damage. Mr. Potter testified to
the details of Blanton’s difficult birth, including his diagnosis with an Apgar
score of 1 (the lowest possible score) because he was oxygen deprived at birth.
Mr. Potter also explained how Blanton’s childhood injuries and abusive
upbringing placed stress on Blanton that could cause brain damage. On cross-
examination, Mr. Potter admitted that there was no hard evidence of organic
brain damage, and that at fifteen days old Blanton had a normal Apgar score.
He also admitted that antisocial personality disorder can cause many of the
same behaviors as organic brain damage and that oxygen deprivation at birth
does not necessarily result in organic brain damage.

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The State called Dr. Sparks, psychiatrist and medical director of Bexar
County jail. Dr. Sparks’ testimony largely refuted Mr. Potter’s; he focused on the
lack of objective evidence showing Blanton’s alleged organic brain damage. Dr.
Sparks also testified that he was more qualified to diagnose organic brain
disorder than Mr. Potter, because he was a medical doctor and Mr. Potter was
not.
The state habeas court ultimately concluded that Blanton failed to
establish either deficient performance or prejudice under Strickland, and the
district court found this to be a reasonable conclusion under the AEDPA
standard. As in the district court, under § 2254 Blanton must establish that the
state habeas court reached an unreasonable conclusion as to trial counsel’s
decision to end the investigation and proceed with the evidence obtained up to
that point. See Wiggins, 539 U.S. at 521. Blanton must also show that the state
habeas court reached an unreasonable conclusion as to prejudice. We agree with
the district court that Blanton has not established that the state habeas court
was unreasonable on either prong.
As to deficient performance, we note that Blanton presented no evidence
to suggest Dr. Schroeder was unqualified or that trial counsel had reason to
question the results of the psychological examination she performed. Blanton
also presented no evidence at state habeas to suggest how easily his childhood
medical records could have been obtained by trial counsel. Habeas testimony by
trial counsel showed counsel did recover some medical and social services
records. Trial counsel also testified that he and the mitigation specialist
attempted to obtain further medical records but could not do so because of
difficulties arising from the records being held in a different state. Further,
Blanton provided no evidence as to how his trial counsel could have reasonably
uncovered Blanton’s abuse of inhalants))no evidence produced at state habeas
indicated that Blanton or any of his family members mentioned use of inhalants

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to Blanton’s trial counsel. In fact, there is no record that Blanton mentioned
inhalant abuse prior to his conviction. Nor has Blanton shown that his
childhood medical records or trial counsel’s interviews with Blanton’s family
provided information that would lead a reasonable attorney to investigate
further any psychological disorder or brain damage. Blanton’s trial counsel
cannot be deficient for failing to investigate where no reasonable lead was
available. See Wiggins, 539 U.S. at 527.
Trial counsel knew that Blanton had suffered a difficult, oxygen-deprived
birth. Trial counsel also knew of Blanton’s troubled childhood, and that he had
abused non-inhalant drugs. However, trial counsel also knew that Blanton was
smart enough to obtain his GED, that he had been described by Dr. Schroeder
as manipulative, and that Dr. Schroeder did not identify any likelihood of brain
disorder. Finally, while Blanton’s mitigation expert was effectively cross-
examined by the prosecution, Blanton’s trial counsel were the first to utilize a
mitigation specialist for a Bexar County capital trial. While in hindsight, it is
easy to say that trial counsel could have done more, we find the state habeas
court reasonable in its conclusion that trial counsel performed reasonably based
on the context and circumstances at the time of the representation. See
Strickland, 466 U.S. at 690 (stating that courts must be careful to avoid
hindsight bias in evaluating counsel’s performance).
We also hold that, based on the mitigation evidence produced in the state
habeas proceeding, the state habeas court reached a reasonable conclusion as to
prejudice. Blanton did not establish that Dr. Shroeder would have altered her
diagnosis based on any of the evidence presented in the state habeas proceeding.
The evidence of organic brain damage presented by Mr. Potter and Dr. Cox was
persuasively rebutted by Dr. Sparks))so much so that the state habeas court
reached a factual conclusion that Blanton did not suffer from organic brain
damage. Blanton has not rebutted this conclusion with clear and convincing

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evidence to the contrary. See 28 U.S.C. § 2254(e)(1). While we agree with
Blanton that the medical records showing evidence of his childhood injuries and
his abusive home life could have provided more detail to the jury at punishment,
the substance of this mitigating evidence had already been presented through
the testimony of the mitigation specialist and Mrs. Blanton. Moreover, the
mitigating evidence presented by Blanton during the state habeas proceeding
was not nearly as strong as that submitted by petitioners in recent cases in
which the Supreme Court has found prejudice from trial counsel’s failure to
present mitigation evidence.1 Accordingly, we hold that the state habeas court
reasonably applied Strickland in concluding that Blanton was not prejudiced.
In sum, we agree with the district court that the state habeas court
reasonably applied Strickland in denying Blanton’s ineffective assistance claim
regarding his trial counsel’s investigation and presentation of punishment-phase
mitigating evidence.

1
In Rompilla v. Beard, the evidence which counsel failed to uncover and present))despite the
fact that the prosecutors provided defense counsel with the file including the evidence))showed that:
during Rompilla’s childhood he was beaten by his father with fists, straps, belts and sticks; that
Rompilla’s father locked him and his brother in a wire mesh dog pen that was filthy and excrement-
filled; and that Rompilla grew up in a home with no indoor plumbing and was not given proper clothing
by his parents. 545 U.S. 374, 391-92 (2005).
In Wiggins, trial counsel failed to present evidence that Wiggins suffered consistent abuse
during the first six years of his life. He also suffered “physical torment, sexual molestation, and
repeated rape during his subsequent years in foster care.” Wiggins was homeless for portions of his life
and was deemed to have diminished mental capacities. 539 U.S. at 535.
In Williams, the state court failed to address the fact that Williams had turned himself in,
expressed remorse for his actions, and cooperated with the police. 529 U.S. at 398. Trial counsel failed
to present evidence that Williams had been committed at age 11, and that documents prepared in
connection with his commitment detailed dramatic mistreatment and abuse during his early childhood.
The commitment documents also included testimony that he was “borderline mentally retarded,” had
suffered numerous head injuries, and might have mental impairments organic in origin. 529 U.S. at
370-71.
In each of these cases, trial counsel presented less mitigation evidence at trial than did
Blanton’s counsel. Further, the mitigation evidence that the attorneys failed to uncover was shocking
and starkly different than that presented at trial. Blanton claims that his counsel should have put on
new, different evidence of psychological damage and more detailed evidence of his difficult birth and
childhood. Blanton’s counsel had a psychological evaluation done, but the conclusion was not favorable.
Blanton’s counsel also presented evidence, albeit in general terms, of Blanton’s difficult birth and
childhood. As such, Blanton’s claim of prejudice is dissimilar from those presented in Rompilla,
Wiggins, or Williams.

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B
We granted COA on the issue of whether Blanton’s trial counsel was
ineffective in failing to properly preserve his Batson claim for appeal.
Specifically, Blanton claims counsel was ineffective for failing to properly
preserve objection to the prosecution’s use of a jury shuffle and failing to
preserve evidence concerning the discriminatory nature of the shuffle. Blanton
contends that trial counsel should have immediately objected to the shuffle,
which he argues was done to eliminate black jurors, and should have done more
to preserve evidence of the shuffle in the record for appeal.2 In reviewing a claim
alleging ineffective assistance of appellate counsel we apply the traditional
Strickland standard, described in Part III, supra.
The state habeas court rejected Blanton’s ineffective assistance of trial
counsel claim regarding the jury shuffle, holding that Blanton had not shown
deficient performance or prejudice. The district court found this conclusion
reasonable under the AEDPA standard. The pertinent facts are as follows.
Five of the one hundred prospective jurors on Blanton’s venire panel were
African-American. In the original panel order, three African-American venire
members were placed amongst the first twenty positions, and would almost
certainly have been questioned during jury selection. The African-American
venire members were in positions 2, 4, 20, 82, and 98. Before any questioning
of the venire panel, the prosecution requested a jury shuffle. This procedure
results in a random reshuffling of the panel members’ positions. See TEX. CODE
CRIM PROC. art. 35.11. After the jury shuffle, the African-American venire

2
Blanton did not present a Batson claim in his federal habeas petition, and he does not present
a Batson claim to this court. See Blanton v. Quarterman, 489 F.2d at 684 n.95. According to Blanton’s
brief on appeal, he decided not to proceed with a Batson claim because the evidence and arguments
necessary to make such a claim were not fully presented to the CCA on direct appeal. Blanton contends
that the jury shuffle component of his argument was not exhausted, and therefore, that it would have
been pointless to raise his Batson claim in federal habeas. We make no statement as to whether such
a claim would in fact be exhausted. We provide the facts and analysis related to Blanton’s Batson claim
only to the extent necessary to measure the effectiveness of Blanton’s counsel.

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members were in positions 64, 68, 76, 87, and 90. Blanton’s trial counsel raised
no objection at the time of the shuffle.
Later, when the prosecution exercised a peremptory strike of African-
American venire member Michelle Johnson, Blanton’s trial counsel objected
based on Batson v. Kentucky. See 476 U.S. 79, 89 (1986) (holding that the Equal
Protection Clause forbids prosecutors from challenging potential jurors solely on
account of their race). The prosecutor responded with a race-neutral
explanation for the peremptory strike involving Johnson’s views on the death
penalty and understanding of criminal law.3 Although trial counsel attempted
to refute this explanation, the court overruled the objection as to Johnson.
At this point, trial counsel lodged a second Batson challenge regarding
Johnson and argued that the prosecution should be compelled to explain why
they sought a jury shuffle. The trial court did not require the prosecution to
explain the shuffle, and again overruled the Batson challenge. Trial counsel
then asked the court to include pre-shuffle and post-shuffle evidence of the
placement of the venire members, and to have the court provide a statistical
analysis regarding this evidence. The court denied the request for a statistical
analysis but granted the request to have the original order of the one hundred
venire members included as part of the record.
Blanton’s trial counsel also raised a Batson challenge to the prosecution’s
peremptory strike of Ann Henderson, which the trial court overruled based on
the prosecution’s race-neutral reasons. The third African-American venire
member questioned was struck for cause.
In his state habeas petition, Blanton argued that trial counsel was
ineffective for failing to object to the racially motivated jury shuffle when the
shuffle actually occurred. He contended that Batson requires the trial court to

3
For a detailed description of the prosecutor’s race-neutral explanation, see Part III Section C,
infra.

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consider all relevant circumstances when determining whether a defendant has
made the requisite showing of purposeful discrimination. See Batson , 476 U.S.
at 96. Thus, Blanton’s argument then and now is that counsel should have
known the jury shuffle would be a relevant circumstance in a future Batson
challenge if the State subsequently used race-based peremptory strikes against
African-Americans. With that knowledge, counsel should have timely objected
to the shuffle in order to preserve it to shore up a future Batson claim. Further,
Blanton argues that trial counsel was ineffective for failing to ensure that the
record contained adequate evidence to raise the issue of the discriminatory jury
shuffle on appeal.
After an evidentiary hearing, the state habeas court found that Blanton’s
claims of ineffective assistance regarding the jury shuffle failed to satisfy either
prong of the Strickland test, in part because at the time of Blanton’s trial neither
Texas nor federal law recognized any relationship between a jury shuffle and a
Batson claim. The federal district court found the state habeas court’s resolution
of this claim to be a reasonable application of Strickland. Blanton v.
Quarterman, 489 F. Supp. 2d. at 690. Because Blanton has not shown that his
trial counsel performed deficiently in violation of Strickland, we agree with the
district court.
At the time of Blanton’s 2001 trial, no case law indicated that Batson
applied to an allegedly discriminatory jury shuffle. On the contrary, in Ladd v.
State the Texas CCA refused to extend Batson to jury shuffles. 3 S.W.3d 547,
563 n.9 (Tex. Crim. App. 1999) (“[o]ne scholar has argued that, logically, Batson
should extend to jury shuffles . . . [w]e wish to make it clear, however, that we
do not endorse such a view.”). Under Texas law, either side can call for a shuffle
once prior to the start of voir dire. See TEX. CODE CRIM. PROC. art. 35.11;
Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1983). The statute does
not require the side requesting the shuffle to explain its reasons for doing so. As

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trial counsel testified at the state habeas hearing, he did not detect
discrimination in the shuffle until the State peremptorily struck venire member
Johnson, and at that point he made a Batson challenge raising the issue of the
jury shuffle and its discriminatory effect on the jury selection process. The
prosecutor testified that she requested the jury shuffle based not on race, but on
the occupations of the venire members. Specifically, the prosecutor stated that
she exercised jury shuffles in order to move teachers and social workers back
and to move accountants, former military personnel, and law enforcement
personnel forward. The state habeas court accepted the prosecutor’s race-
neutral justification for the jury shuffle.
We cannot find the state habeas court’s conclusion that trial counsel’s
performance was not deficient to be an unreasonable application of the first
prong of Strickland. Based on the law regarding jury shuffles and Batson
challenges available to him at the time, it was reasonable for trial counsel to
believe that the prosecution could request a jury shuffle without cause, and that
a jury shuffle alone was not an adequate basis for a Batson challenge. Blanton
has not presented evidence sufficient to overcome the presumption, required by
Strickland, that trial counsel acted within the range of reasonableness by
delaying a Batson challenge until a peremptory strike actually occurred. When
the peremptory strikes against African-Americans did occur, counsel raised
timely Batson challenges and attempted to support them by reference to what
he then believed to be a racially-motivated jury shuffle. Far from being
deficient, with this argument counsel actually anticipated what the Supreme
Court would find two years later in Miller-El v. Cockrell: that a racially-
motivated jury shuffle, along with other factors indicating intent to exclude
African-Americans, can “raise a suspicion” of purposeful discrimination and
rebut a prosecutor’s race-neutral justification for a peremptory strike. See 537
U.S. 322, 346 (2003) (“Miller-El I”) (noting, however, that the jury shuffle alone

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“might not be denominated as a Batson claim because it does not involve a
peremptory challenge”). Counsel attempted to persuade the court that the jury
shuffle should be considered evidence rebutting a race-neutral explanation for
the peremptory strikes, but the court disagreed. As such, we find that trial
counsel was not deficient in raising the jury shuffle issue during Johnson’s
Batson challenge rather than at the time of the shuffle.
Further, trial counsel successfully preserved the Batson challenges for
appeal, as indicated by the CCA ruling on these claims on the merits. See
Blanton v. State, 2004 WL 3093219, at *10-*11. He anticipated that raising the
shuffle issue again on appeal would require evidence of the venire order, and he
successfully petitioned the court to enter the original list into evidence.
Although this apparently did not occur, for unknown reasons, Blanton fails to
identify any facts showing it was objectively unreasonable for trial counsel to
believe the court’s order would be complied with. We accordingly conclude that
trial counsel was not deficient in his preservation of evidence regarding the jury
shuffle and Batson challenges for appeal.
In his brief following our granting COA on this issue, Blanton raises
additional claims regarding trial counsel’s failure to preserve the record.4 We
agree with the district court that Blanton has failed to raise these specific claims
in his federal habeas petition. See Blanton v. Quarterman, 489 F. Supp. 2d. at
682 n.93. Since Blanton did not raise these claims in the district court, we
cannot consider them. See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001)

4
Specifically, Blanton argues in his supplemental brief that trial counsel was ineffective for
failing to preserve evidence of a discriminatory statement allegedly made by the prosecutor. He
maintains that prior to voir dire, the prosecutor described a situation in another Bexar County trial
where an African-American juror hung the jury. Further, he argues that trial counsel was ineffective
for failing to preserve evidence of the fact that three out of the five total African-American venire
members were seated in the first twenty of the venire panel. With regard to the first claim, it should
be noted that at the state habeas hearing, the prosecutor testified unequivocally that she had never
made such a statement and had no personal knowledge of any such situation ever occurring in Bexar
County.

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(finding that to the extent defendant did not raise a federal habeas claim in the
district court, the court of appeals could not consider it).
Accordingly, we agree with the district court that “[a]ny lack of success
petitioner’s Batson claims might have achieved on direct appeal cannot be laid
at the feet of [Blanton’s] trial counsel.” Blanton v. Quarterman, 489 F. Supp. 2d
at 489. Certainly, the clarification of the relationship between jury shuffles and
Batson challenges in Miller-El I indicates to us now that an immediate objection
to a suspect jury shuffle may help support a future Batson challenge. But to
require such knowledge of an attorney before Miller-El I was decided would be
a prime example of the “distorting effects of hindsight” that Strickland requires
us to avoid. See Strickland, 466 U.S. at 690. Considering the law at the time,
trial counsel responded reasonably and even with foresight into the development
of the law in attempting to use the jury shuffle to buttress his Batson challenges.
As Blanton has not met his burden of showing both deficient performance and
prejudice, we forgo discussion of the prejudice prong and hold that the state
habeas court reasonably applied Strickland in denying Blanton’s ineffective
assistance claim.
C
The district court also granted COA on Blanton’s claim that his counsel
on direct appeal to the CCA provided ineffective assistance for failing to
adequately present his Batson claim regarding venire member Michelle Johnson.
Blanton specifically argues that his appellate counsel should have addressed the
prosecution’s use of a jury shuffle, which Blanton contends was done to eliminate
African-American jurors. Blanton also argues that appellate counsel should
have done more to ensure that the record included the information necessary to
make such an argument.
The state habeas court rejected Blanton’s ineffective assistance of
appellate counsel claim, holding that Blanton had not shown deficient

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performance or prejudice. In reviewing a claim alleging ineffective assistance
of appellate counsel, we again apply the traditional Strickland standard
described in Part III, supra.
As described at Part III Section B above, Michelle Johnson was the first
African-American juror peremptorily struck by the prosecution. Blanton’s trial
counsel raised a Batson challenge to this strike, and when asked for a race-
neutral explanation the prosecution stated that Johnson: (1) suggested that the
death penalty was against her religious beliefs; (2) appeared confused about the
law regarding imposition of the death penalty; (3) stated that she believed that
capital punishment was appropriate only for premeditated cases; and (4)
testified she would “have to be convinced without any doubt whatsoever” in order
to return a guilty verdict.5 Trial counsel responded that Johnson had received
different questioning than other panel members, and that in response to re-
examination by defense counsel she stated that she could accurately apply the
law. The trial court overruled the objection as to Johnson. Then, trial counsel
lodged a second Batson challenge regarding Johnson and argued that the
prosecution must explain the reasons for requesting the jury shuffle. The trial
court overruled the objection a second time and did not require an explanation
for the jury shuffle. Trial counsel did, however, successfully petition the court
to include the original order of the one hundred venire members in the record,
although this did not occur for unknown reasons.
The state habeas court found that, on direct appeal, Blanton’s appellate
counsel also requested inclusion of the juror lists in the record.6 In her brief,

5
Johnson’s jury questionnaire indicated some ambivalence regarding her ability to impose the
death penalty. However, her questionnaire stated that she had no strong feelings one way or the other
about the death penalty. Johnson’s voir dire testimony indicated new sources of
ambivalence–specifically with regards to her testimony that the death penalty was somewhat “against
[her] religious beliefs” and that it was “really up to God, life and death.”

6
Blanton presents no evidence showing that this factual determination was erroneous.

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appellate counsel raised a point of error asserting that the trial court erred in
overruling Blanton’s Batson objections to venire members Johnson and
Henderson. Appellate counsel’s brief argued that the prosecution’s race-neutral
justifications were not credible with respect to Johnson and Henderson.
Appellate counsel attempted to undermine the prosecution’s race-neutral
justifications by arguing that the prosecution engaged in disparate questioning
of these two black panel members, and that similarly-situated non-black venire
members were not struck by the prosecution. Appellate counsel’s brief also
mentioned, in a footnote, the fact that Batson arguments logically could be
extended to a Texas prosecutor’s use of the jury shuffle mechanism. In Blanton’s
brief on appeal, appellate counsel did not make a specific argument that
evidence of a racially discriminatory jury shuffle undermines the credibility of
the prosecution’s race-neutral justifications for striking individual jurors.
Appellate counsel filed her brief with the CCA in December 2002. In
February 2003, the Supreme Court issued its opinion in Miller El I. In Miller-El
I, the Supreme Court looked to the discriminatory use of a Texas jury shuffle,
among other things, in analyzing the credibility of race-neutral reasons proffered
by the prosecution for exercising peremptory strikes. Miller-El I, 537 U.S. at
346.7 The CCA did not issue its decision prior to the Supreme Court’s decision
in Miller-El I. Nothing in the record suggests that Blanton’s appellate counsel
sought leave to file supplemental briefing to address Miller-El I, nor did
appellate counsel mention the case in her motion for rehearing to the CCA.
Throughout the course of the appeal, appellate counsel never made any
argument regarding the discriminatory jury shuffle beyond the footnote in her
original brief. Sixteen months after Miller-El I, in June 2004, the CCA affirmed

7
Miller-El I dealt with Miller-El’s Batson challenges at the COA stage. See Miller-El I, 537 U.S.
at 348. Eventually, in Miller-El II, Miller-El v. Dretke, 545 U.S. 231(2005), the Supreme Court decided
that habeas relief should be granted to Miller-El based on the state’s Batson violations during his
original trial. See id. at 266.

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the trial court’s decision on the Batson challenges, finding that the record
supported the race-neutral reasons given by the prosecution. See Blanton v.
State, 2004 WL 3093219 at *10-*12. The CCA also reaffirmed its prior holding
that a Batson challenge does not apply to the prosecution’s request for a jury
shuffle. See id. at *10 n.17 (quoting Ladd, 3 S.W.3d at 575 n.9). The CCA did
not mention Miller-El I in its opinion.
In his state habeas petition, Blanton argued that appellate counsel was
ineffective in her presentation of his Batson claim because counsel should have
raised the discriminatory nature of the jury shuffle. Blanton also argued that
appellate counsel should have done more to preserve the Batson claims for
review. Blanton posited that if the importance of the jury shuffle was not clear
based on Batson alone, it certainly became clear when the Supreme Court
decided Miller-El I. The state habeas court concluded that Blanton did not show
appellate counsel to have performed deficiently. The state habeas court also
concluded that Blanton was not prejudiced by appellate counsel’s representation.
The federal district court found the state habeas court’s resolution of this claim
to be a reasonable application of Strickland. Blanton v. Quarterman, 489 F.
Supp. 2d. at 709-10. For the following reasons, we agree with the district court.
We share the district court’s concern over the fact that Blanton’s appellate
counsel never addressed Miller-El I in the sixteen months between when the
Supreme Court issued the decision and the time the CCA decided Blanton’s
appeal. See Blanton v. Quarterman, 489 F. Supp. 2d at 713. That being said, we
pretermit consideration of appellate counsel’s performance because we conclude
that the state habeas court’s conclusion as to prejudice was reasonable. See
Strickland, 466 U.S. at 697; Henderson , 460 F.3d at 666.
To evaluate the state habeas court’s conclusion as to prejudice, we must
attempt to predict the likelihood that the outcome on appeal would have changed
if Blanton’s appellate counsel had made the jury shuffle argument made at state

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habeas. In determining whether there is a reasonable probability that the CCA
would reach a different conclusion, we keep in mind that the CCA’s standard of
review accords “great deference” to the trial court’s rulings as to the credibility
of a prosecutor’s reasons for exercising a peremptory strike, and that the CCA
overturns the trial court only if the ruling is clearly erroneous. See Howard v.
Gramley, 225 F.3d 784, 790 (7th Cir. 2000) (noting the importance of the
appellate court’s standard of review); Herron v. State, 86 S.W.3d 621, 630 (Tex.
Crim. App. 2002) (explaining the clearly erroneous standard for review of Batson
credibility determinations).
In rejecting Blanton’s Batson claim on direct appeal, the CCA addressed
a number of arguments regarding venire member Johnson. The CCA was not
convinced by Blanton’s arguments regarding the alleged disparate questioning
of Johnson, or the supposedly similar non-black panelists whom the prosecution
did not strike. The CCA determined that Johnson’s questioning was sufficiently
explained by suspect answers to earlier questions regarding the death penalty
and questions regarding the State’s burden of proof. The CCA also held that the
eventual panel members who served on the jury were not similarly situated to
Johnson because they gave different answers regarding premeditation. Blanton
v. State, 2004 WL 3093219 at *10-11. Finally, the CCA recognized that “the fact
that a prospective juror vacillates about her ability to choose the death penalty,
despite personal beliefs, is a valid and neutral reason to strike that person.” Id.
at *11. Because these arguments were found insufficient by the CCA in the first
instance, Blanton’s challenge is a limited one: his claim is that the addition of
the jury shuffle argument would have a reasonable probability of tipping the
scales in his favor on direct appeal. We note that in federal habeas, Blanton
must go even further to show that the state habeas court was unreasonable in

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reaching a contrary conclusion.8
During the state habeas court’s evidentiary hearing, Blanton’s lead trial
counsel and the lead prosecutor testified regarding the circumstances of the jury
shuffle. Blanton presented the positions of the African-American venire
members both before and after the allegedly discriminatory shuffle: three were
positioned in the first twenty prior to the shuffle, after the shuffle the first
African-American was at position 64. Based on the concentration of African-
American panel members at the front, he argued there was a great likelihood
that a shuffle would move them back in the order. The prosecutor testified that
she requested the jury shuffle based not on race, but on the occupations of the
venire members. The state habeas court accepted the prosecutor’s race-neutral
justification for the jury shuffle.
The district court questioned the prosecutor’s race-neutral justification for
the jury shuffle. In fact, the district court stated that it found “no correlation
between the occupation based concerns voiced by the lead prosecutor . . . and the
composition of petitioner’s initial venire panel.” Blanton v. Quarterman, 489 F.
Supp. 2d. at 704. In reaching this conclusion, the district court noted that “the
teachers in petitioner’s jury venire were spread out fairly evenly.” Id. at 704
n.135. The district court’s analysis does not include reference to the other
occupation groups with which the prosecutor indicated concern. Taking into
consideration the teachers, social workers, accountants, law enforcement
personnel, and former military personnel on Blanton’s original venire panel, our

8
The district court was not as convinced that Johnson’s disparate questioning was justified.
See Blanton v. Quarterman, 489 F. Supp. at 703-04 & n.133. The district court also questioned the
CCA’s casting Johnson as a “vacillating juror.” Id. at 713. We believe that the CCA’s conclusions
regarding Johnson’s ambivalence towards the death penalty and her confusion regarding the State’s
burden of proof are supported by the voir dire record. However, we also feel it important to avoid too
much second guessing of the conclusions already reached by the CCA. Such second guessing leads us
into an actual Batson analysis, rather than analysis of the Strickland claim that is properly before us.
Because Blanton has not raised a Batson claim in federal habeas, we focus instead on the arguments
of which the CCA was deprived based on his appellate counsel’s representation and whether those new
arguments create a reasonable probability of a different outcome on direct appeal.

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review of the record indicates that the prosecutor’s stated justification for the
jury shuffle finds some support in the record.9 We also note that the state
habeas court judge presided over the voir dire in this case; in accepting the lead
prosecutor’s race-neutral justification, the judge reached a conclusion that
reflected a positive credibility determination regarding the prosecutor’s
testimony. See Goodwin v. Johnson, 224 F.3d 450, 457 (5th Cir. 2000)
(indicating the high burden that a habeas petitioner faces in order for this court
to reverse an initial fact-finder’s credibility determination). We do not find that
the record provides clear and convincing evidence to rebut the state habeas
court’s conclusion accepting the prosecutor’s race-neutral justification for the
jury shuffle. See 28 U.S.C. § 2254(e)(1).
In ruling on the likely effect of appellate counsel’s representation, the state
habeas court also recognized that the evidence of racial animus in Blanton’s case
was markedly different from Miller-El I. As such, the habeas court concluded
that a jury shuffle argument along the lines of that presented in Miller-El I
would not have provided relief to Blanton.10 We agree with the state habeas
court that the evidence of race-based discrimination carried out by the

9
A review of the juror questionnaires shows that the groups identified by the lead prosecutor
were seated in the following positions in Blanton’s original venire panel. Teachers, whom the
prosecutor sought to move back, were at 3, 23, 31, 44, 53, 75, 98 (also military), and 100. There were
no venire members who could be identified as social workers. In terms of the occupations the
prosecutor sought to move forward, accountants were seated at positions 57 and 80. A local law
enforcement worker was seated in position 81. Venire members with military service experience were
scattered, but more heavily concentrated at the end of the original venire list, seated at positions, 2, 16,
32, 33, 35, 40, 61, 71, 77, 79, 80, 90, 93, 98 (also teacher), and 99. While these numbers might not
provide the strongest support for the prosecutor’s rationale, they also do not present clear and
convincing evidence to undermine the state habeas court’s acceptance of the prosecutor’s justification.

10
Unlike Blanton’s case, in Miller-El I the venire members were not retained for more than one
week. See Miller-El I, 537 U.S. at 334. Therefore, venire members sent to the end of the line in Miller-
El’s case were less likely to be questioned than in Blanton’s case. Further, in undermining the
credibility of the prosecution’s race-neutral reasons, Miller-El put forth startling evidence of the
prosecution’s pattern of racially motivated peremptory strikes, and long-standing office policy of racial
discrimination in jury selection by the Dallas County prosecutor’s office. See id. at 334-35. Such
evidence is lacking in this case.

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prosecutors’ office in Miller-El I is absent from this case. Blanton’s argument for
discrimination in the jury shuffle would have to arise from a disputed and vague
statement allegedly made by the prosecutor, the concentration of black venire
members at the front of the original panel, and the alleged pretext of the
prosecutor’s occupation-based reason; these elements do not rise to the level of
intentional discrimination present in Miller-El I.
The state habeas court accepted the prosecutor’s race-neutral justification
for the strike. This decision involved, at least in part, a credibility determination
made by the state habeas court. See Goodwin, 224 F.3d at 457. In overruling
Blanton’s Batson objection to venire member Johnson in the first instance, the
state trial court reached a positive finding regarding the credibility of the
prosecutor’s race-neutral reasons for striking Johnson. See Miller-El I, 537 U.S.
at 340 (“[T]he trial court’s decision on the ultimate question of discriminatory
intent represents a finding of fact of the sort accorded great deference on
appeal.”). As explained above, our review of the jury venire records do not
present the clear and convincing evidence necessary to overturn the state habeas
court’s acceptance of this testimony. See 28 U.S.C. § 2254(e)(1). We also believe
that the race-neutral justifications for striking venire member Johnson find
support in the record. Finally, we know that the CCA’s appellate review of
Batson claims is limited to clear error. We recognize that the jury shuffle
argument presented by Blanton at state habeas may have improved his chances
of prevailing on direct appeal. However, merely improving his chances does not
rise to the level required to show prejudice))Blanton must show that had
counsel acted differently, his case would have been reversed. See Strickland,
466 U.S. at 694 (finding that “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”). This he has not done.
Based on the factual and credibility findings made at the state trial and

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habeas proceedings, and the CCA’s limited review of Batson claims on appeal,
we find that the state habeas court reasonably concluded that Blanton suffered
no prejudice as a result of his appellate counsel’s failure to argue the jury shuffle
component to his Batson claim, and accordingly agree with the district court’s
denial of habeas as to this issue.
IV
For the foregoing reasons ,we AFFIRM the district court’s denial of habeas
corpus relief.

26