Reed v. Quarterman

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

FILED
January 12, 2009

No. 05-70046 Charles R. Fulbruge III
Clerk

JONATHAN BRUCE REED

Petitioner-Appellant
v.

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

Respondent-Appellee

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

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Over thirty years ago, Wanda Wadle (“Wadle”) was murdered in her
apartment. A jury convicted Petitioner-Appellant Jonathan Bruce Reed (“Reed”)
of capital murder for this crime. Reed now seeks habeas corpus relief from his
conviction and sentence of death. This case has spent three decades winding its
way through the state and federal court systems. Today, we add to that lengthy
history by concluding that Reed is entitled to habeas corpus relief for his Batson
claim. We therefore reverse and remand to the district court with instructions
to grant the writ and order Reed’s release from custody unless the State grants
him a new trial within 120 days from the date the district court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
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We have previously described the facts of the crime and the lengthy
procedural history of this case:
Around 12:40 p.m. on November 1, 1978, Kimberly Pursley
(“Pursley”), Wadle’s roommate, returned to their shared apartment.
As Pursley entered the apartment, she heard a man’s voice from
Wadle’s bedroom say “don’t come in here” and “stay out there.”
Pursley remained in the living room. After a few moments, a man
stepped out of the bedroom and snapped closed a knife sheath. The
man stated that he was from maintenance and was there to check
the air filter, and he pointed toward the ceiling. Pursley looked
toward the ceiling and then noticed her roommate’s nude body on
the floor of the bedroom. The man then threw Pursley to the floor
and bound and gagged her. He asked if she had any money, and
Pursley nodded yes. The man began to search Pursley and Wadle’s
purses, which were located on the living room sofa. He made
several circuits of the apartment during which he drank water from
a glass in the kitchen and looked through the bedroom and living
room areas. He then attempted to strangle Pursley, straddling her
with his legs and grabbing her throat. Pursley feigned
unconsciousness. The man released her throat and left the
apartment.
Pursley managed to free herself from her bindings and went
to check Wadle, whom she found with blood oozing from her mouth,
her gaze fixed, and her hands tied with a telephone cord. Around
Wadle’s head were a plastic bag and belt pulled taut. Pursley went
outside her apartment to call for help. A neighbor, Rosemary
Asencio (“Asencio”), appeared and let Pursley into her apartment to
call the police while she went to investigate Wadle’s condition.
Asencio found Wadle lying naked on her back with her legs spread
apart and her head and shoulders under the bed. Asencio managed
to remove the plastic bag and belt from Wadle’s neck and began
CPR. Emergency medical technicians arrived and took Wadle to the
hospital, where she died nine days later without ever regaining
consciousness.
Pursley identified Reed as her assailant in a corporeal lineup.
At the same lineup, two other residents of Pursley and Wadle’s
apartment complex identified Reed as a person they had seen in the
complex shortly before the time of the murder. These residents,
Mikki Flanagan (“Flanagan”) and Phil Hardin (“Hardin”), as well as
Pursley, subsequently testified at Reed’s trial. Flanagan testified
that Reed came to her door shortly after noon on November 1, 1978,

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claiming that he was there to check air conditioning filters. Hardin
testified that he saw Reed in the complex around noon on November
1, 1978, wearing a red shirt and blue jeans. Pursley and Flanagan
also testified that Reed had worn a red shirt and blue jeans. A
fourth eyewitness was Ken Ezelle (“Ezelle”), a maintenance worker
for the apartment complex who testified that he saw a man with a
red shirt and blue jeans running away from the area of Wadle and
Pursley’s apartment, where a woman could be heard screaming. In
his defense, Reed presented testimony from his employer and family
members to establish that he could not have been in the vicinity of
Wadle’s apartment at 12:40 p.m. and that he was not wearing a red
shirt and blue jeans on the day in question. Reed also relied on the
absence of physical evidence connecting him to the crime.
In March 1979, Reed was convicted and sentenced to death for
murdering Wadle in the course of committing robbery and
aggravated rape. The trial court granted Reed’s motion for a new
trial, and Reed was tried again in 1983. At this second trial, in
addition to the aforementioned eyewitnesses, the state produced as
a rebuttal witness William McLean, Jr. (“McLean”), a cellmate of
Reed in Texas prison who testified that Reed had confessed to him
that he had murdered Wadle. In March 1983, Reed was again
convicted of capital murder and sentenced to death. The Texas
Court of Criminal Appeals [(“TCCA”)] affirmed Reed’s conviction
and sentence, and the United States Supreme Court denied
certiorari. Reed v. State, No. 69,292 (Tex. Crim. App. March 29,
1995) (unpublished), cert. denied, 516 U.S. 1050 (1996). Reed then
pursued state post-conviction relief. His state application for a writ
of habeas corpus was denied by the Court of Criminal Appeals in
September 1998. Ex parte Reed, No. 38,174-01 (Tex. Crim. App.
Sept. 16, 1998) (unpublished), cert. denied, 526 U.S. 1021 (1999).
Reed filed his petition for federal habeas relief in 1999. The
magistrate judge assigned to the case recommended that relief be
denied, and the district court adopted the magistrate’s
recommendation on February 19, 2003. Reed filed a Rule 59(e)
motion to alter or amend the judgment. Reed subsequently filed a
motion to disqualify the magistrate judge, alleging that the
magistrate judge had discussed Reed’s case with a witness. The
magistrate judge recused himself, and another magistrate judge was
assigned. Reed’s Rule 59(e) motion was then denied. Reed filed his
notice of appeal on May 1, 2003. Reed also moved for a transfer of
his case to a different district judge, alleging that the district judge
to whom his case had been assigned exhibited signs of diminished

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competency. In September 2003, this court vacated the district
court’s orders and remanded the case for reconsideration. Reed v.
Dretke, No. 03-10432, 2003 U.S. App. LEXIS 27937 (5th Cir. Sept.
15, 2003). The district judge recused himself and a new district
judge was assigned to the case. The district court held an
evidentiary hearing on Reed’s prosecutorial misconduct claims on
February 24, 2005. On July 26, 2005, the district court denied
habeas relief on all of Reed’s claims. The district court granted a
[certificate of appealability (“COA”)] on Reed’s Batson claim, and
denied a COA as to all other of Reed’s claims.

Reed v. Quarterman, 504 F.3d 465, 469-70 (5th Cir. 2007). We granted Reed
COAs to pursue three additional claims: whether Reed is entitled to additional
discovery, whether Reed was entitled to a jury instruction on the lesser included
offense of murder under Beck v. Alabama, 447 U.S. 625 (1980), and whether
Reed’s sentence violates Penry v. Lynaugh (Penry I), 492 U.S. 302 (1989). Reed,
504 F.3d at 471-74, 477-79, 488-92.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
federal court cannot grant habeas relief unless the state court adjudication of
that 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 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 Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under
§ 2254(d)(1), a decision is contrary to clearly established federal law if “the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on
a question of law” or “confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent and arrives at a result opposite to [that
precedent].” (Terry) Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision

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involves an unreasonable application of Supreme Court precedent if it
“unreasonably extends a legal principle from [Supreme Court precedent] to a
new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. at 407. We must presume
that the state court’s factual findings are correct unless Reed meets his burden
of rebutting that presumption by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1).
III. DISCUSSION
Reed argues that the State violated his rights under Batson v. Kentucky,
476 U.S. 79 (1986), when it used its peremptory challenges to strike all five
eligible African-American members of the venire.
There are three steps to our Batson analysis. First, a defendant must
present a prima facie case that the prosecution exercised its peremptory
challenges on the basis of race. See id. at 96-97. Second, if the defendant meets
this initial burden, the burden shifts to the prosecutor to present a race-neutral
explanation for striking the jurors in question. See id. at 97-98. Finally, the
court must determine whether the defendant has carried his burden of proving
purposeful discrimination. See id. at 98. At the third step, “implausible or
fantastic justifications may (and probably will) be found to be pretexts for
purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768 (1995). There is
no dispute here that Reed presented a prima facie case of discrimination or that
the State offered race-neutral explanations for the peremptory strikes.
Therefore, our inquiry solely involves Batson’s third step. Reed argues that the
State’s proffered reasons are not persuasive justifications because they are mere
pretexts for discrimination. We must consider whether the TCCA’s conclusion
that the prosecution did not discriminate on the basis of race in using its

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peremptory strikes was an unreasonable determination of the facts.1 See 28
U.S.C. § 2254(d)(2).
A. Batson Hearing
During the jury selection for Reed’s second trial in 1983, Reed objected to
the State’s use of peremptory challenges to exclude all five of the eligible
African-American potential jurors. The trial judge rejected Reed’s request to
have the State explain its reason for striking these jurors. In 1986, the Supreme
Court ruled in Batson that a state violates a defendant’s rights when the
prosecutor discriminates on the basis of race when selecting a jury. 476 U.S. at
90. In Powers v. Ohio, 499 U.S. 400 (1991), the Court ruled that Batson applies
to white defendants, id. at 402, and in Trevino v. Texas, 503 U.S. 562 (1992) (per
curiam), the Court held that Powers applied to all cases still pending on direct
appeal, id. at 567. Thereafter, the TCCA abated Reed’s direct appeal and
remanded the case to the trial court to conduct a Batson hearing.
At that hearing, the prosecutors from Reed’s trial testified and offered
race-neutral reasons for striking the five African-American venire members.
The prosecutors explained that they did not have any independent recollection
of the jury selection in Reed’s trial. Instead, they based their testimony on a
review of the voir dire transcript for these five jurors and their standard practice
in death penalty cases. The trial court issued findings of fact and conclusions of
law. The trial court assumed, based on the TCCA’s remand, that Reed had
presented a prima facie case of discrimination. The court then examined the
State’s proffered reasons for striking each African-American juror and found

1
Although “a trial court’s ruling on the issue of discriminatory intent must be sustained
unless it is clearly erroneous,” Snyder v. Louisiana, 128 S. Ct. 1203, 1207 (2008), here the trial
court did not require the prosecution to explain its reasons for striking the black jurors.
Therefore, there is no trial court ruling on discriminatory intent to which we must defer. See
id. at 1209 (noting that deference to the trial court was less appropriate when the trial judge
never made a finding regarding the state’s proffered reason for striking a black prospective
juror).

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that the State had provided race-neutral reasons for each peremptory challenge
it used. The court noted that “[n]either party suggested that the court review
the transcription of the voir dire examination of any other venireman” and
concluded that the defendant had failed to refute the State’s race-neutral
explanations for the strikes.
B. Introduction of the Comparative Analysis
1. State procedural bar
On appeal to the TCCA, Reed presented a “comparative analysis” to
establish a Batson violation. He analyzed the race-neutral reasons that the
State proffered for striking the African-American jurors and asserted that the
State accepted many white jurors who had the same characteristics. The TCCA,
however, refused to consider Reed’s comparative analysis, ruling that Reed had
waived his comparative analysis argument by not raising it at the Batson
hearing. Without the benefit of a comparative analysis, the TCCA found that
Reed had not sustained his Batson challenge.
After exhausting his state habeas appeals, Reed sought federal habeas
corpus relief. The district court also refused to consider Reed’s comparative
analysis for his Batson claim. The court reasoned that the TCCA’s decision not
to accept Reed’s comparative analysis argument was sound given that the
Batson hearing was not contemporaneous with jury selection and that the trial
judge expressly put Reed on notice that he had not reviewed the voir dire of any
jurors beyond the five African-American jurors who the State had challenged.
Therefore, reviewing just the voir dire of the five African-American jurors and
the race-neutral explanations the prosecutors proffered at the Batson hearing,
the district court concluded that Reed failed to rebut the trial court’s factual
findings by clear and convincing evidence. The district court, however, granted
Reed a COA on his Batson claim.
Reed characterizes the TCCA’s decision not to consider his comparative

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analysis as an inadequate procedural bar which was not firmly established or
regularly followed before his case.2 Indeed, it appears that the TCCA’s decision
on this point was contrary to its own law. In Tompkins v. State, 774 S.W.2d 195,
202 n.6A (Tex. Crim. App. 1987), the court chose not to consider the defendant’s
comparative analysis argument because the defendant failed to raise it at the
Batson hearing. Four years later, in Young v. State, 826 S.W.2d 141, 146 (Tex.
Crim. App. 1991), the court held that a defendant is “not required to request the
trial judge to make his finding upon the Batson motion based upon a comparison
analysis in order to have that very same evidence considered on direct appeal.”
Notably, in Young, the TCCA clarified that it was “not allowing appellant to
raise matters on appeal which were not raised in the trial court. On the
contrary, our ruling merely allows appellant to argue what is in evidence from
the voir dire and the Batson hearing and why he should prevail on his Batson
claim.” Id. (footnote omitted). In Reed, the TCCA distinguished Young and
relied on Tompkins by noting that the voir dire in a capital case (as in Tompkins)
was longer and more complicated than in a noncapital case, and that in Reed’s
case the Batson hearing occurred many years after jury selection. See Reed v.
State, No. 69,292 (Tex. Crim. App. Mar. 29, 1995) (unpublished).
The TCCA, however, has not distinguished Young in this manner either
before or after Reed’s appeal and instead has consistently relied upon the rule
in Young that a defendant may make a comparative analysis argument on
appeal even if the defendant did not present that argument to the trial court.
No cases after Young, besides Reed, rely on Tompkins to reject the defendant’s

2
Specifically, Reed argues that the district court should have reviewed his Batson
argument de novo because the TCCA’s decision was not “on the merits,” 28 U.S.C. § 2254(d),
thereby making the AEDPA inapplicable. That is, Reed asserts that the TCCA’s decision not
to consider the comparative analysis amounted to a new “procedural bar” to his Batson claim
that the state court had not firmly established or regularly followed, which would require us
to review his claim de novo. See, e.g., Rosales v. Dretke, 444 F.3d 703, 707 (5th Cir. 2006).

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comparative analysis. For example, in Vargas v. State, 838 S.W.2d 552, 556-57
(Tex. Crim. App. 1992), the court ruled that the defendant could present
evidence from the jury selection to compare the responses of black venire persons
who the state challenged with white venire persons who the state accepted. The
court also rejected any distinction between capital and noncapital cases for this
rule. Id. at 556. Judge Benavides, who wrote the court’s decision, also wrote a
separate concurrence in which he stated that although he disagreed with the
decision in Young (and had dissented in that case), the rule from Young
remained the law of Texas until the court explicitly overruled it. Id. at 557-58
(Benavides, J., concurring).
Reed, an unpublished decision, did not overrule Young, particularly given
that the court has consistently applied Young both to capital and noncapital
cases after Reed and has considered a comparative analysis argument even when
the defendant did not present it to the trial court during a Batson hearing. See,
e.g.,Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008) (noncapital
case); Blanton v. State, No. 74,214, 2004 WL 3093219, at *10-12 (Tex. Crim. App.
June 30, 2004) (capital murder case); Cornish v. State, 848 S.W.2d 144, 145 (Tex.
Crim. App. 1993) (noncapital case); Tumblin v. State, No. 74,097, 2003 WL
1821467, at *6-7 (Tex. Crim. App. Mar. 19, 2003) (capital murder case); Gibson
v. State, 117 S.W.3d 567, 573 (Tex. App. 2003), rev’d on other grounds, 144
S.W.3d 530, 531 (Tex. Crim. App. 2004) (noncapital case). It appears, therefore,
that Reed is an outlier in faulting the defendant for not presenting a
comparative analysis theory during the Batson hearing. Given this
inconsistency, we find the TCCA’s decision on this point puzzling. This court
would have benefitted from the TCCA evaluating the comparative analysis in
the first place. The Supreme Court’s decision in Miller-El v. Dretke (Miller-
El II), 545 U.S. 231 (2005), directs us to consider the comparative analysis, as

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discussed below, and the state court has not rested its rejection of Reed’s Batson
claim on consistently applied state grounds.
2. Miller-El
In determining whether the district court erred in refusing to consider
Reed’s comparative analysis, it is prudent to consider in-depth a recent Supreme
Court case with virtually identical facts. In Miller-El II, the Supreme Court
granted habeas relief to the defendant on a Batson claim. 545 U.S. at 235. To
understand the similarities between this case and Miller-El II, we must go back
to the Batson hearing in Miller-El II.
Thomas Joe Miller-El’s trial took place in 1986 in Dallas County—the
same venue as Reed’s trial. Id. at 235-36. During jury selection, prosecutors
used peremptory strikes against ten qualified black venire members. Id. Miller-
El objected, arguing that the prosecutor’s strikes were discriminatory. Id. The
trial court overruled his objections. Id. A jury convicted Miller-El of capital
murder, and he appealed to the TCCA. Id. Later that year, the Supreme Court
decided Batson. Thereafter, the TCCA remanded Miller-El’s case to the trial
court to conduct a Batson hearing. Id. During the hearing, the court reviewed
the voir dire record of the challenged jurors and heard testimony from prosecutor
Paul Macaluso (“Macaluso”) on his reasons for striking these jurors.3
Importantly, the trial judge stated that he would “reread the voir dire of the ten
challenged jurors.” That is, the trial court stated at the hearing that it was
considering only the voir dire transcripts of the ten African-American jurors that
the prosecution struck, not those of any other jurors. Further, the prosecutor
noted, “[a]t no time has [Miller-El] urged that there are unchallenged venire
persons who did not have these same traits that the prosecutors testified either

3
Macaluso also oversaw the voir dire for Reed’s trial and testified at Reed’s Batson
hearing.

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at trial or in this hearing that they relied on in exercising the State’s peremptory
challenges.” Miller-El did not respond to this statement and did not ask the
court to consider any other portions of the voir dire transcript. After reviewing
the voir dire transcript of only the challenged jurors, the judge accepted the
prosecutor’s race-neutral explanations for the strikes and found that there was
“no purposeful discrimination.” Miller-El II, 545 U.S. at 236. The TCCA
affirmed, stating that it had “carefully reviewed the voir dire examination” of the
prospective black jurors and found “ample support . . . for the prosecutor’s
racially neutral explanations.” Miller-El v. State, No. 69,677, at 2 (Tex. Crim.
App. Sept. 16, 1992) (per curiam) (unpublished). Again, it is important to
emphasize that the TCCA never reviewed the entire voir dire transcript or
considered a comparative analysis.
Miller-El then sought federal habeas relief. The district court rejected
Miller-El’s Batson argument without making any mention of a comparative
analysis. See Miller-El v. Johnson, No. 3:96-CV-1992-H, 2000 U.S. Dist. LEXIS
7763 (N.D. Tex. June 5, 2000). Similarly, this court denied Miller-El a COA
without ever mentioning a comparative analysis, instead focusing on Miller-El’s
argument that historical data of these prosecutors demonstrated repeated
exclusion of African-Americans from juries. Miller-El v. Johnson, 261 F.3d 445,
451 (5th Cir. 2001). The Supreme Court reversed and granted a COA. Miller-El
v. Cockrell (Miller-El I), 537 U.S. 322, 341 (2003). Without specifying that
Miller-El had not presented a comparative analysis to either the state trial court
or the TCCA, the Court noted that a “comparative analysis of the venire
members demonstrates that African-Americans were excluded from petitioner’s
jury in a ratio significantly higher than Caucasians were.” Id. at 331. Both
Justice Scalia, who concurred, and Justice Thomas, who dissented, discussed the
merits of Miller-El’s comparison of the challenged black jurors and accepted
white jurors. Id. at 351-53 (Scalia, J., concurring); id. at 361-63 (Thomas, J.,

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dissenting).
On remand, this court rejected Miller-El’s Batson claim on the merits.
Miller-El v. Dretke, 361 F.3d 849, 862 (5th Cir. 2004). As to Miller-El’s
comparative analysis, we stated, “we can determine from the record that there
were no unchallenged non-black venire members similarly situated, such that
their treatment by the prosecution would indicate the reasons for striking the
black members were not genuine.” Id. at 856. That is, we considered the entire
voir dire transcript as part of the record even though Miller-El did not present
a comparison theory to the state trial court during his Batson hearing, and we
rejected Miller-El’s argument. Id. The Supreme Court reversed this court’s
decision, explicitly relying on the comparative analysis. Miller-El II, 545 U.S.
at 241. In particular, the Court noted, “[m]ore powerful than these bare
statistics . . . are side-by-side comparisons of some black venire panelists who
were struck and white panelists allowed to serve.” Id. This time, Justice
Thomas, joined by Chief Justice Rehnquist and Justice Scalia in dissent, argued
that the Court could not consider the comparative analysis because Miller-El
had not presented it at his Batson hearing. Id. at 283 (Thomas, J., dissenting).
Justice Thomas wrote,
Miller-El’s arguments gave the state court no reason to go leafing
through the voir dire transcript. What is more, voir dire at
Miller-El’s trial lasted five weeks, and the transcript occupies 11
volumes numbering 4,662 pages. To think that two years after the
fact a trial court should dredge up on its own initiative passing
references to unseen questionnaires—references buried in a more
than 4,600-page transcript no less—is unrealistic. That is why
§ 2254(d)(2) demands that state courts be taken to task only on the
basis of evidence “presented in the State court proceeding.” The 98
questionnaires before the parties, unlike the 10 questionnaires that
Miller-El entered into evidence, were not “presented” to the state
court.
Id. The majority soundly rejected Justice Thomas’s argument:

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The dissent contends that comparisons of black and nonblack venire
panelists, along with Miller-El’s arguments about the prosecution’s
disparate questioning of black and nonblack panelists and its use of
jury shuffles, are not properly before this Court, not having been
“put before the Texas courts.” But the dissent conflates the
difference between evidence that must be presented to the state
courts to be considered by federal courts in habeas proceedings and
theories about that evidence. See 28 U.S.C. § 2254(d)(2) (state-court
factfinding must be assessed “in light of the evidence presented in
the State court proceeding”); Miller-El [I, 537 U.S.] at 348 (habeas
petitioner must show unreasonability “in light of the record before
the [state] court”). There can be no question that the transcript of
voir dire, recording the evidence on which Miller-El bases his
arguments and on which we base our result, was before the state
courts, nor does the dissent contend that Miller-El did not “fairly
presen[t]” his Batson claim to the state courts.
Id. at 241 n.2.4 In fact, the Court even referred to the comparative analysis as
something it would conduct, not something that the parties must submit. Id. at
241 (“While we did not develop a comparative juror analysis last time, we did
note that the prosecution’s reasons for exercising peremptory strikes against
some black panel members appeared equally on point as to some white jurors
who served.” (emphasis added)). We recently agreed that Miller-El II requires
us to consider a “comparative juror analysis” in a Batson claim. See United
States v. Brown, No. 05-20997, 2008 WL 5255903, at *19-20 (5th Cir. Dec. 18,
2008) (noting that “there is some indication that both the prosecution and the
court failed to take the comparative features of two venire members into
account” and conducting the comparative analysis on appeal).
In sum, Miller-El II entailed virtually the exact same procedural posture
as this case: both Miller-El’s and Reed’s trials occurred before the Court decided

4
Recently, the majority of Justices again rejected this same argument from Justice
Thomas. See Snyder, 128 S. Ct. at 1214-15 (Thomas, J., dissenting). The majority compared
the state’s treatment of the black juror it struck with several white jurors it accepted, even
though the Louisiana Supreme Court had not used these same white jurors in its own
comparison. Id. at 1211, 1214 n.*.

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Batson. The TCCA remanded both Miller-El’s and Reed’s appeals for Batson
hearings. At the Batson hearings, which occurred two years after the voir dire
in Miller-El’s trial and ten years after the voir dire in Reed’s trial, neither
defendant presented a comparative analysis, and at both hearings the trial court
specifically stated that it would read only the voir dire transcript of the black
jurors that the State had struck. Nevertheless, the Supreme Court considered
the comparative analysis in Miller-El II. The similarities between Miller-El II
and this case are striking. In Miller-El II, the Supreme Court, on habeas review,
considered the entire voir dire transcript because the comparative analysis
simply was a theory that involved the evidence before the state court. Id. The
same is true here.
The district court’s attempt to distinguish Miller-El II is unavailing. The
district court stated,
Here, in contrast to Miller-El, (1) the full transcript of voir dire was
not before the trial court; (2) the State has objected to considering
evidence not before the trial court in the Batson hearing . . . ; (3) the
State expressly relies on the 28 U.S.C. § 2254(d)(2) requirement that
this Court review state court adjudications “in light of the evidence
presented in the State court proceeding,” . . . ; and (4) it is clear that
at the time of the Batson hearing, the state court judge had no
independent recollection of the voir dire, aside from that limited
portion that was introduced at the Batson hearing.

None of these distinctions compel a different result from Miller-El II. First,
there is no evidence that the entire voir dire transcript was formally presented
to the trial court in Miller-El’s Batson hearing. In fact, the trial judge
specifically stated, “I’m going to, of course, reread the voir dire of the ten
challenged jurors.” Miller-El never suggested that the judge read the entire voir
dire transcript, even though the prosecutor pointed out that the defendant had
not made a comparative analysis argument. Essentially the same thing
happened in Reed’s Batson hearing: the court noted that “[n]either party

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suggested that the Court review the transcription of the voir dire examination
of any other venireman” even after the court stated that it could not remember
the jury selection, which had occurred ten years earlier. Therefore, in both
cases, the trial court stated that it would read the voir dire transcripts of only
the challenged jurors, and in both cases the defendant did not press further and
ask the judge to review the entire voir dire. The failure of the defendant to
explicitly point out other parts of the voir dire transcript did not preclude the
Supreme Court from considering the comparative analysis in Miller-El II.
Second, it is true that the State objected to the TCCA considering the
comparative analysis because Reed had not presented it at his Batson hearing,
and it does not appear that the State made this same objection in Miller-El’s
case. But this is a distinction without a difference. That the State had not
objected to the introduction of this evidence was irrelevant to the Supreme
Court’s decision to consider Miller-El’s comparative analysis. Instead, the
majority determined that the entire voir dire transcript was before the “state
courts” (i.e., not just the TCCA) and that the comparative analysis simply was
one theory using that evidence. Miller-El II, 545 U.S. at 241 n.2.
The majority’s position in Miller-El II also defeats the district court’s third
distinction. Of course, 28 U.S.C. § 2254(d)(2) requires us to review the state
court’s adjudication “in light of the evidence presented in the State court
proceeding.” In Miller-El II, the Court determined that the entire voir dire was
part of the record, and hence, part of the evidence Miller-El presented, even if
the state court did not consider the comparative analysis theory. There is no
reason why the same is not true here. We do not violate § 2254(d) by considering
a theory that rests upon evidence before the state trial judge, even if the state
court chose not to review that evidence or consider that theory. See id.
Finally, the district court noted that the trial judge at Reed’s Batson
hearing stated that he had no independent recollection of the jury selection. The

15
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judge at Miller-El’s hearing, while suggesting that he did recall some aspects of
the voir dire, also stated that he wished to review the record before ruling. The
judge expressed his general agreement with the prosecution’s argument but
qualified that remark by stating, “I want the same benefit of everything that [the
defendant had] talked about and that is to review the records myself.” It is not
clear why the fact that Miller-El’s judge remembered some aspects of jury
selection and Reed’s judge did not recall any of it should make any difference
regarding whether the entire voir dire transcript was before the trial judge. In
Miller-El II, the Supreme Court held that the entire voir dire transcript was
before the state trial court and that the comparative analysis was one theory
that used the evidence. The Court did not hold—as the district court seems to
suggest—that the entire voir dire transcript was before the trial judge because
the judge could remember some aspects of the voir dire.
In the present case, the district court noted that “Reed’s Batson hearing
was long after the trial, and . . . Reed’s comparative argument was first made
long after, and outside the record of, the Batson hearing.” This sentence also
could describe Miller-El II: Miller-El’s Batson hearing occurred two years after
his trial,5 and Miller-El did not make his comparative analysis argument until
after his Batson hearing. Accordingly, Miller-El II is directly on point.
In sum, although the TCCA determined here that it would not consider
Reed’s comparative analysis theory, the entire voir dire transcript did not
disappear from the record for purposes of federal habeas review. The
comparative analysis rests on the entire voir dire transcript. Miller-El II held
that all of the voir dire was part of the “evidence” before the “state courts,” even
though the defendant did not present the comparative analysis theory and
referred only to the voir dire of the challenged jurors. That is, the entire voir

5
There is no support for the district court’s conclusion that a two-year delay versus a
ten-year delay in having a Batson hearing makes any difference in this analysis.

16
 No. 05-70046

dire transcript was before the state court during the Batson hearing, even if the
court chose not to consult it. See 28 U.S.C. § 2254(d)(2) (noting that this court
must assess a state court’s factual finding “in light of the evidence presented in
the State court proceedings”); Miller-El II, 545 U.S. at 241 n.2 (quoting the
language from § 2252(d)(2) in concluding that Miller-El had presented the entire
voir dire transcript to the state courts even if he did not refer to the comparative
analysis theory). Therefore, the entire voir dire transcript—and the comparative
analysis, which is a theory that relies upon the voir dire—is properly before this
court on habeas review.6
C. Review of Comparative Analysis
1. Comparative analysis in Miller-El II
Before we discuss Reed’s comparative analysis, we find it useful to recount
the Supreme Court’s comparative analysis in Miller-El II. The Court described
the relevance of the comparative analysis by noting that “[i]f a prosecutor’s
proffered reason for striking a black panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third step.” Miller-El II,
545 U.S. at 241. Although the prosecution in Miller-El’s trial struck ten eligible
black jurors, the Court focused on two for its comparative analysis. Id. at 242-
53. The Court first examined the prosecution’s strike of prospective juror Billy
Jean Fields (“Fields”). Id. at 242. Fields was a black man who expressed
support for the death penalty. Id. The prosecution alleged that it struck Fields
because he indicated that the likelihood of rehabilitation might impact his view
on the defendant’s future dangerousness. Id. The Court compared Fields’s

6
The Supreme Court in Miller-El II distinguished between the voir dire, which was
before the TCCA as part of the evidence, and the juror questionnaires and information cards,
which might not have been before the state courts. 545 U.S. at 241 n.2. The TCCA has made
this same distinction. See Vargas, 838 S.W.2d at 557. Out of an abundance of caution—and
because it makes no difference to our analysis—we consider only the voir dire transcript.

17
 No. 05-70046

response on this issue with that of two white jurors who the prosecution
accepted, concluding that “when we look for nonblack jurors similarly situated
to Fields, we find strong similarities as well as some differences. But the
differences seem far from significant, particularly when we read Fields’s voir
dire testimony in its entirety.” Id. at 247 (footnote omitted).
The majority responded to the dissent’s assertion that no white panelist
was similarly situated to Fields by noting,
None of our cases announces a rule that no comparison is probative
unless the situation of the individuals compared is identical in all
respects, and there is no reason to accept one. . . . A per se rule that
a defendant cannot win a Batson claim unless there is an exactly
identical white juror would leave Batson inoperable; potential jurors
are not products of a set of cookie cutters.
Id. at 247 n.6.
The other juror that the Court used for its comparative analysis was Joe
Warren (“Warren”). Id. at 247. Warren gave an equivocal answer when he was
asked whether he supported the death penalty. Id. at 247-48. The prosecution
asserted that it struck Warren because of his inconsistent responses on this
issue. Id. at 248. However, the Court found that the State did not object to
other panel members who gave responses similar to Warren’s, making this
explanation implausible. Id. The State also contended that it struck Warren
because his brother-in-law had been convicted of a crime, but the Court noted
that this criminal history was comparable to those of the relatives of nonblack
panel members that the State did not strike. Id. at 250 n.8. Finally, the Court
rejected the State’s argument that it simply was being more liberal in using a
strike against Warren at that point in the process because the State had many
peremptory challenges remaining. Id. at 249. In particular, the Court noted
that the State accepted a nonblack juror right before it examined Warren and
that that nonblack juror had given answers regarding her views of the death

18
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penalty that were similar to Warren’s. Id. As the Court concluded, “[i]t is true,
of course, that at some points the significance of Miller-El’s evidence is open to
judgment calls, but when this evidence on the issues raised is viewed
cumulatively its direction is too powerful to conclude anything but
discrimination.” Id. at 265.
The Court’s treatment of Miller-El’s comparative analysis also reveals
several principles to guide us. First, we do not need to compare jurors that
exhibit all of the exact same characteristics. Id. at 247 n.6. If the State asserts
that it struck a black juror with a particular characteristic, and it also accepted
nonblack jurors with that same characteristic, this is evidence that the asserted
justification was a pretext for discrimination, even if the two jurors are
dissimilar in other respects. Id. at 241. Second, if the State asserts that it was
concerned about a particular characteristic but did not engage in meaningful
voir dire examination on that subject, then the State’s failure to question the
juror on that topic is some evidence that the asserted reason was a pretext for
discrimination. Id. at 246. Third, we must consider only the State’s asserted
reasons for striking the black jurors and compare those reasons with its
treatment of the nonblack jurors. Id. at 252.
2. Comparative analysis for Reed’s jury
With respect to the jury selection in Reed’s case, we find that the State’s
proffered reasons for striking at least two of the prospective black jurors were
pretexts for discrimination. Our conclusion rests on a careful comparison of the
testimony of these jurors with that of nonblack jurors who were similarly
situated.
a. Gloria Osby
The most obvious example of the implausibility of the State’s justifications
for its peremptory challenges, given the entire record, is the State’s strike of
prospective African-American juror Gloria Osby (“Osby”). Osby likely would

19
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have been an ideal juror for the State. She expressed support for the death
penalty and viewed a case of murder in the course of committing robbery or
attempted rape as the type of case in which she could vote for death. (Transcript
of Record at 1-200, 1-203, State v. Reed, No. F 81-1988-PL (Tex. Crim. Dist. Ct.
1983) [hereinafter “Tr.”].) She had previously served as the foreperson in a
criminal case in which the jury convicted the defendant of theft. (Tr. at 1-209,
210.) She understood the three special issue questions that death penalty jurors
must answer and recognized that if the jury answered “yes” to all three, the
court was obligated to sentence the defendant to death. (Tr. at 1-238.) She also
stated that she would answer the three questions “yes” if the evidence mandated
that conclusion, even if she personally felt that death was inappropriate for that
defendant. (Tr. at 1-241.)
The State asserted that it struck Osby for two reasons. First, the State
argued that it struck her because she was a health care professional and that the
State generally disfavored health care workers in cases involving medical
evidence. Second, the State asserted that Osby would require a high standard
of proof for the future dangerousness special issue.
Regarding Osby’s status as a health care professional, the State did not
ask Osby any questions about her profession. As the Supreme Court stated, the
prosecution’s failure to question a potential juror about a characteristic that the
State asserts is important is evidence that the asserted reason was actually a
pretext for discrimination. See Miller-El II, 545 U.S. at 246 (citing Ex parte
Travis, 776 So. 2d 874, 881 (Ala. 2000) (“[T]he State’s failure to engage in any
meaningful voir dire examination on a subject the State alleges it is concerned
about is evidence suggesting that the explanation is a sham and a pretext for
discrimination”)). Here, the prosecutor merely established that Osby was a
registered nurse who worked for the Veterans Administration and had formerly
worked with the Dallas Osteopathic Hospital. (Tr. at 1-208.) The prosecutor did

20
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not ask her anything about her background as a health care professional or the
type of patients she saw.7 The State’s failure to question her about her job
suggests that this asserted reason for striking Osby was pretextual.8 In fact, the
prosecution stated, when examining prospective white juror Dale Moler, that “I
don’t even know why that question [about whether the juror or a juror’s relative
ever worked in a hospital] is on [the juror questionnaires].” (Tr. at 2-305.)9
The State’s other justification for striking Osby—her alleged requirement
that the State show a “strong possibility” of future dangerousness—is also
unavailing. The only basis for this contention is one sentence from Osby’s voir
dire testimony. In response to a question about whether the State would have
to prove that the defendant would commit another murder to show a probability
of future dangerousness, Osby stated that “it would have to be proven to me that
that is a strong possibility.” (Tr. at 1-235.) She then qualified her statement,
agreeing with the prosecutor that someone would pose a threat of future
dangerousness if the State showed that the defendant likely would commit “an
assault of some type or physical harm of some type.” (Tr. at 1-235.) Thus, it is
not even clear from Osby’s testimony that she would require a “strong
possibility” of future dangerousness.
More tellingly, the State accepted several nonblack jurors who expressed
a similar sentiment. White juror William Rhodes (“Rhodes”) stated that to him,

7
Reed asked several questions about Osby’s profession, learning that she studied
nursing at El Centro Junior College and that she worked in the respiratory ward. (Tr. at
1-274.)
8
The State did question one black potential juror, Mary Mosley (“Mosley”), on this
subject, and she testified that she had previously worked in an emergency room where a
patient was on a respirator. (Tr. at 6-478.) The court ultimately struck Mosley for cause for
an unrelated reason.
9
Further, although irrelevant to our decision, see supra note 6, we note parenthetically
that the State accepted several nonblack jurors who indicated on their juror questionnaires
that the juror or a relative of the juror had worked in a hospital.

21
 No. 05-70046

the word “probability” in the future dangerousness special issue meant “it’s not
for sure but it’s most probable that it would occur again.” (Tr. at 2-834.) When
pressed further, he stated, “You couldn’t say it would be a hundred percent proof,
but you could say it would be ninety-five percent proof.” (Tr. at 2-835.) There
is little difference between this answer and Osby’s statement that she would
want to see a “strong possibility” of future dangerousness, but the State sought
to keep Rhodes on the jury panel, objecting to the defense’s challenge of Rhodes
for cause. White juror Randolph Hanes (“Hanes”) gave an even more
unfavorable response for the State regarding the future dangerousness special
issue. He stated that in his opinion, “the word probable is too definite. I’m
interpreting it as definitely that he would.” (Tr. at 3-185.) He then clarified that
he believed “probability” of future dangerousness means “close to being definite.”
(Tr. at 3-187.) This would seem to impose a higher burden on the State then
showing a “strong possibility,” but the State accepted Hanes. White juror Paul
Halliday stated that for the future dangerousness special issue, he would want
to see that the defendant’s past behavior indicated that “there is a very, very
high degree that he would be a threat to society.” (Tr. at 5-826.) The State
accepted him to serve. In sum, Osby’s voir dire testimony, when compared to the
testimony of nonblack jurors who gave similar responses, demonstrates that the
reasons the State came up with to justify its strike of Osby are spurious.
b. Perry Jones
Prospective black juror Perry Jones (“Jones”) also likely would have been
a strong juror for the State. He favored the death penalty generally, stating that
“[a] lot of cases definitely warrant it.” (Tr. at 1-588.) He believed that the death
penalty deterred crime and disagreed with a moratorium on capital punishment.
(Tr. at 1-592, 1-593.) He also said that he could impose the death penalty if the
facts and circumstances warranted it. (Tr. at 1-591.)
The State asserted, at the Batson hearing, that it struck Jones for three

22
 No. 05-70046

reasons. First, the State claimed that Jones would impose the death penalty
only “if the facts are presented to me beyond a shadow of a doubt,” which the
State argues is a higher burden of proof than beyond a reasonable doubt.
Second, the State argued that Jones would need to see “a little premeditation”
to convict for capital murder, which the law in Texas does not require. Finally,
the State posited that it struck Jones because he was concerned about losing his
job if he was gone from work for a long time. However, a review of Jones’s voir
dire testimony, along with a comparison of the State’s treatment of white jurors
who expressed these same sentiments, demonstrates that the State’s proffered
reasons were pretexts for discrimination.
Jones used the phrase “beyond a shadow of a doubt” in response to a
question about his views on the death penalty. The prosecutor asked Jones if he
would place himself into one of three categories, the first being a person who
believed in the death penalty and could impose it if warranted. (Tr. at 1-589,
1-590.) Jones responded that he agreed with the first category, stating that he
could vote for death “[i]f the facts are presented to me in such a way that beyond
the shadow of a doubt the man is incapable of being rehabilitated.” (Tr. at
1-591.) The prosecution did not ask Jones to explain this statement, even
though, as the State argued to the TCCA, Jones’s beliefs would cause the State
“a serious difficulty in the presentation of its evidence” because this was a
“burden of proof far beyond” what the law required. Much like with Osby and
her status as a health care professional, the fact that the prosecution failed to
question Jones about the “shadow of a doubt” standard, which the State
purportedly found important, suggests that this reason was pretextual. See
Miller-El II, 545 U.S. at 246. Additionally, the State accepted several white
jurors who used this same phrase. For example, when questioning prospective
white juror Rhodes, the prosecution asked if he would require the State to prove
every item in the indictment beyond a reasonable doubt, and Rhodes responded,

23
 No. 05-70046

“[t]hat’s right, beyond the shadow of a doubt at all.” (Tr. at 2-875.) The
prosecutor repeated Rhodes’s statement, affirming that “[i]f you had a shadow
of a doubt that we didn’t prove it beyond the shadow of a doubt, you would cut
him loose.” (Tr. at 2-875.) If the prosecution were really concerned about this
sentiment, as it asserts it was for Jones, it would have neither used this same
phrase nor objected when the defendant challenged Rhodes. Similarly, the State
accepted white juror Charlotte Speulda, even though she stated that, to answer
“yes” to the future dangerousness question, “the evidence would have to prove
that this person had done the crime without any shadow of a doubt.” (Tr. at 6-
1024.) Prospective white juror J.D. Stacy, who the State accepted, stated, “[i]f
I had the slightest doubt, I could not find the person guilty,” which the State
recognized was beyond the legal standard of “reasonable doubt.” (Tr. at 6-890.)
In sum, several white jurors expressed that they might hold the State to a higher
burden than “beyond a reasonable doubt,” but the State accepted these jurors.
The State therefore cannot justify its strike of Jones on this basis.
Next, Jones expressed his views on premeditation in response to a
question about whether he would want to see premeditation in a capital murder
case. (Tr. at 1-640.) Specifically, he stated, “I think that for capital murder that
you would have to show a little premeditation.” (Tr. at 1-640.) Jones then
clarified his statement, saying that he would not require the State to show that
the defendant planned out the act beforehand. (Tr. at 1-641.) Instead, he simply
wanted to ensure that the defendant knew what he was doing at the time. (Tr.
at 1-641.) Thus, contrary to the State’s argument, it appears that Jones actually
would not have held the State to a higher burden; instead, he simply
misunderstood the meaning of premeditation, equating it with intent. Further,
white juror John Wood also exhibited confusion regarding the meaning of
“premeditated murder,” and the State accepted him without probing further to
determine what Wood meant by premeditation. (Tr. at 3-284.) This undercuts

24
 No. 05-70046

the State’s argument that a jurors’ views on premeditation were important. See
Miller-El II, 545 U.S. at 246.
Finally, the State cannot justify its strike of Jones based on Jones’s
concern about losing his job if he served on the jury. Jones stated that he could
not be away from work for a long period of time in January while jury selection
was taking place, but he noted that he could return without any problems in
February, when the trial was scheduled to begin. (Tr. at 1-575, 1-577.) He
specifically averred that he could devote his full attention to the trial in
February. (Tr. at 1-654, 1-661.) Thus, the State did not have a legitimate reason
to strike Jones on this basis, even without comparing Jones’s responses to the
responses of white jurors that the State accepted. A comparative analysis
confirms that this asserted reason was a pretext for discrimination. Prospective
white juror Paul Murray stated that serving on the jury might “bankrupt” him
and that he might not be a suitable juror if the case dragged on because he
would be worried about his business. (Tr. at 1-482, 1-486, 1-488.) Prospective
white juror Rhodes stated that he was self-employed and that his business might
suffer if he served on the jury.10 (Tr. at 2-784.) White juror Sonja Czuwala
testified that serving on the jury would be “hard” because she picked up her
children in the afternoon. (Tr. at 1-995.) The State did not express any
reservations about allowing these white jurors to serve. In contrast, Jones did
not express the same level of concern as these jurors, but the State attempted
to use this rationale to justify its strike of Jones. E.g., Snyder v. Louisiana, 128
S. Ct. 1203, 1209 (2008) (rejecting State’s argument that it struck a prospective
black juror because the juror was concerned about completing his student-
teaching obligations). Accordingly, the only rational explanation is that the

10
Rhodes and Jones shared two of the characteristics that the State relies upon to
justify its strike of Jones—the use of the phrase “shadow of a doubt” and concerns about
work—but the State accepted Rhodes and used a peremptory challenge against Jones.

25
 No. 05-70046

State did not strike Jones because of his work schedule and that this reason was
actually a pretext for discrimination.
In sum, a careful examination of the record reveals that the State’s
asserted reasons for striking prospective black jurors Osby and Jones were mere
pretexts for discrimination.11 For some of the explanations, the State
misconstrued the jurors’ testimony. For others, the State accepted white jurors
who exhibited the same characteristics. As stated above, the black and white
jurors that we compare need not be exactly the same for us to conclude that the
prosecution’s proffered reasons for striking the black prospective jurors were
pretexts for discrimination, because “[a] per se rule that a defendant cannot win
a Batson claim unless there is an exactly identical white juror would leave
Batson inoperable; potential jurors are not products of a set of cookie cutters.”
Miller-El II, 545 U.S. at 247 n.6. Much like in Miller-El II, “[c]omparing [these
strikes] with the treatment of panel members who expressed similar views
supports a view that race was significant in determining who was challenged
and who was not.” Id. at 252. Thus, the comparative analysis demonstrates
what was really going on: the prosecution used its peremptory challenges to
ensure that African-Americans would not serve on Reed’s jury.12

11
Although Reed does not raise this argument, we also note that, much like in Miller-El
II, the prosecution here gave a “graphic description” of the death penalty to a majority of
prospective black jurors and a minority of prospective white jurors. See Miller-El II, 545 U.S.
at 255-56. The Court responded to this evidence in Miller-El II by concluding that, “[a]s
between the State’s [non-racial explanation that it used the graphic script for jurors who
expressed ambivalence about the death penalty] and Miller-El’s racial one, race is much the
better, and the reasonable inference is that race was the major consideration when the
prosecution chose to follow the graphic script.” Id. at 260.
12
In Miller-El II, the Court focused on the comparative analysis of two jurors that the
State struck, even though the State used peremptory challenges for ten prospective black
jurors. Miller-El II, 545 U.S. at 236, 252 n.11. The Court noted that the State’s treatment of
the two jurors it analyzed supported “stronger arguments” of a Batson violation than the
State’s actions toward the other black jurors. Id. at 252 n.11. The same is true here. Reed
asserts that the State struck all five qualified black prospective jurors because of their race.
The State’s treatment of Osby and Jones are compelling examples of a Batson violation. The

26
 No. 05-70046

D. Historical Evidence of Discrimination
Much like in Miller-El II, our decision does not rest solely on the
comparative analysis. In Miller-El II, the Court stated, “[w]e know that for

State’s strikes of prospective black jurors Mary Gaut (“Gaut”) and Beverly Johnson (“Johnson”)
present closer calls. Although the State may have been justified in striking Gaut and Johnson
because of their inconsistent responses on their views of the death penalty, the State’s other
justifications for striking these jurors were pretextual. That is, the State had one justified
rationale for striking these black jurors, and even though it did not need any other reasons,
the State provided other explanations that are without merit.

For example, the State asserted that it struck Gaut in part because she would not vote
“yes” on the future dangerousness special issue without hearing the testimony of a
psychiatrist, but a review of the entire voir dire transcript reveals that she never actually
expressed this view, instead simply stating a preference for psychiatric evidence. (Tr. at 5-127,
5-132.) The State accepted several white jurors who also expressed a preference for psychiatric
testimony. (Tr. at 2-564 (Juror Lisa Hill); Tr. at 3-971 (Juror William Scanlon).) The State
claims that it also struck Gaut because she was unable to understand the special issue
questions, but it accepted several white jurors who expressed the same level of confusion. (Tr.
at 5-347 (Juror Robert Jennings); Tr. at 4-437 (Juror David Taylor); Tr. at 5-710 (Juror Paul
Wendt).)

Similarly, the State claims that it struck Johnson in part because she would refuse to
impose the minimum penalty for murder and had prior experience with the criminal justice
system, having been acquitted of a misdemeanor assault. But several white jurors that the
State accepted expressed similar views regarding the minimum penalty for murder (Tr. at 5-
598, 5-613 (Juror J.L. Epps); Tr. at 5-219, 5-221 (Juror Paul Powell)), and the State accepted
white juror Robert Jennings even though he was serving a deferred adjudication for carrying
a prohibited weapon (Tr. at 5-321.).

Finally, the State’s strike of Curtis Alberty (“Alberty”) does not assist Reed’s Batson
argument. Alberty stated that he was opposed to the death penalty and that he did not want
to be the one deciding whether a person lived or died. (Tr. at 4-223, 4-226.) He said that his
opposition to the death penalty was part of his conscience. (Tr. at 4-239.) Although he agreed
that he would answer the three special issue questions “yes” if the evidence so warranted, he
stated that the result would still bother him. (Tr. at 4-254.) Reed does not point to any
nonblack juror that the State accepted who expressed this same sentiment. As stated above,
however, this fact does not defeat Reed’s Batson claim. In Miller-El II, the Court found a
Batson violation based on its analysis of only two of ten black jurors who the State struck.
Miller-El II, 545 U.S. at 252 n.11. The Court stated that there was “no need to go into the[]
instances” of the other jurors because the Court was relying on the State’s treatment of the two
jurors, along with other evidence of racial discrimination in the Dallas County District
Attorney’s Office. Id. Here, we rely on the State’s treatment of two of five black jurors and
that same historical evidence. As the Supreme Court stated, “[t]he Constitution forbids
striking even a single prospective juror for a discriminatory purpose.” Snyder, 128 S. Ct. at
1208 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

27
 No. 05-70046

decades leading up to the time this case was tried prosecutors in the Dallas
County office had followed a specific policy of systematically excluding blacks
from juries . . . .” 545 U.S. at 263. The Court noted that for years, prosecutors
had relied upon a manual titled “Jury Selection in a Criminal Case,” or the
“Sparling Manual,” which outlined the reasons for excluding minorities from
jury service. Id. at 264 (citing Miller-El I, 537 U.S. at 334-35). The Court
concluded, “[i]f anything more is needed for an undeniable explanation of what
was going on, history supplies it. The prosecutors took their cues from a 20-
year-old manual of tips on jury selection . . . .” Id. at 266.
Here, Reed presents this same historical evidence of racial bias in the
Dallas County District Attorney’s Office. Miller-El’s trial occurred in early 1986.
Reed’s trial was in February 1983. One of the same lawyers that conducted the
voir dire in Miller-El’s case, Paul Macaluso, also questioned prospective jurors
for Reed’s trial. The Court in Miller-El II relied, in part, on the Sparling Manual
to glean the history of racial discrimination in the Dallas County District
Attorney’s Office, and Reed presented this same document at his Batson hearing.
The Sparling Manual, written in 1968, directs prosecutors that “[y]ou are not
looking for any member of a minority group which may subject him to
oppression—they almost always empathize with the accused” and that
“[m]inority races almost always empathize with the Defendant.” Thus, this
document demonstrates that the District Attorney’s Office had a policy of
striking African-Americans from the jury. Id. at 264. If, as the Court found,
that office had a policy of discriminating against black jurors in 1986 during
Miller-El’s trial, then the reasonable conclusion is that it also had this policy
three years earlier during Reed’s trial. The Court in Miller-El II relied on
historical evidence of racial bias among these prosecutors, and, taking our cues
from the Supreme Court, we view this exact same evidence as persuasive here.
In sum, the facts of Miller-El II and the facts here are almost identical.

28
 No. 05-70046

In both cases, the prosecution used its peremptory challenges to strike
prospective black jurors. In both cases, the State had accepted several white
jurors who exhibited the exact same characteristics as these black jurors. In
both cases, the comparative analysis demonstrated that the State’s post hoc
rationalizations for challenging these jurors were in reality pretexts for
discrimination. And in both cases, which occurred within three years of each
other and involved one of the same prosecutors, a policy of excluding African-
Americans from juries pervaded the Dallas County District Attorney’s Office.
Given the similarities, and adhering to the lessons from Miller-El II, we conclude
that Reed has established a Batson violation. The state court’s conclusion to the
contrary was an unreasonable determination of the facts before it. Accordingly,
Reed is entitled to habeas relief on his Batson claim.
IV. CONCLUSION
Reed has established that he is entitled to habeas corpus relief based on
the Batson error in selecting his jury. Therefore, we need not reach the other
three issues on which we originally granted COAs. Although we do not relish
adding a new chapter to this unfortunate story more than thirty years after the
crime took place, we conclude that the Constitution affords Reed a right to relief.
Therefore, we REVERSE and REMAND with instructions to grant the writ, set
aside Reed’s conviction and sentence, and order Reed’s release from custody
unless the State grants Reed a new trial within 120 days from the date of the
district court’s order.
REVERSED AND REMANDED WITH INSTRUCTIONS

29