REVISED MARCH 11, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2009
No. 07-70004
Charles R. Fulbruge III
Clerk
ANTHONY CARDELL HAYNES
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 Southern District of Texas
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
DENNIS, Circuit Judge:
Petitioner Anthony Cardell Haynes (“Haynes”), a Texas prisoner, appeals
the district court’s decision to deny Haynes a petition for a writ of habeas corpus
that alleges the state prosecutor’s use of peremptory challenges was in violation
of the Equal Protection Clause of the United States Constitution as prescribed
by Batson v. Kentucky, 476 U.S. 79 (1986).
The State of Texas charged Haynes with the capital murder of a peace
officer who was “acting in the lawful discharge of an official duty[.]” TEX. PENAL
CODE § 19.03(a)(1). A jury convicted Haynes of capital murder and answered
No. 07-70004
Texas’s special issues in a manner requiring the imposition of a death sentence.
After exhausting his state remedies without relief, Haynes filed a federal habeas
petition on October 5, 2005, with the United States District Court for the
Southern District of Texas. The District Court denied habeas relief in an opinion
filed on January 25, 2007. Haynes filed for a certificate of appealability (COA)
in this court on May 30, 2007. This panel granted a COA on two issues: “(1)
whether the prosecution violated his rights under the Sixth and Fourteenth
Amendments through the racially discriminatory use of its peremptory challenge
as to potential juror Owens; and (2) whether the prosecution violated his rights
under the Sixth and Fourteenth Amendments through the racially
discriminatory use of its peremptory challenge as to potential juror McQueen.”
Haynes v. Quarterman, 526 F.3d 189, 202-203 (5th Cir. 2008).
In respect to the use of peremptory challenges against prospective jurors
McQueen and Owens in the Batson context, the relevant facts are as follows:
Two different state trial judges took turns presiding over the jury selection
process in this case at the state court level. Judge Wallace presided at the
beginning of the jury selection process when the jurors were addressed and
questioned as a group; Judge Harper presided during the next stage in which
the attorneys questioned the prospective jurors individually; and Judge Wallace
presided again during the final stage in which peremptory challenges were
exercised and when Batson challenges were made, considered, and ruled upon.
During the Batson hearing, the defendant established a prima facie case of a
Batson violation, and the prosecutor justified his use of peremptory challenges
against potential jurors McQueen and Owens solely1 on his impression of their
demeanor when responding to individual voir dire questioning (at which time
Judge Wallace was not presiding).
1
The State agrees on appeal that the prosecutor relied solely on demeanor evidence in
making these challenges.
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In his direct appeal, Haynes appealed the Batson determinations to the
state appellate court. On appeal, Haynes noted that “Judge Wallace, having not
observed the voir dire of individual veniremembers, having not observed their
demeanor, body language, responses, attitudes, and characteristics, could not
assess or scrutinize the veracity of the prosecutor’s explanations and
observations regarding the reasons for striking these prospective
veniremembers.” Haynes also contended that “[a] trial court’s determination of
a Batson challenge must necessarily be based upon the facial validity of the
prosecutor’s explanation in light of the trial court’s direct evaluation of the venire,
their respective statements, responses and demeanor.” (emphasis in original).
In this context, Haynes argued that “the trial court erred in concluding that the
State exercised its peremptory challenges against minority veniremembers
Goodman, Kirkling, McQuuen [sic], and Owens, respectively in a racially neutral
manner where these findings are unsupported by the record.” He repeats these
arguments in his federal habeas petition. His arguments with respect to
McQueen and Owens are now properly before this court.
STANDARD OF REVIEW
“As this case comes to us under 28 U.S.C. § 2254, our review is limited by
the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), which
provides that habeas relief may not be granted unless the state court proceeding
resulted in ‘a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court.’ A merely incorrect state court decision is not sufficient to constitute an
unreasonable application of federal law; rather, the decision must be objectively
unreasonable.” Virgil v. Dretke, 446 F.3d 598, 604 (5th Cir. 2006).
ANALYSIS
A. Haynes Did Not Waive His Batson Challenge and It Is Not
Procedurally Defaulted
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The State first contends that Haynes’ claim of a Batson violation because
Judge Wallace did not preside over individual voir dire is procedurally defaulted.
We disagree. “A state prisoner must present his claims to the state court and
exhaust state remedies before seeking federal habeas relief. . . . The exhaustion
requirement is satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court, either through direct appeal or state
habeas proceedings.” Goodrum v. Quarterman, 547 F.3d 249, 256 (5th Cir. 2008)
(internal quotation marks and citation omitted). The state appellate court
recognized that Haynes made two related arguments with respect to the fact
that Judge Wallace, and not Judge Harper, made the Batson determinations; it
found only one of them to be procedurally defaulted.
The state appellate court first examined Haynes’s argument that the trial
judge erred and denied him due process by presiding over the Batson hearing
even though he had not presided over the voir dire examination. With respect
to this due process challenge, the state court, on direct appeal, concluded that
Haynes procedurally defaulted the argument by failing to raise it before the trial
court. The appellate court then proceeded to discuss a related but different
argument regarding the effect of Judge Wallace’s failure to sit on individual voir
dire on the state appellate court’s review of the trial court’s Batson
determinations. It did not find this argument to be procedurally defaulted and,
in fact, considered this argument extensively on the merits. The state appellate
court eventually concluded that Haynes was “partly correct” and decided to give
the trial court “no deference” as to its Batson determinations. Haynes v. State,
No. 73,685, slip op. at 17 (Tex. App. Ct. Oct. 10, 2001) (unpublished). Haynes
also preserves this later issue in his federal habeas petition. The federal district
court addressed this issue on the merits. See Haynes v. Quarterman, 2007 WL
268374, at *16 n.10 (S.D. Tex. Jan. 25, 2007) (unpublished). We can now
squarely address this issue.
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B. A Batson Violation Occurred And Habeas Relief is Required
A Batson challenge involves three steps:
The Supreme Court has outlined a three-step process for
determining whether peremptory strikes have been applied in a
discriminatory manner. First, the claimant must make a prima
facie showing that the peremptory challenges have been exercised
on the basis of race. Second, if this requisite showing has been
made, the burden shifts to the party accused of discrimination to
articulate race-neutral explanations for the peremptory challenges.
Finally, the trial court must determine whether the claimant has
carried his burden of proving purposeful discrimination.
United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993). “The
Constitution forbids striking even a single prospective juror for a discriminatory
purpose.” Snyder v. Louisiana, 128 S.Ct. 1203, 1208 (2008) (internal quotation
marks and alteration omitted); Reed v. Quarterman, --- F.3d ---, 2009 WL 58903,
at *16 n.12 (5th Cir. Jan. 12, 2009).
We first consider Haynes’s Batson claims as to prospective juror Owens.
With respect to prospective juror Owens, the State concedes that the defendant
made a prima facie showing that the peremptory challenge had been exercised
on the basis of race.
For the second step, the prosecutors articulated a race-neutral explanation
as to Owens based entirely on demeanor. The Supreme Court demands that the
trial court especially scrutinize explanations based purely on demeanor. See
Snyder, 128 S.Ct. at 1208; see also Davis v. Fisk Elec. Co., 268 S.W.3d 508, 518
(Tex. 2008); Goodwin v. State, 898 S.W.2d 380, 382 (Tex. Ct. App.-San Antonio
1995); Daniels v. State, 768 S.W.2d 314, 317-18 (Tex. Ct. App.-Tyler 1988). This
demand is logically derived from the underlying rationale for delegating the
Batson determination to a trial court and according it substantial deference –
namely, that the trial court is better able to make determinations of demeanor.
See Snyder, 128 S.Ct. at 1208 (“We have recognized that these determinations
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of credibility and demeanor lie peculiarly within a trial judge’s province.”)
(internal quotations and citations omitted); Miller-El v. Cockrell, 537 U.S. 322,
339 (2003); see also Thompson v. Keohane, 516 U.S. 99, 111 (1995). Therefore, we
accord the trial court the primary role in adjudicating demeanor- based Batson
challenges because the trial court is in a better position to evaluate those
challenges and is not relying, as the appellate court does, solely on the paper
record. See Moody v. Quarterman, 476 F.3d 260, 272 (5th Cir. 2007) (noting that,
according to the Supreme Court, the state court’s credibility and demeanor
determinations based solely on the paper record are not accorded a presumption
of correctness, i.e., AEDPA deference) (citing Cabana v. Bullock, 474 U.S. 376,
388 n.5 (1986), overruled in part on other grounds, Pope v. Illinois, 481 U.S. 497
(1987)); see also Mann v. Scott, 41 F.3d 968, 982 (5th Cir. 1994).
For demeanor-based challenges especially, appellate review is necessarily
dependent on the trial court’s inquiry into the prosecutor’s reasons and his
personal observations of the juror’s demeanor that is the basis for those reasons.
See Snyder, 128 S.Ct. at 1208; United States v. Lance, 853 F.2d 1177, 1181 (5th
Cir. 1988); Bentley-Smith, 2 F.3d at 1375; United States v. Cobb, 975 F.2d 152,
155-56 (5th Cir. 1992). Such an inquiry is derivative of the trial court’s clearly
established obligation to “undertake ‘a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available.’” Batson, 476 U.S. at 93
(quoting Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266
(1977) (citation omitted and emphasis added)); id. at 95 (“[T]he trial court must
undertake a ‘factual inquiry’ that ‘takes into account all possible explanatory
factors’ in the particular case.” (emphasis added)); Miller-El v. Dretke, 545 U.S.
231, 251-52 (2005) (“Miller-El II”) (“As for law, the rule in Batson provides an
opportunity to the prosecutor to give the reason for striking the juror, and it
requires the judge to assess the plausibility of that reason in light of all evidence
with a bearing on it.” (emphasis added)). For example, in Jones v. Butler, we
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read Batson to require the application of the trial court’s observations of
individual jurors if relevant to the prosecutor’s explanation:
The trial judge then evaluates, ‘consider[ing] all relevant
circumstances,’ whether the prosecutor’s explanation is race-neutral
or a pretext for excluding potential jurors based on race. In making
this determination the trial judge has available not only the
prosecutor’s explanation, but also the judge's observations of the
demeanor of the prosecutor and the veniremen. As the Supreme
Court noted in Batson, the finding of intentional discrimination in
use of peremptory challenges is a finding of fact that ‘largely will
turn on evaluation of credibility.’ Years after trial, the prosecutor
cannot adequately reconstruct his reasons for striking a venireman.
Nor can the judge recall whether he believed a potential juror’s
statement that any alleged biases would not prevent him from being
a fair and impartial juror.
864 F.2d 348, 369-70 (5th Cir. 1988) (emphasis added); see also Wilkerson v.
Collins, 950 F.2d 1054, 1063 (5th Cir. 1992) (quoting Mayo v. Lynaugh, 893 F.2d
683, 689 (5th Cir.), modified, 920 F.2d 251 (5th Cir. 1990)). Texas courts have
also read Batson in this way:
Batson requires the trial judge to embrace a participatory role in
voir dire, noting the subtle nuance of both verbal and nonverbal
communication from each member of the venire. . . . The trial judge
is present during voir dire and is best able to observe the demeanor
and tenor of voice of the venireperson. . . . Accordingly, although a
prosecutor gives a race-neutral explanation, the trial judge, based
upon all the evidence and his observations and experience, may
determine whether or not the explanation is artificial or pretextual.
Smith v. State, 814 S.W.2d 858, 861-62 (Tex. Ct. App.-Amarillo 1991); accord
Ingram v. State, 978 S.W.2d 627, 630 (Tex. Ct. App.-Amarillo 1998); Gaines v.
State, 811 S.W.2d 245, 250 (Tex. Ct. App.-Dallas 1991). Taking these principles
together, trial courts are accorded the primary role in adjudicating Batson
challenges because they can apply the relevant circumstances, which include
their presumed observations of the juror and the entire venire as part of their
role to oversee the trial. See, e.g., Rice v. Collins, 546 U.S. 333, 336 (2006);
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No. 07-70004
Miller-El II, 545 U.S. at 240; United States v. Armstrong, 517 U.S. 456, 467-68
(1996). In this case, the trial court and the state appellate court did not conduct
a “factual inquiry” or a “sensitive” inquiry into the demeanor-based reasons
because neither court applied the relevant observations of the juror’s demeanor
despite the trial court’s role and experience overseeing the individual voir dire.
The state appellate court in this case found that both the trial judge and the
appellate court made their Batson determinations from the same appellate fact-
finding position, i.e., from the cold paper record, and therefore the state court
concedes there was no trial fact-finding. The state appellate court concluded:
Because the trial judge did not witness the actual voir dire at issue,
his position as fact-finder with regard to the demeanor of the
veniremembers at issue is no better than that of this Court. Thus,
we owe him no deference. . . . But regardless of whether the trial
judge referred to the record, any concern arising from this situation
is moot, because we have not given deference and have ourselves
reviewed the voir dire record.
Haynes, No. 73,685, slip op. at 17–18 (emphasis added) (citing Garcia v. State,
15 S.W.3d 533, 535-36 (Tex. Ct. Crim. App. 2000)). Taking this conclusion to its
logical end, we cannot correspondingly apply AEDPA deference to the state
court, because the state courts engaged in pure appellate fact-finding for an
issue that turns entirely on demeanor. See Moody, 476 F.3d at 272. It is clearly
established that the cold record cannot accurately reveal the demeanor of live
trial participants. See, e.g., Witt, 469 U.S. at 428; Patton v. Yount, 467 U.S.
1025, 1038 & n.14 (1984); Ciccarello v. Graham, 296 F.2d 858, 860 (5th Cir.
1961) (“Analysis of the cold record can never equal a first-hand observation of
the witness’ demeanor on the stand[.]”). Therefore, no court, including ours, can
now engage in a proper adjudication of the defendant’s demeanor-based Batson
challenge as to prospective juror Owens because we will be relying solely on a
paper record and would thereby contravene Batson and its clearly-established
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No. 07-70004
“factual inquiry” requirement.2 See, e.g., Snyder, 128 S.Ct. at 1207; Batson, 476
U.S. at 95.
For these reasons, we now order the district court to grant conditional
habeas relief. We REVERSE the district court’s judgment denying habeas relief
and REMAND this case to that court with instructions to order the State of
Texas to either give Anthony Cardell Haynes a new trial or release him from
custody within 180 days of the date of the district court’s order on remand.
2
Because we find a Batson violation as to prospective juror Owens, we need not analyze
the alleged violation as to prospective juror McQueen. See Snyder, 128 S.Ct. at 1208.
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