[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11440 ELEVENTH CIRCUIT
________________________ July 13, 2005
D. C. Docket No. 98-00915 CV-T-S THOMAS K. KAHN
CLERK
WILLIE MCNAIR,
Petitioner-Appellee,
versus
DONAL CAMPBELL, Commissioner,
Alabama Department of Corrections,
TROY KING, The Attorney General of
the State of Alabama,
LESLIE THOMPSON, Warden,
Respondents-Appellants.
_________________________
No. 04-12700
________________________
D. C. Docket No. 98-00915 CV-T-S
WILLIE MCNAIR,
Petitioner-Appellant,
versus
DONAL CAMPBELL, Commissioner,
Alabama Department of Corrections,
TROY KING, The Attorney General of
the State of Alabama,
LESLIE THOMPSON, Warden,
Respondents-Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
_________________________
(July 13, 2005)
Before TJOFLAT, ANDERSON, and HULL, Circuit Judges.
ANDERSON, Circuit Judge:
Defendant Willie McNair was convicted in Alabama state court and
sentenced to death for the robbery and murder of Ella Foy Riley. He received a
new sentencing hearing on direct appeal and was again sentenced to death. After
his second sentence was affirmed, McNair sought and was denied state habeas
corpus relief. He then filed a federal habeas corpus petition pursuant to 28 U.S.C.
§ 2254. The district court granted the petition on the basis of ineffective assistance
of counsel at the penalty phase and denied it on all other grounds. The State
appeals the district court’s grant of the petition. McNair cross-appeals the district
court’s denial of the petition with respect to his claims that (1) jurors improperly
considered extraneous evidence during the penalty phase and (2) the prosecutor
engaged in racial discrimination during jury selection in violation of McNair’s
Fourteenth Amendment rights under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
2
1712 (1986). For the reasons discussed below, we reverse the district court’s grant
of McNair’s petition on the basis of ineffective assistance of counsel and affirm the
district court’s denial of the petition on all other grounds.
I. FACTS AND PROCEDURAL BACKGROUND
On the night of May 21, 1990, Willie McNair and another man went to the
home of Ella Foy Riley, an elderly widow who lived alone and occasionally hired
McNair to do yard work. When Riley came to the door, McNair asked her if he
could borrow twenty dollars. Riley told him she had no money to lend him.
McNair then asked if he could have a glass of water. Riley invited him in, and
when she turned around McNair grabbed her by the neck and stabbed her in the
throat. When the blade of the knife broke off in Riley’s neck, McNair’s companion
retrieved another knife from the kitchen and McNair stabbed Riley in the neck
again. The wounds severed Riley’s carotid artery and jugular vein. Evidence
indicated that McNair also strangled Riley, who struggled for several minutes as
she bled to death. After killing Riley, McNair took her purse from the kitchen
counter and fled the scene with his companion. The pair drove several miles down
a rural road, rummaged through Riley’s purse, then dumped it. When an officer
came to his house the next morning, McNair admitted killing Riley and was
3
arrested. He subsequently directed officers to the place where he had dumped
Riley’s purse and gave detailed descriptions of the murder to investigators.
McNair was convicted of capital murder in the course of a robbery on April
18, 1991. He was sentenced to death following a 10-2 jury vote in favor of that
penalty. The Alabama Court of Criminal Appeals confirmed the conviction, but it
remanded the case for a new sentencing hearing because the sentencing judge had
improperly considered as an aggravating factor a prior conviction that resulted
from a nolo contendere plea. McNair v. State, 653 So. 2d 320, 327 (Ala. Crim.
App. 1992). The second jury recommended a sentence of life without parole by a
vote of 8-4. The court rejected this recommendation and again sentenced McNair
to death. McNair’s case was twice remanded for correction of the sentencing order
before finally being affirmed on direct appeal. McNair v. State, 653 So.2d 351
(Ala. Crim. App. 1994). The United States Supreme Court denied McNair’s
petition for certiorari. McNair v. Alabama, 513 U.S. 1159, 115 S. Ct. 1121 (1995).
After his unsuccessful direct appeal, McNair petitioned for post-conviction
relief pursuant to Alabama Rule of Criminal Procedure 32 (“Rule 32"). The Henry
County Circuit Court (the “Rule 32 court”) issued an order dismissing as
procedurally barred all of McNair’s claims except (1) ineffective assistance of
counsel in violation of the Sixth Amendment, (2) state failure to turn over
4
exculpatory evidence to the defense, and (3) the unconstitutionality of the death
penalty due to a pattern of racial bias in its implementation. An evidentiary hearing
for these claims was originally scheduled for September 22, 1995, but it was moved
to November 8, 1995 on McNair’s motion. The Rule 32 court entered an order
denying McNair’s petition on all grounds on November 13, 1995. Its order was
affirmed by Court of Criminal Appeals, and the Alabama Supreme Court denied
certiorari. McNair v. State, 706 So. 2d 828 (Ala. Crim. App. 1997).
McNair filed a federal habeas corpus petition in the United States District
Court for the Middle District of Alabama on August 18, 1998. He alleged
numerous grounds for relief, including (1) ineffective assistance of counsel at the
guilt and penalty phases of his trial, (2) improper consideration of extraneous
evidence by jurors during the guilt phase, and (3) Batson violations by the State
during jury selection. The district court determined that several claims were
entitled to review under 28 U.S.C. § 2254, and, over the State’s objection, granted
an evidentiary hearing on McNair’s ineffective assistance claims. The hearing was
held on July 27-28, 2000.
On March 12, 2004, the district court granted McNair’s habeas petition with
respect to the death sentence, holding that McNair received ineffective assistance
of counsel at the penalty phase of his trial. The court denied McNair’s petition on
5
all other grounds. The State appealed the court’s decision on the ineffective
assistance issue, and McNair filed a cross-appeal with respect to his extraneous
evidence and Batson claims. Those appeals are now before this court.
II. STANDARD OF REVIEW
We review de novo a district court’s grant or denial of a habeas corpus
petition. Wright v. Hopper, 169 F.3d 695, 701 (11th Cir. 1999). The district
court’s factual findings are reviewed for clear error, while mixed questions of law
and fact are reviewed de novo. Id. An ineffective assistance of counsel claim is a
mixed question of law and fact subject to de novo review. Id.
Because McNair filed his federal habeas petition after April 24, 1996, this
case is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which “establishes a highly deferential standard for reviewing state
court judgments.” Parker v. Sec’y for Dept. of Corr., 331 F.3d 764, 768 (11th Cir.
2003). Under AEDPA, a person in custody pursuant to the judgment of a state
court shall not be granted habeas relief unless the state court’s decision was (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the United States; or (2) . . .
was based on an unreasonable determination of the facts in light of the evidence
6
presented in the State court proceeding.” 28 U.S.C. § 2254(d). Moreover, a state
court’s factual determinations are presumed correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
Finally, AEDPA mandates that a petitioner who failed to develop the factual
basis for a claim in state court shall not be granted a federal evidentiary hearing
absent certain extraordinary circumstances. 28 U.S.C. § 2254(e)(2). A district
court’s decision to grant or deny an evidentiary hearing is reviewed for an abuse of
discretion. Kelley v. Sec’y for Dept. of Corr., 377 F.3d 1317, 1333 (11th Cir.
2004). A district court abuses its discretion by misapplying the law or making
findings of fact that are clearly erroneous. Id.
III. DISCUSSION
A. Ineffective Assistance of Counsel
The district court, after holding an evidentiary hearing, granted McNair’s
habeas petition on the ground that he received ineffective assistance of counsel
during the penalty phase of his trial. Specifically, the court held that McNair’s
counsel was constitutionally ineffective for presenting lay testimony about
McNair’s drug use without offering additional evidence about the effects of drug
addiction and its potential mitigating effects. The State argues that the district
7
court erred by (1) granting McNair an evidentiary hearing when McNair was not
diligent in developing his claim in state court; (2) not deferring to the state court’s
determination on the merits as required by 28 U.S.C. § 2254(d); and (3) finding
that McNair’s counsel was constitutionally ineffective under the test laid out in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). For the reasons
discussed below, we agree that the district court erred in granting McNair’s
petition.
We turn first to the State’s argument that the district court erred in granting
McNair an evidentiary hearing. Under AEDPA, when a federal habeas petitioner
“has failed to develop the factual basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the claim.”1 28 U.S.C. § 2254(e)(2).
The Supreme Court has held that “a failure to develop the factual basis of a claim is
not established unless there is lack of diligence, or some greater fault, attributable
to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432,
120 S. Ct. 1479, 1488 (2002). “Diligence,” as used in section 2254(e)(2), “depends
1
§ 2254(e)(2) does have two exceptions, but neither applies in this case. For
example, for the newly discovered evidence exception to apply, “the facts underlying the claim
[on which the petitioner seeks an evidentiary hearing] must be sufficient to establish by clear and
convincing evidence that but for the constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Because there
is no doubt that McNair is guilty of the underlying offense, the exceptions in § 2254(e)(2) are
inapplicable in this case.
8
upon whether the prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state court.” Williams,
529 U.S. at 435, 120 S. Ct. at 1490. Accordingly, the district court should not have
granted McNair an evidentiary hearing unless he made a reasonable attempt to
investigate and pursue his ineffective assistance of counsel claim in state court.
In its opinion granting the evidentiary hearing, the district court “could not
conclude that [McNair] had failed to develop the factual basis of this claim in the
state proceedings, because the state court had foreclosed [his] attempts to develop
the requisite expert testimony.” McNair v. Haley, 97 F. Supp. 2d 1270, 1279
(M.D. Ala. 2000). Specifically, the district court pointed to the Rule 32 court’s
orders (1) denying McNair funds to hire expert witnesses, (2) denying McNair’s
request for on order allowing “any experts” to visit him in prison, and (3)
overruling McNair’s objections to the denial of the first two motions. Id. On the
basis of these three orders, the district court held that McNair was entitled to an
evidentiary hearing under section 2254(e)(2).
The district court’s evaluation of McNair’s diligence in state court failed to
discuss three crucial factors. The first is the chronology of events before the Rule
32 court. McNair filed his Rule 32 petition on July 5, 1995. On August 30, 1995,
the Rule 32 court dismissed numerous claims as procedurally barred and scheduled
9
a hearing on the ineffective assistance of counsel claim for September 22, 1995.
McNair did not file a motion for discovery until September 8, 1995, and that
motion included neither a motion for funds for independent mental health experts
nor a motion for access. On September 19, McNair filed a motion requesting that
the scheduled hearing be changed to a pre-hearing conference. The district court
granted this motion, continuing the September 22 hearing and scheduling a status
conference for that date instead. The Rule 32 hearing was rescheduled for
November 8, 1995. McNair then waited until October 24, two weeks before the
already continued hearing, to file his motion for expert funds. His motion for
expert access was not filed until October 30, one week before the continued
hearing and almost four months after the Rule 32 petition. Given their temporal
proximity to the rescheduled hearing, granting either of these motions almost
certainly would have mandated another continuance, as McNair acknowledged in
his simultaneous filing of a motion for continuance on October 25. However, the
district court’s opinion made no mention of the belatedness of these motions.
The district court also ignored McNair’s failure to adduce any evidence in
support of his ineffective assistance of counsel claim when it was before the Rule
32 court. While the Rule 32 court’s ruling on his motions for expert funds and
access might have impeded McNair’s presentation of expert testimony about the
10
effects of drug addiction, he faced no impediment to establishing the factual
predicate underlying his claim in other ways. Aside from expert testimony, McNair
could have established that predicate by testifying himself, or having his family
members testify, about his drug abuse and the changes in his personality and
behavior that it caused.2 Moreover, McNair could have adduced evidence of the
effects of drug addiction by offering treatises or other literature. Although ignored
by the district court, McNair’s failure to pursue these other means of establishing
the factual predicate for his claim in the Rule 32 court is indicative of a lack of
diligence.
A final and very significant factor ignored by the district court is McNair’s
failure to fairly present the issue of the Rule 32 court’s denial of his motions in his
appeal to the Alabama Court of Criminal Appeals. Although the statement of the
case mentioned that the Rule 32 court had denied several motions, including those
for expert funds and access,3 the relevant section of McNair’s brief discussing the
claim that his counsel was ineffective for failing to introduce drug addiction
evidence made no mention of the motions or their denial. The brief also never
2
In fact, McNair did offer such testimony when attempting to establish his
ineffective assistance of counsel claim in his federal evidentiary hearing.
3
The brief failed to mention that the motions were made shortly before the already
continued hearing.
11
urged the Court of Criminal Appeals to remand the case to permit the presentation
of that evidence.4 In light of McNair’s failures in this regard, we cannot conclude
that he diligently pursued an attempt to establish the factual basis of his ineffective
assistance of counsel claim in the Alabama Court of Criminal Appeals.
Taken cumulatively, the facts outlined above demonstrate that McNair was
not diligent in establishing the factual basis of his ineffective assistance of counsel
claim in state court. Because the district court ignored these crucial facts, and
because of our firm conviction in this regard, we have no difficulty concluding that
its findings with respect to diligence were clearly erroneous. The district court
therefore erred in granting McNair a federal evidentiary hearing under 28 U.S.C. §
2254(e)(2).5
4
Indeed, it was not until his application for rehearing that McNair argued to the
Court of Criminal Appeals that his Rule 32 evidentiary hearing was unfair, listing, among other
reasons, that the Rule 32 court had denied his motions for expert funds and access. We cannot
conclude that such belated presentation of the issue to the appellate court – at a time when the
State could no longer respond, after the issues for appellate review had been joined, and after the
decision of the appellate court – constituted a diligent pursuit of the issue on appeal or a
reasonable attempt to pursue the claim in state court.
5
At oral argument, McNair argued that the state court’s denial of several discovery
motions made it futile for him to pursue his desired discovery in the Rule 32 court. McNair has
waived that argument on appeal by raising it for the first time at oral argument.
Even if McNair had not waived the argument, our review of the proceedings leading up to
the evidentiary hearing in the Rule 32 court persuade us that any such futility claim would fail.
McNair filed his first discovery motion on September 8, 1995, seeking discovery of matters in
the prosecution files and certain other law enforcement, correctional, medical, and mental health
records. With particular relevance to this case, the discovery request for mental health records at
the various state facilities was granted on September 22, 1995. On that same date, the discovery
request was also granted with respect to medical records, law enforcement records, and
12
We now turn to the State’s argument that the district court erred by not
deferring to the state court’s determination of McNair’s ineffective assistance of
counsel claim. When a claim is adjudicated on the merits in state court, AEDPA
bars a federal court from granting habeas corpus relief on that claim unless the state
court determination “was contrary to, or involved an unreasonable application of,
clearly established Federal law” or “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.”6 28 U.S.C. § 2254(d). The district court declined to apply
this bar, reasoning that no state court had adjudicated McNair’s ineffective
correctional records. In addition, open file discovery was granted to McNair with respect to the
prosecution files. We cannot conclude that collateral counsel could reasonably have deemed it
futile to promptly move for funds for expert assistance or for access, just as we cannot conclude
that counsel was diligent in waiting until just one and two weeks before the scheduled hearing to
file such motions. As noted in the text, granting of such belated motions would necessarily have
mandated another continuance, a fact virtually acknowledged in McNair’s simultaneously filed
motion to continue the November 8, 1995, hearing.
Finally, even if our assessment of the proceedings in the Rule 32 court were erroneous,
there still would be no excuse for collateral counsel’s failure to diligently pursue the matter in the
Court of Criminal Appeals.
6
The relevant provision reads, in full, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
13
assistance of counsel claim on the merits while considering the evidence before the
district court after its evidentiary hearing. McNair v. Campbell, 307 F. Supp. 2d
1277, 1311 (M.D. Ala. 2004). However, because the district court erroneously
granted the evidentiary hearing, evidence adduced therein cannot serve as a basis
for habeas relief. We conclude that section 2254(d) applies with full force, and the
district court erred in disregarding it.
Applying section 2254(d), it is clear that McNair is not entitled to habeas
relief on his ineffective assistance of counsel claim. That the Rule 32 court and the
Court of Criminal Appeals adjudicated this claim on the merits is undisputed. It is
also clear that the decisions of those courts were not contrary to, and did not
involve an unreasonable application of, clearly established federal law, and that
they did not unreasonably determine the facts in light of the evidence before them.
Clearly established federal law mandates that, in order to succeed on his ineffective
assistance of counsel claim, McNair would have to show that (1) his counsel’s
performance failed to meet the standard of a reasonably competent attorney; and
(2) that this deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. at 687, 104 S. Ct. at 2064. Scrutiny of counsel’s
performance is highly deferential, and the burden is on the convicted defendant to
show that counsel’s performance was unreasonable. Id. at 688-89, 104 S. Ct. at
14
2064-65. Despite bearing the burden of demonstrating his counsel’s
ineffectiveness, McNair adduced no evidence to support this claim during his Rule
32 proceedings. Because McNair offered no evidence to support his claim, the
Court of Criminal Appeals was not unreasonable in denying relief, and its
adjudication is entitled to deference under section 2254(d). The district court
therefore erred in granting McNair’s habeas petition on his ineffective assistance of
counsel claim.7
B. Extraneous Evidence in the Jury Room
McNair’s next claimed basis for habeas relief is that jurors improperly
considered extraneous evidence during their deliberations in the guilt phase of his
trial. Evidence shows that Les Davis, a Christian minister who served as the
foreman of McNair’s jury, brought a Bible into the jury room during deliberations,
read aloud from it, and led the other jurors in prayer. McNair now claims that the
Bible, which had not been admitted into the record, constituted extraneous
evidence and that the jurors’ consideration of it violated his Sixth Amendment right
to a fair trial. The Alabama Court of Criminal Appeals, applying state law, held
that McNair was not entitled to relief. McNair, 706 So. 2d at 835-38. The district
7
Because we have held that the district court erred in granting McNair an
evidentiary hearing and in not deferring to the state court adjudication pursuant to 28 U.S.C. §
2254(d), we need not reach the State’s argument that the district court erred in finding McNair’s
counsel ineffective in light of the evidence adduced at the federal evidentiary hearing.
15
court also denied relief on this claim. McNair, 307 F. Supp. 2d at 1301-05.
McNair challenges this holding in his cross-appeal.
1. Procedural Bar
The district court began its discussion of McNair’s extraneous evidence
claim by addressing the claim’s procedural posture; we shall do the same. As noted
above, McNair’s claim in his federal habeas petition is that the jurors’
consideration of extraneous evidence deprived him of his right to a fair trial as
guaranteed by the Sixth Amendment to the United States Constitution. However,
McNair argued to the state court that “the jury improperly considered and relied on
extraneous evidence in violation of Alabama law.” McNair, 307 F. Supp. 2d at
1301 (internal quotation omitted) (emphasis in original). It is also clear that the
Court of Criminal Appeals addressed McNair’s extraneous evidence claim solely
under state law principles. McNair, 706 So. 2d at 837-38 (relying on standards set
out in Ex parte Troha, 462 So. 2d 953 (Ala. 1984), Ex parte Lasley, 505 So. 2d
1263 (Ala. 1987), and Roan v. State, 143 So. 454 (Ala. 1932)). Because McNair
did not raise the federal constitutional issue in state court, the district court held
that the issue was procedurally defaulted. McNair, 307 F. Supp. at 1301.
However, because the State failed to argue the procedural bar, the district court
held that the bar was waived and proceeded to consider the merits. Id. at 1302. For
16
the reasons discussed below, the district court properly held that McNair had
procedurally defaulted his Sixth Amendment claim, but erred in holding that the
state waived the default.
Habeas petitioners generally cannot raise claims in federal court if those
claims were not first exhausted in state court. 28 U.S.C. § 2254(b)(1); Kelley v.
Sec’y for Dept. of Corr., 377 F.3d at 1343. In order to be exhausted, a federal
claim must be fairly presented to the state courts. Picard v. Connor, 404 U.S. 270,
275, 92 S. Ct. 509, 512 (1971). “It is not sufficient merely that the federal habeas
petitioner has been through the state courts . . . nor is it sufficient that all the facts
necessary to support the claim were before the state courts or that a somewhat
similar state-law claim was made.” Kelley, 377 F.3d at 1343-44 (citing Picard, 404
U.S. at 275-76, 92 S. Ct. at 512 and Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct.
276, 277 (1982)). Rather, in order to ensure that state courts have the first
opportunity to hear all claims, federal courts “have required a state prisoner to
present the state courts with the same claim he urges upon the federal courts.”
Picard, 404 U.S. at 275, 92 S. Ct. at 512 (citations omitted). While we do not
require a verbatim restatement of the claims brought in state court, we do require
that a petitioner presented his claims to the state court “such that a reasonable
reader would understand each claim’s particular legal basis and specific factual
17
foundation.” Kelley, 377 F.3d at 1344-45 (citing Picard, 404 U.S. at 277, 92 S. Ct.
at 513).
While these broad principles are relatively clear, the district court correctly
noted that many courts have struggled to pinpoint the minimum requirements that a
habeas petitioner must meet in order to exhaust his remedies. For instance, the
Supreme Court recently wrote that a petitioner wishing to raise a federal issue in
state court can do so “by citing in conjunction with the claim the federal source of
law on which he relies or a case deciding such a claim on federal grounds, or by
simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct.
1347, 1351 (2004). If read in a vacuum, this dicta might be thought to create a low
floor indeed for petitioners seeking to establish exhaustion. However, we agree
with the district court that this language must be “applied with common sense and
in light of the purpose underlying the exhaustion requirement[:] ‘to afford the state
courts a meaningful opportunity to consider allegations of legal error without
interference from the federal judiciary.’” McNair, 315 F. Supp. 2d at 1184 (quoting
Vasquez v. Hillary, 474 U.S. 254, 257, 106 S. Ct. 617, 620 (1986)). This is
consistent with settled law established by the Supreme Court. See Picard, 404 U.S.
at 275, 92 S. Ct. at 512 (“We emphasize that the federal claim must be fairly
presented to the state courts.”). We therefore hold that “‘[t]he exhaustion doctrine
18
requires a habeas applicant to do more than scatter some makeshift needles in the
haystack of the state court record.’” Kelley, 377 F.3d at 1345 (quoting Martens v.
Shannon, 836 F.2d 715, 717 (1st Cir. 1988)).
With these principles in mind, we now consider the extraneous evidence
arguments that McNair presented in state court. In his initial brief to the Court of
Criminal Appeals, McNair relied almost exclusively on state law. The section of
his brief addressing his extraneous evidence claim was captioned: “MR.
MCNAIR’S JURY IMPROPERLY CONSIDERED AND RELIED ON
EXTRANEOUS EVIDENCE DURING ITS GUILT PHASE DELIBERATIONS
IN VIOLATION OF ALABAMA LAW.” All of the substantive argument
contained in that section of McNair’s brief addressed Alabama law, with the bulk
of it consisting of McNair’s attempt to analogize his case to Ex parte Troha, 462
So. 2d at 953. The relevant part of the brief contained only two references to
federal law. The first was a citation to Jones v. Kemp, 706 F. Supp. 1534 (N.D.
Ga. 1989), which was one of seven cases included in a string citation supporting
McNair’s claim that “jurors may not consider extraneous evidence during their
deliberations and courts have consistently and repeatedly reversed convictions
where such consideration has occurred.” The other reference to federal law came
in the closing paragraph of McNair’s argument, when he wrote that the jurors’
19
consideration of the Bible violated his rights “protected by the Fifth, Sixth,
Eighth[,] and Fourteenth Amendments to the United States Constitution, the
Alabama Constitution[,] and Alabama law.” Importantly, McNair never
mentioned, much less argued, the federal standard that extraneous evidence is
presumptively prejudicial.8 See Turner v. Louisiana, 379 U.S. 466, 473, 85 S. Ct.
546, 550 (1965); Remmer v. United States, 437 U.S. 227, 229, 74 S. Ct. 450, 451
(1954); United States v. Martinez, 14 F.3d 543, 550 (11th Cir. 1994) (“Prejudice is
presumed the moment the defendant establishes that extrinsic contact with the jury
in fact occurred.” (internal quotation omitted)).
McNair’s reliance on state law continued when he went before the Alabama
Supreme Court. His nine page petition for certiorari on the extraneous evidence
issue did not cite a single federal case; its only mention of federal law was a
repetition of the concluding paragraph of his argument before the Court of
Criminal Appeals. His brief in support of the petition included a verbatim
restatement of the Jones v. Kemp citation and closing paragraph from his brief to
the Court of Criminal Appeals and nothing more. Again, the presumption of
prejudice that arises under federal law was never mentioned.
8
Jones v. Kemp, 706 F. Supp. at 1558-60, the one federal case buried in McNair’s
string cite, also did not mention the presumption of prejudice.
20
McNair’s references to federal law in his state habeas proceedings are
exactly the type of needles in the haystack that we have previously held are
insufficient to satisfy the exhaustion requirement. See Kelley, 377 F.3d at 1344-
50. McNair never cited any United States Supreme Court or federal appellate court
case dealing with extraneous evidence, nor did he mention the presumption of
prejudice that arises under federal law when jurors consider such evidence.
Instead, he relied on state law opinions to argue a state law claim under a state law
standard, citing a lone federal district court opinion (which itself did not mention
the federal presumption of prejudice) only as part of a string citation illustrating
various courts’ holdings with respect to extraneous evidence in the jury room. A
careful review of the record makes it clear that McNair did not fairly present his
federal constitutional claim to the state court. He therefore failed to exhaust his
state court remedies and is procedurally barred from raising his non-exhausted
federal claim in his federal habeas petition.9
While the district court correctly held that McNair’s Sixth Amendment claim
is procedurally barred due to lack of exhaustion, it went on to consider the merits
9
A habeas petitioner can only evade the exhaustion requirement by showing cause
for and actual prejudice resulting from the default or by establishing a fundamental miscarriage
of justice. Kelley, 377 F.3d at 1345 (citations omitted). McNair clearly cannot satisfy either of
these exceptions, as there is no conceivable excusable cause for his failure to raise his Sixth
Amendment claim in state court and no fundamental miscarriage of justice will result from its
default.
21
of the claim after finding that the State waived the procedural bar. McNair, 307 F.
Supp. 2d at 1301-02. The district court based its waiver finding on the State’s
failure to identify the Sixth Amendment issue as procedurally defaulted in its briefs
to the district court. Id. However, the State’s failure to raise exhaustion does not
constitute a waiver under AEDPA, which mandates that “[a] State shall not be
deemed to have waived the exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel, expressly waives the
requirement.” 28 U.S.C. § 2254(b)(3); see Dill v. Holt, 371 F.3d 1301, 1302 n.1
(11th Cir. 2004) (stating that AEDPA requires a court to address exhaustion when
it is not expressly waived by the State). We have conducted a careful review of the
State’s briefs to this court as well as the district court and have found no express
waiver of the exhaustion requirement.10
Thus, the posture of this case is as follows: McNair has failed to properly
exhaust his extraneous evidence claim; the State has not expressly waived that
failure; and the claim could no longer be brought in state court if we dismissed
10
At oral argument, McNair’s counsel suggested that the State expressly waived the
exhaustion requirement in its brief to this court. That is not the case. The State claimed in its
brief that McNair’s Sixth Amendment extraneous evidence claim should have been procedurally
barred, and then simply repeated the district court’s holding that the State had waived the
procedural bar by failing to assert it.
22
McNair’s petition for lack of exhaustion.11 The claim is therefore procedurally
barred. Kelley, 377 F.3d at 1351.
This raises an interesting question. Section 2253(b)(3), by its own language,
applies only to the exhaustion requirement. It does not mention procedural default,
which, while related to exhaustion, is distinct. However, we are persuaded that
section 2254(b)(3) applies with full force in cases such as this, where the
procedural bar arises only as a direct result of the petitioner’s failure to exhaust his
state law remedies.12
It is well established that when a petitioner has failed to exhaust his claim by
11
There is no question that Alabama law would bar McNair from presently raising
his Sixth Amendment extraneous evidence claim in state court. See, e.g., Whitt v. State, 827 So.
2d 869, 876 (Ala. Crim. App. 2001) (holding that new claims raised in subsequent habeas
petitions are barred as successive unless the petitioner can show cause and a miscarriage of
justice). We can therefore safely address McNair’s other claims rather than remanding the case
to the district court with instructions to dismiss the petition. Kelley, 377 F.3d at 1351.
12
This presents an issue of first impression in this circuit. In Perruquet v. Briley,
390 F.3d 505, 516 (7th Cir. 2004), the Seventh Circuit listed our opinion in Nelson v. Schofeld,
371 F.3d 768 (2004), as holding that § 2254(b)(3) applies to a procedural bar that arises from a
failure to exhaust. However, we doubt that our opinion actually so held. The district court in
Nelson had dismissed a habeas petition as procedurally barred, and this court did affirm. Nelson,
371 F.3d at 769, 771. In the process of affirming, Nelson did rely upon the express waiver
requirement of section 2254(b)(3) in rejecting the petitioner’s argument that the State had waived
exhaustion. Id. at 770 n.4. However, the Certificate of Appealability in Nelson included only the
issue of whether Nelson was required to petition the Supreme Court of Georgia for certiorari in
order to exhaust his state remedies. Id. at 769. Neither the Certificate of Appealability nor the
discussion in the opinion addressed whether § 2254(b)(3) applies not only to exhaustion, but also
to a procedural bar that arises out of a failure to exhaust. Thus, we doubt that Nelson definitively
resolves this issue. However, we do note that the result in Nelson is entirely consistent with our
holding today.
23
failing to fairly present it to the state courts and the state court remedy is no longer
available, the failure also constitutes a procedural bar. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct. 2546, 2557 n.1 (1991) (citations
omitted) (“[I]f the petitioner failed to exhaust state remedies and the court to which
the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred . . . there is
a procedural default for purposes of federal habeas.”). In such a situation, the
Supreme Court has held that the petitioner has failed to properly exhaust his state
court remedies and therefore has procedurally defaulted his claims. O’Sullivan v.
Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 1734 (1999) (emphasizing that the
relevant inquiry is “not only whether a prisoner has exhausted his state remedies,
but also whether he has properly exhausted those remedies, i.e., whether he has
fairly presented his claims to the state courts” (emphasis in original)).
Because section 2254(b)(3) provides that the State can waive McNair’s
failure to properly exhaust his claim only by expressly doing so, it logically follows
that the resulting procedural bar, which arises from and is dependent upon the
failure to properly exhaust, can only be waived expressly. See Franklin v. Johnson,
290 F.3d 1223, 1238 (9th Cir. 2002) (O’Scannlain, J., concurring) (“There could be
no procedural bar in this case without [petitioner’s] failure . . . to exhaust his claim.
24
Thus, because the State’s argument is based upon [petitioner’s] failure to exhaust
his claim, which, as a byproduct, renders it procedurally barred for our purposes, I
would hold that the State did not waive this argument by failing to raise it below.”
(emphasis in original)). Thus, because the State did not expressly waive McNair’s
procedural default in this case, we hold that section 2254(b)(3) applies and that
McNair is procedurally barred from raising his extraneous evidence claim.
In so holding, we join the Tenth Circuit, which has repeatedly applied
section 2254(b)(3) and its express waiver requirement to procedural bars arising
from a petitioner’s failure to properly exhaust his state court remedies. See Ellis v.
Hargett, 302 F.3d 1182, 1189 (10th Cir. 2002); Gonzalez v. McKune, 279 F.3d
922, 924-25 (10th Cir. 2002) (en banc) (relying on sectin 2254(b)(3) and its
express waiver requirement in holding that a petitioner’s unexhausted claim was
procedurally barred even though the State asserted the bar for the first time at en
banc oral argument); Hale v. Gibson, 277 F.3d 1298, 1327-28 and n.12 (10th Cir.
2000). We also note that a number of other circuits have discussed the issue
without resolving it. See Kerns v. Ault, 408 F.3d 447, 449 n.3 (8th Cir. 2005)
(implying that section 2254(b)(3) would apply to a procedural default arising out of
a petitioner’s failure to properly exhaust state court remedies, but finding an
explicit waiver by the State); Perruquet v. Briley, 390 F.3d 505, 515-16 (7th Cir.
25
2004) (collecting relevant cases but not resolving the issue because the State had
not actually waived the procedural bar arising out of the petitioner’s failure to
exhaust). Only the Ninth Circuit, in its opinion in Franklin, 290 F.3d at 1231, has
adopted the contrary view.13
In holding that section 2254(b)(3) applies to this particular procedural bar,
we emphasize that this holding applies only to a procedural bar that arises out of a
failure to exhaust state remedies. Such a procedural bar is to be distinguished from
one that arises, not because of a failure to exhaust, but rather because the state
court will not hear the claim due to a state procedural bar. For example, most states
require contemporaneous objections and often decline to entertain a claim because
of a failure to object. Such a claim may well be fully exhausted, but nevertheless
13
We agree with the rationale of Judge O’Scannlain’s concurring opinion in
Franklin, and we respectfully disagree with the majority opinion which Judge O’Scannlain
criticized. We believe that the Franklin majority misplaced its reliance on the Supreme Court’s
decision in O’Sullivan. As indicated in the text above, the Court in O’Sullivan recognized the
interplay of the concepts of exhaustion and procedural bar and held that the relevant claim was
procedurally barred because of the habeas petitioner’s failure to properly exhaust the claim in the
state courts. O’Sullivan, 526 U.S. at 848, 119 S. Ct. at 1734. Indeed, the Franklin majority’s
approach – rigidly limiting the exhaustion concept to situations in which the state remedies were
available at the time of the federal petition – seems to be drawn more from Justice Stevens’
dissent in O’Sullivan. 526 U.S. at 851-56, 119 S. Ct. at 1735-38 (Stevens, J., dissenting)
(asserting that the concept of exhaustion assumed the continued availability of state remedies and
criticizing the majority for focusing on exhaustion in a context in which state remedies were no
longer available). Like Justice Stevens’ dissent, the Franklin majority relies upon a quotation
from Engle v. Isaac, 456 U.S. 107, 125 n.28, 102 S. Ct. 1558, 1570 n.28 (1982), suggesting that
the exhaustion concept applies only when remedies are still available at the time of the federal
petition. However, the quotation from Engle is not only dicta, but it also fails to account for
O’Sullivan’s later holding discussing the interplay of the two doctrines when the state remedies
are no longer available and recognizing the dependency of the bar upon the failure to exhaust.
26
procedurally barred in federal court because of the State’s invocation of its bar for
failure to object. In such a case, the procedural bar in federal court has nothing to
do with exhaustion, and therefore section 2254(b)(3) would not apply.14
In short, the district court correctly concluded that McNair’s extraneous
evidence claim is procedurally barred due to lack of exhaustion, but it erred in
concluding that the State has waived the procedural bar. Accordingly, the district
court should have dismissed this claim as procedurally barred.
2. The Merits
Even if McNair’s scattered references to federal law in his state court
proceedings did satisfy the exhaustion requirement, or even if the State had waived
the procedural bar, and we reiterate that neither is true in this case, McNair still
14
Indeed, our own case of Romine v. Head, 253 F.3d 1349 (11th Cir. 2001), is such a
case. There, the relevant claim was clearly exhausted, having been raised on direct appeal and in
the state habeas court. The latter court declined to address the claim because it had already been
addressed and decided by the Georgia Supreme Court. Id. at 1363. The federal district court
noted that Romine had failed to preserve the issue by failing to object at trial, but that there was
no procedural bar because the Georgia Supreme Court had decided the issue on the merits.
However, this court noted that even “if there were any procedural bar ... , the State has waived it.
The State did not assert a procedural bar to this specific claim in the district court, and has not
argued one as to it in this [c]ourt.” Id. at 1364. Romine is distinguished from the instant case,
and provides no guidance for it, because the only possible procedural bar there did not arise out
of a failure to exhaust state remedies. Rather, the possible bar resulted from a failure to object at
trial. Indeed, the claim was fully exhausted. We note also that the Romine panel properly did
not mention § 2254(b)(3).
Similarly, Jackson v. Johnson, 194 F.3d 641, 652 n.35 (5th Cir. 1999), declined to apply
§ 2254(b)(3) to a procedural bar that did not arise from a failure to exhaust state remedies.
Rather, the default in that case arose from a failure to comply with Texas’ contemporaneous
objection rule. Id. at 651-52. See also Franklin v. Johnson, 290 F.3d at 1238-39 (O’Scannlain,
J., concurring) (similarly distinguishing Jackson v. Johnson).
27
would not be entitled to relief on this claim. In the peculiar circumstances of this
alternative holding, we will assume arguendo, but expressly not decide, that the
claim is best reviewed de novo.15 However, relevant findings of fact by the state
court are still presumed correct absent clear and convincing evidence to the
contrary. 28 U.S.C. § 2254(e)(1).
Under federal law, any evidence that does not “come from the witness stand
in a public courtroom where there is full judicial protection of the defendant’s right
of confrontation, of cross-examination, and of counsel” is presumptively
prejudicial. Turner, 379 U.S. at 473, 85 S. Ct. at 550; see also Remmer, 347 U.S. at
229, 74 S. Ct. at 451; Martinez, 14 F.3d at 550. In order to give rise to this
presumption, a defendant need only demonstrate that jurors had contact with
extrinsic evidence. Martinez, 14 F.3d at 550. Once the defendant makes this
showing, the State bears the burden of rebutting the presumption by showing that
the jurors’ consideration of the extrinsic evidence was harmless to the defendant.
Remmer, 347 U.S. at 229, 74 S. Ct. at 451; Martinez, 14 F.3d at 550. When
evaluating whether the State has met its burden, courts are to consider the totality
15
If McNair’s scattered references to federal law in state court were enough to
satisfy the exhaustion requirement, then it is clear the de novo review would be appropriate. See
Romine v. Head, 253 F.3d1349, 1365 (11th Cir. 2001) (holding that this court applies de novo
review when a state court fails to apply federal law or an identical state law rule to a federal
claim). On the other hand, if the federal claim was not fairly presented to the state courts, but the
procedural default was waived, the appropriate review is less clear.
28
of the circumstances surrounding the introduction of the extraneous evidence to the
jury. See Remmer v. United States, 350 U.S. 377, 379, 76 S. Ct. 425, 426 (1956).
Our case law indicates that the factors to be considered include the heavy burden
on the State, the nature of the extrinsic evidence, how the evidence reached the
jury, and the strength of the State’s case. Martinez, 14 F.3d at 550.
Because it is undisputed that jurors in the guilt phase of McNair’s trial
considered extrinsic evidence during their deliberations, our analysis focuses on
whether the State can rebut the resulting presumption of prejudice. We believe
that three factors are crucial to the analysis in this case: (1) the factual findings of
the state court, (2) the manner in which the evidence reached the jury, and (3) the
strength of the State’s case against McNair. Each will be discussed in turn.
McNair raised his challenge to the jury’s consideration of extraneous
material during the state collateral proceedings. Both the trial court and the Court
of Criminal Appeals carefully considered the claim on the merits pursuant to state
law, and both courts made crucial findings of fact which are relevant to our
analysis of the issue under federal law. Although McNair argued that the foreman
urged the jurors to find McNair guilty based on passages from the Bible, the trial
court rejected that argument, finding as a fact that two passages were read and that
“[n]either of these scriptures contain material which would encourage jurors to find
29
a defendant guilty or to recommend the death penalty.”16 McNair v. State, 706
So.2d at 837 (quoting the Rule 32 court’s order).
The Court of Criminal Appeals also made several crucial findings of fact.
Confirming the Rule 32 court’s finding, it found that McNair’s “assertions in his
briefs . . . that [Davis, the minister who served as foreman] urged the jurors to find
him guilty based on passages from the Bible and that the jury relied on the Bible in
finding him guilty are not supported by the record.” McNair, 706 So.2d at 838.
The Court of Criminal Appeals also made crucial findings with respect to the
nature and character of the readings, their intent, and their effect on the jury. These
findings include the following:
[T]he extraneous material, i.e., reading from the Bible and praying in
the jury room during deliberations, was not of such a character or
nature as to indicate bias or corruption or misconduct that might have
affected the verdict.
...
From the testimony at the hearing, we conclude that the prayers and
scripture readings in the jury room were intended to encourage, and
had the effect of encouraging, the jurors to take their obligation
seriously and to decide the question of guilt or innocence based only
on the evidence presented from the witness stand in open court.
...
16
The two Bible verses read included the familiar Psalm 121, and Luke 6:37. The
latter verse reads as follows: “Judge not, and ye shall not be judged; condemn not and ye shall
not be condemned; forgive, and ye shall be forgiven ....”
30
A fair reading of [Davis’s] testimony, in its entirety, leads inescapably
to the conclusion that his readings from the Bible and prayers in the
jury room ... did not encourage its members to consider anything other
than the evidence presented in the court in arriving at a verdict. There
is nothing here to suggest that the jury did anything other than base its
verdict on the evidence presented in open court in the trial of the case.
Id. at 838. These findings of fact are of course entitled to a presumption of
correctness, unless McNair demonstrates by clear and convincing evidence that
they are erroneous. 28 U.S.C. §2254(e)(1). McNair has made no such showing.
We thus readily conclude that the foregoing state court findings of fact establish
the relevant facts in this case. Moreover, our own review of the record persuades
us that the state court findings are amply supported.17
Because we know the innocuous nature of the passages that Davis read, and
because we know that the passages and prayers merely had the “effect of
encouraging the jurors to take their obligations seriously and to decide the question
of guilt or innocence based only on the evidence,” we readily conclude that the
State has easily carried its burden of rebutting the presumption of prejudice.
In addition to the innocuous nature of the extrinsic evidence and the fact that
it did not distract the jury from basing its verdict on the evidence presented, two
other factors indicated in the case law also strongly favor the State. As the district
17
Indeed, even if the state court findings of fact were entitled to no deference at all,
our own examination of the evidence indicates that nothing judgmental or prejudicial was read.
31
court noted, the extraneous evidence in this case was brought in by a juror, and did
not carry the imprimatur of the court.18 McNair, 302 F. Supp. 2d at 1304.
Additionally, the state offered overwhelming and largely uncontested evidence of
McNair’s guilt.19 Both of these factors favor the state, and, when combined with
the state’s findings of fact, readily establish that the jury’s consideration of
extraneous evidence was harmless in this case.
Because the state could successfully rebut the presumption of prejudice
arising from the jury’s consideration of extraneous evidence, McNair would not
have been entitled to relief on this claim even if he had properly raised it in state
court. The district court properly rejected this claim.
C. Racial Discrimination in Jury Selection
McNair’s final claim is that the State’s use of peremptory challenges to strike
a number of African-American potential jurors violated his Fourteenth Amendment
18
The instant case is unlike Jones v. Kemp, 706 F. Supp. at 1560, where the jurors
consulted a Bible with the express permission of the trial judge. The instant case is also very
different from Romine, 253 F.3d at 1358-71, which addressed a related due process issue. The
challenge there was to a closing argument in which the prosecutor urged the jurors in the
sentencing phase to follow the law of God, which the prosecutor argued mandates death for one
who kills his parents. Id. at 1368-69. Additionally, the case itself was saturated with evidence
relating to religion; the jury was sequestered during deliberations in a Baptist church; and there
was evidence that at least one or two jurors were influenced by the prosecutor’s improper
argument.
19
Because a separate jury considered the death penalty, the extraneous evidence
issue relates only to the guilt phase.
32
rights under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). McNair
raised this claim before the Court of Criminal Appeals and the Supreme Court of
Alabama on direct appeal, and both courts denied relief. Ex parte McNair, 653 So.
2d 353, 354-58 (Ala. 1994); McNair, 653 So. 2d at 323. The district court, after
reviewing the state court opinions and conducting an independent review of the
record, likewise denied relief on this claim. McNair, 307 F. Supp. 2d at 1293. We
agree that McNair has not made out a claim for relief under Batson.
In Batson, the United States Supreme Court established a three-step test for
evaluating claims of racial discrimination in jury selection. The defendant must
first establish a prima facie case by producing evidence sufficient to support the
inference that the prosecutor exercised peremptory challenges on the basis of race.
Johnson v. California, ___ U.S. ___, 125 S. Ct. 2410 (2005); Batson, 476 U.S. at
96, 106 S. Ct. at 1723. The burden then shifts to the State to rebut the defendant’s
prima facie case by offering race-neutral explanations for its challenges. Batson,
476 U.S. at 97, 106 S. Ct. at 1723. The State’s proffered explanation at this stage
need not be “persuasive or even plausible . . . the issue is the facial validity of the
prosecutor’s explanation.” Purkett v. Elem, 514 S. Ct. 765, 768, 115 S. Ct. 1769,
1771 (1995) (internal quotation omitted).
If both sides carry their burdens, it is left to the court to determine whether
33
the defendant has proven purposeful discrimination. Id. at 98, 106 S. Ct. at 1724.
At this point, “the decisive question will be whether counsel’s race-neutral
explanation . . . should be believed.” Hernandez v. New York, 500 U.S. 352, 365,
111 S. Ct. 1859, 1869 (1991) (plurality opinion). This is “a pure issue of fact,
subject to review under a deferential standard . . . [and] peculiarly within a trial
judge’s province.” Id. at 364-65; 111 S. Ct. at 1869 (internal quotation omitted).
Also, because this claim was decided on the merits by the Alabama courts, McNair
is not entitled to habeas relief unless he can “demonstrate that [the] state court’s
finding of the absence of purposeful discrimination was incorrect by clear and
convincing evidence . . . and that the corresponding factual determination was
‘objectively unreasonable’ in light of the record.” Miller-El v. Cockrell, 537 U.S.
322, 348, 123 S. Ct. 1029, 1045 (2003); see 28 U.S.C. § 2254(d)-(e); Miller-El v.
Dretke, 545 U.S. ___, 125 S. Ct. 2317, 2325 (2005). This standard is demanding,
but not insurmountable. Miller-El, 545 U.S. at ___, 125 S. Ct. at 2325.
McNair’s trial jury was selected from a sixty-four member venire that
included eighteen African-Americans. Ex parte McNair, 653 So. 2d at 355. The
prosecutor used eleven of his twenty-six peremptory challenges to strike African-
Americans; the remaining seven African-American members of the venire served
34
on McNair’s jury.20 Id. McNair argues both that the totality of the circumstances
of the jury selection process indicates a Batson violation and that three particular
strikes constituted violations. We address each of these claims in turn.
1. The Jury Selection Process as a Whole
McNair presents three arguments intended to cast doubt on the jury selection
process: (1) that the district attorney’s office that handled McNair’s prosecution
has a history of racial discrimination; (2) that the prosecutor did not question ten of
the eleven stricken African-American venire members about the specific area of
concern that prompted the use of the peremptory challenge; and (3) that the
prosecutor relied on “vague and unsubstantiated notes” from an assistant district
attorney as the basis for challenging five of the venire members. We readily
discount the latter two assertions. The prosecutor’s failure to question most of the
stricken African-American venire members about the specific concern that
prompted the use of the challenge is not very persuasive in this case. For example,
it is not likely to have been productive to question a juror about age or a prior
20
The Supreme Court of Alabama noted that the county from which the jury pool
was drawn was approximately forty percent black, the venire twenty-eight percent black, and the
ultimate jury fifty-eight percent black. McNair, 653 So. 2d at 356. It held that these statistics
negated a finding of disparate impact and, as a part of its totality of the circumstances analysis,
that they were a relevant factor weighing against a finding of discriminatory intent. Id. After
viewing the totality of the circumstances, we cannot conclude that this was an unreasonable
determination of the facts.
35
misdemeanor or a bad reputation. Moreover, the prosecutor also struck white
jurors without such specific questioning. With respect to McNair’s assertion that
the prosecutor relied on vague and unsubstantiated notes from his assistant, McNair
fails to explain why a prosecutor’s reliance on notes and information furnished by
an assistant is any indication at all of racial bias. Furthermore, our review of the
notes does not persuade us that they were unduly vague or unsubstantiated.
Although McNair’s assertion that the district attorney’s office had a history of
racial discrimination is a matter of some concern, we will consider that as part of
our totality of the circumstances analysis after discussing McNair’s challenges with
respect to individual jurors.
2. The Individual Challenges
A defendant can establish a Batson violation by demonstrating that any
single strike was the result of purposeful discrimination. Cochran v. Herring, 43
F.3d 1404, 1412 (11th Cir. 1995). In an attempt to do this, McNair argues that his
prosecutors peremptorily challenged three specific venire members in violation of
Batson. Before discussing the merits of each claim, we note that in no instances
does McNair argue that the prosecutor’s proffered reasons for the strikes were
facially discriminatory. We also note that the state trial court made a finding of
fact that the strikes were not racially motivated, and that the Alabama Supreme
36
Court concluded that the trial court’s ruling was not clearly erroneous. McNair,
653 So. 2d at 355-56. Thus, the only question facing this court is whether McNair
can show by clear and convincing evidence that the state court finding was
erroneous.
McNair’s first claim focuses on James McAllister. The prosecutor’s
proffered reason for striking McAllister was that the latter was not from Henry
County. In response to a question during voir dire, McAllister gave his address as
Route 3, Box 605, which is in Henry County, and stated that he worked in Eufala,
Alabama, which is not in Henry County. He remained silent when the trial judge
asked the entire venire if any of them resided outside of Henry County. Finally, the
notes supplied by the prosecutor’s assistant suggested that McAllister did not live
in Henry County. Presented with this information, the prosecutor reasonably could
have believed that McAllister did not live in Henry County. McAllister clearly
worked in another county, his address may have implied residence in another
county, and his silence in the face of a general question from the trial judge, while
informative, is not dispositive. Although the prosecutor’s reason for striking
McAllister was based on a belief that ultimately proved incorrect, this does not
establish by clear and convincing evidence that the state court’s finding of fact was
erroneous, and McNair presents no additional evidence to support his contention.
37
McNair’s next claim focuses on Allen Boatwright. The prosecutor struck
Boatwright because the latter had a prior misdemeanor conviction. McNair argues
that this reason was pretextual because the prosecutor had earlier, when asking if
any venire members or their relatives or close friends had been prosecuted by that
particular district attorney’s office, stated that he was not interested in
misdemeanors. This argument is not persuasive. After narrowing the field
somewhat with his initial inquiry, the prosecutor reasonably could have decided
that, of the remaining venire members, he would prefer those without prior criminal
violations. We also note that the prosecutor struck white venire members who had
prior misdemeanor convictions. The prosecutor’s proffered reason was plausible
and race-neutral, and McNair offers no evidence to support his claim of pretext.
The subject of McNair’s third claim is David Marsh. The prosecutor struck
Marsh on the basis of a recommendation from an assistant district attorney who
knew Marsh and his apparently poor reputation in the community. This reason is
facially neutral, and McNair offered no evidence that it was pretextual. In the
absence of any evidence that the state’s proffered facially neutral reason was
pretextual, McNair cannot overcome the presumption favoring the state court’s
determination.
3. The Totality of the Circumstances
38
After a careful review of the record, we cannot conclude that the totality of
the circumstances provides clear and convincing evidence that the state court’s
finding of the absence of purposeful discrimination was incorrect, nor can we
conclude that the court’s corresponding factual determination was objectively
unreasonable in light of the record before the court. As noted in the preceding
discussion, McNair offers virtually no evidence to indicate that the prosecutor’s
articulated legitimate reasons for the individual strikes were pretextual. McNair’s
challenges in that regard are mere speculation lacking any persuasive force.
The only argument with any force at all is McNair’s list of cases in which
convictions obtained by this district attorney’s office have been reversed or
criticized on the basis of Batson. We cannot conclude that this argument can carry
McNair’s heavy burden. We note initially that McNair himself admits that a
prosecutor’s history of discrimination, while a relevant consideration, is not
dispositive. In addition, McNair has wholly failed to connect any conduct
criticized in the cited cases to McNair’s own prosecutor, much less his conduct in
this case. Such disconnected history cannot carry McNair’s burden, especially
when the prosecutor’s articulated, legitimate reasons for each strike remain
39
virtually unimpeached.21
Having considered the totality of the circumstances, and in light of the
presumption enjoyed by the state court findings of fact, 28 U.S.C. §2254(e)(1), we
cannot conclude that McNair has rebutted the presumption of correctness by clear
and convincing evidence. Accordingly, we cannot conclude that the state court
decision was based on an unreasonable determination of facts in light of the
evidence presented to the state court, 24 U.S.C. 2254(d)(2); and thus, the district
court correctly denied habeas corpus relief with respect to this Batson claim.
IV. CONCLUSION
We hold that the district court erred in granting McNair an evidentiary
21
In suggesting that this court’s opinion in Cochran, 43 F.3d at 1410, implies that
evidence such as that presented by McNair can be determinative of a Batson claim, the district
court either exaggerates the evidence in the instant case, misreads Cochran, or both. In Cochran,
there was strong evidence that the prosecutor’s office had a policy of striking black venire
members on the basis of their race in effect at the time of defendant’s trial. Several former
prosecutors who served at the relevant time so testified, and Cochran’s own prosecutor testified
that black jurors were less reliable, more distrustful of the police, less likely to return a death
penalty, and more likely to identify with a black defendant. Id. Cochran’s prosecutor also
provided no specific non-racial reasons for his strikes in that case. On the basis of that evidence,
it was clear that race was a determining factor in the exercise of peremptory challenges removing
seven of nine available black jurors, leaving only one to serve, plus one alternate. As indicated in
the text, the circumstances here are very different. The State offered legitimate, non-racial
reasons for each strike, and McNair proffered virtually no evidence indicating that the reasons
were pretextual. And in this case, the state courts found as a fact that the strikes were not racially
motivated. McNair has failed to show by clear and convincing evidence that the finding is
erroneous.
40
hearing and in holding that he was entitled to habeas relief on his ineffective
assistance of counsel claim. The district court’s order granting habeas relief on that
claim is therefore REVERSED. We also hold that the district court erred in failing
to apply the procedural bar with respect to McNair’s extraneous evidence claim.
However, we need not disturb the district court’s order on that issue, as it correctly
held that McNair was not entitled to relief on the merits. The district court also
correctly held that McNair was not entitled to relief on his Batson claims. The
district court’s order denying McNair’s petition with respect to his extraneous
evidence claim and Batson claims is therefore AFFIRMED.
AFFIRMED IN PART AND REVERSED I N PART.
41