UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-20720
_______________________
TERRY WASHINGTON,
Petitioner-Appellant,
versus
GARY JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
July 25, 1996
Before GARWOOD, JONES, EMILIO M. GARZA, Circuit Judges
EDITH H. JONES, Circuit Judge:
Terry Washington was convicted of capital murder and
sentenced to death for the murder of Beatrice Huling. With all
direct appeals and collateral state reviews exhausted, Washington
now seeks federal habeas relief. Following an evidentiary hearing,
the district court denied Washington’s application for writ of
habeas corpus and refused to grant a certificate of probable cause
for appeal. Washington seeks from this court a certificate of
probable cause, based inter alia on the contentions that he was
incompetent to stand trial and that his counsel was ineffective.
Because Washington has made a substantial showing of the denial of
a federal right with respect to the ineffectiveness claim, this
court grants CPC but, after briefing and oral argument, has
concluded that all of his claims lack merit.
I. BACKGROUND
Beatrice Huling and Terry Washington worked at Julie’s
Place, a restaurant in College Station, Texas. Huling was the
restaurant’s night manager, and Washington worked as a dishwasher.1
As part of her duties, Huling would count the night’s receipts at
the close of business, place cash in the register for the next day,
deposit the surplus cash in the office safe, wait for the
dishwasher to finish cleaning, set the security alarm, and lock the
restaurant.
During the evening of January 14, 1987, Huling, Tuan
Nguyen, Kim Tarr, and Washington were working together at Julie’s
Place. When Nguyen and Tarr left the restaurant at 1:00 a.m.,
Huling had completed her duties and was waiting for Washington to
finish. Tarr recalled that Huling locked the back door behind them
as they left the restaurant.
At 2:30 a.m. that same morning, Michael Jennings was in
the parking lot next to Julie’s Place. He heard an object hit the
ground and went to investigate. Jennings found a purse and
immediately called the police. The police arrived shortly
These facts are summarized from the unpublished opinion affirming the
conviction. Washington v. State, No. 69,937 (Tex. Crim. App. Dec. 23, 1992),
cert. denied, 508 U.S. 927, 113 S. Ct. 2388 (1993).
2
thereafter and found Beatrice Huling’s name and address in the
purse and her car in the parking lot. The restaurant was closed
and locked. The police ultimately entered the restaurant and
discovered Huling’s dead body ten to fifteen feet from the back
door, lying in a pool of blood, with her head next to the base of
the office safe. She had multiple stab wounds.
The investigation of the crime scene and the autopsy
showed that Huling’s hands had been tied with apron strings and
that she had suffered eighty-five stab wounds, seven of which were
fatal. The medical examiner testified at trial that the murder
weapon had a five-and-a-half inch blade and that he believed it
took Huling ten to fifteen minutes to die. The investigation
further found no signs of forced entry into the restaurant, and
that $628.00 had been stolen.
The evidence at trial overwhelmingly implicated
Washington as the murderer. The State produced evidence linking
Washington’s boots to an impression made in a pool of Huling’s
blood. Willie Hemphill, Washington’s neighbor, testified that on
January 15 he went with Washington to buy some beer and noticed
Washington had a lot of money. Additionally, Hemphill saw
Washington with a hunting knife which had a blade consistent with
the type of wounds inflicted upon Huling. Maud Swanson also saw
Washington on January 15 and testified that he had a lot of money
in his billfold when he took it out, and that when she asked him
about the murder at the restaurant, Washington said “to hell with
3
Bea, or something like that.” Scott Milton, the manager of the
restaurant, testified that when Washington picked up his paycheck
on the day of the murder he told Milton, “The police are hassling
me about this, but I’m too smart for them.” Billy and Mary Sandles
testified that they heard Washington say, “I killed the bitch.” A
teller at a local bank testified that sometime within a week of the
murder, Washington changed $450.00 of small bills and coins for
larger bills. An employee of J&J Bail Bond testified that shortly
after the murder, Washington paid $468.00 in cash for a bond
relating to traffic citations, paying with three hundred dollar
bills and the rest in twenties and change.
The jury found Washington guilty of the capital offense
of intentional murder during the course of a robbery. Following a
separate punishment hearing, the jury affirmatively answered two
special issues submitted pursuant to the Texas Criminal Code. In
accordance with Texas law, the trial court imposed a death sentence
Washington’s conviction was affirmed by the Texas Court
of Criminal Appeals. Washington v. State, No. 69,937 (Tex. Crim.
App. Dec. 23, 1992), cert. denied, Washington v. Texas, 508 U.S.
927, 113 S. Ct. 2388 (1993). The trial court then issued a warrant
scheduling Washington’s execution for June 17, 1993. On May 28,
1993, Washington sought a stay of execution in order to allow time
to prepare a state application for writ of habeas corpus. The
motion to stay the execution was denied on June 8, 1993. On June
14, 1993, Washington filed his state application for writ of habeas
4
corpus. The State filed its answer the following day. On June 15,
1993, an evidentiary hearing was held before the same judge which
presided at Washington’s trial to consider the merits of
Washington’s habeas claims. The trial court entered findings of
fact and conclusions of law early the next morning recommending
that the relief sought be denied. Ex Parte Washington, No. 17,726-
361 (361st Dist. Ct., Brazos County, Tex., June 16, 1993). Based
on these findings and conclusions, the Texas Court of Criminal
Appeals denied Washington’s application for a writ of habeas
corpus. Ex Parte Washington, No. 24,922-01 (Tex. Crim. App. June
16, 1993).
Following the decision of the Texas Court of Criminal
Appeals, Washington filed a motion for stay of execution and an
application for habeas relief in federal district court. The
district court entered a stay and referred the case to a magistrate
judge. The magistrate judge issued a memorandum opinion
recommending that the relief sought be denied. The district court,
however, found that material facts had not been adequately
developed at the state habeas proceedings as to three of
Washington’s thirteen claims. The court ordered an evidentiary
hearing as to these claims which concerned Washington’s competency
to stand trial, the trial court’s failure to order a competency
hearing, and ineffective assistance of counsel. As for
Washington’s remaining claims, the district court concluded they
were without merit and would be dismissed at the time of final
5
judgment. Based on the evidentiary hearing, the district court
entered findings of fact and conclusions of law, denied relief on
the three claims not adjudicated in its previous order, entered
final judgment denying Washington’s habeas petition, and denied a
certificate of probable cause and vacated the stay of execution.
Washington v. Scott, No. H-93-1792 (S.D. Tex. July 25, 1995);
Washington v. Scott, No. H-93-1792 (S.D. Tex. Aug. 10, 1995).
II. DISCUSSION
This court lacks jurisdiction to hear Petitioner’s appeal
unless a certificate of probable cause is first granted. Black v.
Collins, 962 F.2d 394, 398 (5th Cir. 1992), cert. denied, 504 U.S.
992, 112 S. Ct. 2983 (1992). To obtain a certificate of probable
cause, Petitioner must “make a substantial showing of the denial of
a federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.
Ct. 3383, 3394 (1983)(internal quotations and citations omitted).
This requires that Petitioner “demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues in a different manner; or that the questions are adequate to
deserve encouragement to proceed further.” Id. at 893 n.4, 103 S.
Ct. at 3394-95 n.4 (emphasis in original)(internal quotations and
citations omitted). The nature of the penalty in a capital case is
a “proper consideration in determining whether to issue a
certificate of probable cause, but the severity of the penalty does
not in itself suffice to warrant the automatic issuing of a
certificate.” Id. at 893, 103 S. Ct. at 3394-95.
6
Washington’s application for certificate of probable
cause and writ of habeas corpus raises five issues. First,
Washington contends the district court applied an incorrect legal
standard in evaluating his mental competency claim. Second,
Washington argues the district court erred in finding him competent
to stand trial. Third, Washington claims he received ineffective
assistance of trial counsel. Fourth, Washington contends the
prosecutor improperly exercised a peremptory challenge to strike a
black woman from the jury. Last, Washington argues his conviction
and death sentence were obtained as a result of purposeful racial
discrimination. Each of Washington’s claims requires discussion.
A. Mental Competency
It is well settled that due process prohibits prosecution
of a defendant who is not competent to stand trial. Cooper v.
Oklahoma, ___ U.S. ___, 116 S. Ct. 1373, 1377 (1996); Bouchillon v.
Collins, 907 F.2d 589, 592 (5th Cir. 1990). The test for
determining competency is whether the defendant “has sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding--and whether he has a rational as well as
factual understanding of the proceedings.” Dusky v. United States,
362 U.S. 402, 403, 80 S. Ct. 788, 789 (1960); see Bouchillon, 907
F.2d at 592. Habeas petitioners claiming incompetency bear a
“threshold burden of proof which must be satisfied before the
habeas court has a duty to investigate the constitutional challenge
further.” Bruce v. Estelle, 536 F.2d 1051, 1059 (5th Cir. 1976),
7
cert. denied, 429 U.S. 1053, 97 S. Ct. 767 (1977); see Enriquez v.
Procunier, 752 F.2d 111, 114 (5th Cir. 1984), cert. denied, 471
U.S. 1126, 105 S. Ct. 2658 (1985). This requires a showing that the
facts are “sufficient to positively, unequivocally and clearly
generate a real, substantial and legitimate doubt as to the mental
capacity of the petitioner to meaningfully participate and
cooperate with counsel during trial.” Bruce, 536 F.2d at 1058-59
(quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973),
cert. denied, 429 U.S. 1053, 97 S. Ct. 767 (1977)). “Once
petitioner has come forward with enough probative evidence to raise
a substantial doubt as to competency, . . . [h]e must then go
further and prove the fact of incompetency, at least by a
preponderance of the evidence.” Bruce, 536 F.2d at 1059; see
Bouchillon, 907 F.2d at 592.
Petitioner asserts that the district court confused the
threshold burden required of habeas petitioners with the
requirement that incompetency be proven by a preponderance of
evidence and thereby incorrectly applied a heightened standard of
proof. We disagree.
In setting forth the governing standards, the district
court stated:
In the Fifth Circuit, on federal habeas review,
Petitioner has the burden of proving by a preponderance
of the evidence that he was incompetent at the time of
his trial. Petitioner on a collateral attack has a heavy
burden to present facts that positively, unequivocally,
and clearly generate a real, substantial and legitimate
doubt as to the mental capacity of the defendant to stand
trial.
8
Washington v. Scott, No. H-93-1792 at 11-12 (S.D. Tex. July 25,
1995)(internal citations and quotations omitted). The district
court then found that Petitioner had
failed to carry his burden and that the preponderance of
the evidence supports a finding that Petitioner was
competent to stand trial in 1987.
Id. at 12. The court further found that
[t]here was evidence presented that Washington suffers
from organic brain damage and was abused and neglected by
his family during childhood. This evidence,
nevertheless, in light of all the rest, failed to
persuade the court by a preponderance that [his] problems
impaired him to the extent of being incompetent to stand
trial.
Id. at 3.
The district court’s opinion properly recognizes both
Petitioner’s threshold burden to create a doubt warranting further
examination in a habeas proceeding and the preponderance standard
required to entitle Petitioner to relief.2 The district court
clearly applied these standards in the correct sequence and
concluded explicitly: “. . . Petitioner was competent to stand
trial in 1987.” Id. at 12.3
2
In Cooper v. Oklahoma, __ U.S. __, 116 S. Ct. 1373 (1996), the
Supreme Court held unconstitutional an Oklahoma statute requiring a criminal
defendant to prove his competency by clear and convincing evidence. Petitioner
contends Cooper requires reversal of his conviction because the district court
imposed a heightened burden of proof. As discussed supra, the district court
properly applied the appropriate preponderance standard. No heightened burden
was required of Petitioner. Cooper, therefore, does not apply to the facts of
this case.
Petitioner also contends that although current Fifth Circuit law
places the burden of proof on him to establish incompetency, there are sound
reasons why the State should bear the burden. See Bouchillon v. Collins, 907 F.2d
589, 592 n.6 (5th Cir. 1990). Demands of finality and comity support this court’s
decisions to require of Petitioner the same burden of proof in retrospective
9
Washington also contends the district court erred in
finding him mentally competent. Specifically, Petitioner argues
that his mental retardation, organic brain damage, and abused
childhood rendered him incompetent to stand trial.
The question of competency is treated in our circuit as
a mixed question of law and fact. Wheat v. Thigpen, 793 F.2d 621,
631 (5th Cir. 1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1566
(1987); see United States v. Birdsell, 775 F.2d 645, 648 (5th Cir.
1985), cert. denied, 476 U.S. 1119, 106 S. Ct. 1979 (1986).
Whether a Petitioner suffers from a mental disorder or
incapacitating mental illness is a question of fact reviewed under
the clearly erroneous standard. Lokos v. Capps, 625 F.2d 1258, 1267
(5th Cir. 1980); see Wheat, 793 F.2d at 631; Bruce, 536 F.2d at
1059. However, we take a “hard look” at the ultimate competency
finding. Lokos, 625 F.2d at 1267; see Wheat, 793 F.2d at 631;
Bruce, 536 F.2d at 1059-60.4
federal competency hearings as he must bear on any other habeas issue. Bruce v.
Estelle, 536 F.2d at 1058-59. In any event, the district court’s unhesitating
conclusion that Petitioner was competent in fact to stand trial in 1987
demonstrates that a contrary allocation of burden of proof would not have been
outcome-determinative. The issue is therefore irrelevant to Washington’s
petition.
4
There is some inconsistency in this circuit’s review of competency
determinations. Some earlier cases have treated a determination of competency as
a finding of fact reviewable under a “clearly arbitrary or unwarranted standard.”
United States v. Fratus, 530 F.2d 644, 647 (5th Cir.), cert. denied, 429 U.S.
846, 97 S. Ct. 130 (1976); see Bundy v. Digger, 850 F.2d 1402, 1408 n.5 (11th
Cir. 1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 849 (1989)(noting
inconsistency and citing cases). More recent cases, however, have viewed
competency as a mixed question of law and fact with the aforementioned standard
of review. Wheat, 793 F.2d at 631; Lokos, 625 F.2d at 1267; Bruce, 536 F.2d at
1059-60. The Supreme Court has likewise been inconsistent on the issue of
competency. See Thompson v. Keohane, __U.S.__, 116 S. Ct. 457, 464
(1995)(competency to stand trial classified as a factual issue within § 2254(d));
10
The issue of Petitioner’s competency to stand trial was
first raised in his state habeas application. Petitioner’s
evidence of incompetency included his school and parole records,
records from the Texas Department of Protective and Regulatory
Services, and the affidavit of Dr. Philip Murphy, a
neuropsychologist who examined Petitioner and concluded that
Petitioner’s neurological defects, mental retardation, and
delusional episodes prevented Petitioner from rationally and
meaningfully participating in his trial proceedings. In contrast
to Dr. Murphy, Washington’s trial counsel, Tyler Moore, testified
that in his opinion, Washington was able to understand the
proceedings and rationally consult with him concerning the trial.
Although the federal court found that the state habeas
proceeding was too hastily conducted, the state judge’s
observations are useful, because he presided over both the capital
murder trial and the habeas case. See, e.g. Buxton v. Lynaugh, 879
F.2d 140, 146 (5th Cir. 1989), cert. denied, 497 U.S. 1032, 110
S.Ct. 3295 (1990) (since trial judge and habeas judge were the same
person, state judge is ordinarily in a better position to assess
the facts). The state court concluded that Washington was
Maggio v. Fulford, 462 U.S. 116, 118-19, 103 S. Ct. 2261, 2265 (1983)(White, J.,
concurring)(“Our cases have treated the ultimate question whether a defendant is
competent to stand trial as at least a mixed question of law and fact.”); Drope
v. Missouri, 420 U.S. 162, 174-75, 175 n.10, 95 S. Ct. 896, 905, 905 n.10
(1975)(court undertook its own analysis of the facts concerning competency to
assure appropriate enforcement of a federal right). As we have applied an
arguably stricter standard of review than Thompson suggests, the district court’s
findings would be affirmed regardless.
11
competent to stand trial. In substance, the state court found,
Washington knew he was on trial for his life, was able to consult
with trial counsel and assist with his defense, discussed with
counsel the relevant facts and procedures of the trial, and asked
relevant questions of trial counsel and understood counsel’s
explanations. Further, the court found Petitioner had a rational
and factual understanding of the trial proceedings.
At the federal evidentiary hearing, testimony concerning
Washington’s competency was fully developed. Petitioner called
five witnesses, Dr. Philip Murphy, a neuropsychologist, Dr. Denis
Keyes, a specialist in mental retardation, Leona Maxey,
Petitioner’s mother, Tyler Moore, Petitioner’s trial counsel, and
Edward Mallet, a criminal defense attorney. The State called Dr.
George Parker, a psychologist, and Rita Watkins and Larry Johnson,
police officers who participated in interrogations of Petitioner.
Like the state court, the district court concluded that
Washington was competent to stand trial in 1987. The district
court found that although Washington was mildly retarded and
suffered from organic brain damage and an abused childhood, he was
verbal, cooperative, and able to concentrate for periods without
difficulty. Additionally, the court found that at the time of
trial, Washington knew he had been accused of murder and understood
the roles of the district attorney, defense counsel, and the jury.
Further, the court found Washington had a general comprehension of
judicial procedure and that he interacted appropriately with his
12
attorney at trial. The district court explained in detail why she
credited the State’s witness Dr. Parker over Washington’s experts.
Without detracting from the scope of her analysis, we note her
findings that Dr. Parker relied on more sources of data than did
the other experts; conducted a near four-hour interview with
Washington in which he directly questioned Washington on matters
material to the issue of competency, unlike the other experts; and
closely examined pertinent records from the trial and Washington’s
understanding of what occurred there. Also significant to the
court was Dr. Parker’s experience testifying for both the
prosecution and defense, while the other experts always testified
for the defense.
Petitioner contends that the federal court improperly
relied on the testimony of Dr. Parker, the police officers, and his
trial counsel and should instead have relied on his experts, who
found him incompetent. This argument of course implies that the
district court’s findings erroneously weighed the credibility of
the witnesses and misjudged their testimony. The record does not
support this argument.
At the evidentiary hearing, both Dr. Murphy and Dr. Keyes
testified that Washington was incompetent to stand trial. Their
conclusions were based primarily on the results of a series of
tests they administered to Petitioner during extended interviews.
Neither doctor, however, discussed in detail with Washington the
13
events leading up to or at his trial. Both doctors spent the bulk
of their interview time with Washington administering tests.
In contrast, Dr. Parker found Washington competent to
stand trial. Dr. Parker’s interview with Petitioner focused on the
events leading up to and at Petitioner’s trial. Dr. Parker
testified that Washington described in detail the evidence
presented at trial and the trial testimony relating to that
evidence, and observed that no fingerprints or murder weapon were
presented as evidence. Additionally, Dr. Parker testified that
Washington described the role of the judge, district attorney,
defense counsel, and the jury, and that when asked why he was in
prison, Washington responded he was there for murder. Further, Dr.
Parker interviewed three prison guards who had contact with
Washington. In sum, these guards described Washington was “a
little slow” and “low-key,” but also social and competent.
Dr. Parker’s finding of competency is reinforced by the
testimony of Washington’s trial counsel and two police officers who
participated in interrogations of Washington. Trial counsel
testified that he and Washington talked about the evidence and the
trial, and that Petitioner made observations, comments, and
suggestions, including providing information for an alibi defense.
Additionally, trial counsel testified that he believed Washington
had a factual understanding of the proceedings and that he was able
to assist in his defense. The testimony of the interrogating
officers further showed that Washington was able to answer
14
questions during the interrogations and that his answers made
logical sense.
The record supports the decision of the district court.
The district court properly credited the testimony of Dr. Parker,
trial counsel, and the police officers. Petitioner has failed to
establish incompetency by a preponderance of the evidence.
B. Ineffective Assistance of Counsel
Washington contends he received ineffective assistance of
counsel because of trial counsel’s failure to investigate his
mental health, and failure to develop evidence of his mental
condition and family background at the punishment phase of trial.
Both the state and district courts rejected Petitioner’s claim of
ineffective assistance of counsel. We likewise reject the claim.
A claim of ineffective assistance of counsel is governed
by the familiar standards set forth in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail on this claim,
Petitioner must show both deficient performance by counsel, and
prejudice to the defense as a result of the performance. Id. at
687, 104 S. Ct. at 2064. Counsel’s performance is deficient if it
falls below an objective standard of reasonableness. Id. at 688,
104 S. Ct. at 2064. Our review of counsel’s performance is highly
deferential, with a strong presumption that performance was
reasonable. Id. at 689, 104 S. Ct. at 2065. Deficient performance
is prejudicial only upon a showing that but for trial counsel’s
errors, there is a reasonable probability that the ultimate result
15
would have been different and that confidence in the reliability of
the verdict is undermined. United States v. Faubion, 19 F.3d 226,
228 (5th Cir. 1994).
Washington has shown neither deficient performance nor
prejudice. His trial counsel Moore made a reasonable strategic
decision not to investigate Washington’s mental health by retaining
a mental health expert or to present evidence of Washington’s
mental health and family background at the punishment stage of
trial. This case was tried before the Supreme Court’s Penry
decision, and we have not previously held counsel incompetent for
failing to anticipate Penry. Moore was aware of Petitioner’s
school records, juvenile records, adult probation records, low IQ,
slow manner of speech, and deprived family background. Moore,
however, was also aware that Washington was communicative,
responsive, and helpful to the defense, and appeared to understand
the nature of the proceedings. To develop mitigating evidence,
counsel interviewed Washington’s mother, girlfriend, younger
brother and former teachers and retained an investigator to
discover positive information concerning Washington. But Moore
feared that evidence of Washington’s troubled family and emotional
problems could backfire at the punishment stage. For instance,
counsel reasonably feared that obtaining a mental health expert to
evaluate Washington could lead to the discovery of additional
negative information concerning Petitioner, or result in repeated
emphasis on Petitioner’s past acts of violence, such as his sexual
16
assault on his younger brother and incidents in which Washington
buried his younger brother in a grave, cut off the heads of puppies
with a lawnmower, and treated his family violently. Moore’s
strategy was to portray the murder as an aberration rather than
part of a pattern of random violence. Under these circumstances,
the decisions made by Petitioner’s trial counsel were reasonable.
Trial counsel’s failure to investigate and present
allegedly mitigating mental health and family background evidence
was also not prejudicial. The federal district court’s conclusion
that Washington was in fact competent to stand trial dispels any
claim of prejudice for failure to hire or request expert evaluation
of that question.
More significantly, the evidence presented to the jury
both at trial and at the punishment hearing persuades us that
Petitioner has not met his burden of demonstrating a reasonable
probability that, had the mitigating evidence been introduced, he
would not have been sentenced to death. The jury had just
convicted Washington of a brutal murder involving over eighty stab
wounds. He showed no remorse for his actions. His past history
showed he had sexually molested his younger brother, was violent
toward family members and others, belligerent in jail, and had
informed his parole officer before committing this crime that the
next time he went to prison it would be for murder. Against this
evidence, Washington’s claimed physiological and social excuses for
17
his conduct are weak. The jury’s sentence was reliable; therefore,
there was no prejudice.
C. Batson Violation
Washington contends the State improperly exercised a
peremptory challenge to exclude veniremember Martha Patman, a black
woman, from the jury panel in violation of Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712 (1986). Additionally, Petitioner asserts
that the trial court’s finding of no discrimination in the State’s
challenge of Patman should not be afforded a presumption of
correctness. We disagree.
Under Batson, when a defendant makes a prima facie
showing of racial discrimination in the state’s use of peremptory
challenges, the state must provide a race-neutral explanation for
the challenge. If the state provides a race-neutral explanation,
the trial court must then decide whether the defendant has
established purposeful discrimination. Purkett v. Elem, __ U.S. __,
115 S. Ct. 1769, 1770-71 (1995). A trial court’s contemporaneous
ruling on issues of fact satisfies the hearing requirement of 28
U.S.C. § 2254(d). Wainwright v. Witt, 469 U.S. 412, 426-30, 105 S.
Ct. 844, 854-55 (1985). Accordingly, the trial court’s finding as
to the state’s offered explanation will not be set aside unless the
finding is “‘not fairly supported by the record.’” Purkett, __ U.S.
at __, 115 S. Ct. at 1771 (quoting 28 U.S.C. § 2254(d)(8)).
During voir dire, the prosecutor exercised a peremptory
challenge and moved to strike Patman from the jury panel.
18
Petitioner objected and requested a reason for the challenge. The
prosecutor stated:
Your Honor, the controlling reason was not necessarily
the words that she said, but the way she carried herself,
the way in -- the manner in which she answered those
questions. That is what I perceive to be a very strict,
a very, almost to the point of obstinate in the
deliberateness of her carriage, which I believe would be
contrary to what the State is looking for in a juror,
that is someone that can deliberate with the other eleven
toward reaching a verdict.
I found her independence to be a little too far on
the strong side of independent and rigidity in her
opinions. And sometimes I thought those opinions were
expressed in a manner of almost being, as I said earlier,
obstinate or angry in defense of her feelings and
thoughts. And it’s based on that attitude that we felt
like she will not fit into our perception of what the
jury we’re looking for should consist of. That is the
overwhelming concern the State has.
Tr. 3060-61. Following the prosecutor’s response, the trial court
found that the challenge of Patman was not based upon race. Id. at
3061, 3063.
The prosecutor’s response is race-neutral, and Petitioner
has failed to show purposeful discrimination. The record fairly
supports the trial court’s finding of no discrimination. We defer
to the trial court’s evaluation of the prosecutor’s explanation for
the challenge of Patman. See Troupe v. Groose, 72 F.3d 75, 76 (8th
Cir. 1995). Petitioner has failed to establish a Batson violation.
D. Purposeful Racial Discrimination
Petitioner finally contends his conviction and death
sentence were obtained as a result of purposeful racial
discrimination. Petitioner further argues he was not given a full
19
and fair hearing in his state habeas action, and that the district
court erred in not holding an evidentiary hearing as to the issue
of racial discrimination. These contentions are meritless.
In his state petition for habeas relief, Petitioner
raised the claim of purposeful racial discrimination. The State
responded with an affidavit of Bill Turner, the Brazos County
district attorney, who made the decision to charge Washington with
capital murder. Turner affirmed that race does not play a role in
charging decisions, and that in Washington’s case, capital murder
and the death penalty were sought because of the nature of the
murder, committed in the course of a robbery, and because of
Washington’s past violence and statements warning of possible
future violence. Additionally, the affidavit set forth the capital
murder cases in which Turner had been involved and the sentences
imposed. Washington, though afforded the opportunity to cross
examine Turner at the state habeas hearing on the contents of the
affidavit, declined to question him. Washington also submitted the
affidavit of Kent Tedin, a professor at the University of Houston,
who concluded that based on statistical probabilities, it was
unlikely that there was a small number of blacks in the jury pool
due to chance.
The state court concluded that
[t]he decision to charge Applicant with capital murder,
and the decision to seek the death penalty were not
racially motivated.
20
Ex Parte Washington, No. 17,726-361 (361st Dist. Ct., Brazos
County, Tex., June 16, 1993). Further, the court found
[t]here is no evidence that race is a factor upon which
the Brazos County District Attorney’s office bases the
decision to seek or not to seek the death penalty, or any
other decision in the prosecution of any criminal case.
To the contrary, race is not a factor that is considered
by the Brazos County District Attorney’s Office when
making any decision on how to proceed in a case.
Id.
The decision of the state court is supported by the
record and is afforded a presumption of correctness. 28 U.S.C. §
2254. Petitioner has failed to establish a claim of purposeful
racial discrimination. McCleskey v. Kemp, 481 U.S. 279, 292-93, 107
S. Ct. 1756, 1767 (1987). The district court did not err in
rejecting this claim without an evidentiary hearing.
CONCLUSION
For the foregoing reasons, the district court’s denial of
federal habeas relief is AFFIRMED.
21
Washington v. Johnson
Court: Court of Appeals for the Fifth Circuit
Date filed: 1996-07-30
Citations: 90 F.3d 945
Copy CitationsCombined Opinion