Miller-El v. Johnson

                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                  May 12, 2003

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 00-10784




                      THOMAS JOE MILLER-EL,

                                              Petitioner-Appellant,


                              VERSUS


                   GARY L. JOHNSON, DIRECTOR,
  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                              Respondent-Appellee.




           Appeal from the United States District Court
            For the Northern District of Texas, Dallas




Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:

     The Supreme Court has reversed the decision of this Court

entered on August 7, 2001, and published at 261 F.3d 445, and has

remanded this case to our Court “for further proceedings consistent

with the Supreme Court’s opinion” decided February 25, 2003 in No.

01-7662.

     For the reasons stated by the Supreme Court in its opinion, we

now issue a Certificate of Appealability (COA)on Petitioner’s jury
selection claim premised on Batson1.          Accordingly, as suggested by

the Supreme Court, the issue now before our Court is whether

“Petitioner [has] demonstrate[d] that the state trial court’s

findings of the absence of purposeful discrimination was incorrect

by clear and convincing evidence, 28 U.S.C. §2254 (e)(1) and that

the     corresponding       factual   determination       was     “‘objectively

unreasonable’ in light of the record before the court,” when viewed

in the light of (1) ‘Petitioner’s historical evidence of racial

discrimination    by    the      district   attorney’s     office’,    (2)   the

‘substantial evidence Petitioner put forth in support of his prima

facia case’, (3) the decisions of both the prosecution and the

defense to call for a jury shuffle and (4) the evidence proffered

by the defense as to disparate questioning of prospective jurors by

the prosecution.” We direct the parties to submit supplemental

briefs focusing specifically on these issues with full and complete

record citations       as   to   relevant   evidence     and    testimony.    We

instruct the clerk of this court to set a briefing schedule so that

briefing will be complete within 45 days.




  1
      Batson v. Kentucky, 476 U.S. 79 (1986)

                                        2