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