United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 11, 2005
Charles R. Fulbruge III
Clerk
No. 04-70036
JULIUS JEROME MURPHY,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner-Appellant Julius Jerome Murphy (“Murphy”) was
convicted of capital murder in Texas and sentenced to death.
Murphy filed a petition for writ of habeas corpus in the United
States District Court for the Eastern District of Texas pursuant to
28 U.S.C. § 2254. The district court granted summary judgment to
Respondent-Appellee Doug Dretke (the “Director”), in his role as
Director of the Texas Department of Criminal Justice, Correctional
Institutions Division, on seven of Murphy’s eight claims. The
court denied Murphy’s petition on the one remaining Batson v.
Kentucky, 476 U.S. 79 (1986), equal protection claim but granted
Murphy a certificate of appealability (“COA”) on that issue. For
the following reasons, we AFFIRM the district court’s decision to
deny relief.
BACKGROUND
In August 1998 Murphy was convicted and sentenced to death for
the capital offense of murdering Jason Erie during the commission
of a robbery. The Texas Court of Criminal Appeals (“TCCA”)
summarized the facts presented during the guilt phase of Murphy’s
trial as follows:
As the State’s evidence demonstrated, [Murphy] was
in a car riding with friends around Texarkana during the
early morning hours of September 19, 1997. There had
been heavy consumption of alcohol and marijuana
throughout the previous day. The group passed an
individual who appeared to be having car trouble and who
had attempted to elicit their help. At the suggestion of
a friend, [Murphy] agreed to drive back with an aim to
“jack” or rob the stranded driver. After returning to
the stranded motorist, [Murphy] and his friends helped
jump-start the broken-down vehicle. The driver, Jason
Erie, provided a small reward to [Murphy] and his friends
for their help and returned to his car. [Murphy] then
stepped from his vehicle, and, armed with a gun, demanded
Erie’s wallet. Initially, Erie protested and refused to
hand over his property. As he finally began to comply,
[Murphy] fired a single shot from close range into the
victim’s forehead and retrieved the stolen wallet from
the spot it had fallen. It was later discovered along a
nearby road where [Murphy] told investigators it had been
discarded. Erie was alive when rescue workers arrived,
but died a short time later.
[Murphy] and his friends fled through Arkansas, to
Tennessee, and finally ended up in Arlington, Texas,
where they were apprehended by police. [Murphy’s]
girlfriend, Christina Davis, who was with [Murphy]
throughout the duration of these events, testified that
she had fought with [Murphy] on the day prior to the
murder in which he struck her several times. She also
explained to the jury how she and [Murphy] had fought the
day they were arrested and how [Murphy] continued to hit
her and threatened to shoot her in the leg to keep her
from leaving.
2
Murphy v. State, No. 73,194, slip op. at 2-3 (Tex. Crim. App. May
24, 2000) (unpublished). Murphy, an African American, was
convicted and sentenced by an all-Caucasian jury. Of the six
potential African-American jurors who were questioned for voir
dire, five were peremptorily struck by the Bowie County District
Attorney (the “State”). One was accepted by the State but
peremptorily struck by the defense. The defense objected to the
State’s striking of the African-American venirepersons; the trial
court held a Batson hearing. Although the trial court ruled that
Murphy had failed to make a prima facie showing of discrimination
as to his Batson objections, it nonetheless required the State to
offer reasons for the exercise of its challenges. Alternatively,
the trial court ruled that the State’s reasons were valid and race-
neutral. The trial court thus overruled Murphy’s Batson
objections.
On direct appeal, the TCCA affirmed Murphy’s conviction and
sentence; Murphy did not seek certiorari review in the Supreme
Court of the United States. Murphy filed a state application for
writ of habeas corpus in the trial court in October 2000.1 The
trial court subsequently entered findings of fact and conclusions
of law recommending Murphy’s application be denied. In April 2002
1
We note that Murphy argued his Batson claim on direct appeal,
but not on state habeas. To meet exhaustion under § 2254(b)(1)(A),
a petitioner must present his claim to the highest state court.
See Martinez v. Johnson, 255 F.3d 229, 238-39 (5th Cir. 2001). On
his direct appeal, Murphy only discussed three of the five African-
American venirepersons peremptorily struck by the State – Bobbie
Gladney (“Gladney”), Deliyamekia Johnson (“Johnson”), and Donna
Cellers (“Cellers”). Although the magistrate judge and the
district court used, and the parties frequently use, the spelling
“Cellars,” the state court record indicates that this
venireperson’s name is spelled “Cellers.” We use “Cellers.”
3
the TCCA adopted the trial court’s findings and conclusions and
denied Murphy habeas corpus relief.
In February 2003 Murphy filed the instant petition for writ of
habeas corpus in district court. In June 2003 the Director moved
for summary judgment. An evidentiary hearing took place before the
magistrate judge (“MJ”) in June 2004 on whether the state court’s
determination that the trial court did not abuse its discretion in
finding that the reasons offered by the prosecution for
peremptorily challenging African-American jurors were race-neutral
was unreasonable. The Director presented the original prosecutor,
Al Smith (“A. Smith”), as a witness; Murphy presented trial
counsel, Craig Henry (“Henry”), as a witness. The MJ then filed
her report and recommendations, recommending that the court grant
the Director summary judgment as to all of Murphy’s eight claims.2
Murphy timely filed objections. After de novo review of the MJ’s
2
On federal habeas, Murphy asserted his Batson claim as to all
five African-American venirepersons struck by the State, also
including Greaker Robinson (“Robinson”) and Jimmy Brewer
(“Brewer”). While the Director argued that Murphy’s claims were
unexhausted as to these two venirepersons, the MJ addressed all
five struck venirepersons; and the district court stated it
believed considering the entire record as to all five was
appropriate when deciding whether the trial court’s determination
that the State used its peremptory challenges in a
nondiscriminatory manner was reasonable. The Director has not
reasserted lack of exhaustion on appeal, and Murphy tightly focuses
his arguments here on the striking of Gladney and Cellers. With
that in mind, we simply note that we, like the MJ and the district
court, do not limit our consideration of the record, in order to
better determine reasonableness of the state court’s decision to
overrule Murphy’s Batson objection. But see, e.g., Tigner v.
Cockrell, 264 F.3d 521, 526 & n.3 (5th Cir. 2001) (choosing instead
to sua sponte refuse to consider the constitutional portion of the
petitioner’s challenge to admitted expert testimony, even though
the district court had considered the argument).
4
report and recommendations, in August 2004 the district court
agreed with the summary judgment recommendation as to seven of
Murphy’s eight claims but did not accept such recommendation as to
the Batson claim on which the MJ had held the evidentiary hearing.
Instead, the district court accepted the MJ’s findings on that
Batson claim and denied relief. The district court thus agreed
with the MJ’s determination that the differences in the questions
asked of African-American versus non-African-American venirepersons
during voir dire could be explained by reasons other than a desire
to exclude potential jurors because of their race; that non-African
-American venireperson Ladonna Smith (“L. Smith”) was not similarly
situated to African-American venireperson Cellers because the
evidence showed Cellers had been convicted of a felony while L.
Smith had only been arrested for an unknown nonfelony offense; and
that the state court’s rejection of the Batson claim because L.
Smith and Cellers were not similarly situated was not unreasonable
because the evidence did not show L. Smith had ever been convicted
and her lone arrest was 20 years prior to Murphy’s trial. Murphy
filed a notice of appeal from the district court’s judgment. In
September 2004 the district court denied Murphy a COA as to the
seven issues it granted the Director summary judgment, but it
agreed to issue a COA as to Murphy’s Batson claim.
DISCUSSION
Murphy filed his Section 2254 petition for a writ of habeas
corpus after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). In a habeas corpus appeal,
this Court reviews the district court’s findings of fact for clear
error and its conclusions of law de novo, applying the same
standards to the state court’s decision as did the district court.
5
Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004) (citation
omitted).
Under AEDPA, this Court may not grant relief on a claim the
state court has adjudicated on the merits “unless the adjudication
of the claim . . . 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 . . . 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)(1)
& (2). “A state court’s decision is deemed ‘contrary to’ clearly
established federal law if it relies on legal rules that directly
conflict with prior holdings of the Supreme Court or if it reaches
a different conclusion than the Supreme Court on materially
indistinguishable facts.” Busby, 359 F.3d at 713 (citing Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)). “A state court’s decision
constitutes an unreasonable application of clearly established
federal law if it is objectively unreasonable.” Pondexter v.
Dretke, 346 F.3d 142, 146 (5th Cir. 2003) (citing Williams, 529
U.S. at 409). “In order for a federal court to find a state
court's application of [Supreme Court] precedent ‘unreasonable,’
the state court’s decision must have been more than incorrect or
erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003). We
presume the state court’s findings of fact are correct, and the
petitioner bears the burden of rebutting this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
Whether the state court’s decision was contrary to, or involved an
unreasonable application of, clearly established federal law.
Batson introduced a three-step evidentiary framework for
6
evaluating claims of racial discrimination in jury selection. 476
U.S. at 96-98. First, the defendant must make a prima facie
showing that the State has exercised peremptory challenges on the
basis of race. Id. at 93-94, 96-97. Second, if the requisite
showing is made, the burden shifts to the State to produce a race-
neutral explanation for striking the venireperson at issue and thus
rebut the defendant’s prima facie case. Id. at 94, 97-98. “Unless
a discriminatory intent is inherent in the [State]’s explanation,
the reason offered will be deemed race neutral.” Hernandez v. New
York, 500 U.S. 352, 360 (1991). Finally, under the third step, the
trial court must determine whether the defendant has carried his
ultimate burden of proving purposeful discrimination. Batson, 476
U.S. at 94 & n.18, 98. A state trial court’s finding of the
absence of discriminatory intent is “a pure issue of fact” that is
accorded great deference and will not be overturned unless clearly
erroneous. Hernandez, 500 U.S. at 364-65. Our role on appeal is
to “determine whether the trial court’s determination of the
prosecutor’s neutrality with respect to race was objectively
unreasonable and has been rebutted by clear and convincing evidence
to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 341 (2003).
The findings and conclusions of the trial court and adopted by
the TCCA relevant to the instant Batson issue include the
following:
[Murphy] . . . argues those reasons relied on by the
State to exercise its peremptory challenges against
minority venire members were, in fact, pretextual in
nature and were used to mask discriminatory intent. The
three struck venire members of whom [Murphy] complains on
this appeal are set out as follows accompanied by the
reasons prosecutors felt a peremptory challenge was
appropriate and what attempts were made by defense
counsel to show the reasons were pretextual:
7
(1) Venire member Gladney – Prosecutors felt he was
predisposed to not impose the death penalty, which he
felt was used too often. Gladney indicated he believed
there should be “a medicine to change people who commit
these kinds of crimes.” He expressed a belief that there
would have to be no doubt in his mind before deciding the
death penalty was appropriate. He had children the same
age as [Murphy, who was 19 at the time of his trial]. He
showed up for voir dire wearing a t-shirt and chewing
gum, indicating, to prosecutors, a lack of respect for or
recognition of, authority. Venire member Gladney also
felt that Karla Faye Tucker (a recent prisoner of death
row) should not have been executed, that the term
“society” did not include prison, and that a person
became less violent with age. Finally, prosecutors say
they exercised a strike because of venire member
Gladney’s beliefs concerning law enforcement and the
criminal justice system.
In response, the defense attempted to engage in a
comparative analysis to demonstrate that white venire
members were not struck despite the fact they, too, were
chewing gum or expressed a belief that there must be no
doubt before a punishment of death is imposed.
Additionally, counsel for [Murphy] attempted to
demonstrate that the State engaged in disparate
questioning of minority and Caucasian venire members in
order to unfairly exclude those minority members.
(2) Venire member Johnson – She expressed an ongoing
concern that jury service would unduly interfere with her
attempts to attend nursing school. Also, she had
originally indicated on the juror questionnaire that,
while the death penalty may be appropriate in some cases,
she could not personally return a verdict that assessed
the death penalty. Although this response was later
changed, the prosecutor remained unsatisfied Johnson
would be willing to answer the special issues so that the
punishment would be death. Prosecutors felt venire
member Johnson’s religious beliefs would interfere with
her ability to render a verdict, and they were concerned
about a comment she made that her decision might be
affected by the fact that she and [Murphy] are the same
age. She also stated that, in order to find [Murphy]
guilty, the other parties to the murder would have to
testify. Finally, prosecutors expressed the subjective
belief that venire member Johnson was not steadfast in
her beliefs and was the type of person who would try to
“accommodate” whomever she was talking with at the time.
8
Despite the opportunity to do so, counsel for
[Murphy] made no effort to refute or rebut the State’s
reasons for striking this venire member.
(3) Venire member Cellers – Despite indicating on
her questionnaire that she had never been arrested,
prosecutors discovered that venire member Cellers had at
least two prior arrests. There were indications she had
been convicted of theft, which she denied until
confronted. She also had been arrested for forgery, for
which she provided an explanation that prosecutors said
they found “incredible.” Venire member Cellers also
admitted she had a sister who had experienced previous
confrontations with police.
Counsel for [Murphy] argued that prosecutors engaged
in disparate questioning of venire member Johnson [sic]3
because the only inquiries made were of her past criminal
background. This occurred despite the fact that a white
venire member, Ladonna Smith, also had a prior criminal
history, but the State never questioned her or inquired
about it.4
. . .
After reviewing the available record, we can discern
no abuse of discretion behind the trial court’s decision
to overrule [Murphy]’s Batson objections. The trial
court could have reasonably concluded the State’s race-
neutral explanations were valid, and the peremptory
strikes were not racially motivated.
Murphy, No. 73,194, slip op. at 21-23, 24 (first footnote added and
second footnote in original).
The district court accepted the following findings from the
MJ’s report and recommendations:
The Court first notes that the reasons given by the
3
Examination of the Batson hearing transcript reveals that
this reference should be to Cellers, not Johnson.
4
The record indicates that a jury was empaneled before venire
member Smith could be individually questioned by the involved
parties.
9
prosecution for peremptorily excusing the five African-
American venirepersons were race-neutral. Robinson
stated that her service on the jury could cause a family
conflict, because one of her children was friends with
the defendant, while another child was friends with the
victim. In her questionnaire, Cellars denied that she
had been arrested or convicted of any criminal offenses.
Under questioning, she admitted being both arrested and
convicted, within the past ten years, of shoplifting and
of cashing a stolen check, then claimed that she was in
fact innocent and gave an unlikely explanation. Johnson
gave inconsistent answers; the prosecution attempted to
challenge her for cause on two occasions, only to be
interrupted by the trial court, which rehabilitated her.
Both Brewer and Gladney consistently confused “beyond a
reasonable doubt” with “no doubt.” Further, Brewer
appeared not to believe in, or not to understand, the
concept of parole, and Gladney was personally opposed to
the death penalty.
To establish pretext, Murphy attempted to show that
similarly situated white venirepersons were treated
differently. He pointed out that the prosecution failed
to use one of its peremptory challenges on [Cora] Elder
[(“Elder”)], a non-African-American, despite her also
responding that she would have to be “without a doubt” of
the defendant’s guilt in order to sentence him to death.
However, a close examination of the voir dire reveals
that, unlike Brewer and Gladney, Elder quickly backed off
from that position under questioning. Accordingly, this
Court finds that Elder was not similarly situated to
Brewer and Gladney. Murphy also pointed out that a non
African-American venireperson named LaDonna Smith had,
like African-American venireperson Cellars, been arrested
and denied this fact on her questionnaire, but, unlike
venireperson Cellars, the prosecution never questioned
her on this point. The trial court denied Murphy’s
challenge as to venireperson Smith without explanation,
and without requiring the prosecutor to respond.
While the prosecution’s reasons for peremptorily
challenging venireperson Cellars were valid, its failure
to ask similar questions of venireperson LaDonna Smith,
who appeared similarly situated, do[es] raise an
inference of pretext. Since a finding of pretext as to
a single juror requires that a conviction be vacated, see
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 n. 13
(1994), this Court held an evidentiary hearing in order
10
to determine why juror Smith was not also questioned
about her criminal history.
Trial prosecutor Al Smith testified that to him,
convictions were more significant than arrests, and
recent arrests were more significant than older ones. He
testified that venireperson Smith’s criminal history
consisted of only an arrest, not a conviction; that the
arrest was over 20 years old, and that the notation of
the crime for which she was arrested, “ASC,” was not a
crime that he even recognized, but in any event, it did
not appear to be a felony. He also testified that
because venireperson Smith was one of the last
venirepersons questioned, she was not likely to be called
to serve and he was tired at the time he was questioning
her, so he just decided to hurry up at (sic) get through
her voir dire without asking her about the arrest.
Finally, he testified that he probably would have
peremptorily challenged her on the basis of the false
answer about her arrest if she did become eligible for
the petit jury.
Prosecutor Smith’s explanation is not without
problems. Because he did not know the crime for which
venireperson Smith was arrested, the prudent course would
have been simply to ask her, rather than to peremptorily
challenge her. His claim that he was trying to hurry
through the voir dire because she was near the end of the
pool is belied by the fact that he took almost three
times as much time with Smith as he did with Cellars.
Notwithstanding these discrepancies, that
venireperson Smith’s arrest did not result in a
conviction and was more than twenty years old establishes
that she was not similarly situated with venireperson
Cellars, so the difference in the questioning they were
subjected to cannot be said to have resulted from no
other reason besides race. The Court, therefore, finds
that the State’s rejection of Murphy’s Batson challenge
was not unreasonable.
Murphy v. Dretke, No. 5:02cv086, slip op. at 15-16 (E.D. Tex. Aug.
20, 2004) (unpublished). The district court noted that “[i]n
reviewing the record, the Court did not find any examples of
disparate questioning other than those set forth in specific detail
11
by the magistrate judge in her findings.” Id. at 16. The district
court agreed that the differences in the questions could be
explained by reasons other than the desire to exclude venirepersons
because of their race. Id. In response to Murphy’s objection that
the MJ erred by not finding Cellers and L. Smith similarly
situated, the district court considered what evidence was
introduced at the hearing and noted that nothing indicated that L.
Smith was convicted or that the term “ASC” referred to a felony
offense. Id. at 17. Moreover, the district court, like the MJ,
could not say that the trial court’s rejection of Murphy’s Batson
claim was unreasonable because the facts that L. Smith was not
convicted and that her arrest occurred 20 years before Murphy’s
trial “render[ed] her situation sufficiently distinguishable from
venireperson Cellars.” Id.
Murphy argues the trial court’s Batson adjudication and the
district court’s evaluation of its further evidentiary hearing and
subsequent findings against him resulted in a decision that was
unreasonable in light of the evidence presented and contrary to
clearly established federal law as determined by the Supreme Court.
Murphy asserts that through examination of the trial record and the
evidentiary hearing, it can be concluded that the State did not ask
the same questions of African-American venirepersons compared to
the non-African-American venirepersons and that the questions asked
of the African-American venirepersons were designed to elicit
disqualifying information. Murphy argues that the record shows
that the State deviated from its “script” used to question
prospective jurors during its questioning of African-American
venirepersons.
As to Gladney, Murphy asserts that the defense noted for the
12
record that the State did not object to one prospective Caucasian
juror, John Smith (“J. Smith”), who also showed up chewing gum, or
to another prospective Caucasian juror, Elder, who had a similar
definition of “beyond a reasonable doubt” as Gladney. Murphy cites
Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991), for
the proposition that a neutral explanation for a peremptory strike
against a member of a protected group is suspect when the State did
not use an unexhausted peremptory against a similar juror who was
not a member of that group. Moreover, Murphy contends the defense
stressed at the Batson hearing that disparate questioning had been
used on Gladney. See Keeton v. State, 749 S.W.2d 861, 866 (Tex.
Crim. App. 1988) (noting disparate questioning can evidence
pretext).
Murphy contends the evidentiary hearing was subject to the
risks of distortion and imprecision from the passage of time
because it took place years after the actual voir dire. Murphy
also argues that the MJ and district court incorrectly determined
that L. Smith was not similarly situated to Cellers and that such
disparate questioning was related to race-neutral reasons. Murphy
maintains prosecutor A. Smith’s explanation for peremptorily
challenging Cellers is flawed because A. Smith was merely
commenting on unknown factors to the court, such as that “A.S.C.”
was not known by him to be a felony. Murphy stresses he should not
be held to a search that did not explain any conviction of L. Smith
years after his case was tried, when a search at the time of voir
dire might have produced evidence that L. Smith was convicted and
what crime “A.S.C.” represented. Without any information about
whether L. Smith was convicted and what “A.S.C.” stood for, Murphy
argues prosecutor A. Smith’s explanation that recent arrests were
13
more significant than older ones is not logical. Murphy also
points to Henry’s testimony that he recalled Caucasian
venirepersons being told about the definitions and circumstances of
capital murder and being asked about issues of the case, while the
African-American venirepersons were asked about reasonable doubt
and their criminal background. Henry also stated that most African
Americans in Bowie County were Southern Baptists and had a
different understanding of reasonable doubt, which was a method
that the State could use to disqualify African-American
venirepersons.
The Director responds that Murphy’s disparate questioning
claims lack merit. The Director argues that the record does not
support Murphy’s contention that the State disparately questioned
African-American venirepersons or that the stated reasons for the
strikes at the Batson hearing were pretextual. While the Director
acknowledges that the peremptory striking of five out of six
African-American venirepersons does appear to be “suspect,” he
emphasizes that Murphy has failed to prove his claims of
discrimination before two factfinding courts and that the State
accepted the sixth African-American venireperson, who was then
struck by the defense.
The Director argues that the district court did not err in
concluding that the state court’s decision to deny Murphy relief
was reasonable. First, the Director notes that Murphy provides
very little record evidence to support his conclusory claims. The
Director challenges Murphy’s citation in his brief to the entire
voir dire record and thus contends Murphy has not met Rule 2(c) of
the Rules Governing Section 2254 Cases in the United States
District Courts, which requires a petitioner to plead facts in
14
support of his claims. See, e.g., Koch v. Puckett, 907 F.2d 524,
530 (5th Cir. 1990) (holding petitioner’s conclusory allegations
failed to establish valid ineffective assistance of counsel claim);
Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (reemphasizing
that “mere conclusory allegations do not raise a constitutional
issue in a habeas proceeding”).
The Director argues the record instead demonstrates that
potential jurors were treated the same, regardless of race. The
Director asserts that although the State did immediately question
two of the three African-American venirepersons it struck due to
their expressed personal opposition to the death penalty – Gladney
and Johnson – the record demonstrates that the State likewise
immediately questioned a Caucasian venireperson, Barbara
Whittington, about her views on the death penalty and ultimately
struck her based on those views. The Director maintains that the
other African-American venireperson struck due to her death penalty
views, Robinson, was not immediately questioned on the death
penalty because her questionnaire, in addition to indicating a
reluctance or hesitancy to impose the death penalty, indicated a
stronger family conflict concern in the State’s mind – the fact
that one of Robinson’s sons was “good friends” with Murphy, and
another son knew the victim. The State eventually questioned
Robinson about her questionnaire answer on the death penalty, where
she had indicated she could not personally assess it, and decided
to strike her based on such views. The Director argues this
corroborates prosecutor A. Smith’s assertion that he used the voir
dire questionnaires to tailor his examination of potential jurors.
As to Gladney, the Director responds to Murphy’s pretext
arguments by noting that while Caucasian venireperson J. Smith was
15
also chewing gun, this passing similarity of an affection for gum
hardly impeaches the State’s motivations regarding Gladney. Unlike
Gladney, J. Smith showed himself to be an extremely strong
potential juror for the State. In particular, J. Smith stated he
favored the death penalty and perceived the job of criminal defense
attorneys as “finding loopholes.” The Director notes the defense
excused J. Smith. The Director also argues that examination of the
record reveals that unlike Gladney, who insisted he would only
impose the death penalty if guilt had been shown with “absolutely
no doubt,” Elder merely misspoke as to the “beyond a reasonable
doubt” standard. The Director notes Elder was a stronger potential
State juror because she had previously been a victim of a violent
crime, had friends in law enforcement, and remarked that the death
penalty should be an option whenever someone intentionally takes a
life.
As to Brewer, the Director asserts that Murphy has never
argued a specific pattern of disparate questioning regarding him.
Although the Director agrees with Murphy that Brewer was questioned
as to the burden of proof, the Director notes that Murphy has never
contended that there was a similarly situated Caucasian
venireperson who was not identically questioned. The Director
argues that there was ample reason for the striking of pro-defense
Brewer; he expressed clear views in favor of the defense and
conveyed his belief that capital punishment should only apply when
there is “no doubt” of a person’s guilt and the person admits to
committing the crime. Moreover, the Director notes Brewer also
would require the State to prove the future dangerousness issue
beyond “any or no doubt” – Brewer also suggested this issue could
never be answered because no one could accurately predict the
future.
16
Finally, the Director contends Murphy’s arguments that the
State’s stated reasons at the Batson hearing as to Cellers were
pretextual lack merit. The Director argues that any alleged
disparate treatment between venirepersons Cellers and L. Smith is
due to the fact that they were not similarly situated. In fact,
the Director emphasizes that though Murphy relies heavily upon the
MJ’s report that notes certain concerns with the State’s given
reasons for the different questioning, Murphy fails to give due
consideration to the MJ’s ultimate determination, with which the
district court agreed, that the state courts were not unreasonable
in finding a lack of purposeful discrimination. According to the
Director, Cellers provided false statements about her criminal
history in her questionnaire; only when confronted did she admit to
having served probation for theft and denied responsibility.
Cellers also belatedly admitted to being arrested for forgery in
1991 and again denied responsibility. In contrast, venireperson
Smith’s allegedly omitted criminal history reflects a single
unknown “A.S.C.” arrest notation over 20 years old at the time of
trial. The Director also notes that L. Smith was one of the last
panel members and that the jury was chosen before either side had
to decide whether to accept her as a juror.
The Director finally notes that aside from the State not
questioning L. Smith about her criminal history, a similar pattern
of questioning was followed as with other venirepersons: Smith was
first questioned about her views on capital punishment,
specifically a reference to her statement that she would hate to
make that decision, then was questioned about her beliefs regarding
the minimum sentence for capital murder. Moreover, prosecutor A.
Smith testified he probably would have struck venireperson L.
Smith. While the Director allows that the MJ did find certain
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discrepancies in prosecutor Smith’s explanations for the different
questioning, the Director insists that the MJ correctly assessed,
after an evidentiary hearing – and the district court correctly
agreed – that pretext was not shown because Cellers and L. Smith
were sufficiently distinguishable such that the different
questioning did not result from any racially motivated reason.
We find the Director’s arguments here to be persuasive. While
at first and limited glance the stark numbers presented by Murphy
appear to be compelling (five of six African-American venirepersons
were peremptorily struck by the State), that cannot signal the end
of our inquiry. Based on our careful review of the record, and
under the requisite AEDPA deference, we cannot say that the
district court clearly erred in its factual findings that the
State’s reasons for striking the African-American venirepersons at
issue were valid and not racially motivated or that the district
court erred in its legal conclusion that Murphy had not proven his
Batson claim.
Here, Murphy did not rebut the state court’s factual findings
with clear and convincing evidence; Murphy did not show that the
State’s individualized reasons for peremptorily striking each
African-American venireperson at issue were actually a pretext for
racial discrimination or that any alleged disparate questioning did
not result from reasons other than race. While we note that the MJ
revealed certain inconsistencies in prosecutor A. Smith’s testimony
regarding the disparate questioning of venirepersons Cellers and L.
Smith during the evidentiary hearing, we agree with the Director
that Murphy has not met his burden to prove that discrimination was
inherent in the State’s explanations for striking each African-
American venireperson at issue. See Hernandez, 500 U.S. at 359.
Therefore, we, like the state courts and the federal court below,
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accept that the reasons offered by the State were valid and race
neutral. See id. We find nothing in this record indicating that
the trial court’s determination of the State’s neutrality with
respect to race was objectively unreasonable and nothing which
rebutted such determination with clear and convincing evidence.
See Miller-El, 537 U.S. at 341. We thus agree with the district
court and find that the state court’s conclusion that the trial
court did not abuse its discretion in determining that Murphy had
not met his burden to show discrimination under Batson and that
such determination was not contrary to, and did not involve an
unreasonable application of, clearly established federal law.
We are aware that we file this opinion less than one month
after the Supreme Court handed down its decision in Miller-El v.
Dretke, 545 U.S. ___, 2005 WL 1383365 (Jun. 13, 2005) (Miller-El
II), in which a six-justice majority of the Supreme Court reversed
a decision of another panel of this Court – which had affirmed both
the state court’s and federal district court’s determination that
the petitioner Miller-El should not receive relief on his Batson
claim. In doing so, the Court considered the type and quantum of
record evidence required to demonstrate a Batson violation. The
Court did not announce any new elements or criteria for determining
a Batson claim, but rather simply made a final factual and
evidentiary determination of that particular petitioner’s Batson
claim pursuant to the “demanding but not insatiable” standard set
forth in 28 U.S.C. § 2254(d)(2) and (e)(1). Miller-El II, 2005 WL
1383365, at *8.
Here, we have thoroughly combed the record of the voir dire
conducted in Murphy’s state court capital murder trial; and our
detailed “side-by-side comparisons of black venire panelists who
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were struck and white panelists allowed to serve” do not indicate
that any differences in questioning or treatment resulted from
pretextual racial bias. See Miller-El II, 2005 WL 1383365, at *8
(noting the evidentiary strength of such close comparisons).
Moreover, there is neither evidence in this record of: (i) any,
much less multiple, jury shuffles occurring in the state trial
court which resulted in the increasingly lower statistical presence
of African Americans within the jury venire; nor (ii) a 20-year-
old, or indeed any, manual from the State District Attorney and
other testimonial evidence suggesting the historic use of
peremptory strikes against African-American venirepersons during
jury selection, both of which were decisive factors in Miller-El
II. Id. at *13, 17-18.
We recognize that Miller-El II may be the first ring of the
death knell for peremptory challenges, id. at *21-22 (Breyer, J.,
concurring), and that the Supreme Court may well grant certiorari
in this case to finally bury the concept of peremptory challenges.
We see nothing in Miller-El II, however, that compels us to reach
that conclusion here in Murphy and leave it to the Supreme Court to
say whether Miller-El II will extend that far.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, for the reasons set forth above, we
AFFIRM the judgment of the district court.
AFFIRMED.
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