Miller-El v. Dretke, No. 00-10784 (5th Cir. 3/12/2004)
| Decision Date | 12 March 2004 |
| Docket Number | No. 00-10784.,00-10784. |
| Parties | THOMAS JOE MILLER-EL, Petitioner-Appellant, v. DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas.
ON REMAND FROM THE UNITED STATES SUPREME COURT.
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
Petitioner brings this federal habeas corpus petition claiming, pursuant to Batson v. Kentucky, that the state trial court erred in finding that there was no purposeful discrimination in the selection of his jury. The district court denied Petitioner relief. The district court then denied a certificate of appealability ("COA"). Petitioner previously appealed to this court and we denied a COA. The Supreme Court reversed. We then granted COA and now address the merits of Petitioner's appeal.
On November 16, 1985, Thomas Jo Miller-El, his wife, and Kenneth Flowers robbed a Holiday Inn in Dallas, Texas. During the robbery two employees, Doug Walker and Donald Hall, were ordered to lie on the floor, gagged with strips of fabric, and their hands and feet were bound. Miller-El shot Walker twice in the back and shot Hall in the side. Walker died from his wounds.
The state indicted Miller-El for capital murder. He pleaded not guilty, and jury selection took place during five weeks in February and March 1986. When voir dire had been concluded, Miller-El moved to strike the jury on the grounds that the prosecution had violated the Equal Protection Clause of the Fourteenth Amendment by excluding blacks through the use of peremptory challenges. Miller-El's trial occurred before the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986). Therefore, Swain v. Alabama, 380 U.S. 202 (1965), was then the controlling precedent. As Swain required, Miller-El sought to show that the prosecution's conduct was part of a larger pattern of discrimination aimed at excluding blacks from jury service. In a pretrial hearing held on March 12, 1986, Miller-El presented evidence in support of his motion. The trial judge, however, found "no evidence . . . that indicated any systematic exclusion of blacks as a matter of policy by the District Attorney's office; while it may have been done by individual prosecutors in individual cases." The state court then denied Miller-El's motion to strike the jury. Twelve days later, the jury found Miller-El guilty; and the trial court sentenced him to death.
Miller-El appealed to the Texas Court of Criminal Appeals. While the appeal was pending, on April 30, 1986, the Supreme Court issued its opinion in Batson v. Kentucky and established a three-part process for evaluating claims that a prosecutor used peremptory challenges in violation of the Equal Protection Clause. 476 U.S. at 96-98. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Id. at 96-97. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Id. at 97-98. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id. at 98.
After acknowledging Miller-El had established an inference of purposeful discrimination, the Texas Court of Criminal Appeals remanded the case for new findings in light of Batson. Miller-El v. State, 748 S.W.2d 459, 461 (Tex. Crim. App. 1988)(en banc). A post-trial hearing was held on May 10, 1988. There, the original trial court admitted all the evidence presented at the Swain hearing and further evidence and testimony from the attorneys in the original trial.
On January 13, 1989, the trial court concluded that Miller-El's evidence failed to satisfy step one of Batson because it "did not even raise an inference of racial motivation in the use of the state's peremptory challenges" to support a prima facie case. Notwithstanding this conclusion, the state court determined that the state would have prevailed on steps two and three because the prosecutors had offered credible, race-neutral explanations for each black venire member excluded. The court further found "no disparate prosecutorial examination of any of the venire [members] in question" and "that the primary reasons for the exercise of the challenges against each of the venire [members] in question [was] their reluctance to assess or reservations concerning the imposition of the death penalty."
The Texas Court of Criminal Appeals denied Miller-El's appeal, and the Supreme Court denied certiorari. Miller-El v. Texas, 510 U.S. 831 (1993). Miller-El's state habeas proceedings fared no better, and he was denied relief by the Texas Court of Criminal Appeals.
Miller-El filed a petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254.1 The federal magistrate judge who considered the merits of the Batson claim recommended, in deference to the state court's acceptance of the prosecutors' race-neutral justifications for striking the potential jurors, that Miller-El be denied relief. The United States district court adopted the recommendation. Pursuant to 28 U.S.C. § 2253, Miller-El sought a COA from the district court, and the application was denied. Miller-El renewed his request to this Court, and we also denied a COA. Miller-El appealed to the Supreme Court and certiorari was granted. 534 U.S. 1122 (2002). In an opinion issued on February 25, 2003, the Supreme Court concluded based on a "threshold examination" of the record, that the federal district court's rejection of Miller-El's Batson claim was "debatable" and thus we had erred in not granting COA on Miller-El's Batson claim. Miller-El v. Cockrell, 537 U.S. 322, 347-48 (2003). The Supreme Court remanded the case to this Court to determine whether Miller-El can "demonstrate that [the] state court's finding 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." Id. at 348. We granted COA for precisely that determination. Miller-El v. Johnson, 330 F.3d 690 (5th Cir. 2003)(per curiam).
Claims of racial discrimination in jury selection are evaluated according to the framework established in Batson v. Kentucky, which requires a three-step analysis that shifts the burden of production between the parties. 476 U.S. at 96-98. First, the defendant must make a prima facie showing that the prosecution has exercised peremptory challenges on the basis of race. Id. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecution to provide a race-neutral explanation for striking the venire member in question. Id. at 97-98. Third, the defendant again has the burden, this time of proving purposeful discrimination. Id. at 98. Under Batson, the ultimate burden of persuading the court that the state's peremptory challenges are attributable to a discriminatory purpose lies with and never shifts from the defendant. Id. at 94 n.18 (citing Tex. Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981)); Purkett v. Elem, 514 U.S. 765, 768 (1995).
In the present case, there is no dispute that Miller-El presented a prima facie claim under Batson's first step. Nor is there any dispute that the prosecution presented facially race-neutral reasons for exercising each peremptory challenge. The only issue is Miller-El's disagreement with the trial court's determination at Batson's third step that Miller-El had failed to show that the prosecution's reasons for exercising the challenged peremptory strikes were not credible and Miller-El had not demonstrated that purposeful discrimination had occurred. The federal district court has already determined on habeas review that Miller-El has failed to show that the state court erred, and therefore is not entitled to habeas relief. Miller-El is now appealing this determination and COA has been granted. Therefore we now address the merits of Miller-El's appeal.
Under the current scheme for habeas review in federal court, which was substantially updated in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(e)(1) requires that we "presum[e]" the state court's findings of fact "to be correct" unless Miller-El can rebut the presumption "by clear and convincing evidence."2 As the Supreme Court has stated, the state court's finding at step three of Miller-El's Batson claim was a finding of fact and therefore subject to § 2254(e)(1)'s presumption of correctness. Miller-El, 537 U.S. at 339 ().
We follow the lead of the Supreme Court in utilizing their decisions in Hernandez v. New York, 500 U.S. 352 (1991), and Purkett v. Elem, 514 U.S. 765 (1995), to guide our decision regarding the trial court's finding of no purposeful discrimination at step three in this Batson claim. These Supreme Court opinions state that the critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness and credibility of the prosecutor's justification for his peremptory strike. Purkett, 514 U.S. at 768; Hernandez, 500 U.S. at 364-65. Further, these cases, applying a standard of review even less deferential to the trial court's finding than we are required to apply under AEDPA, articulate that deference is necessary because the reviewing court is not as well positioned as the trial court to make credibility determinations, and once the trial court has made a credibility...
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