Soria v. Johnson
| Decision Date | 16 March 2000 |
| Docket Number | No. 99-10465,99-10465 |
| Citation | 207 F.3d 232 |
| Parties | (5th Cir. 2000) JUAN SORIA, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee |
| Court | U.S. Court of Appeals — Fifth Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Texas Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
Petitioner Juan Soria (Soria), convicted of capital murder in Texas and sentenced to death, requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. 2253(c)(2). Soria raises numerous arguments on appeal, including denial of equal protection, denial of an impartial jury, and ineffective assistance of counsel. Finding that Soria has not made a substantial showing of the denial of a constitutional right, we deny the COA.
By way of indictment, a Tarrant County grand jury charged Soria with the capital offense of murdering Allen Bolden, while in the course of committing and attempting to commit the offenses of robbery and kidnaping, and the offense of murdering Allen Bolden. A jury found Soria guilty of capital murder. After a separate punishment hearing, the jury answered affirmatively the two special issues submitted pursuant to Article 37.071 of the Texas Code of Criminal Procedure. 1 Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? As a result of the jury's findings, the trial court assessed punishment at death by lethal injection.
On direct appeal, the Texas Court of Criminal Appeals initially affirmed the conviction but reformed the sentence to life imprisonment, holding that the evidence was insufficient to support the jury's finding that Soria would be a continuing threat to society. Soria v. State, No. 69,679 slip op. (Tex.Crim.App. June 8, 1994) (per curiam) (unpublished). In an opinion on the State's motion for rehearing, the Court affirmed Soria's conviction and reinstated the death sentence. Soria v. State, 933 S.W.2d 46 (Tex.Crim.App. 1996), cert. denied, 117 S.Ct. 2414 (1997).
Soria, through counsel, filed a state application for a writ of habeas corpus. After a "hearing" by affidavit, the trial court entered findings of fact and conclusions of law recommending that habeas relief be denied. The Court of Criminal Appeals denied relief, expressly adopted the trial court's findings, excepting, without explanation, conclusions of law two, twelve, and thirteen.
Soria, through counsel, filed the instant federal petition for a writ of habeas corpus. The respondent answered the petition and moved for summary judgment. After hearing oral argument on the respondent's motion, the district court denied relief in a written order. Soria moved for a COA, which was denied by the district court. Soria now requests a COA from this Court.
II.STANDARD OF REVIEW
Soria filed his section 2254 application for habeas relief on January 15, 1999, which was after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application therefore is subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997). Under the AEDPA, a petitioner must obtain a COA. 28 U.S.C. 2253(c)(2). A COA will be granted only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). To make such a showing, a petitioner "must 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." Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997).
III.ANALYSIS
Soria asserts numerous grounds of error in his application for COA. Each will be addressed in turn.
Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), Soria asserts that the state trial court's refusal to require the prosecutor to provide racially neutral explanations for peremptorily challenging two Hispanic venire members resulted in a violation of the Equal Protection Clause of the Fourteenth Amendment. To evaluate a Batson claim, we look to the following framework: (1) the petitioner must make a prima facie showing that the prosecutor exercised his peremptory strikes on the basis of race; (2) the burden of production then shifts to the prosecutor to articulate a race-neutral reason for challenging the venire member; and (3) finally, the trial court must decide whether the petitioner has sustained his burden of proving purposeful discrimination. Thompson v. Cain, 161 F.3d 802, 810-11 (5th Cir. 1998).
To establish a prima facie case, Soria was required to demonstrate that the prosecutor exercised peremptory challenges against minority venire members--in this case Hispanics 2--and that the relevant circumstances raised an inference of purposeful discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. An inference may be drawn from such circumstances as a "pattern" of strikes against minority venire members and the remarks made by a prosecutor during voir dire. Id. at 96-97, 106 S.Ct. at 1723.
In the instant case, the trial court's statement that it did not "see a pattern or a systematic exclusion" and its refusal to require the prosecutor to articulate his reasons for the strikes should be treated as a finding that Soria failed to make a prima facie case of discrimination under Batson.3
On direct appeal, the Texas Court of Criminal Appeals provided the following factual analysis upholding the trial court's finding that no prima facie case was made:
Eighty-four (84) veniremembers were examined by the parties during the selection process. Of these, 25 were excluded for cause on motion of one or the other party, and 13 were excused by the trial judge, either on agreement of the parties, due to a previously unclaimed exemption, or for reasons of hardship. Two of these 38 prospective jurors were hispanic people, but there is no suggestion that either was excluded in violation of Batson . . . .
Of the 46 remaining veniremen, three were hispanic people. Two of these were struck by the State. The other was not challenged by either party, and so served on the jury. Given the proportion of hispanic people on the venire and comparing it with the proportion of hispanic people struck by the prosecutor the following observations seem pertinent to the issue of deliberate racial discrimination.
The State used 16 peremptory challenges during the selection process. Forty-six (46) people were potential targets of these strikes. Three were hispanic. The prosecuting attorney actually struck two hispanic people and 14 nonhispanic people. This means that he used 12.50 % of his peremptory strikes against members of an identifiable ethnic group comprising only 6.52 % of the eligible venire. In other words, he struck hispanic people at almost twice the rate such people would have been eliminated by random exclusion.
Nevertheless, had the prosecutor struck one less hispanic person, the rate of exclusion (6.25 %) would have been nearly the same as if random. Thus, but for a single peremptory strike out of the 16 actually exercised by the State, no inference of intentional discrimination would be statistically supportable.
***
We have not been asked to consider anything but the foregoing statistics. It should be noted, however, that the voir dire examination of the two hispanic people who were struck by the State does not appear to differ significantly as regards any implication of racial bias from that of the hispanic person who actually served as a juror. In this regard, [Soria] has not suggested any such basis nor referred us to any portion of the record which he alleges to disclose racial discrimination by the prosecuting attorney.
***
A deviation from the norm of but a single strike simply does not so clearly raise an inference of racial discrimination that a factfinding to the contrary must be disturbed on appeal. Although, in this case, one peremptory challenge amounts to twice the number expected from random selection, it also represents but a single increment greater than random selection would produce under ideal circumstances. Thus, . . . this case does not clearly raise an issue of purposeful discrimination, since little can legitimately be inferred from an unexpectedly high rate of strikes when the absolute number of those strikes is very low. In these circumstances we cannot fairly conclude that the trial judge erred to think the number and circumstances of peremptory challenges against hispanic veniremembers did not actually present a bona fide issue of racial discrimination.
The state court's determination that Soria failed to make a prima facie showing is a factual finding. See Branch, 989 F.2d at 755. Therefore, in reviewing this finding, we must accord it a presumption of correctness, which can only be rebutted by "clear and convincing evidence." Thompson, 161 F.3d at 811; 2254(e)(1).
Citing Batson, Soria asserts that "the trial judge reviewed the evidence for 'purposeful discrimination,'" as opposed to an inference of purposeful discrimination. Soria does not provide a cite to the record to support his contention that the trial court erroneously held him to a higher standard. Our independent review of the record reveals that, in fact, the trial court found "there was no pattern or systematic exclusion of persons of...
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