OCTOBER TERM, 2002
Syllabus
MILLER-EL
v. COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 01-7662. Argued October 16, 2002-Decided February 25,
2003
When Dallas County prosecutors used peremptory strikes to
exclude 10 of the 11 Mrican-Americans eligible to serve on the jury
at petitioner's capital murder trial, he moved to strike the jury
on the ground that the exclusions violated equal protection.
Petitioner presented extensive evidence supporting his motion at a
pretrial hearing, but the trial judge denied relief, finding no
evidence indicating a systematic exclusion of blacks, as was
required by the then-controlling precedent,
Swain v.
Alabama, 380
U. S. 202. Subsequently, the jury found petitioner guilty, and
he was sentenced to death. While his appeal was pending, this Court
established, in
Batson v.
Kentucky, 476 U. S. 79, a three-part
process for evaluating equal protection claims such as
petitioner's. Upon remand from the Texas Court of Criminal Appeals
for new findings in light of
Batson, the original trial
court held a hearing at which it admitted all the
Swain
hearing evidence and took further evidence, but concluded that
petitioner failed to satisfy step one of
Batson because the
evidence did not even raise an inference of racial motivation in
the State's use of peremptory challenges. The court also determined
that the State would have prevailed on steps two and three because
the prosecutors had proffered credible, race-neutral explanations
for the African-Americans excluded-i.
e., their reluctance
to assess, or reservations concerning, imposition of the death
penalty-such that petitioner could not prove purposeful
discrimination. After petitioner's direct appeal and state habeas
petitions were denied, he filed a federal habeas petition under 28
U. S. C. § 2254, raising a
Batson claim and other issues.
The Federal District Court denied relief in deference to the state
courts' acceptance of the prosecutors' race-neutral justifications
for striking the potential jurors, and subsequently denied
petitioner's § 2253 application for a certificate of appealability
(COA). The Fifth Circuit noted that a COA will issue "only if the
applicant has made a substantial showing of the denial of a
constitutional right," § 2253(c)(2); reasoned that a petitioner
must make such a "substantial showing" under the standard set forth
in
Slack v.
McDaniel, 529 U. S. 473; de-
323
clared that § 2254(d)(2) required it to presume state-court
findings correct unless it determined that the findings would
result in a decision which was unreasonable in light of clear and
convincing evidence; and applied this framework to deny petitioner
a COA.
Petitioner's extensive evidence concerning the jury selection
procedures falls into two broad categories. First, he presented, at
the pretrial
Swain hearing, testimony and other evidence
relating to a pattern and practice of race discrimination in the
voir dire by the Dallas County District Attorney's Office,
including a 1976 policy by that office to exclude minorities from
jury service that was available at least to one of petitioner's
prosecutors. Second, two years later, petitioner presented, to the
same state trial court, evidence that directly related to the
prosecutors' conduct in his case, including a comparative analysis
of the venire members demonstrating that Mrican-Americans were
excluded from petitioner's jury in a ratio significantly higher
than Caucasians; evidence that, during
voir dire, the
prosecution questioned venire members in a racially disparate
fashion as to their death penalty views, their willingness to serve
on a capital case, and their willingness to impose the minimum
sentence for murder, and that responses disclosing reluctance or
hesitation to impose capital punishment or a minimum sentence were
cited as a justification for striking potential jurors; and the
prosecution's use of a Texas criminal procedure practice known as
"jury shuffling" to assure that white venire members were selected
in preference to Mrican-Americans.
Held: The Fifth Circuit should have issued a COA to
review the District Court's denial of habeas relief to petitioner.
Pp. 335-348.
(a) Before a prisoner seeking postconviction relief under § 2254
may appeal a district court's denial or dismissal of the petition,
he must first seek and obtain a COA from a circuit justice or
judge, § 2253. This is a jurisdictional prerequisite. A COA will
issue only if § 2253's requirements have been satisfied. When a
habeas applicant seeks a COA, the court of appeals should limit its
examination to a threshold inquiry into the underlying merit of his
claims.
E. g.,
Slack, 529 U. S., at 481. This inquiry
does not require full consideration of the factual or legal bases
supporting the claims. Consistent with this Court's precedent and
the statutory text, the prisoner need only demonstrate "a
substantial showing of the denial of a constitutional right." §
2253(c)(2). He satisfies this standard by demonstrating that
jurists of reason could disagree with the district court's
resolution of his case or that the issues presented were adequate
to deserve encouragement to proceed furthe~ E. g., id., at 484. He
need not convince a judge, or, for that matter, three judges, that
he will prevail, but must demonstrate that reasonable
324
Syllabus
jurists would find the district court's assessment of the
constitutional claims debatable or wrong,
ibid. Pp.
335-338.
(b) Since petitioner's claim rests on a
Batson violation,
resolution of his COA application requires a preliminary, though
not definitive, consideration of the three-step
Batson
framework. The State now concedes that petitioner satisfied step
one, and petitioner acknowledges that the State proceeded through
step two by proffering facially raceneutral explanations for these
strikes. The critical question in determining whether a prisoner
has proved purposeful discrimination at step three is the
persuasiveness of the prosecutor's justification for his peremptory
strike.
E. g., Purkett v.
Elem, 514 U. S. 765, 768
(per curiam). The issue comes down to whether the trial
court finds the prosecutor's race-neutral explanations to be
credible. Credibility can be measured by, among other factors, the
prosecutor's demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some
basis in accepted trial strategy. A plurality of this Court has
concluded in the direct review context that a state court's finding
of the absence of discriminatory intent is "a pure issue of fact"
that is accorded significant deference and will not be overturned
unless clearly erroneous.
Hernandez v.
New York,
500 U. S. 352,
364-365. Where 28 U. S. C. § 2254 applies, the Court's habeas
jurisprudence embodies this deference. Factual determinations by
state courts are presumed correct absent clear and convincing
evidence to the contrary, § 2254(e)(1), and a decision adjudicated
on the merits in a state court and based on a factual determination
will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state-court
proceeding, § 2254(d)(2). Even in the context of federal habeas,
deference does not imply abandonment or abdication of judicial
review. In the context of the threshold examination in this
Batson claim, it can suffice to support the issuance of a
COA to adduce evidence demonstrating that, despite the neutral
explanation of the prosecution, the peremptory strikes in the final
analysis were race based. Cf.
Reeves v.
Sanderson
Plumbing Products, Inc., 530 U. S. 133. Pp.
338-341.
(c) On review of the record at this stage, this Court concludes
that the District Court did not give full consideration to the
substantial evidence petitioner put forth in support of the prima
facie case. Instead, it accepted without question the state court's
evaluation of the demeanor of the prosecutors and jurors in
petitioner's trial. The Fifth Circuit evaluated petitioner's COA
application in the same way. In ruling that petitioner's claim
lacked sufficient merit to justify appellate proceedings, that
court recited the requirements for granting a writ under §
2254,
325
which it interpreted as requiring petitioner to prove that the
state-court decision was objectively unreasonable by clear and
convincing evidence.
This was too demanding a standard because it incorrectly merged
the clear and convincing evidence standard of §2254(e)(1), which
pertains only to state-court determinations of factual issues,
rather than decisions, and the unreasonableness requirement of §
2254(d)(2), which relates to the state-court decision and applies
to the granting of habeas relief. More fundamentally, the court was
incorrect in not inquiring whether a "substantial showing of the
denial of a constitutional right" had been proved, as § 2253(c)(2)
requires. The question is the debatability of the underlying
constitutional claim, not the resolution of that debate. In this
case, debate as to whether the prosecution acted with a race-based
reason when striking prospective jurors was raised by the
statistical evidence demonstrating that 91% of the eligible
MricanAmericans were excluded from petitioner's venire; by the fact
that the state trial court had no occasion to judge the credibility
of the prosecutors' contemporaneous race-neutral justifications at
the time of the pretrial hearing because the Court's equal
protection jurisprudence then, dictated by
Swain, did not
require it; by the fact that three of the State's proffered
race-neutral rationales for striking African-Americans-ambivalence
about the death penalty, hesitancy to vote to execute defendants
capable of being rehabilitated, and the jurors' own family history
of criminality-pertained just as well to some white jurors who were
not challenged and who did serve on the jury; by the evidence of
the State's use of racially disparate questioning; and by the state
courts' failure to consider the evidence as to the prosecution's
use of the jury shuffle and the historical evidence of racial
discrimination by the Dallas County District Attorney's Office.
Pp.341-348.
261 F.3d
445, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, SOUTER, GINSBURG,
and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion,
post, p. 348. THOMAS, J., filed a dissenting opinion,
post, p. 354.
Seth P. Waxman argued the cause for petitioner. With him on the
briefs were David W Ogden, Robin A. Lenhardt, Jim Marcus, and
Andrew Hammel.
Gena Bunn, Assistant Attorney General of Texas, argued
the cause for respondent. With her on the brief were
John
Cornyn, Attorney General,
Howard G.
Baldwin, Jr.,
First Assistant Attorney General,
Michael T. McCaul,
Deputy
326
Attorney General, and
Edward L. Marshall, Charles A.
Palmer, and
Deni S.
Garcia, Assistant Attorneys
General. *
JUSTICE KENNEDY delivered the opinion of the Court.
In this case we once again examine when a state prisoner can
appeal the denial or dismissal of his petition for writ of habeas
corpus. In 1986 two Dallas County assistant district attorneys used
peremptory strikes to exclude 10 of the 11 African-Americans
eligible to serve on the jury which tried petitioner Thomas Joe
Miller-El. During the ensuing 17 years, petitioner has been
unsuccessful in establishing, in either state or federal court,
that his conviction and death sentence must be vacated because the
jury selection procedures violated the Equal Protection Clause and
our holding in
Batson v.
Kentucky, 476 U. S. 79 (1986). The
claim now arises in a federal petition for writ of habeas corpus.
The procedures and standards applicable in the case are controlled
by the habeas corpus statute codified at Title 28, chapter 153, of
the United States Code, most recently amended in a substantial
manner by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). In the interest of finality AEDPA constrains a federal
court's power to disturb state-court convictions.
The United States District Court for the Northern District of
Texas, after reviewing the evidence before the state trial court,
determined that petitioner failed to establish a constitutional
violation warranting habeas relief. The Court of Appeals for the
Fifth Circuit, concluding there was insufficient merit to the case,
denied a certificate of appeal-
*Briefs of amici curiae urging reversal were filed for Former
Prosecutors and Judges by Elisabeth Semel, Charles D. Weisselberg,
and Carter G. Phillips; and for the NAACP Legal Defense and
Educational Fund, Inc., et al. by Elaine R. Jones, Norman J.
Chachkin, James L. Cott, George Kendall, Deborah Fins, and Miriam
Gohara.
327
ability (COA) from the District Court's determination. The COA
denial is the subject of our decision.
At issue here are the standards AEDPA imposes before a court of
appeals may issue a COA to review a denial of habeas relief in the
district court. Congress mandates that a prisoner seeking
postconviction relief under 28 U. s. C. § 2254 has no automatic
right to appeal a district court's denial or dismissal of the
petition. Instead, petitioner must first seek and obtain a COA. In
resolving this case we decide again that when a habeas applicant
seeks permission to initiate appellate review of the dismissal of
his petition, the court of appeals should limit its examination to
a threshold inquiry into the underlying merit of his claims.
Slack v.
McDaniel, 529 U. S. 473, 481
(2000). Consistent with our prior precedent and the text of the
habeas corpus statute, we reiterate that a prisoner seeking a COA
need only demonstrate "a substantial showing of the denial of a
constitutional right." 28 U. S. C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.
Slack, supra, at 484. Applying these principles to
petitioner's application, we conclude a COA should have issued.
I A
Petitioner, his wife Dorothy Miller- EI, and one Kenneth Flowers
robbed a Holiday Inn in Dallas, Texas. They emptied the cash
drawers and ordered two employees, Doug Walker and Donald Hall, to
lie on the floor. Walker and Hall were gagged with strips of
fabric, and their hands and feet were bound. Petitioner asked
Flowers if he was going to kill Walker and Hall. When Flowers
hesitated or refused,
328
petitioner shot Walker twice in the back and shot Hall in the
side. Walker died from his wounds.
The State indicted petitioner 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,
petitioner moved to strike the jury on the grounds that the
prosecution had violated the Equal Protection Clause of the
Fourteenth Amendment by excluding African-Americans through the use
of peremptory challenges. Petitioner's trial occurred before our
decision in
Batson, supra, and
Swain v.
Alabama, 380
U. S. 202 (1965), was then the controlling precedent. As
Swain required, petitioner sought to show that the
prosecution's conduct was part of a larger pattern of
discrimination aimed at excluding African-Americans from jury
service. In a pretrial hearing held on March 12, 1986, petitioner
presented extensive 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." App. 813. The state
court then denied petitioner's motion to strike the jury.
Ibid. Twelve days later, the jury found petitioner guilty;
and the trial court sentenced him to death.
Petitioner appealed to the Texas Court of Criminal Appeals.
While the appeal was pending, on April 30, 1986, the Court decided
Batson v.
Kentucky and established its threepart
process for evaluating claims that a prosecutor used peremptory
challenges in violation of the Equal Protection Clause. First, a
defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. 476 U. S., 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 deter-
329
mine whether the defendant has shown purposeful discrimination.
Id., at 98.
After acknowledging petitioner 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 (1988). A
post-trial hearing was held on May 10, 1988 (a little over two
years after petitioner's jury had been empaneled). 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. App. 843-844.
On January 13, 1989, the trial court concluded that petitioner'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.
App. 876. 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 African-American excluded. The court further
found "no disparate prosecutorial examination of any of the
veniremen in question" and "that the primary reasons for the
exercise of the challenges against each of the veniremen in
question [was] their reluctance to assess or reservations
concerning the imposition of the death penalty."
Id., at
878. There was no discussion of petitioner's other evidence.
The Texas Court of Criminal Appeals denied petitioner's appeal,
and we denied certiorari.
Miller-El v.
Texas, 510 U.
S. 831 (1993). Petitioner's state habeas proceedings fared no
better, and he was denied relief by the Texas Court of Criminal
Appeals.
Petitioner filed a petition for writ of habeas corpus in Federal
District Court pursuant to 28 U. S. C. § 2254. Although petitioner
raised four issues, we concern ourselves here with only
petitioner's jury selection claim premised on
Batson. The
Federal Magistrate Judge who considered the merits
330
was troubled by some of the evidence adduced in the statecourt
proceedings. He, nevertheless, recommended, in deference to the
state courts' acceptance of the prosecutors' race-neutral
justifications for striking the potential jurors, that petitioner
be denied relief. The United States District Court adopted the
recommendation. Pursuant to § 2253, petitioner sought a COA from
the District Court, and the application was denied. Petitioner
renewed his request to the Court of Appeals for the Fifth Circuit,
and it also denied the COA.
The Court of Appeals noted that, under controlling habeas
principles, a COA will issue" 'only if the applicant has made a
substantial showing of the denial of a constitutional right.'"
Miller-El v.
Johnson, 261 F.3d
445, 449 (2001) (quoting 28 U. S. C. § 2253(c)(2)). Citing our
decision in
Slack v.
McDaniel, 529 U. S. 473 (2000), the
court reasoned that "[a] petitioner makes a 'substantial showing'
when he demonstrates that his petition involves issues which are
debatable among jurists of reason, that another court could resolve
the issues differently, or that the issues are adequate to deserve
encouragement to proceed further." 261 F. 3d, at 449. The Court of
Appeals also interjected the requirements of 28 U. S. C. § 2254
into the COA determination: "As an appellate court reviewing a
federal habeas petition, we are required by § 2254(d)(2) to presume
the state court findings correct unless we determine that the
findings result in a decision which is unreasonable in light of the
evidence presented. And the unreasonableness, if any, must be
established by clear and convincing evidence.
See 28 U. S.
C. § 2254(e)(1)." 261 F. 3d, at 451.
Applying this framework to petitioner's COA application, the
Court of Appeals concluded "that the state court's findings are not
unreasonable and that Miller- EI has failed to present clear and
convincing evidence to the contrary."
Id., at 452. As a
consequence, the court "determined that the state court's
adjudication neither resulted in a decision that
331
was unreasonable in light of the evidence presented nor resulted
in a decision contrary to clearly established federal law as
determined by the Supreme Court,"
ibid.; and it denied
petitioner's request for a COA. We granted certiorari. 534 U. S.
1122 (2002).
B
While a COA ruling is not the occasion for a ruling on the merit
of petitioner's claim, our determination to reverse the Court of
Appeals counsels us to explain in some detail the extensive
evidence concerning the jury selection procedures. Petitioner's
evidence falls into two broad categories. First, he presented to
the state trial court, at a pretrial
Swain hearing, evidence
relating to a pattern and practice of race discrimination in the
voir dire. Second, two years later, he presented, to the
same state court, evidence that directly related to the conduct of
the prosecutors in his case. We discuss the latter first.
A comparative analysis of the venire members demonstrates that
African-Americans were excluded from petitioner's jury in a ratio
significantly higher than Caucasians were. Of the 108 possible
jurors reviewed by the prosecution and defense, 20 were
African-American. Nine of them were excused for cause or by
agreement of the parties. Of the 11 African-American jurors
remaining, however, all but 1 were excluded by peremptory strikes
exercised by the prosecutors. On this basis 91% of the eligible
black jurors were removed by peremptory strikes. In contrast the
prosecutors used their peremptory strikes against just 13% (4 out
of 31) of the eligible nonblack prospective jurors qualified to
serve on petitioner's jury.
These numbers, while relevant, are not petitioner's whole case.
During
voir dire, the prosecution questioned venire members
as to their views concerning the death penalty and their
willingness to serve on a capital case. Responses that disclosed
reluctance or hesitation to impose capital punishment were cited as
a justification for striking a potential
332
juror for cause or by peremptory challenge.
Wainwright v.
Witt, 469 U.
S. 412 (1985). The evidence suggests, however, that the manner
in which members of the venire were questioned varied by race. To
the extent a divergence in responses can be attributed to the
racially disparate mode of examination, it is relevant to our
inquiry.
Most African-Americans (53%, or 8 out of 15) were first given a
detailed description of the mechanics of an execution in Texas:
"[I]f those three [sentencing] questions are answered yes, at
some pointe,] Thomas Joe Miller-EI will be taken to Huntsville,
Texas. He will be placed on death row and at some time will be
taken to the death house where he will be strapped on a gurney, an
IV put into his arm and he will be injected with a substance that
will cause his death ... as the result of the verdict in this case
if those three questions are answered yes." App. 215.
Only then were these African-American venire members asked
whether they could render a decision leading to a sentence of
death. Very few prospective white jurors (6%, or 3 out of 49) were
given this preface prior to being asked for their views on capital
punishment. Rather, all but three were questioned in vague terms:
"Would you share with us ... your personal feelings, if you could,
in your own words how you do feel about the death penalty and
capital punishment and secondly, do you feel you could serve on
this type of a jury and actually render a decision that would
result in the death of the Defendant in this case based on the
evidence?"
Id., at 506.
There was an even more pronounced difference, on the apparent
basis of race, in the manner the prosecutors questioned members of
the venire about their willingness to impose the minimum sentence
for murder. Under Texas law at the time of petitioner's trial, an
unwillingness to do so warranted removal for cause.
Huffman
v.
State, 450 S. W.
333
2d 858, 861 (Tex. Crim. App. 1970), vacated in part, 408 U. s.
936 (1972). This strategy normally is used by the defense to weed
out pro-state members of the venire, but, ironically, the
prosecution employed it here. The prosecutors first identified the
statutory minimum sentence of five years' imprisonment to 34 out of
36 (94%) white venire members, and only then asked: "If you hear a
case, to your way of thinking [that] calls for and warrants and
justifies five years, you'll give it?" App. 509. In contrast, only
one out of eight (12.5%) African-American prospective jurors were
informed of the statutory minimum before being asked what minimum
sentence they would impose. The typical questioning of the other
seven black jurors was as follows:
"[Prosecutor]: Now, the maximum sentence for [murder] ... is
life under the law. Can you give me an idea of just your personal
feelings what you feel a minimum sentence should be for the offense
of murder the way I've set it out for you?
"[Juror]: Well, to me that's almost like it's premeditated. But
you said they don't have a premeditated statute here in Texas.
"[Prosecutor]: Again, we're not talking about selfdefense or
accident or insanity or killing in the heat of passion or anything
like that. We're talking about the knowing-
"[Juror]: I know you said the minimum. The minimum amount that I
would say would be at least twenty years." Id., at
226-227.
Furthermore, petitioner points to the prosecution's use of a
Texas criminal procedure practice known as jury shuffling. This
practice permits parties to rearrange the order in which members of
the venire are examined so as to increase the likelihood that
visually preferable venire members will be moved forward and
empaneled. With no information about
334
the prospective jurors other than their appearance, the party
requesting the procedure literally shuffles the juror cards, and
the venire members are then reseated in the new order. Tex. Code
Crim. Proc. Ann., Art. 35.11 (Vernon Supp. 2003). Shuffling affects
jury composition because any prospective jurors not questioned
during
voir dire are dismissed at the end of the week, and a
new panel of jurors appears the following week. So jurors who are
shuffled to the back of the panel are less likely to be questioned
or to serve.
On at least two occasions the prosecution requested shuffles
when there were a predominant number of AfricanAmericans in the
front of the panel. On yet another occasion the prosecutors
complained about the purported inadequacy of the card shuffle by a
defense lawyer but lodged a formal objection only after the
postshuffle panel composition revealed that African-American
prospective jurors had been moved forward.
Next, we turn to the pattern and practice evidence adduced at
petitioner's pretrial
Swain hearing. Petitioner subpoenaed a
number of current and former Dallas County assistant district
attorneys, judges, and others who had observed firsthand the
prosecution's conduct during jury selection over a number of years.
Although most of the witnesses denied the existence of a systematic
policy to exclude African-Americans, others disagreed. A Dallas
County district judge testified that, when he had served in the
District Attorney's Office from the late-1950's to early-1960's,
his superior warned him that he would be fired if he permitted any
African-Americans to serve on a jury. Similarly, another Dallas
County district judge and former assistant district attorney from
1976 to 1978 testified that he believed the office had a systematic
policy of excluding African-Americans from juries.
Of more importance, the defense presented evidence that the
District Attorney's Office had adopted a formal policy to exclude
minorities from jury service. A 1963 circular by the
335
District Attorney's Office instructed its prosecutors to
exercise peremptory strikes against minorities: "'Do not take Jews,
Negroes, Dagos, Mexicans or a member of any minority race on a
jury, no matter how rich or how well educated.'" App. 710. A manual
entitled "Jury Selection in a Criminal Case" was distributed to
prosecutors. It contained an article authored by a former
prosecutor (and later a judge) under the direction of his superiors
in the District Attorney's Office, outlining the reasoning for
excluding minorities from jury service. Although the manual was
written in 1968, it remained in circulation until 1976, if not
later, and was available at least to one of the prosecutors in
Miller-EI's trial.
Id., at 749, 774, 783.
Some testimony casts doubt on the State's claim that these
practices had been discontinued before petitioner's trial. For
example, a judge testified that, in 1985, he had to exclude a
prosecutor from trying cases in his courtroom for racebased
discrimination in jury selection. Other testimony indicated that
the State, by its own admission, once requested a jury shuffle in
order to reduce the number of AfricanAmericans in the venire.
Id., at 788. Concerns over the exclusion of
African-Americans by the District Attorney's Office were echoed by
Dallas County's Chief Public Defender.
This evidence had been presented by petitioner, in support of
his
Batson claim, to the state and federal courts that
denied him relief. It is against this background that we examine
whether petitioner's case should be heard by the Court of
Appeals.
II A
As mandated by federal statute, a state prisoner seeking a writ
of habeas corpus has no absolute entitlement to appeal a district
court's denial of his petition. 28 U. S. C. § 2253. Before an
appeal may be entertained, a prisoner who was denied habeas relief
in the district court must first seek and
336
obtain a COA from a circuit justice or judge. This is a
jurisdictional prerequisite because the COA statute mandates that
"[u]nless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
.... " § 2253(c)(1). As a result, until a COA has been issued
federal courts of appeals lack jurisdiction to rule on the merits
of appeals from habeas petitioners.
A COA will issue only if the requirements of § 2253 have been
satisfied. "The COA statute establishes procedural rules and
requires a threshold inquiry into whether the circuit court may
entertain an appeal."
Slack, 529 U. S., at
482; Hohn
v.
United States, 524 U. S. 236, 248
(1998). As the Court of Appeals observed in this case, § 2253(c)
permits the issuance of a COA only where a petitioner has made a
"substantial showing of the denial of a constitutional right." In
Slack, supra, at 483, we recognized that Congress codified
our standard, announced in
Barefoot v.
Estelle,
463 U. S. 880
(1983), for determining what constitutes the requisite showing.
Under the controlling standard, a petitioner must "sho[w] that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were 'adequate to deserve
encouragement to proceed further.'" 529 U. S., at 484 (quoting
Barefoot, supra, at 893, n.4).
The COA determination under § 2253(c) requires an overview of
the claims in the habeas petition and a general assessment of their
merits. We look to the District Court's application of AEDPA to
petitioner's constitutional claims and ask whether that resolution
was debatable amongst jurists of reason. This threshold inquiry
does not require full consideration of the factual or legal bases
adduced in support of the claims. In fact, the statute forbids it.
When a court of appeals sidesteps this process by first deciding
the merits of an appeal, and then justifying its denial of a COA
based
337
on its adjudication of the actual merits, it is in essence
deciding an appeal without jurisdiction.
To that end, our opinion in
Slack held that a
COA
does not require a showing that the appeal will succeed.
Accordingly, a court of appeals should not decline the application
for a
COA merely because it believes the applicant will not
demonstrate an entitlement to relief. The holding in
Slack
would mean very little if appellate review were denied because the
prisoner did not convince a judge, or, for that matter, three
judges, that he or she would prevail. It is consistent with § 2253
that a
COA will issue in some instances where there is no
certainty of ultimate relief. After all, when a
COA is
sought, the whole premise is that the prisoner "'has already failed
in that endeavor.'"
Barefoot, supra, at 893, n. 4.
Our holding should not be misconstrued as directing that a
COA always must issue. Statutes such as AEDPA have placed
more, rather than fewer, restrictions on the power of federal
courts to grant writs of habeas corpus to state prisoners.
Duncan v.
Walker, 533 U. S. 167, 178 (2001)
(" 'AEDPA's purpose [is] to further the principles of comity,
finality, and federalism'" (quoting
Williams v.
Taylor,
529 U. S. 420, 436 (2000)));
Williams v.
Taylor,
529 U. S. 362,
399 (2000) (opinion of O'CONNOR, J.). The concept of a threshold,
or gateway, test was not the innovation of AEDPA. Congress
established a threshold prerequisite to appealability in 1908, in
large part because it was "concerned with the increasing number of
frivolous habeas corpus petitions challenging capital sentences
which delayed execution pending completion of the appellate process
.... "
Barefoot, supra, at 892, n. 3. By enacting AEDPA,
using the specific standards the Court had elaborated earlier for
the threshold test, Congress confirmed the necessity and the
requirement of differential treatment for those appeals deserving
of attention from those that plainly do not. It follows that
issuance of a
COA must not be
pro forma or a matter
of course.
338
A prisoner seeking a COA must prove "'something more than the
absence of frivolity''' or the existence of mere "good faith" on
his or her part.
Barefoot, supra, at 893. We do not require
petitioner to prove, before the issuance of a COA, that some
jurists would grant the petition for habeas corpus. Indeed, a claim
can be debatable even though every jurist of reason might agree,
after the COA has been granted and the case has received full
consideration, that petitioner will not prevail. As we stated in
Slack, "[w]here a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong." 529 U.
S., at 484.
B
Since Miller- El's claim rests on a
Batson violation,
resolution of his COA application requires a preliminary, though
not definitive, consideration of the three-step framework mandated
by
Batson and reaffirmed in our later precedents.
E. g.,
Purkett v.
Elem, 514 U. S. 765 (1995)
(per curiam); Hernandez v.
New York, 500 U. S. 352 (1991)
(plurality opinion). Contrary to the state trial court's ruling on
remand, the State now concedes that petitioner, Miller-EI,
satisfied step one: "[T]here is no dispute that Miller-EI presented
a prima facie claim" that prosecutors used their peremptory
challenges to exclude venire members on the basis of race. Brief
for Respondent 32. Petitioner, for his part, acknowledges that the
State proceeded through step two by proffering facially
race-neutral explanations for these strikes. Under
Batson,
then, the question remaining is step three: whether Miller-EI "has
carried his burden of proving purposeful discrimination."
Hernandez, supra, at 359.
As we confirmed in
Purkett v.
Elem, 514 U. S., at
768, the critical question in determining whether a prisoner has
proved purposeful discrimination at step three is the persua-
339
siveness of the prosecutor's justification for his peremptory
strike. At this stage, "implausible or fantastic justifications may
(and probably will) be found to be pretexts for purposeful
discrimination."
Ibid. In that instance the issue comes down
to whether the trial court finds the prosecutor's raceneutral
explanations to be credible. Credibility can be measured by, among
other factors, the prosecutor's demeanor; by how reasonable, or how
improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.
In
Hernandez v.
New York, a plurality of the Court
concluded that a state court's finding of the absence of
discriminatory intent is "a pure issue of fact" accorded
significant deference:
"Deference to trial court findings on the issue of
discriminatory intent makes particular sense in this context
because, as we noted in Batson, the finding 'largely will
turn on evaluation of credibility.' 476 U. S., at 98, n. 21. In the
typical peremptory challenge inquiry, the decisive question will be
whether counsel's race-neutral explanation for a peremptory
challenge should be believed. There will seldom be much evidence
bearing on that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge. As with the
state of mind of a juror, evaluation of the prosecutor's state of
mind based on demeanor and credibility lies 'peculiarly within a
trial judge's province.' Wainwright v. Witt, 469 U. S. 412, 428
(1985), citing Patton v. Yount, 467 U. S. 1025, 1038
(1984)." 500 U. S., at 365.
Deference is necessary because a reviewing court, which analyzes
only the transcripts from
voir dire, is not as well
positioned as the trial court is to make credibility
determinations. "[I]f an appellate court accepts a trial court's
finding that a prosecutor's race-neutral explanation for his
peremptory challenges should be believed, we fail to see how
the
340
appellate court nevertheless could find discrimination. The
credibility of the prosecutor's explanation goes to the heart of
the equal protection analysis, and once that has been settled,
there seems nothing left to review."
Id., at 367.
In the context of direct review, therefore, we have noted that
"the trial court's decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal" and will not be overturned
unless clearly erroneous.
Id., at 364. A federal court's
collateral review of a state-court decision must be consistent with
the respect due state courts in our federal system. Where 28 U. s.
C. § 2254 applies, our habeas jurisprudence embodies this
deference. Factual determinations by state courts are presumed
correct absent clear and convincing evidence to the contrary, §
2254(e)(1), and a decision adjudicated on the merits in a state
court and based on a factual determination will not be overturned
on factual grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding, § 2254(d)(2); see
also
Williams, 529 U. S., at 399 (opinion of O'CONNOR,
J.).
Even in the context of federal habeas, deference does not imply
abandonment or abdication of judicial review. Deference does not by
definition preclude relief. A federal court can disagree with a
state court's credibility determination and, when guided by AEDPA,
conclude the decision was unreasonable or that the factual premise
was incorrect by clear and convincing evidence. In the context of
the threshold examination in this
Batson claim the issuance
of a
COA can be supported by any evidence demonstrating
that, despite the neutral explanation of the prosecution, the
peremptory strikes in the final analysis were race based. It goes
without saying that this includes the facts and circumstances that
were adduced in support of the prima facie case. Cf.
Reeves
v.
Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000) (in
action under Title VII of the Civil Rights Act of 1964, employee's
prima facie case and evidence that employer's
341
race-neutral response was a pretext can support a finding of
purposeful discrimination). Only after a COA is granted will a
reviewing court 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. At this stage, however, we only ask whether the
District Court's application of AEDPA deference, as stated in
§§2254(d)(2) and (e)(l), to petitioner's
Batson claim was
debatable amongst jurists of reason.
C
Applying these rules to Miller-EI's application, we have no
difficulty concluding that a COA should have issued. We conclude,
on our review of the record at this stage, that the District Court
did not give full consideration to the substantial evidence
petitioner put forth in support of the prima facie case. Instead,
it accepted without question the state court's evaluation of the
demeanor of the prosecutors and jurors in petitioner's trial. The
Court of Appeals evaluated Miller-El's application for a COA in the
same way. In ruling that petitioner's claim lacked sufficient merit
to justify appellate proceedings, the Court of Appeals recited the
requirements for granting a writ under § 2254, which it interpreted
as requiring petitioner to prove that the state-court decision was
objectively unreasonable by clear and convincing evidence.
This was too demanding a standard on more than one level.
It was incorrect for the Court of Appeals, when looking at the
merits, to merge the independent requirements of §§ 2254(d)(2) and
(e)(l). AEDPA does not require petitioner to prove that a decision
is objectively unreasonable by clear and convincing evidence. The
clear and convincing evidence standard is found in § 2254(e)(1),
but that subsection pertains only to state-court determinations of
factual issues, rather than decisions. Subsection (d)(2) contains
the unreasonable
342
requirement and applies to the granting of habeas relief rather
than to the granting of a COA.
The Court of Appeals, moreover, was incorrect for an even more
fundamental reason. Before the issuance of a COA, the Court of
Appeals had no jurisdiction to resolve the merits of petitioner's
constitutional claims. True, to the extent that the merits of this
case will turn on the agreement or disagreement with a state-court
factual finding, the clear and convincing evidence and objective
unreasonableness standards will apply. At the COA stage, however, a
court need not make a definitive inquiry into this matter. As we
have said, a COA determination is a separate proceeding, one
distinct from the underlying merits.
Slack, 529 U. S., at
481; Hohn, 524 U. S., at 241. The Court of Appeals should have
inquired whether a "substantial showing of the denial of a
constitutional right" had been proved. Deciding the substance of an
appeal in what should only be a threshold inquiry undermines the
concept of a COA. The question is the debatability of the
underlying constitutional claim, not the resolution of that
debate.
In this case, the statistical evidence alone raises some debate
as to whether the prosecution acted with a race-based reason when
striking prospective jurors. The prosecutors used their peremptory
strikes to exclude 91% of the eligible African-American venire
members, and only one served on petitioner's jury. In total, 10 of
the prosecutors' 14 peremptory strikes were used against
African-Americans. Happenstance is unlikely to produce this
disparity.
The case for debatability is not weakened when we examine the
State's defense of the disparate treatment. The Court of Appeals
held that "[t]he presumption of correctness is especially strong,
where, as here, the trial court and state habeas court are one and
the same." 261 F. 3d, at 449. As we have noted, the trial court
held its
Batson hearing two years after the
voir
dire. While the prosecutors had proffered contemporaneous
race-neutral justifications for many
343
of their peremptory strikes, the state trial court had no
occasion to judge the credibility of these explanations at that
time because our equal protection jurisprudence then, dictated by
Swain, did not require it. As a result, the evidence
presented to the trial court at the
Batson hearing was
subject to the usual risks of imprecision and distortion from the
passage of time.
In this case, three of the State's proffered race-neutral
rationales for striking African-American jurors pertained just as
well to some white jurors who were not challenged and who did serve
on the jury. The prosecutors explained that their peremptory
challenges against six African-American potential jurors were based
on ambivalence about the death penalty; hesitancy to vote to
execute defendants capable of being rehabilitated; and the jurors'
own family history of criminality. In rebuttal of the prosecution's
explanation, petitioner identified two empaneled white jurors who
expressed ambivalence about the death penalty in a manner similar
to their African-American counterparts who were the subject of
prosecutorial peremptory challenges. One indicated that capital
punishment was not appropriate for a first offense, and another
stated that it would be "difficult" to impose a death sentence.
Similarly, two white jurors expressed hesitation in sentencing to
death a defendant who might be rehabilitated; and four white jurors
had family members with criminal histories. As a consequence, even
though the prosecution's reasons for striking AfricanAmerican
members of the venire appear race neutral, the application of these
rationales to the venire might have been selective and based on
racial considerations. Whether a comparative juror analysis would
demonstrate the prosecutors' rationales to have been pretexts for
discrimination is an unnecessary determination at this stage, but
the evidence does make debatable the District Court's conclusion
that no purposeful discrimination occurred.
344
We question the Court of Appeals' and state trial court's
dismissive and strained interpretation of petitioner's evidence of
disparate questioning. 261 F. 3d, at 452 ("The findings of the
state court that there was no disparate questioning of the
Batson jurors ... [is] fully supported by the record").
Petitioner argues that the prosecutors' sole purpose in using
disparate questioning was to elicit responses from the
African-American venire members that reflected an opposition to the
death penalty or an unwillingness to impose a minimum sentence,
either of which justified for-cause challenges by the prosecution
under the then-applicable state law. This is more than a remote
possibility. Disparate questioning did occur. Petitioner submits
that disparate questioning created the appearance of divergent
opinions even though the venire members' views on the relevant
subject might have been the same. It follows that, if the use of
disparate questioning is determined by race at the outset, it is
likely a justification for a strike based on the resulting
divergent views would be pretextual. In this context the
differences in the questions posed by the prosecutors are some
evidence of purposeful discrimination.
Batson, 476 U. S., at
97 ("Similarly, the prosecutor's questions and statements during
voir dire examination and in exercising his challenges may
support or refute an inference of discriminatory purpose").
As a preface to questions about views the prospective jurors
held on the death penalty, the prosecution in some instances gave
an explicit account of the execution process. Of those prospective
jurors who were asked their views on capital punishment, the
preface was used for 53% of the African-Americans questioned on the
issue but for just 6% of white persons. The State explains the
disparity by asserting that a disproportionate number of
African-American venire members expressed doubts as to the death
penalty on their juror questionnaires. This cannot be accepted
without further inquiry, however, for the State's own evidence is
in-
345
consistent with that explanation. By the State's calculations,
10 African-American and 10 white prospective jurors expressed some
hesitation about the death penalty on their questionnaires;
however, of that group, 7 out of 10 AfricanAmericans and only 2 out
of 10 whites were given the explicit description.
There is an even greater disparity along racial lines when we
consider disparate questioning concerning minimum punishments.
Ninety-four percent of whites were informed of the statutory
minimum sentence, compared to only twelve and a half percent of
African-Americans. No explanation is proffered for the statistical
disparity.
Pierre v.
Louisiana, 306 U. S. 354, 361-362
(1939) (" 'The fact that the testimony ... was not challenged by
evidence appropriately direct, cannot be brushed aside.' Had there
been evidence obtainable to contradict and disprove the testimony
offered by petitioner, it cannot be assumed that the State would
have refrained from introducing it" (quoting
Norris v.
Alabama, 294 U. S. 587, 594-595 (1935))). Indeed, while
petitioner's appeal was pending before the Texas Court of Criminal
Appeals, that court found a
Batson violation where this
precise line of disparate questioning on mandatory minimums was
employed by one of the same prosecutors who tried the instant case.
Chambers v.
State, 784 S. W. 2d 29, 31 (Tex. Crim.
App. 1989). It follows, in our view, that a fair interpretation of
the record on this threshold examination in the COA analysis is
that the prosecutors designed their questions to elicit responses
that would justify the removal of African-Americans from the
venire.
Batson, supra, at 93 ("Circumstantial evidence of
invidious intent may include proof of disproportionate impact ....
We have observed that under some circumstances proof of
discriminatory impact 'may for all practical purposes demonstrate
unconstitutionality because in various circumstances the
discrimination is very difficult to explain on nonracial grounds'
").
346
We agree with petitioner that the prosecution's decision to seek
a jury shuffle when a predominant number of AfricanAmericans were
seated in the front of the panel, along with its decision to delay
a formal objection to the defense's shuffle until after the new
racial composition was revealed, raise a suspicion that the State
sought to exclude AfricanAmericans from the jury. Our concerns are
amplified by the fact that the state court also had before it, and
apparently ignored, testimony demonstrating that the Dallas County
District Attorney's Office had, by its own admission, used this
process to manipulate the racial composition of the jury in the
past. App. 788 (noting that a prosecutor admitted to requesting a
jury shuffle "because a predominant number of the first six, eight
or ten jurors were blacks"). Even though the practice of jury
shuffling might not be denominated as a
Batson claim because
it does not involve a peremptory challenge, the use of the practice
here tends to erode the credibility of the prosecution's assertion
that race was not a motivating factor in the jury selection.
Finally, in our threshold examination, we accord some weight to
petitioner's historical evidence of racial discrimination by the
District Attorney's Office. Evidence presented at the
Swain
hearing indicates that African-Americans almost categorically were
excluded from jury service.
Batson, supra, at 94 ("Proof of
systematic exclusion from the venire raises an inference of
purposeful discrimination because the 'result bespeaks
discrimination' ");
Vasquez v.
Hillery, 474 U. S. 254, 259 (1986)
("As early as 1942, this Court rejected a contention that absence
of blacks on the grand jury was insufficient to support an
inference of discrimination, summarily asserting that 'chance or
accident could hardly have accounted for the continuous omission of
negroes from the grand jury lists for so long a period as sixteen
years or more'" (quoting
Hill v.
Texas, 316 U. S. 400, 404
(1942)));
Hernandez v.
Texas, 347 U. S. 475, 482 (1954)
("But it taxes our credulity to say that mere chance resulted in
there being
347
no members of this class among the over six thousand jurors
called in the past 25 years"). Only the Federal Magistrate Judge
addressed the import of this evidence in the context of a
Batson claim; and he found it both unexplained and
disturbing. Irrespective of whether the evidence could prove
sufficient to support a charge of systematic exclusion of
African-Americans, it reveals that the culture of the District
Attorney's Office in the past was suffused with bias against
African-Americans in jury selection. This evidence, of course, is
relevant to the extent it casts doubt on the legitimacy of the
motives underlying the State's actions in petitioner's case. Even
if we presume at this stage that the prosecutors in Miller-EI's
case were not part of this culture of discrimination, the evidence
suggests they were likely not ignorant of it. Both prosecutors
joined the District Attorney's Office when assistant district
attorneys received formal training in excluding minorities from
juries. The supposition that race was a factor could be reinforced
by the fact that the prosecutors marked the race of each
prospective juror on their juror cards.
In resolving the equal protection claim against petitioner, the
state courts made no mention of either the jury shuffle or the
historical record of purposeful discrimination. We adhere to the
proposition that a state court need not make detailed findings
addressing all the evidence before it. This failure, however, does
not diminish its significance. Our concerns here are heightened by
the fact that, when presented with this evidence, the state trial
court somehow reasoned that there was not even the inference of
discrimination to support a prima facie case. This was clear error,
and the State declines to defend this particular ruling. "If these
general assertions were accepted as rebutting a defendant's prima
facie case, the Equal Protection Clause 'would be but a vain and
illusory requirement.'"
Batson, 476 U. S., at 98 (quoting
Norris, 294 U. S., at 598).
348
To secure habeas relief, petitioner must demonstrate that a
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.
The State represents to us that petitioner will not be able to
satisfy his burden. That mayor may not be the case. It is not,
however, the question before us. The COA inquiry asks only if the
District Court's decision was debatable. Our threshold examination
convinces us that it was.
The judgment of the Fifth Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the Court's opinion, but write separately for two
reasons: First, to explain why I believe the Court's willingness to
consider the Antiterrorism and Effective Death Penalty Act of
1996's (AEDPA) limits on habeas relief in deciding whether to issue
a certificate of appealability (COA) is in accord with the text of
28 U. S. C. § 2253(c). Second, to discuss some of the evidence on
the State's side of the casewhich, though inadequate (as the Court
holds) to make the absence of a claimed violation of
Batson
v.
Kentucky, 476 U. S. 79 (1986),
undebatable, still makes this, in my view, a very close case.
I
Many Court of Appeals decisions have denied applications for a
COA only after concluding that the applicant was not entitled to
habeas relief on the merits-without even analyzing whether the
applicant had made a substantial showing of a denial of a
constitutional right. See,
e. g., Kasi v.
Angelone,
300 F.3d
487 (CA4 2002);
Wheat v.
Johnson, 238 F.
3d
349
357 (CA5 2000).* The Court today disapproves this
approach, which improperly resolves the merits of the appeal during
the
COA stage.
Ante, at 331, 335-338. Less clear from
the Court's opinion, however, is why a "circuit justice or judge,"
in deciding whether to issue a
COA, must "look
to the
District Court's application of AEDPA to [a habeas
petitioner's] constitutional claims and ask whether
that
resolution was debatable amongst jurists of reason."
Ante, at 336 (emphasis added). How the district court
applied AEDPA has nothing to do with whether a
COA applicant
has made "a substantial showing of the denial of a constitutional
right," as required by 28 U. S. C. § 2253(c)(2), so the AEDPA
standard should seemingly have no role in the
COA
inquiry.
Section 2253(c)(2), however, provides that "[a] certificate of
appealability
may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right."
(Emphasis added.) A "substantial showing"
does not entitle
an applicant to a
COA; it is a necessary and not a
sufficient condition. Nothing in the text of § 2253(c)(2) prohibits
a circuit justice or judge from imposing additional requirements,
and one such additional requirement has been approved by this
Court. See
Slack v.
McDaniel, 529 U. S. 473, 484 (2000)
(holding that a habeas petitioner seeking to appeal a district
court's denial of habeas relief on procedural grounds must not only
make a substantial showing of the denial of a constitutional right
but
also must demonstrate that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling).
The Court today imposes another additional requirement:
A circuit justice or judge must deny a
COA, even when the
habeas petitioner has made a substantial showing that his
*In what can be regarded as a logical development from the error
of analyzing a request for a COA like a merits appeal, some courts
have simply allowed merits appeals to be taken
without a
COA-in flat contravention of 28 U. S. C. § 2253(c)(1)(A). See,
e. g.,
Bates v.
Lee, 308
F.3d 411 (CA42002).
350
constitutional rights were violated, if all reasonable jurists
would conclude that a substantive provision of the federal habeas
statute bars relief.
Ante, at 336. To give an example,
suppose a state prisoner presents a constitutional claim that
reasonable jurists might find debatable, but is unable to find any
"clearly established" Supreme Court precedent in support of that
claim (which was previously rejected on the merits in state-court
proceedings). Under the Court's view, a
COA must be denied,
even if the habeas petitioner satisfies the "substantial
showing of the denial of a constitutional right" requirement of §
2253(c)(2), because all reasonable jurists would agree that habeas
relief is impossible to obtain under § 2254(d). This approach is
consonant with
Slack, in accord with the COA's purpose of
preventing meritless habeas appeals, and compatible with the text
of § 2253(c), which does not make the "substantial showing of the
denial of a constitutional right" a sufficient condition for a
COA.
II
In applying the Court's
COA standard to petitioner's
case, we must ask whether petitioner has made a substantial showing
of a
Batson violation and also whether reasonable jurists
could debate petitioner's ability to obtain habeas relief in light
of AEDPA. The facts surrounding petitioner's
Batson claims,
when viewed in light of § 2254(e)(1)'s requirement that state-court
factual determinations can be overcome only by clear and convincing
evidence to the contrary, reveal this to be a close, rather than a
clear, case for the granting of a
COA.
Petitioner maintains that the following six AfricanAmerican
jurors were victims of racially motivated peremptory strikes: Edwin
Rand, Wayman Kennedy, Roderick Bozeman, Billy Jean Fields, Joe
Warren, and Carrol Boggess. As to each of them, the State proffered
race-neutral explanations for its peremptory challenge. Five were
challenged primarily because of their views on imposing the death
pen-
351
alty (Rand, Kennedy, Bozeman, Warren, and Boggess), and one
(Fields) was challenged because (among other reasons) his brother
had been convicted of drug offenses and served time in prison. By
asserting race-neutral reasons for the challenges, the State
satisfied step two of
Batson. See
Purkett v.
Elem, 514 U.
S. 765, 767-768 (1995)
(per curiam). Unless petitioner
can make a substantial showing that (i.
e., a showing that
reasonable jurists could debate whether) the State fraudulently
recited these explanations as pretext for race discrimination, he
has not satisfied the requirement of § 2253(c)(2). Moreover,
because the state court entered a finding of fact that the
prosecution's purported reasons for exercising its peremptory
challenges were not pretextual, App. 878, a COA should not issue
unless that finding can reasonably be thought to be contradicted by
clear and convincing evidence. See § 2254(e)(1) ("[A] determination
of a factual issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence").
Ante, at 336.
The weakness in petitioner's
Batson claims stems from his
difficulty in identifying any unchallenged white venireman
similarly situated to the six aforementioned AfricanAmerican
veniremen. Although petitioner claims that two white veniremen,
Sandra Hearn and Marie Mazza, expressed views about the death
penalty as ambivalent as those expressed by Rand, Kennedy, Bozeman,
Warren, and Boggess, the
voir dire transcripts do not
clearly bear that out. Although Hearn initially stated that she
thought the death penalty was inappropriate for first-time
offenders, she also said, "I do not see any reason why I couldn't
sit on a jury when you're imposing a death penalty." App. 694. She
further stated that someone who was an extreme child abuser
deserved the death penalty, whether or not it was a first-time
offense. Reply Brief for Petitioner 14a. Hearn also made
pro-prosecution statements about her distaste for criminal
352
defendants' use of psychiatric testimony to establish
incompetency.
Id., at 17a. As for Mazza, her stated views on
the death penalty were as follows: "It's kind of hard determining
somebody's life, whether they live or die, but I feel that is
something that is accepted in our courts now and it is something
that-a decision that I think I could make one way or the other."
App. 519.
Compare those statements with the sentiments expressed by the
challenged African-American veniremen. Kennedy supported the death
penalty only in cases of mass murder. "Normally I wouldn't say on
just the average murder easel would say no, not the death
sentence."
Id., at 216. Bozeman supported the death penalty
only "if there's no possible way to rehabilitate a person ... I
would say somebody mentally disturbed or something like that or say
a Manson type or something like that."
Id., at 79. When
asked by the prosecutors whether repeated criminal violent conduct
would indicate that a person was beyond rehabilitation, Bozeman
replied, "No, not really."
Ibid. Warren refused to give any
clear answer regarding his views on the death penalty despite
numerous questions from the prosecutors.
Id., at 139-140
("Well, there again, it goes back to the situation, you know,
sometimes"); id., at 140. When asked whether the death penalty
accomplishes anything, Warren answered, "Yes and no. Sometimes I
think it does and sometimes I think it don't [sic]. Sometimes you
have mixed feelings about things like that."
Ibid. When
asked, "What do you think it accomplishes when you feel it does?,"
Warren replied, "I don't know."
Ibid. Boggess referred to
the death penalty as "murder," id., at 197, and said, "whether or
not I could actually go through with murder-with killing another
person or taking another person's life, I just don't know. I'd have
trouble with that,"
ibid. Rand is a closer case. His most
ambivalent statement was "Can I do this? You know, right now I say
I can, but tomorrow I might not."
Id., at 161 (internal
quotation marks omitted). Later on
353
Rand did say that he could impose the death penalty as a juror.
Id., at 162-164. But Hearn and Mazza (the white jurors who
were seated) also said that they could sit on a jury that imposed
the death penalty. At most, petitioner has shown that one of these
African-American veniremen (Rand) may have been no more ambivalent
about the death penalty than white jurors Hearn and Mazza. That
perhaps would have been enough to permit the state trial court,
deciding the issue
de novo after observing the demeanor of
the prosecutors and the disputed jurors, to find a
Batson
violation. But in a federal habeas case, where a state court has
previously entered factfindings that the six AfricanAmerican jurors
were not challenged because of their race, petitioner must provide
"clear and convincing evidence" that the state court erred, and,
when requesting a COA, must demonstrate that jurists of reason
could debate whether this standard was satisfied.
Ante, at
336.
Fields, the sixth African-American venireman who petitioner
claims was challenged because of his race, supported capital
punishment. However, his brother had several drug convictions and
had served time in prison. App. 124. (Warren and Boggess, two of
the African-American veniremen previously discussed, also had
relatives with criminal convictions- Warren's brother had been
convicted of fraud in relation to food stamps, id., at 153, and
Boggess had testified as a defense witness at her nephew's trial
for theft, id., at 211, and reported in her questionnaire that some
of her cousins had problems with the law, Joint Lodging 43.) Of the
four white veniremen who petitioner claims also had relatives with
criminal histories and therefore "should have been struck" by the
prosecution-three (Noad Vickery, Cheryl Davis, and Chatta Nix) were
actually so proprosecution that
they were struck by the
petitioner. Id., at 111. The fourth, Joan Weiner, had a son who
had shoplifted at the age of 10. App. 511. That is hardly
comparable to Fields's situation, and Weiner was a strong State's
juror for
354
other reasons: She had relatives who worked in law enforcement,
id., at 510, and her support for the death penalty was clear and
unequivocal, id., at 506, 51lo
For the above reasons, my conclusion that there is room for
debate as to the merits of petitioner's
Batson claim is far
removed from a judgment that the State's explanations for its
peremptory strikes were implausible.
***
With these observations, I join the Court's opinion. JUSTICE
THOMAS, dissenting.
Unpersuaded by petitioner's claims, the state trial court found
that "there was no purposeful discrimination by the prosecut[ion]
in the use of ... peremptory strikes," App. 878. This finding
established that petitioner had failed to carry his burden at step
three of the inquiry set out in
Batson v.
Kentucky,
476 U. S. 79
(1986). Title 28 U. S. C. § 2254(e)(1) requires that a federal
habeas court "presum[e]" the state court's findings of fact "to be
correct" unless petitioner can rebut the presumption "by clear and
convincing evidence." The majority decides, without explanation, to
ignore § 2254(e)(1)'s explicit command. I cannot. Because
petitioner has not shown, by clear and convincing evidence, that
any peremptory strikes of black veniremen were exercised because of
race, he does not merit a certificate of appealability (COA). I
respectfully dissent.
I A
The Court agrees,
ante, at 342, that the state court's
finding at step three of
Batson is a finding of fact
ordinarily subject to § 2254(e)(1)'s presumption of
correctness:
"In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual
355
issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence."
However, the Court implicitly rejects the obvious conclusion
that the COA determination under § 2253(c) is part of a "proceeding
instituted by an application for a writ of habeas corpus." Instead
of presuming the state court's factfindings to be correct, as §
2254(e)(1) requires, the Court holds that petitioner need only show
that reasonable jurists could disagree as to whether he can provide
clear and convincing evidence that the finding was erroneous.
Ante, at 341.
The Court's main justification for this conclusion is supposed
fidelity to
Slack v.
McDaniel, 529 U. S. 473 (2000). See
ante, at 338 (" 'The petitioner must demonstrate that
reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong'" (quoting
Slack,
supra, at 484)). But neither
Slack nor any other
decision of this Court addressing the COA procedure has ever
considered a "constitutional claim" that turns entirely on issues
of fact. In these circumstances, it is the text of § 2254(e)(1)
that governs.
Unlike the majority, I begin with the plain text of the statute
that instructs federal courts how to treat state-court findings of
fact. At issue is what constitutes a "proceeding" for purposes of §
2254(e)(1). The word, "proceeding," means "[t]he regular and
orderly progression of a lawsuit, including
all acts and events
between the time of commencement and the entry of judgment."
Black's Law Dictionary 1221 (7th ed. 1999) (emphasis added). The
COA, "standing alone, ... does not assert a grievance against
anyone, does not seek remedy or redress for any legal injury, and
does not even require a 'party' on the other side. It is nothing
more than a request for permission to seek review."
Hohn v.
United States, 524 U. S. 236, 256 (1998)
(SCALIA, J., dissenting).
356
I agree with the majority that the existence of a
COA is
a jurisdictional prerequisite to the merits appeal.
Ante, at
336. However, the Court takes a wrong turn when it implies that the
merits appeal is part of the habeas process (or "proceeding") but
the
COA determination somehow is not. Overwhelming authority
(including the majority opinion) confirms that § 2254(e)(1) applies
to the merits appeal. See
ante, at 342;
Weaver v.
Bowersox, 241 F.3d
1024, 1030
(CA8 2001); Putman v.
Head, 268 F.3d
1223, 1241 (CAll
2001); Johnson v.
Gibson,
254 F.3d
1155, 1160 (CAlO 2001);
Francis S. v.
Stone,
221 F.3d
100, 114-115
(CA2 2000);
Weeks v.
Snyder,
219 F.3d
245, 258
(CA3 2000);
Mueller v.
Angelone,
181 F. 3d 557, 575
(CA4 1999);
Ashford v.
Gilmore, 167 F.3d
1130, 1131
(CA7 1999); cf.
Sumner v.
Mata,
449 U. S. 539,
546-547 (1981) (pre-Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) factual deference provision with virtually
identical language applies to merits appeal). The
COA
determination should be treated no differently, because §
2254(e)(1) draws no distinction between the merits appeal and the
COA. The Court's silent conclusion to the contrary is simply
illogical. The COA's status as the jurisdictional prerequisite for
the merits appeal requires that
both the
COA
determination
and the merits appeal be considered a part of
the same "proceeding."
The Court's rejection of this conclusion also conflicts with
pre-AEDPA practice. Prior to AEDPA, access to a merits appeal in
federal habeas corpus proceedings was governed by a mechanism
similar to the
COA, known as a certificate of probable
cause, or CPC. See
Slack, supra, at 480. There was also a
standard of factual deference similar to, though weaker than, the
standard in § 2254(e)(1). See 28 U. S. C. § 2254(d) (1994 ed.).l
Under these provisions (indis-
1 The pre-AEDPA standard of factual deference provided:
"In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination after a
hearing on the merits of a factual
357
tinguishable from AEDPA's for these purposes), courts concluded
that § 2254(e)(1)'s predecessor applied directly to the CPC
proceeding, without any filtering through the "debatability"
standard the Court has used in both the CPC and
COA
contexts. See,
e. g., Barnard v.
Collins, 13 F.3d
871,
876-877 (CA5 1994);
Cordova v.
Collins, 953 F.2d
167, 169
(CA5 1992). These cases support the
straightforward notion that § 2254(e)(1), like its predecessor did
with respect to CPC proceedings, applies directly to the
COA
proceeding.
The Court's decision in
Hohn, supra, which holds that the
COA determination constitutes a "case" in the court of
appeals for purposes of this Court's jurisdiction under 28 U. S. C.
§ 1254, is not to the contrary.
Hohn does not hold, nor does
its logic require, that the
COA determination be regarded as
separate from the rest of the habeas proceeding. In fact,
Hohn rejected the proposition that "a request to proceed
before a court of appeals should be regarded as a threshold inquiry
separate from the merits .... " 524 U. S., at 246 (emphasis
added). Indeed,
Hohn analogized the
COA to the filing
of a notice of appeal, id., at 247, which in the civil context all
would consider to be part of the same "proceeding" ("instituted by"
a complaint) as the trial and merits appeal.
B
The Court also errs, albeit in dicta, when it implies that
delayed state factfinding-here the two years between
voir
dire and the post-trial
Batson hearing2-is an excuse
for
issue, made by a State court of competent jurisdiction ... shall
be presumed to be correct, unless the applicant shall establish or
it shall otherwise appear, or the respondent shall admit
[enumerated exceptions omitted] .... And in an evidentiary hearing
... the burden shall rest upon the applicant to establish by
convincing evidence that the factual determination by the State
court was erroneous."
2 Not all the factfinding was so hindered. Prosecutors gave
reasons for 2 of the 10 strikes of black veniremen at the
post-trial
Batson hearing. One of those, Joe Warren, is at
issue here. App. 856-860.
358
weakened factual deference.
Ante, at 342-343. Even
putting aside the fact that an appellate court on direct review
should (and would) still give heavy deference to 2-year-old
credibility findings,3 this reasoning is in tension with the plain
text of § 2254(e)(1) and ignores changes wrought by AEDPA to the
role of federal courts on collateral review.
Unlike an appellate court's review of district court findings of
fact for clear error, § 2254(e)(1) establishes a presumption of
correctness. It requires that the federal habeas court assume the
state court that entered the findings was the best placed
factfinder with the most complete record and
only then ask
whether the petitioner can refute that factual finding by clear and
convincing evidence. Procedural imperfections ordinarily will not
affect this presumption; thus, it does not matter whether the state
judge made his decision two years late or with a less-than-perfect
record. Admittedly these conditions might increase the
odds
that a habeas applicant could locate helpful evidence, but to
"presume" facts "correct" means a court cannot allow a habeas
applicant to evade § 2254(e)(1) by attacking the process employed
by the state
factfinder rather than the actual
factfindings.
This reading is confirmed by the changes worked by AEDPA.
Section 2254(e)(1) does not, as its predecessor did, create
exceptions to factual deference for procedural infirmities. For
example, prior to AEDPA, a federal habeas court
3 I am puzzled by the majority's willingness to hold against
respondent the failure of prosecutors to testify at the
post-trial
Batson hearing.
Petitioner could easily
have requested that the reasons for the allegedly unconstitutional
peremptory strikes be given again, and did not. The attorney
representing the State at the post-trial
Batson hearing made
certain that both trial prosecutors were present to reiterate the
reasons they gave in the record for striking the challenged black
veniremen. App. 865. Petitioner's counsel explicitly refused the
opportunity to do so when it was offered.
Ibid. Furthermore,
I fail to understand why a move that resulted in a more efficient
hearing without redundant testimony should redound to the benefit
of petitioner, who bears the burden of proof in this federal habeas
corpus proceeding.
359
would not defer to state-court determinations of fact if "the
factfinding procedure employed by the State court was not adequate
to afford a full and fair hearing," 28 U. S. C. § 2254(d)(2) (1994
ed.), "the material facts were not adequately developed at the
State court hearing," § 2254(d)(3), or "the applicant did not
receive a full, fair, and adequate hearing," § 2254(d)(6). The
removal of these exceptions forecloses the use of marginal
procedural complaints-such as a delay between
voir dire and
a
Batson hearing-to determine whether or "how much" a
federal habeas court will defer to state-court factfinding.
Section 2254(e)(1) simply cannot be read to contain an implied
sliding scale of deference. I do not understand the Court to
disagree with this view, however, as its dicta does not actually
purport to interpret the text of § 2254(e)(1).4
II
Because § 2254(e)(1) supplies the governing legal standard,
petitioner must provide "clear and convincing" evidence of
purposeful discrimination in order to obtain a COA. Petitioner's
constitutional claim under
Batson turns on this fact and
"reasonable jurists could debate,"
ante, at 336
(internal
4 I do, however, agree with the majority that the Court's
decisions in
Hernandez v.
New York, 500 U. S. 352 (1991), and
Purkett v.
Elem, 514 U. S. 765 (1995)
(per
curiam), can be helpful in guiding a federal habeas court
deciding a claim under
Batson v.
Kentucky, 476 U. S. 79 (1986). For
instance, both cases confirm that
Batson step three turns on
an evaluation of the prosecutor's proffered race-neutral
justifications for the peremptory challenges at issue.
Purkett,
supra, at 768-769;
Hernandez, 500 U. S., at 364-365
(plurality opinion); id., at 372 (O'CONNOR, J., concurring in
judgment); see also
Batson, supra, at 98, n. 21.
Additionally, because
Hernandez's clear-error standard is
less demanding of a criminal defendant than § 2254(e)(1) is of a
habeas applicant, a federal habeas court can deny relief on
§2254(e)(1) grounds if it determines it would do so when reviewing
the same facts for clear error. Cf.
Marshall v.
Lonberger, 459
U. S. 422, 434435 (1983) ("We greatly doubt that Congress ...
intended to authorize broader federal review of state court
credibility determinations than are authorized in appeals within
the federal system itself").
360
quotation marks omitted), whether a
Batson violation
occurred only if petitioner first meets his burden under §
2254(e)(1). And the simple truth is that petitioner has not
presented anything remotely resembling "clear and convincing"
evidence of purposeful discrimination.
A
The evidence amassed by petitioner can be grouped into four
categories: (1) evidence of historical discrimination by the Dallas
District Attorney's office in the selection of juries; (2) the use
of the "jury shuffle" tactic by the prosecution; (3) the alleged
similarity between white veniremen who were not struck by the
prosecution and six blacks who were:
Edwin Rand, Wayman Kennedy, Roderick Bozeman, Billy Jean Fields,
Joe Warren, and Carroll Boggess; and (4) evidence of so-called
disparate questioning with respect to veniremen's views on the
death penalty and their ability to impose the minimum
punishment.
The "historical" evidence is entirely circumstantial, so much so
that the majority can only bring itself to say it "casts doubt on
the State's claim that [discriminatory] practices had been
discontinued before petitioner's trial."
Ante, at 335. And
the evidence that the prosecution used jury shuffles no more proves
intentional discrimination than it forces petitioner to admit that
he sought to eliminate whites from the jury, given that he employed
the tactic even more than the prosecution did.5 Ultimately, these
two categories of evidence do very little for petitioner, because
they do not address the genuineness of prosecutors' proffered
raceneutral reasons for making the peremptory strikes of these
particular jurors.
In short, the reasons that JUSTICE SCALIA finds this to be a
"close case,"
ante, at 348 (concurring opinion), are reasons
that, under the correct reading of § 2254(e)(1), it is a
losing
5 Petitioner shuffled the jury five times; the prosecution did
so only three times. Brief for Respondent 21.
361
case. I write further to explore two arguments advanced by
petitioner that the Court deemed helpful in establishing
petitioner's "debatable" entitlement to relief, apparently because
the majority's "debatability" inquiry requires a lessthorough
review of the record and a more permissive attitude toward a COA
movant's representations.
B
As noted, petitioner argues the prosecution struck six
blacks-Rand, Kennedy, Bozeman, Fields, Warren, and Boggess-who were
similarly situated to unstruck whites. I see no need to repeat
JUSTICE SCALIA'S dissection of petitioner's tales of white
veniremen as ambivalent about the death penalty as Kennedy,
Bozeman, Warren, and Boggess.
Ante, at 350-353 (concurring
opinion). However, the majority's cursory remark that "three of the
State's proffered race-neutral rationales for striking [black]
jurors pertained
just as well to some white jurors who were not
challenged and who did serve on the jury," ante, at 343
(emphasis added), is flatly incorrect and deserves some
discussion.
For the three challenged peremptory strikes used on Fields,
Warren, and Boggess, petitioner has not even correctly alleged the
existence of "similarly situated" white veniremen. The majority's
discussion of this subject is misleading, stating that "prosecutors
explained that their peremptory challenges against six [black]
potential jurors were based on ambivalence about the death penalty;
hesitancy to vote to execute defendants capable of being
rehabilitated; and the [veniremens'] own family history of
criminality."
Ibid. The implication is that for each of the
six challenged veniremen, the prosecution gave all three reasons as
justifications for the use of a peremptory strike. To clarify:
Rand, Kennedy, Bozeman, Warren, and Boggess were struck for
ambivalence about the death penalty. Fields, Warren, and Boggess
were struck for having family mem-
362
bers with criminal histories. Bozeman and Fields were struck for
making prodefense remarks about rehabilitation.
Simple deduction, and an analysis of petitioner's contentions
that includes the
names of these allegedly similar white
veniremen, cf. ibid., reveals that petitioner has unearthed no
white venireman who, like Warren and Boggess, was
both
ambivalent about the death penalty
and related to
individuals who had previous brushes with the law.6 Petitioner also
produces no white venireman who, like Fields, expressed pro defense
views on rehabilitation
and had a family member with a
criminal history.7 "Similarly situated"
6 Petitioner directs the Court to white veniremen Noad Vickery,
Cheryl Davis, Chatta Nix, and Joan Weiner as having family members
with criminal histories, but points to white veniremen Sandra Hearn
and Marie Mazza as equally ambivalent about the death penalty.
Brief for Petitioner 22. Of course, as JUSTICE SCALIA demonstrates,
Hearn and Mazza were
not ambivalent about the death penalty.
Ante, at 351-352 (concurring opinion).
7 Again petitioner points to Vickery, Davis, Nix, and Weiner for
similar family histories. JUSTICE SCALIA has shown that none of
these four were in fact similarly situated to Fields with respect
to this justification.
Ante, at 353-354 (concurring
opinion). Petitioner also alleges that Hearn made prodefense
remarks about rehabilitation similar to those made by Fields.
Again, no white venireman even allegedly fits
both reasons
given for striking Fields. Furthermore, even if Fields had only
been struck for his views on rehabilitation, those views were in no
way equivalent to those expressed by Hearn. Fields answered "yes"
to the question whether he believed that "everyone can be
rehabilitated." App. 118. Fields went on to say that "[i]t may be
far-fetched, but I feel like, if a person has the opportunity to
really be talked about God and he commits himself, whereas he has
committed this offense, then if he turns his life around, that is
rehabilitation."
Ibid. In contrast, Hearn stated that she
"believe[d] in the death penalty if a criminal cannot be
rehabilitated."
Id., at 694.
Petitioner tries to muddy the waters by pointing out that Fields
was, in other respects, a good State's juror because he supported
the death penalty. Brief for Petitioner 24-25. However, that does
not change the fact that Fields said that everyone could be
rehabilitated (and thus might have been swayed by a penitent
defendant's testimony) and Hearn insisted that
363
does not mean matching anyone of several reasons the prosecution
gave for striking a potential juror-it means matching
all of
them.
This leaves Rand, Kennedy, and Bozeman.8 Petitioner alleges that
white jurors Hearn and Mazza were as ambivalent about the death
penalty as these three struck black veniremen. JUSTICE SCALIA has
adequately demonstrated that this is absurd with respect to Kennedy
and Bozeman, but I agree that petitioner makes a slightly better
case with Rand.
Ante, at 352-353 (concurring opinion).
However, since the burden is on petitioner to show, by
clear and
convincing evidence, that Rand was struck
because of his
race, I find this sliver of evidence, even when combined with
petitioner's circumstantial evidence, insufficient to rebut §
2254(e)(1)'s presumption.
c
Petitioner's accounts of "disparate questioning" also amount to
little of substance. Petitioner argues that the prosecution posed
different questions at
voir dire depending on the race of
the venireman on two subjects: the death penalty and the minimum
punishment allowed under law. Neither accusation can withstand a
careful examination of the full record or help petitioner assemble
the requisite clear and convincing evidence.
some people could not be rehabilitated. In analyzing
Batson claims the focus should not be on the
"reasonableness of the asserted nonracial motive ... [but]
rather [on] the
genuineness of the motive."
Purkett,
514
8 The prosecution's stated reasons for striking Bozeman were
that he was ambivalent about the death penalty and that he made
prodefense remarks about rehabilitation. This is one case where the
prosecution gave multiple reasons for a strike and petitioner
actually correctly
alleged the existence of a similarly
situated white venireman, Hearn. Petitioner believes, albeit
erroneously, see
ante, at 351-353 (SCALIA, J., concurring),
that Hearn expressed similar ambivalence about the death penalty
and made prodefense remarks about rehabilitation.
364
1
Respondent counters petitioner's complaints about the socalled
"graphic formulation" or "script" by arguing that this depiction
was used only with those potential jurors who "expressed
reservations about the death penalty in their juror
questionnaires." Brief for Respondent 17. The majority discounts
this explanation, stating that "[t]his cannot be accepted without
further inquiry."
Ante, at 344. Under my view, however,
petitioner bears the burden of showing purposeful discrimination by
clear and convincing evidence.
The Court's treatment of this issue focuses on the apparent
disparity in treatment of 10 black veniremen and 10 white veniremen
who were supposedly similar in their opposition to the death
penalty. The majority notes that only 2 out of these 10 whites got
the graphic description while 7 out of 10 blacks did.
Ante,
at 344-345. But the Court neglects to mention that the eight white
veniremen who petitioner thinks should have received the graphic
formulation, Reply Brief for Petitioner 15, n. 19, were so
emphatically opposed to the death penalty that such a description
would have served no purpose in clarifying their position on the
issue. No trial lawyer would willingly antagonize a potential juror
ardently opposed to the death penalty with an extreme portrait of
its implementation. The strategy pursued by the prosecution makes
perfect sense: When it was necessary to draw out a venireman's
feelings about the death penalty they would use the graphic script,
but when it was overkill they would not.
The record demonstrates that six of these eight white veniremen
were so opposed to the death penalty that they were stricken for
cause without the need for the prosecution to spend a peremptory
challenge. For example, John Nelson wrote on his questionnaire, "I
believe that the State does not have the right to take anyone's
life," Tr. of Voir Dire in No. F85-78668-NL (5th Crim. Dist. Ct.,
Dallas County, Tex.), p. 625 (hereinafter VDR) (internal quotation
marks omitted), and testified flatly, "I would not be able to vote
for the death
365
penalty." 9
Id., at 614. Nelson was struck for cause.
Id., at 662-663. Linda Berk was "always" opposed to the
death penalty, id., at 1449, and felt so strongly on the subject
that the prosecutor remarked upon her discomfort, after which she
stated, "[y]ou're going to have to excuse me because I'm getting a
little emotional, okay?"
Id., at 1445. Later, after she had
begun crying, Berk was struck for cause.
Id., at 1478. Gene
Hinson stated curtly, "I put on the form there that I didn't agree
with it," id., at 1648, and was struck for cause. Sheila White
said, "I have always been against ... the death penalty," id., at
2056, and was struck for cause.
Even those two not struck for cause had firm views. Margaret
Gibson said: "I don't believe in the death penalty. I don't know
why it was started. I don't think it solves anything," id., at 485,
and was struck by the prosecution with a peremptory strike. And
James Holtz thought the death penalty appropriate only if a
policeman or fireman was murdered.
Id., at 1021. I can
apprehend simply no reason to fault the prosecution for failing to
give a more graphic description of lethal injection to prospective
jurors with such firm views against capital punishment.
I recognize that these
voir dire statements only
indirectly support respondent's explanation because the graphic
script was typically given at the outset of
voir dire-before
the above quoted veniremen had the chance to give their stark
answers. Nevertheless, all available evidence supports respondent's
view that those who were unclear in their views on the death
penalty
in their juror questionnaires received the graphic
formulation-and that those who were adamantly for
or against
the death penalty in their questionnaires did not.
The jury forms at issue asked two questions directly relevant to
the death penalty. Question 56 asked, "Do you believe in the death
penalty?," offered potential jurors the
9 Nelson was also a doctor and presumably did not need to have
the lethal injection process described to him.
366
chance to circle "yes" or "no," and then asked them to "[p]lease
explain your answer." See,
e. g., Joint Lodging 44 (Boggess
questionnaire). Question 58 allowed potential jurors to circle
"yes" or "no" in answering the following question: "Do you have any
moral, religious, or personal beliefs that would prevent you from
returning a verdict which would ultimately result in the execution
of another human being?"
Ibid.
First, as already noted, the deeper and clearer opposition to
the death penalty on the part of the eight whites who did not
receive the graphic script (but petitioner thinks should have)
indirectly supports respondent's contention that this opposition
came out in their questionnaires (presumably by an answer of "no"
to question 56 and an answer of "yes" to question 58). But this is
not the only evidence supporting respondent's view. Hinson, a white
venireman who did not receive the graphic formulation, stated
during
voir dire that he "put on the form there that [he]
didn't agree with [the death penalty] for both moral and religious
reasons." VDR 1648. Similarly, Nelson, a white venireman not
receiving the graphic formulation, stated on his questionnaire, "I
believe that the State does not have the right to take anyone's
life."
Id., at 625 (internal quotation marks omitted).
Fernando Gutierrez, a juror who received the graphic formulation,
answered "yes" to question 56, but also "yes" to question 58,
indicating he had "moral, religious, or personal beliefs" that
would obstruct his voting for the death penalty despite the fact
that he believed in it. Joint Lodging 205.
The prosecution treated the black veniremen no differently. The
blacks who did not receive the graphic formulation (whose
questionnaires are contained in the record)
all answered
"yes" to question 56, stating they believed in the death penalty,
and "no" to question 58, indicating that their beliefs wouldn't
prevent them from imposing a death sentence. See id., at 12
(Bozeman), 20 (Fields), 28 (Warren), 36
367
(Rand). The black veniremen who
were given the graphic
formulation, by contrast, gave ambiguous answers on their juror
questionnaires expressing hesitation, rather than philosophical
opposition, to the death penalty. Boggess answered "yes" to
question 56 but also "yes" to question 58.
Id., at 44.
Kennedy answered "yes" to question 56 but indicated that he
believed in the death penalty "[o]nly in extreme cases, such as
multiple murders."
Id., at 51. Troy Woods answered "no" to
question 56, but also "no" to question 58, indicating he
did
not believe in the death penalty but would have no personal
objection to imposing it.
Id., at 180. He wrote "that
[sic] not punishment," in the space provided for question
56.
Ibid. It happened that, while not completely clear about
it in the questionnaire (and hence receiving the graphic
formulation), Woods was an enthusiastic supporter of the death
penalty, and he was, in fact, seated on petitioner's jury. Further
confirming respondent's explanation, black veniremen Linda Baker,
Janice Mackey, Paul Bailey, and Anna Keaton all gave unclear
responses to questions 56 and 58 and all received the graphic
formulation. See Tr. of Pretrial Hearings in No. F85-78660-NL (5th
Crim. Dist. Ct., Dallas County, Tex.) (Def. Exh. 7).10
10 Questions 56 and 58, and the responses thereto, are found on
page 6 of each questionnaire. Baker did not circle "yes" or "no" in
answering question 56, but wrote "[m]y strongest feeling is against
the death penalty;
however, being aware of the overcrowding in
jails and the number of murders[,] I would have to know the facts
to make a decision .... " (Emphasis added.) Baker also did not
answer question 58, writing "undecided" instead. Mackey answered
question 56 "no," indicating she did not believe in the death
penalty, and wrote "Thou Shall Not Kill" in the explanation space.
She then proceeded to answer question 58 "no" as well. Bailey
circled "yes" in answering question 56, but wrote in "NO" with a
circle around it, along with such explanations as "yes for a major
crime" and "[n]o
one have
[sic] the right to take
anothe [sic] ones
[sic] life." (Emphases in
original.) He then circled "no" in answering question 58. Keaton
circled "no," indicating she did not believe in the death penalty,
when she answered question 56, writing "It's not for me to pun-
368
To sum up, the correlation between questionnaire answers and the
use of the graphic script is far stronger than any correlation with
race. Sixteen veniremen clearly indicated on the questionnaires
their feelings on the death penalty,l1 and 15 of them did not
receive the graphic script.12 Eight veniremen gave unclear answers
and those eight veniremen got the graphic script.13 In other words,
for 23 out of 24, or 96%, of the veniremen for whom questionnaire
information is available, the answers given accurately predict
whether they got the graphic script.14 Petitioner's theory that
race determined whether a venireman got the graphic script produces
a race-to-script correlation of only 74%-far worse.15
2
Petitioner fares no better with his allegation that the
prosecution employed two different scripts on the basis of
ished [sic] anyone." However she then circled "no" in answering
question 58, indicating that she did not have any objection to
imposing the death penalty.
11 See VDR 1648 (Hinson), 625 (Nelson); Joint Lodging 12
(Bozeman), 20 (Fields), 28 (Warren), 36 (Rand), 125 (Mary Sumrow),
132 (Ronnie Long), 140 (Weiner), 148 (Mazza), 156 (Vivian Sztybel),
164 (Debra McDowell), 172 (Kevin Duke), 189 (Brenda Walsh), 197
(Filemon Zablan), 213 (Hearn).
12 Sztybel received the graphic script. VDR 2828.
13 Boggess, Kennedy, Baker, Mackey, Bailey, Keaton, Gutierrez,
and Woods.
14 This analysis considers Hinson and Nelson as being clearly
opposed to the death penalty in their questionnaires (answering
question 56 "no" and question 58 "yes") and Kennedy as being
ambiguous (though in fact he answered question 56 "yes" and 58
"no"). Even without these assumptions, 13 out of 15 veniremen who
answered "yes" to question 56 and "no" to question 58-indicating
clear support for the death penalty-did not receive the graphic
script. And seven out of seven of those answering "no" and "no" or
"yes" and "yes"-indicating ambiguous or mixed feelings about the
death penalty-or not answering clearly at all received the graphic
script. This yields an accuracy rate of 20 out of 22, or 91 %.
15 For whites, 10 out of 12 did not get the graphic script. For
blacks, 7 out of 11 did get the graphic script. This means race
predicted use of the graphic script only 74% of the time.
369
race when asking questions about imposition of the minimum
sentence. Indeed, this disparate questioning argument is as flawed
as the last one. Respondent admits that the different questioning
on minimum sentences was used as an effort to get veniremen the
prosecution felt to be ambivalent about the death penalty dismissed
for cause. In making the decision whether to employ the
"manipulative" minimum punishment script, prosecutors could rely on
both the questionnaires and substantial
voir dire testimony,
as the minimum punishment questioning occurred much later in
voir dire than the graphic formulation.
Seven black veniremen were given the allegedly "manipulative"
minimum punishment script, all of whom were opposed to the death
penalty in varying degrees. Rand, Kennedy, Bozeman, Warren, and
Boggess' views on the death penalty have all been exhaustively
discussed. This leaves Baker and Fields. Baker's views on the death
penalty were so clearly ambivalent that she is not even the subject
of petitioner's
Batson challenge. And Fields' family history
of criminality and views on rehabilitation, as earlier discussed,
supra, at 362, and n. 7, convinced the prosecution to use a
peremptory strike.16 Finally, petitioner's objection to the
prosecution's decision not to use the "manipulative" punishment
script on Woods, Reply Brief for Petitioner 17, n. 23, makes no
sense. Woods gave answers indicating he would be an excellent
State's juror-why would the prosecution have tried to eliminate
him? Of course, if petitioner were correct that the prosecution
sought to eliminate blacks then one might expect that all methods,
including the use of the "manipulative" script, would have been
deployed against Woods, who happened to also be black.
As with graphic questioning, respondent's explanation goes
unrebutted by petitioner. Unless a venireman indicated he would be
a poor State's juror (using the criteria that
16 The prosecution in fact used peremptory strikes on all seven
of these black veniremen.
370
respondent has identified here)
and would not otherwise be
struck for cause or by agreement, there was no reason to use
the "manipulative" script. Thus, when petitioner points to the
"State's failure to use its manipulative method with the vast
majority of white veniremembers who expressed reservations about
the death penalty,"
ibid., he ignores the fact that of the
10 whites who expressed opposition to the death penalty, 8 were
struck for cause or by agreement,
meaning no "manipulative"
script was necessary to get them removed. The other two whites
were both given the "manipulative" script
and peremptorily
struck,17 just like Rand, Kennedy, Bozeman, Fields, Warren,
Boggess, and Baker.
***
Quite simply, petitioner's arguments rest on circumstantial
evidence and speculation that does not hold up to a thorough review
of the record. Far from rebutting § 2254(e)(1)'s presumption,
petitioner has perhaps not even demonstrated that reasonable
jurists could debate whether he has provided the requisite evidence
of purposeful discrimination-but that is the majority's inquiry,
not mine. Because petitioner has not demonstrated by clear and
convincing evidence that even one of the peremptory strikes at
issue was the result of racial discrimination, I would affirm the
denial of a COA.
17See Joint Lodging 110; VDR 502-511 (Gibson), 1046-1050
(Holtz).
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