Wade v. Cain

Filing 511076098

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 9, 2010 N o . 08-30721 Lyle W. Cayce Clerk

R A Y M O N D WADE, P e t it io n e r - Appellant v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 5:05-cv-876

B e fo r e DeMOSS, ELROD, and HAYNES, Circuit Judges. P E R CURIAM:* R a y m o n d Wade was convicted of second-degree murder and sentenced to life imprisonment. After exhausting his state court remedies, Wade filed a h a b e a s petition in the federal district court. The district court denied the

r e q u e s t e d relief, and Wade appealed. We issued a certificate of appealability ( "C O A " ) on several issues related to the alleged denial of Wade's Fourteenth A m e n d m e n t right to equal protection under Batson v. Kentucky, 476 U.S. 79 ( 1 9 8 6 ) , including the issue of whether a comparative juror analysis supports
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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No. 08-30721 W a d e 's Batson claims. Because a comparative juror analysis does not support W a d e 's Batson claims, we affirm. I. A s alleged, Wade may only obtain habeas relief on his Batson claims by s h o w i n g that the Louisiana Supreme Court's decision denying his Batson c h a lle n g e was based on an "unreasonable determination of the facts in light of t h e evidence presented." Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 2 8 U.S.C. § 2254(d)(2)). The state court's factual findings are presumed to be s o u n d unless rebutted with clear and convincing evidence. 2 2 5 4 (e )(1 )). The Supreme Court articulated a three-step process for adjudicating a c la im that a peremptory challenge was based on race--a Batson challenge. First, a defendant must make a prima facie showing that a p e r e m p t o r y challenge has been exercised on the basis of race; s e c o n d , if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in lig h t of the parties' submissions, the trial court must determine w h e t h e r the defendant has shown purposeful discrimination. S n y d e r v. Louisiana, 552 U.S. 472, 476-77 (2008) (quoting Miller-El, 545 U.S. at 2 7 7 ) (Thomas, J., dissenting)) (internal marks omitted). On appeal, we evaluate " w h e t h e r the trial court's determination of the prosecutor's neutrality with r e s p e c t to race was objectively unreasonable and has been rebutted by clear and c o n v i n c in g evidence to the contrary." Murphy v. Dretke, 416 F.3d 427, 432 (5th C ir . 2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)). After the State used three of four peremptory challenges to strike AfricanA m e r i c a n veniremen, defense counsel made his first Batson challenge. He a rg u e d that the high percentage of peremptory challenges used against AfricanA m e r ic a n s established a pattern of excluding African-Americans. The trial ju d g e noted that he paid extremely close attention to the voir dire proceedings, 2 Id. (quoting §

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No. 08-30721 t o o k copious notes, and was sensitive to the Batson issue. He found no prima fa c ie showing that the State used peremptory challenges on the basis of race. H o w e v e r , to preserve the record for review, he noted that he would have the S t a t e articulate reasons for striking the jurors at a later time. He further m e n tio n e d that the State could keep its voir dire notes. The State used its next peremptory challenge to strike another AfricanA m e r ic a n , and defense counsel made another Batson challenge. Defense counsel s t a te d that the State had used four to five challenges on prospective AfricanA m e r ic a n males. He asserted that this particular panel had nine Caucasians a n d three African-Americans before challenges for cause and the other panels h a d been predominately Caucasian. He noted that there were no African-

A m e r ic a n males on the jury and only two African-American females. Again, the ju d g e found that the first step in Batson had not been met and denied Wade's c h a lle n g e . After the twelfth member of the jury had been selected, the State used its o n ly peremptory challenge for the alternate jurors to strike another AfricanA m e r ic a n . Defense counsel again objected to the use of the challenge, and the ju d g e noted defense counsel's position and summarily denied the objection. W a d e 's jury consisted of ten Caucasians and two African-Americans. T h e jury found Wade guilty of the lesser included crime of second-degree m u r d e r and sentenced him to life imprisonment. He then moved for a new trial o n the basis that the State used peremptory challenges to systematically exclude A f r ic a n - A m e r i c a n s from the jury. The judge again found that Wade failed to m a k e a prima facie showing of discriminatory use of peremptory challenges. H o w e v e r , "for appellate purposes," the judge instructed the State to articulate it s reasons for striking the African-American veniremen. For each of the struck v e n ir e m e n , the Stated identified several reasons justifying its use of the strike.

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No. 08-30721 T h e judge found the State's reasons to be race-neutral and denied Wade's motion fo r new trial. He appealed. O n appeal, Wade specifically complained that the State's reasons for s tr ik i n g Kerrick Martin, Clarence Bell, Sandra Smith Bell, and Foster Dukes, " w e r e not sufficiently race neutral and appeared to be a veiled effort to exclude in d iv id u a ls of the same color as defendant." Agreeing with the trial court, the L o u is ia n a Second Circuit Court of Appeal found the State's reasons for striking t h e four African-American veniremen to be race-neutral. S u p r e m e Court denied Wade's petition for writ of certiorari. W a d e then sought habeas relief in the Louisiana state courts on various o t h e r grounds and after exhausting those claims, moved for federal habeas relief u n d e r 28 U.S.C. § 2254 in the Western District of Louisiana. The district court d e n ie d all relief. II. T h e only issue on appeal is whether Wade demonstrated that his Batson c h a lle n g e was denied because of an unreasonable determination of the facts.1 A lt h o u g h the trial court denied Wade's Batson challenge because Wade failed to e s t a b lis h Batson's first step, we have held that "appellate review should not b e co m e bogged down on the question of whether the defendant made a prima fa c i e showing in cases where the district court has required an explanation." U n ite d States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987). When the trial c o u r t requires the State to articulate its reasons for striking a venireman, even w h e n the trial court does not believe defense counsel met Batson's first step, the a p p e lla te court should review the district court's findings on purposeful d is c r im in a tio n . Id.; accord Hernandez v. New York, 500 U.S. 352, 359 (1991) (p lu r a lit y ) ("Once a prosecutor has offered a race-neutral explanation for the
Because the comparative juror analysis resolves all outstanding issues, we need not separately consider each point on which we granted a COA.
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The Louisiana

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No. 08-30721 p e r e m p t o r y challenges and the trial court has ruled on the ultimate question of in t e n tio n a l discrimination, the preliminary issue of whether the defendant had m a d e a prima facie showing becomes moot."). Accordingly, our focus is on w h e t h e r Wade has shown purposeful discrimination. W a d e argues that although the State's reasons for striking the AfricanA m e r ic a n veniremen appear race-neutral, when the court compares the r e s p o n s e s of the struck African-American veniremen with the responses of the C a u c a sia n jurors, the State's reasons for striking the African-American v e n ir e m e n are unpersuasive and not credible.2 He asks the court to conduct a c o m p a r a tiv e analysis of the struck veniremen and the Caucasian veniremen.3 T h e Supreme Court articulated a few guiding principles for the court to c o n s id e r when conducting a comparative analysis which we explained as follows: F ir s t , we do not need to compare jurors that exhibit all of the exact s a m e characteristics. . . . Second, if the State asserts that it was c o n c e r n e d about a particular characteristic but did not engage in m e a n in g fu l voir dire examination on that subject, then the State's

Wade also asserts that the "bare statistics" in this case support a finding of purposeful discrimination. Wade alleges that his venire panel consisted of sixty-six people, twenty of whom where African-American. There is no evidence in the record to support Wade's proposition that his venire panel included twenty African-Americans. Further, the trial court explained any disparity by stating that "there were a number of prospective jurors who were African-American, who indicated that under no way and under no circumstance would they impose the death penalty, which means that they [were] excused for cause pursuant to the law." Wade also argues that there was a jury shuffle and that the State asked juror Ivy Woodard-Latin, a Caucasian woman, the fewest number of questions. The State avers that no jury shuffle occurred and that Woodard-Latin was an African-American woman. Wade failed to direct the court to the portion of the record that supports his position and we have found no indication that a jury shuffle occurred or that Woodard-Latin was Caucasian. Wade's arguments are without merit. The State argues that we should not consider Wade's comparative analysis argument because Wade never presented the argument to the state court. The State's argument is foreclosed. See Reed v. Quarterman, 555 F.3d 364, 374-75 (5th Cir. 2009) (explaining that because the "comparative analysis rests on the entire voir dire transcript" and the voir dire transcript was part of the evidence before the state court, "the comparative analysis, which is a theory that relies upon the voir dire--is properly before this court on habeas review," even if the argument was not made to the state court).
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No. 08-30721 fa ilu r e to question the juror on that topic is some evidence that the a s s e r te d reason was a pretext for discrimination. . . . Third, we must c o n s id e r only the State's asserted reasons for striking the black ju r o r s and compare those reasons with its treatment of the nonblack ju r o r s . Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009) (emphasis in original) (c it in g Miller-El, 545 U.S. at 246, 247 n.6, 252). With these principles in mind, w e compare struck veniremen Martin, Bell, Smith Bell, and Dukes with the nonA fr ic a n -A m e r ic a n veniremen accepted by the State.4 A. R e g a r d in g venireman Martin, the State asserted at the Batson hearing t h a t it struck Martin because he "indicated by his mannerisms and responses th a t he was unwilling to impose the death penalty" and he seemed "quite weak," " t o prefer a sentence of life in prison," and uncomfortable with the death penalty. T h e judge found the State's reasons to be race-neutral. Wade was indicted for the first-degree murder of Carlos Wheeler on the t h e o r y that Wade killed Wheeler during the course of a robbery. The State s o u g h t the death penalty and extensively questioned the venire panels about the

Wade also argues that the State impermissibly struck possible alternate juror Vickie Breakenridge. This claim was not exhausted in state court because Wade failed to present the claim to the highest Louisiana court. See Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). Additionally, Wade has forfeited any error for failing to present the claim to the district court. See United States v. Cherry, 50 F.3d 338, 342 (5th Cir. 1995). However, even if the alleged error was exhausted and preserved, Wade's argument is without merit. The State moved to exclude Breakenridge for cause. During voir dire, Breakenridge indicated that the evidence would have to be "outstanding" for her to consider the "extreme" penalty of death. Although the trial judge denied the State's challenge for cause, he found that the question of whether Breakenridge should be struck for cause was "a close, close call" and that he "certainly [thought] a peremptory challenge should be issued, if there is any doubt by the State . . . ." Given the judge's findings, we cannot hold the state court's denial of Batson relief was based on an unreasonable determination of the facts. See Forbes, 816 F.2d at 1010 (holding that the district court's observation that "a challenge for cause might have been justified" as to this juror was more than sufficient under Batson, which emphasized that "the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause" (quoting Batson, 476 U.S. at 97)).

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No. 08-30721 is s u e . Venireman Martin, when questioned, first indicated that he did not think h e would vote against the death penalty. When the judge questioned him f u r t h e r about his position, he stated he was against the imposition of the death p e n a lt y . He later stated that he had no strong opinions about the death penalty a n d that he could consider the death penalty if the evidence called for it. Later, in explaining his position he stated that he could understand the death penalty in a situation with Jeffrey Daumer and Adolf Hitler "[b]ut then in another s it u a t io n , I am not here as God, and I'm not here to judge anybody, I prefer not d e a th to life imprisonment." Martin's waffling justified the State's conclusion t h a t he would make a weak juror and that he seemed uncomfortable with giving t h e death penalty. W a d e argues that Clifford Escoval, a Caucasian juror, expressed similar h e s it a tio n s about the death penalty. The record fails to support this position. E s c o v a l's responses to the voir dire questions consistently demonstrated that he w a s open to considering the death penalty. The state court's finding of no d is c r im in a to r y intent in the State's use of a peremptory strike to exclude Martin is not unreasonable in light of the evidence presented. B. A s to venireman Clarence Bell, the State asserted several reasons for s tr ik i n g Bell including Bell's failure to fill out the juror questionnaire, e v a siv e n e ss , and inattention. The trial judge found the State's reasons to be r a c e -n e u tr a l and specifically noted that Bell was the only juror who failed to fill o u t the questionnaire. Wade did not identify another juror the State allowed to serve that e x h ib it e d characteristics similar to Bell. Rather, Wade argues that Bell's

" fa ilu r e to fill out the questionnaire could have simply been an [sic] confusion on h is part as to whether he was required to complete it prior to or during voir d i r e ." There is no evidence in the record to support that position. Bell's failure 7

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No. 08-30721 to fill out the questionnaire, however, supports the State's conclusion that Bell s e e m e d evasive. The record also supports the State's position that Bell might n o t have been paying attention. After extensive questioning about whether he a n d his fellow veniremen could impose the death penalty, he questioned whether t h e jury decides punishment. Based on the record before us, we cannot say that t h e state court unreasonably found no race discrimination as to this venireman. C. A f t e r Clarence Bell, the State struck Sandra Smith Bell, an AfricanA m e r ic a n woman. The State alleged that it struck Sandra Smith Bell because s h e had a ninth grade education and it was concerned that she would have d i ffic u lt y understanding the concepts involved with DNA evidence. Wade does n o t dispute that Bell only had a ninth grade education. He instead argues that B e ll met the requirements to be a juror, nothing in a death penalty case requires a juror to understand DNA evidence, no juror was questioned about whether t h e y understood such evidence, and Escoval, like Bell, had not graduated high s c h o o l. In this case, DNA evidence was crucial to connecting Wade to Wheeler's m u rder. A juror's ability to understand DNA evidence was undoubtedly

im p o r t a n t to the State. Although the State did not explicitly question the panel a b o u t their ability to understand such evidence, we cannot hold that the State's c o n c lu s i o n that someone with a ninth grade education would be less likely to u n d e r s ta n d DNA evidence was merely a pretext for discrimination. As to Wade's a r g u m e n t that juror Escoval had not graduated high school, his allegation has n o record support.5

Wade asks the court to consider the juror questionnaires as part of the record on appeal. He argues that the questionnaires would support his position that Escoval and others did not graduate high school. Neither party has submitted the questionnaires. Without the questionnaires we are unable to evaluate whether the questionnaires would support Wade's position. Moreover, it is questionable whether this court could properly consider the

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No. 08-30721 T h e State also indicated that it struck Bell because she generally leaned t o w a rd s giving a defendant a sentence of life imprisonment as opposed to the d e a th penalty. Her voir dire answers support this conclusion. For example, Bell a n s w e r e d "Yes" in response to the question "Would it also be fair to say that if a person intentionally killed another person that you would be more inclined or le a n towards giving them a life sentence as opposed to a death sentence?" Wade d o e s not refute this additional reason for striking Bell. The record supports the t r ia l court's finding that the State did not strike Bell for a racially motivated r e a s o n . Accordingly, the decision to deny Wade's Batson challenge as to Bell was n o t based on an unreasonable determination of the facts. D. F i n a lly , as to Dukes, the State asserted that it struck Dukes because he le a n e d towards a life sentence in cases where the victim fought back. According t o the State, "[a]ny juror who could not intuitively grasp the concept that a p e r s o n being robbed and attempting to arm themselves in defense is not the a g g re s s o r is in my view unfit from the State's prospective [sic] to serve on a c a p i t a l jury." The State also stated that it believed that if it struck Dukes, S te p h a n ie Losey would become the twelfth juror. Juror Losey consistently s ta te d that she was for the death penalty and could consider it. Venireman D u k e s indicated that the only way he could consider the death penalty was if the m u r d e r was "preplanned." W a d e admits that "Dukes' voir dire responses may have tended to favor life imprisonment over the death penalty." He argues, however, that the State's e x p l a n a t i o n that it preferred Losey, a Caucasian woman, to sit as the twelfth

questionnaires that were not presented as evidence before the Louisiana Second Circuit Court of Appeal or the Louisiana Supreme Court. See Miller-El, 545 U.S. at 241 n.2; Reed, 555 F.3d at 374 n.6. Before the Louisiana Second Circuit Court of Appeal, Wade supplemented the record with the voir dire transcripts. He failed to utilize that opportunity to supplement the record with the questionnaires.

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No. 08-30721 ju r o r demonstrates that the State's reason for striking Dukes was a pretext for d is c r im in a tio n . The State never referred to Losey's race when it explained why it preferred her over Dukes. The State's desire to have a juror that never w a v e r e d on the death penalty question over one who had does not compel a fin d i n g of discriminatory motive. The state court's finding of no discriminatory in te n t in the State's use of this peremptory strike is not unreasonable. III. W a d e has failed to demonstrate that the state court's denial of his Batson c la im was based on an unreasonable determination of the facts in light of the e v id e n ce presented. Accordingly, Wade is not entitled to habeas relief. A F F IR M E D .

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