Benny Stevens v. Christopher Epps, Commissioner

Filing

PUBLISHED OPINION FILED. [09-70009 Affirmed ] Judge: EGJ , Judge: FPB , Judge: CH Mandate pull date is 09/28/2010; denying motion for additional COA issues filed by Appellant Mr. Benny Joe Stevens [6310473-2] [09-70009]

Benny Stevens v. Christopher Epps, Commissioner

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 7, 2010 N o . 09-70009 Lyle W. Cayce Clerk

B E N N Y JOE STEVENS, P e t it io n e r - Appellant v. C H R I S T O P H E R B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT O F CORRECTIONS, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court fo r the Southern District of Mississippi

B e fo r e JOLLY, BENAVIDES, and HAYNES, Circuit Judges. E . GRADY JOLLY, Circuit Judge: B e n n y Joe Stevens was convicted of capital murder and sentenced to death fo r the 1998 murders of four people in Mississippi. The district court granted a c e r t i f ic a t e of appealability ("COA") for Stevens's claim that the prosecutor p e r e m p t o r ily struck a black prospective juror because of her race. Stevens has r e q u e s te d an expansion of the COA for his claim that the state post-conviction p r o c e s s was so ineffective that it violated his right to due process. We AFFIRM t h e district court's denial of habeas relief and DENY Stevens's request to expand t h e COA.

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No. 09-70009 I. S t e v e n s shot his daughter, his ex-wife, her husband, her eleven-year-old s o n , and the son's twelve-year-old playmate as they were surprised by, or as they a t t e m p t e d to escape, his lethal anger. Heads were blown off and bodies were m u t ila te d by the shotgun blasts of this unrepentant killer. These violent

m u r d e r s occurred in Marion County, Mississippi, in 1998. Because the local c o m m u n it y was inflamed, Stevens's trial was moved north to Madison County, M is s is s ip p i. His daughter was the only survivor. She testified against Stevens a t trial. The jury convicted Stevens of four counts of capital murder and he was s e n t e n c e d to death. His conviction was affirmed on direct appeal and the

S u p r e m e Court denied certiorari. Stevens v. State, 806 So. 2d 1031 (Miss. 2001), c e r t. denied, 537 U.S. 1232 (2003). Stevens's petition for state post-conviction r e lie f was also denied. Stevens v. State, 867 So. 2d 219 (Miss. 2003), cert. denied, 5 4 3 U.S. 858 (2004). The district court denied Stevens's petition for federal h a b e a s relief, but granted a COA for his claim that the prosecutor engaged in p u r p o s e fu l racial discrimination by striking a black prospective juror. Stevens s e e k s an expansion of the COA for his claim that the state post-conviction p r o c e s s was so ineffective that it violated his right to due process. II. W e address first the claim for which the district court granted a COA (r a c ia l discrimination in jury selection), and then turn to consider Stevens's r e q u e s t for an expansion of the COA for his due process claim. A. T h e district court granted a COA for Stevens's claim that the prosecutor p e r e m p t o r ily struck a black prospective juror because of her race. Purposeful r a c ia l discrimination in the use of peremptory strikes of prospective jurors v io la t e s the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson claims are evaluated using a three-step analysis: 2

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No. 09-70009 F ir s t , a defendant must make a prima facie showing that a p e r e m p to r y challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in l ig h t of the parties' submissions, the trial court must determine w h e t h e r the defendant has shown purposeful discrimination. M ille r -E l v. Cockrell (Miller-El I), 537 U.S. 322, 328-29 (2003) (citations omitted). "[I]n considering a Batson objection, or in reviewing a ruling claimed to be B a t s o n error, all of the circumstances that bear upon the issue of racial a n im o s it y must be consulted." Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (c it in g Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 239 (2005))). Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), this c o u r t may grant habeas relief on a claim adjudicated on the merits in state court o n ly if the state court's adjudication "resulted in a decision that was contrary to, o r involved an unreasonable application of, clearly established Federal law, as d e t e r m in e d by the Supreme Court of the United States; or . . . resulted in a d e c is io n that was based on an unreasonable determination of the facts in light o f the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)(2 ). The state court's factual findings are presumed to be correct, unless the 28 U.S.C. §

p e t it io n e r rebuts them with clear and convincing evidence. 2 2 5 4 (e )(1 ).

T h e State used six of its twelve peremptory challenges. Two were used to s t r ik e black prospective jurors and four were used to strike white prospective j u r o r s . The jury that was selected consisted of eleven white persons and one b la c k person, with two white alternate jurors.1

Stevens is white, and all of the victims were white. The Supreme Court has held that a white defendant may object to the race-based exclusion of black jurors. Powers v. Ohio, 499 U.S. 400 (1991) (holding that a criminal defendant has standing to object to the race-based exclusion of jurors irrespective of whether the defendant and the excluded jurors are of the same race).

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No. 09-70009 R a g s d a le was the first black prospective juror tendered to the State.2 The p r o s e c u t o r initially challenged Ragsdale for cause because he listed a Jackson a d d r e s s on his juror questionnaire.3 The trial was held in Madison County, and t h e prosecutor asserted that because Jackson is in Hinds County, Ragsdale was n o t qualified to serve on the jury. The trial court stated that although Ragsdale h a d a Jackson address, he could still be registered to vote in Madison County. Accordingly, the trial judge refused to excuse Ragsdale for cause, but allowed the S t a te to exercise a peremptory strike to exclude him from the jury. The

p r o s e c u t o r then stated that Ragsdale should be excused because he "was against t h e wall, and he was sleeping the whole time, didn't pay attention." The trial ju d g e responded, "I didn't notice that." Defense counsel asserted a Batson claim, arguing that "if [Ragsdale] dozed in the five- or six-hour voir dire ceremony, that's not reason to strike him." The p r o s e c u t o r responded that there had to be a "pattern of discrimination" before h e had to give a reason for the strike. Stevens's counsel did not challenge the p r o s e c u t o r 's incorrect statement of the law.4 The trial judge stated that "even if it were a pattern, I would say that the fact that they thought he had been s le e p in g and that he was from a different county, residing in a different county, t h a t would be a sufficient reason to excuse him. But it will be a strike rather t h a n for cause." Stevens apparently does not dispute that Ragsdale slept during v o ir dire. In addition to defense counsel's remarks at the time of the strike, in h is reply brief on direct appeal, Stevens stated that "[a] person who might doze

The prospective jurors in this case were questioned as a group. Counsel exercised their peremptory strikes at the conclusion of voir dire.
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Ragsdale's juror questionnaire is not in the record.

Although an inference of discrimination may be drawn from a pattern of strikes, see Batson, 476 U.S. at 97, "the Constitution forbids striking even a single prospective juror for a discriminatory purpose." Snyder, 552 U.S. at 478 (brackets, internal quotation marks, and citation omitted).

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No. 09-70009 in a warm room during a long voir dire process must not be denied the right to p a r tic ip a t e in the trial." O liv e was the second black juror tendered to and peremptorily struck by t h e State. Stevens raised a Batson claim, arguing that because Olive was the s e c o n d black prospective juror struck by the State, "it's showing a pattern." The t r ia l court asked the prosecutor to state the reason for the strike. The prosecutor a r g u e d that there was no pattern because Ragsdale was observed sleeping and h a d a Jackson address. The prosecutor said that he struck Olive because she " w a s inattentive" and did not complete her juror questionnaire: S h e didn't fill out half of it. She did not follow the directions of the C o u r t . And that backs up my opinion and observation that she was in a t te n tiv e . She responded to no questions from either side, and she d id n 't fill out her complete form. S t e v e n s 's counsel pointed out that many of the prospective jurors did not fully c o m p le t e the juror questionnaires.5 The prosecutor responded, W e ll, I'm just backing up my original statement she was inattentive a n d looked like she was preoccupied the whole time. And she didn't fill out her form. The second page, Judge. T h e trial court found that Olive had completed her questionnaire, leaving blank o n ly the question asking for membership in fraternal organizations. p r o s e c u t o r responded: M y main reason was that she was inattentive, seemed to be totally p r e o c c u p ie d . And, again, we're not showing a pattern of d is c r im in a tio n . D e fe n s e counsel did not challenge the prosecutor's assertion that Olive was in a t t e n t iv e or preoccupied. In fact, defense counsel seemed to acknowledge that t h e prosecutor thought Olive was inattentive; he stated: "We don't think that's The

Four of the white persons who served on the jury left one or more of the questions blank, including the same question that Olive left blank. Three other white jurors failed to fully answer the questionnaire, leaving at least one question blank.

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No. 09-70009 e n o u g h reason for them to strike her because they think she was unattentive [s ic ] and didn't fill out her form." The trial judge did not make any explicit ruling with respect to whether O liv e was inattentive or whether he believed that the prosecutor thought she w a s inattentive. Instead, the judge asked whether there were more black

p r o s p e c t iv e jurors in the jury pool. The prosecutor responded that the State p la n n e d to accept Brooks. However, Brooks had already been struck for cause t h e previous day. Defense counsel pointed out that there was not another black p e r s o n on the panel until number 41, Melvin Bouldin. The prosecutor said the S t a te would accept Bouldin. The Court ruled: "With the understanding you're g o in g to accept Bouldin, then I'm going to go ahead and allow this one to be s t r u c k as not showing a pattern, then." O n direct appeal, the Mississippi Supreme Court stated: W e hold that the fact that juror Rag[s]dale no longer resided in Madison County to be a valid race neutral reason to allow the t r ia l court to grant the State's peremptory strike of juror Rag[s]dale. Residency is not a characterization based on race. In order to be q u a lifie d as a competent juror, residency in the county is required. ... .... I t may be argued that one or all of the race-neutral reasons [fo r the strike of Olive] expressed by the defense [sic] are acceptable. However, it must be remembered that this Court has held that the t r ia l judge is afforded great deference in determining if the e x p r e s s e d reasons for exclusion of a venire-person from the c h a lle n g e d party is [sic] in fact race-neutral. . . . T h e trial judge witnessed the challenges in court and could o b s e r v e the demeanor of all involved as well as all other relevant c ir c u m s ta n c e s in the case. We find that the trial court's findings are n o t clearly erroneous or against the overwhelming weight of the e v id e n c e . Therefore this contention is without merit.

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No. 09-70009 S te v e n s v. State, 806 So. 2d at 1047-48 (paragraph numbers omitted). S t e v e n s raised his Batson claim again in his state application for postc o n v ic t io n relief. The Mississippi Supreme Court held that the issue had been considered and rejected on direct appeal and was therefore "barred from c o n s id e r a t io n under the doctrine of res judicata." Stevens v. State, 867 So. 2d at 222. S t e v e n s raised his Batson claim again in his federal habeas petition. The d is t r ic t court observed that the trial court and counsel for both sides mistakenly t h o u g h t that Batson requires a finding that the prosecutor has engaged in a p a t t e r n of discriminating against black jurors. However, the district court c o n c lu d e d that the Mississippi Supreme Court had properly applied Batson to t h e facts, without reference to whether the prosecutor had engaged in a pattern o f discrimination. W it h respect to the strike of Ragsdale, the district court noted that, a lt h o u g h the parties did not mention it, George Patterson, a black prospective ju r o r who listed a Jackson address on his juror questionnaire, was excused for c a u s e on the first day of jury selection (before the strikes of Ragsdale and Olive). The record reflects that Patterson had notified the trial judge and one of the p r o s e c u t o r s that he lived in Hinds County. After objecting initially, defense c o u n s e l stated that he would not object if Patterson did not live in Madison C o u n ty . The district court rejected Stevens's contention that because the trial c o u r t had qualified the entire venire at the beginning of voir dire, Ragsdale was fo u n d to have been competent to serve on the jury and could not have been d is q u a lifie d based on his residence in another county. The district court noted t h a t Stevens's contention was not raised in the trial court and that it ignored the fa c t that George Patterson was also struck, after the jury was qualified, because h e lived in Hinds County. The district court held that the record does not s u p p o r t Stevens's claim that the trial court rejected the prosecutor's assertion 7

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No. 09-70009 t h a t Ragsdale lived in another county. According to the district court, the trial c o u r t merely stated that Ragsdale "could still be a registered voter" in Madison C o u n ty . Furthermore, the district court stated that the trial judge did not reject t h e prosecutor's claim that Ragsdale slept through voir dire, but only stated that h e had not noticed it. T h e district court rejected Stevens's contention that the prosecutor's fa ilu r e to question Ragsdale about his address suggested that this reason given b y the prosecutor for the strike was pretextual. The district court stated that t h e r e was nothing in the record to cast doubt on either Ragsdale's actual r e s id e n c e or whether he was sleeping during voir dire. Furthermore, Patterson w a s excused for a similar reason the day before, with no further examination a n d no objection by the defense and there was no indication that similarlys it u a t e d white jurors were accepted.6 Accordingly, the district court concluded t h a t the record does not support Stevens's claim that the Mississippi Supreme C o u r t 's findings with regard to Ragsdale were unreasonable. W it h respect to Olive, the district court stated that the prosecutor's initial r e a s o n for the strike was that Olive had been inattentive, and the fact that the o t h e r reason (failure to complete the juror questionnaire) was rejected by the t r ia l court does not mandate a finding that the prosecutor's reliance on in a t t e n t iv e n e s s as a reason for the strike was pretextual. The district court fo u n d that the prosecutor's acceptance of Melvin Bouldin as a juror supported t h e finding of non-discriminatory intent because the prosecutor committed to the s e le c t io n of a black juror early in the process, when he was exercising his second s tr ik e .

The State accepted at least one white prospective juror who listed a street address, but no city, on her juror questionnaire. She did not serve on the jury, however, because the defense struck her peremptorily. Bouldin, the only black juror accepted by the State, also listed a street address but no city on his questionnaire. No one raised any questions about his residence.

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No. 09-70009 T h e district court noted that Stevens's argument that the district a t t o r n e y 's office that prosecuted his case had a history of racial discrimination in jury selection in other cases was not raised at trial or on direct appeal, a lt h o u g h it was included in his application for post-conviction relief, which the M is s is s ip p i Supreme Court denied on grounds of res judicata. The district court s t a t e d that although it could have held that the argument was barred from c o n s id e r a t io n , out of an abundance of caution, it analyzed the issue on its merits a n d rejected it, stating: T h e r e were two occasions when the Mississippi Supreme C o u r t found that discrimination occurred in the Fifteenth Judicial D is t r ic t in jury selection over the ten years prior to the trial. There h a d been hundreds of other trials in the District, and no other fin d in g of discrimination has been made. The two attorneys who h a d been charged did not participate in the trial, and the attorneys w h o did have never been found to have used discriminatory p r a c t ic e s in jury selection. Additionally, no pattern of d is c r im in a t io n had been shown, and the challenged juror was not t h e same race as the defendant. While there may be some smoke le ft over from prior years, there was nothing shown in Stevens's c a s e that indicated that any discriminatory tactics were used in jury s e le c t io n by the district attorney's office. S t e v e n s requested, and the district court granted, a COA only with respect t o the strike of Olive. The State therefore contends that this court does not have ju r is d ic t io n to consider the strike of Ragsdale. See Lackey v. Johnson, 116 F.3d 1 4 9 , 151 (5th Cir. 1997) (court has jurisdiction to address only the issue specified in the COA granted by the district court). Stevens argues, however, that the

p r o s e c u t o r 's treatment of Ragsdale is relevant to the analysis of the strike a g a in s t Olive. Although Stevens has challenged the strike of Ragsdale throughout the p r o c e e d i n g s (both trial and post-conviction), this is his first attempt to argue t h a t the strike of Ragsdale has any bearing on the analysis of the strike of Olive ( o t h e r than his assertion in the trial court that the strike of Olive showed a 9

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No. 09-70009 " p a t t e r n " based on the previous strike of Ragsdale). When attempting to prove p u r p o s e fu l discrimination under the third step of the Batson analysis, the S u p r e m e Court has said that the "defendant may rely on `all relevant c ir c u m s t a n c e s ' to raise an inference of purposeful discrimination." Miller-El II, 5 4 5 U.S. at 240 (quoting Batson, 476 U.S. at 96-97); see also Hernandez v. New Y o r k , 500 U.S. 352, 363 (1991) (an "invidious discriminatory purpose may often b e inferred from the totality of the relevant facts") (brackets, internal quotation m a r k s , and citation omitted). In Reed v. Quarterman, 555 F.3d 364, 372-75 (5th C ir . 2009), this court concluded that Miller-El II requires a comparative juror a n a ly s is even if it was not presented in state court. In Snyder, the Supreme

C o u r t stated that because "all of the circumstances that bear upon the issue of r a c i a l animosity must be consulted," the court may consider the strike of one ju r o r for any relevance it might have regarding the strike of another juror. 552 U .S . at 478 (citing Miller-El II, 545 U.S. at 239). Accordingly, Stevens is not p r e c lu d e d from relying on the circumstances surrounding the strike of Ragsdale t o argue that the strike of Olive was discriminatory, notwithstanding the fact t h a t he requested and was granted a COA limited to the strike of Olive. Stevens contends that there is no evidence that Ragsdale was not a r e s id e n t of Madison County and that, if there were, the trial judge would have b e e n required to grant the State's challenge for cause. He argues that the d i s tr ic t court's reliance on the fact that George Patterson had been struck for c a u s e for similar reasons is misplaced. According to Stevens, Patterson was s t r u c k for cause because he notified the court and counsel that he was a resident o f Hinds County. Stevens points out that part of the City of Jackson is within M a d is o n County, so a person can have a Jackson address but still live in M a d is o n County. Stevens also points out that thirty prospective jurors did not lis t any city on the address portion of their juror questionnaires. He asserts that

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No. 09-70009 t h e prosecutor's failure to question them or seek to strike them on the issue of r e s id e n c e is further evidence of a discriminatory motive as to Ragsdale. T h e fact that the prosecutor did not question Ragsdale about his residence is some evidence suggesting that his explanation is pretextual. See Miller-El II, 5 4 5 U.S. at 246 (the prosecution's failure to conduct any meaningful voir dire e x a m in a t io n on a subject it claims to be "concerned about is evidence suggesting t h a t the explanation is a sham and a pretext for discrimination") (internal q u o t a t io n marks and citation omitted); Reed, 555 F.3d at 376 ("if the State a s s e r t s that it was concerned about a particular characteristic but did not e n g a g e in meaningful voir dire examination on that subject, then the State's fa ilu r e to question the juror on that topic is some evidence that the asserted r e a s o n was a pretext for discrimination"). Furthermore, the record reflects that t h e prosecutor accepted at least two other prospective jurors who did not list a c it y when providing their addresses on their juror questionnaires. However, one o f those two jurors (Melvin Bouldin) is black. Accordingly, this is not very strong e v id e n c e of pretext with respect to the strike of Ragsdale. See id. ("If the State a s s e r ts that it struck a black juror with a particular characteristic, and it also a c c e p t e d nonblack jurors with that same characteristic, this is evidence that the a s s e r t e d justification was a pretext for discrimination, even if the two jurors are d is s im ila r in other respects."). N e v e r t h e le s s , Stevens has not shown purposeful discrimination in the s t r ik e of Ragsdale. Accordingly, the prosecutor's strike of Ragsdale does not s u p p o r t Stevens's claim that the prosecutor struck Olive because of her race. The first flaw in Stevens's argument is that Ragsdale's residence was not the o n ly basis for the strike. The prosecutor's second reason was that Ragsdale was o b s e r v e d sleeping during voir dire. Second, the trial judge's ruling indicates that h e found the prosecutor's reasons credible: "I would say that the fact that they t h o u g h t he had been sleeping and that he was from a different county, residing 11

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No. 09-70009 in a different county, that would be a sufficient reason to excuse him." As we h a v e already noted, Stevens did not challenge the prosecutor's assertion that R a g s d a le was sleeping; instead, he argued that sleeping was not a reason to e x c lu d e Ragsdale from jury service. Accordingly, even if we were to assume that t h e first reason given for the strike (residence) is pretextual, Stevens did not d i s p u t e the prosecutor's additional reason for the strike (sleeping during voir d ir e ). See Woodward v. Epps, 580 F.3d 318, 340 (5th Cir. 2009) (holding that w h e r e prosecutor gave more than one reason for striking juror, and court could n o t presume, in the absence of a trial court finding, that the trial court credited t h e prosecutor's assertion of demeanor as one of those reasons, petitioner's B a ts o n claim nevertheless failed because petitioner offered no rebuttal to p r o s e c u t o r 's first race-neutral reason for the strike) ; United States v. Brown, 553 F .3 d 768, 796 (5th Cir. 2008) (where prosecutor struck a black venire member w h o had a conviction for resisting arrest but did not strike a white venire m e m b e r who had a DUI conviction, defendant's Batson claim nevertheless failed b e c a u s e the prosecutor gave a second, legitimate reason for striking the black ju r o r : his failure to report on his juror questionnaire a second conviction for

a s s a u lt). W e now turn to consider Stevens's claim of discrimination with respect to t h e strike of Olive. He contends that the trial judge did not make a finding that O liv e was inattentive, but instead allowed the strike because the prosecutor had a g r e e d to accept another black juror (Melvin Bouldin). Stevens argues that this " t r a d in g " of one black juror for another black juror violates the equal protection c la u s e , because Olive was struck, not only because of her own race, but also b e c a u s e of Bouldin's race; that is, the trial judge allowed Olive to be struck only b e c a u s e the State promised to accept the next black juror, Bouldin. Thus, a c c o r d in g to Stevens, Bouldin's race was the only reason that the trial judge a llo w e d Olive to be struck. 12

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No. 09-70009 T h e State responds that although the trial court rejected one of the r e a s o n s given by the prosecution for striking Olive (incomplete juror q u e s t io n n a ir e ), it accepted the other (inattentiveness). The State also asserts t h a t there was no trade of one black juror for another because, at the time that O liv e was struck, there was no assurance that jury selection would not be c o m p le t e d before Bouldin was reached in the selection process. T h e record contains no explicit support for the State's assertion that the t r ia l court allowed the strike of Olive based on inattentiveness. The only reason t h a t the trial court gave for allowing the strike was that the prosecutor had a g r e e d to accept the next black juror (Bouldin). The trial judge stated: "With t h e understanding you're going to accept Bouldin, then I'm going to go ahead and a llo w this one to be struck as not showing a pattern." The trial judge made no fin d in g on the record that Olive was inattentive or that the prosecutor was c r e d ib le in asserting that he struck Olive for inattentiveness. Nevertheless, b e c a u s e the trial court allowed Olive to be struck after having rejected the p r o s e c u t o r 's assertion that Olive did not complete her juror questionnaire, it was n o t unreasonable for the Mississippi Supreme Court to conclude that the trial c o u r t implicitly credited the prosecutor's assertion that he struck Olive because s h e was inattentive. " A s a federal habeas court, we are bound by the state [trial] court's factual fin d in g s , both implicit and explicit." Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2 0 0 4 ). Furthermore, we may not grant habeas relief unless the Mississippi S u p r e m e Court's adjudication of Stevens's Batson claim "resulted in a decision t h a t was contrary to, or involved an unreasonable application of, clearly e s t a b lis h e d Federal law, as determined by the Supreme Court of the United S t a te s ; or . . . resulted in a decision that was based on an unreasonable d e t e r m in a t io n of the facts in light of the evidence presented in the State court p r o c e e d in g ." 28 U.S.C. § 2254(d)(1)-(2). The AEDPA thus requires that we defer 13

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No. 09-70009 n o t only to the Mississippi Supreme Court's determination that the trial court im p lic i t l y found that the prosecutor did not engage in purposeful racial d is c r im in a t ion in peremptorily striking Olive, but also to the trial court's implicit fa c t u a l finding that the prosecutor was credible when he stated that the main r e a s o n he struck Olive was because he thought she was inattentive. S t e v e n s argues, however, that in the absence of a finding by the trial ju d g e , this court cannot presume that the trial judge credited the prosecutor's a s s e r t io n that Olive was inattentive. In Snyder, the Supreme Court said that in the absence of a finding by the trial judge, the Court "cannot presume that the t r ia l judge credited" the prosecutor's assertion that the prospective juror was n e r v o u s . 552 U.S. at 479. The Court stated that when a peremptory challenge is based on a potential juror's demeanor, "the trial court must evaluate not only w h e t h e r the prosecutor's demeanor belies a discriminatory intent, but also w h e t h e r the juror's demeanor can credibly be said to have exhibited the basis for t h e strike attributed to the juror by the prosecutor." Id. at 477. In Thaler v. H a y n e s , 130 S. Ct. 1171 (2010), the Supreme Court summarily reversed this c o u r t's interpretation of Batson and Snyder as establishing a rule "that a d e m e a n o r -b a s e d explanation for a peremptory challenge must be rejected unless t h e judge personally observed and recalls the relevant aspect of the prospective ju r o r 's demeanor." Id. at 1174. The Supreme Court explained that the problem in Snyder was not that the trial judge did not observe or could not recall the ju r o r 's demeanor. Id. Instead, the problem was that the prosecutor gave two r e a s o n s for the strike, "one of which was based on demeanor (i.e., that the juror h a d appeared to be nervous), and the trial judge overruled the Batson objection w it h o u t explanation." Id. (citing Snyder, 552 U.S. at 478-79). The record did not s u p p o r t the explanation that was not based on demeanor and, in the absence of a finding by the trial judge, the Court stated that it could not "presume that the

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No. 09-70009 t r ia l judge credited" the prosecutor's assertion that the prospective juror was n e r v o u s . See Snyder, 552 U.S. at 479. Stevens's case is similar to Snyder in that the trial court in Stevens's case m a d e no finding with respect to the demeanor-based reason (inattentiveness) for t h e peremptory strike of Olive. Its only stated reason for allowing the strike was t h e prosecutor's agreement to accept the next black prospective juror, Bouldin. Stevens thus relies on Snyder to argue that, because of the absence of any fin d in g by the trial judge, it was unreasonable for the Mississippi Supreme C o u r t to "presume that the trial judge credited" the prosecutor's assertion that O liv e was inattentive. W e find Stevens's case to be distinguishable from Snyder. It is true that t h e r e are some similarities: In both cases, the prosecutors offered two reasons fo r the challenged strikes, and in both cases, one of the reasons offered for each s t r ik e was based on the prospective juror's demeanor (nervousness in Snyder a n d inattentiveness in Stevens's case). The similarities end there, however. In S n y d e r , the trial judge overruled the Batson objection without making any fin d in g s as to either of the reasons given by the prosecutor for the strike. The S u p r e m e Court concluded that the non-demeanor-based reason given by the p r o s e c u t o r in Snyder was pretextual, and it refused to presume that the trial c o u r t had allowed the strike based on the juror's demeanor in the absence of any fin d in g by the trial court. In Stevens's case, unlike in Snyder, the trial court

e x p r e s s ly found that one of the reasons offered by the prosecutor for the strike o f Olive--failure to complete the juror questionnaire--was invalid, but it n e v e r t h e le s s allowed the strike. Under these circumstances, the Mississippi S u p r e m e Court did not unreasonably determine that because the trial judge a llo w e d the strike, it must have implicitly credited the prosecutor's assertion t h a t he believed Olive was inattentive. This implicit factual determination is p r e s u m p t iv e ly correct under the AEDPA. Young, 356 F.3d at 629. 15

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No. 09-70009 F u r t h e r m o r e , although Stevens's counsel challenged the prosecutor's a s s e r t io n that Olive did not complete her juror questionnaire in the trial court, h e did not make any attempt to rebut the prosecutor's assertion that Olive was in a t t e n t iv e . Instead, as we have noted, he argued that inattentiveness was not " e n o u g h reason for them to strike her." This court has rejected Batson claims i n v o lv i n g similar circumstances, where more than one reason is given for a s t r ik e , and the Batson challenger fails to rebut one of the reasons. In Woodward, t h e prosecutor explained that he struck one prospective juror because she was u n r e s p o n s iv e , hostile, and had relatives who worked in the prison system. 580 F .3 d at 340. Because the trial court made no finding with respect to hostility, o u r court did not presume that the trial court credited the prosecutor's assertion o f that reason for the strike. Id. Nevertheless, because Woodward did not offer a n y rebuttal to the prosecutor's assertion that the prospective juror was u n r e s p o n s iv e , our court concluded that the state court's decision that the strike w a s not discriminatory was not unreasonable. Id. In Brown, the prosecutor s t r u c k a black venire member who had a conviction for resisting arrest, but did n o t strike a white venire member who had a DUI conviction. 553 F.3d at 796. This court concluded that the defendant's Batson claim nevertheless failed, b e c a u s e the prosecutor had given a second, legitimate reason for the strike of the b la c k venire member: his failure to report on his juror questionnaire a second, m o r e recent criminal conviction. Id. T h e final reason Stevens cites in support of his Batson claim is the district a t t o r n e y 's office's history of racial discrimination in jury selection.7 The alleged

As further evidence of the prosecutor's racial motive in striking Olive, Stevens points to a comment that the prosecutor made in connection with the prosecutor's Batson claim that the defense was discriminating against female jurors on the basis of their gender. After defense counsel explained that he struck a female juror because her middle name indicated that she might be related to the warden at the prison in Columbia, Mississippi, the prosecutor responded: "If that's acceptable, then every challenge we call for a black man, will [sic] use their middle name and say he's related to somebody on death row." The State counters that

7

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No. 09-70009 p r io r pattern of discrimination in this county also was not raised before the state c o u r t and, therefore, is not before us. Were we to examine it, we find no

r e v e r s ib le error in the district court's assessment of this evidence. Having considered all of the circumstances, we conclude that the M is s is s ip p i Supreme Court's decision that the trial judge allowed the strike of O liv e because it implicitly credited the prosecutor's assertion of inattentiveness, a n d its decision to defer to the trial judge's implicit factual finding, is not an u n r e a s o n a b le application of Batson and Snyder. Inattentiveness is a racen e u t r a l reason. Defense counsel did not dispute the prosecutor's assertion that O liv e was inattentive; instead, he argued that inattentiveness was not a valid r e a s o n to strike her. Although the trial court did not make an express factual d e t e r m in a t io n that Olive was inattentive, or that the prosecutor credibly a s s e r t e d that reason as a basis for the strike, it nevertheless permitted the strike a ft e r having rejected the only other reason that the prosecutor offered for the s t r ik e . Under AEDPA, deference is due to the trial judge's implicit finding that t h e prosecutor credibly asserted inattentiveness as a reason for the strike. We n o w turn to consider Stevens's request for an expansion of the COA. B. S t e v e n s asks us to expand the COA to include his claim that he was denied h is right to due process because, although counsel was appointed to represent h im in state post-conviction proceedings, as is his right under Mississippi law, t h a t representation was so extremely deficient that he was denied the possibility o f meaningful relief.

the prosecutor was not making a racial remark, but instead was attempting to show a lack of basis for the defense strikes of females. The State asserts that, taken in context, the comment does not show any racial animus and it is not an indication that the prosecutor's reason for the strike of Olive was pretextual. We note that Stevens did not cite this remark by the prosecutor in support of his Batson claim in the trial court and thus we will not consider it.

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No. 09-70009 T o obtain a COA, Stevens must make "a substantial showing of the denial o f a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, he m u s t demonstrate that "jurists of reason could disagree with the district court's r e s o lu t io n of his constitutional claims or that jurists could conclude the issues p r e s e n t e d are adequate to deserve encouragement to proceed further." Miller-El I , 537 U.S. at 327 (citation omitted). "[A] claim can be debatable even though e v e r y jurist of reason might agree, after the COA has been granted and the case h a s received full consideration, that petitioner will not prevail." Id. at 338. The S u p r e m e Court has instructed that, in making the decision whether to grant a C O A , the court must limit its examination to a "threshold inquiry," which c o n s is t s of "an overview of the claims in the habeas petition and a general a s s e s s m e n t of their merits." Id. at 327, 336. The court cannot deny a COA b e c a u s e it believes the petitioner ultimately will not prevail on the merits of his c la im s . Id. at 337. On the other hand, however, "issuance of a COA must not be p r o forma or a matter of course." Id. "While the nature of a capital case is not o f itself sufficient to warrant the issuance of a COA, in a death penalty case any d o u b t s as to whether a COA should issue must be resolved in the petitioner's fa v o r ." Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (brackets, internal q u o t a t io n marks, and citations omitted). S t e v e n s acknowledges that there is no constitutional right to the provision o f capital post-conviction counsel. He contends, however, that the Mississippi S u p r e m e Court held that the Mississippi Constitution provides such a right. He a s s e r t s that the Mississippi Legislature, by creating the Mississippi Office of C a p it a l Post-Conviction Counsel (MOCPCC) to provide legal representation for d e a th -s e n te n c e d prisoners in post-conviction proceedings, recognized that right a n d , in so doing, created a life and liberty interest that is protected by the due p r o c e s s clause. He insists that he is not arguing that his state post-conviction c o u n s e l was ineffective. Instead, he asserts that he was denied his state law 18

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No. 09-70009 r ig h t to the assistance of post-conviction counsel as a result of inadequacies in t h e MOCPCC, including lack of funding, personnel problems, and interference b y the Chief Justice of the Mississippi Supreme Court and the Mississippi A t to r n e y General's office. S t e v e n s relies on Jackson v. State, 732 So. 2d 187 (Miss. 1999), for the p r o p o s it io n that in Mississippi, the state post-conviction process is part of the a p p e a l process in death penalty cases. In Jackson, the Mississippi Supreme C o u r t stated that "in capital cases, state post-conviction efforts, though c o lla t e r a l, have become part of the death penalty appeal process at the state l e v e l." Id. at 191. Stevens contends that this fact distinguishes his case from p r i o r cases which have held that a prisoner is not entitled to the effective a s s is t a n c e of counsel in post-conviction proceedings. Stevens asserts that b e c a u s e he had a right, under state law, to state post-conviction counsel as part o f the appeal process, the Due Process Clause guarantees that it cannot be in t e r fe r e d with by the State. " S t a t e s have no obligation to provide this [post-conviction] avenue of relief, a n d when they do, the fundamental fairness mandated by the Due Process C la u s e does not require that the State supply a lawyer as well." Pennsylvania v . Finley, 481 U.S. 551, 557 (1987) (citation omitted). Ineffectiveness of postc o n v ic t io n counsel cannot be the grounds for federal habeas relief. Martinez v. J o h n s o n , 255 F.3d 229, 241 (5th Cir. 2001); see also 28 U.S.C. § 2254(i) ("The in e ffe c t iv e n e s s or incompetence of counsel during Federal or State collateral p o s t -c o n v ic t io n proceedings shall not be a ground for relief in a proceeding a r is in g under section 2254."). Infirmities in state habeas proceedings do not c o n s t it u t e grounds for relief in federal court. Beazley v. Johnson, 242 F.3d 248, 2 7 1 (5th Cir. 2001) (holding that ineffective state process and ineffective state h a b e a s counsel did not excuse petitioner from exhausting claims in state court).

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No. 09-70009 T h e district court's opinion contains a discussion of the "troubled history" o f the MOCPCC, including inadequate staffing and a lack of adequate funding. The first MOCPCC director, C. Jackson Williams, submitted an affidavit in w h ic h he explained the difficulties that he experienced during his tenure as d ir e c t o r . Because he thought that the workload could not be handled effectively, W illia m s contracted with private attorneys to represent some of the petitioners. However, the account from which those attorneys were to be paid was never fu n d e d by the Mississippi Legislature. Furthermore, the Chief Justice of the M is s is s ip p i Supreme Court discouraged Williams from hiring attorneys from o u ts id e the State, despite the fact that there were few attorneys within the state w h o were qualified to represent capital petitioners. In addition, the Mississippi A t to r n e y General's Office opposed the appointment of private counsel in some c a s e s , on the grounds that they were "unqualified" to handle death penalty c a s e s . The district court found that "there is no doubt that the Office was o p e r a t in g with a substantial workload and that the State of Mississippi's in v o lv e m e n t in removing private counsel from cases added to the work required fr o m the Office." O n September 28, 2001, shortly after Stevens's conviction was affirmed on d ir e c t appeal on September 13, 2001, the Mississippi Supreme Court ordered the M O C P C C to select counsel to represent Stevens in state post-conviction p r o c e e d in g s . On October 22, 2001, MOCPCC Director Williams moved for

a d d it io n a l time to locate counsel for Stevens. In the motion, Williams stated t h a t the MOCPCC could not accept any new clients for approximately six weeks a n d that he could not exercise his statutory authority to locate private counsel t o represent Stevens because the Legislature had not appropriated any money fo r the Special Capital Post-Conviction Counsel Fund. In December 2001,

W illia m s resigned his position as MOCPCC director and moved to withdraw as

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No. 09-70009 c o u n s e l for Stevens. When Williams left, the MOCPCC had been assigned t w e n t y -s e v e n cases. R o b e r t Ryan was appointed as director of the MOCPCC in January 2002. On March 13, 2002, Ryan wrote to the Mississippi Supreme Court, stating that t h e MOCPCC would represent Stevens in post-conviction proceedings. In

O c t o b e r 2002, the MOCPCC lost its only experienced investigator. The two M O C P C C staff attorneys had both resigned from their positions by January 2 0 0 3 , and Ryan was the only attorney in the office until mid-February. Ryan file d four petitions, including the one for Stevens, in a one-week period in F e b r u a r y 2003. He filed a supplemental petition on May 5, 2003. S t e v e n s contends that because of the staffing and funding problems at the M O C P C C , and the interference by the Mississippi Supreme Court and the A t to r n e y General's Office, the attorney who filed his state post-conviction p e t it io n did not have time to do it right and did not have any discovery or in v e s t ig a t io n , and thus he had no possibility of obtaining meaningful relief. S t e v e n s insists that he is not asserting that there were infirmities in the state h a b e a s process; instead, he is arguing that there was a complete breakdown in t h e state process in that the MOCPCC was unable to provide adequate r e p r e s e n t a t io n because of the overwhelming caseload, inadequate staffing and fu n d in g , and interference by the Mississippi Supreme Court and the Attorney G e n e r a l's Office. T h e district court found that there was a period during which the M O C P C C was understaffed, underfunded, and overloaded with cases, and that t h e situation was aggravated by the State's interference in some petitioners' r e p r e s e n t a t io n . However, the district court found that Stevens's case was not a s s ig n e d to the MOCPCC until late in that period and, by the time his postc o n v ic t io n petition was filed, the workload had lessened and new attorneys had b e e n hired. Furthermore, Stevens was permitted to file a supplemental petition. 21

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No. 09-70009 T h e district court concluded that, although the history of the MOCPCC p r e s e n t s troubling questions, Stevens's argument suffers from significant w eakn esses: First, the Mississippi Supreme Court said that its opinion in

J a c k s o n did not establish a right to competent post-conviction counsel. See Wiley v . State, 842 So. 2d 1280, 1285 (Miss. 2003) (Jackson v. State did not create a c o n s t it u t io n a l right to post-conviction counsel or create any liberty interest in h a v in g state-compensated post-conviction counsel). Second, the State was not c o n s t it u t io n a lly obligated even to provide post-conviction review. Finally, it was n o t clear that Stevens suffered any individual prejudice from the problems in the M O C P C C , because both a petition and a supplemental petition were filed on his b e h a lf. R e a s o n a b le jurists would not find the district court's decision on this issue d e b a t a b le . Arguments similar to those raised by Stevens have been rejected r e p e a t e d ly by this court. In Matchett v. Dretke, 380 F.3d 844 (5th Cir. 2004), t h is court denied a COA, noting that this court has, "on at least two occasions, . . . rejected contentions like Matchett's that Texas's statutory provision of postc o n v ic t io n counsel to death-row offenders requires that the post-conviction p r o c e s s must comply with the Due Process Clause." Id. at 849 (citing Ogan v. C o c k r e ll, 297 F.3d 349, 357 (5th Cir. 2002); In re Goff, 250 F.3d 273, 275-76 (5th C ir . 2001)). In Ogan, this court denied a COA for the petitioner's claim that "the T e x a s courts' appointment of incompetent counsel was a violation of his s t a t u t o r y right to competent counsel, as well as a violation of his due process r ig h t s under the Fourteenth Amendment." 297 F.3d at 357. Ogan's argument w a s similar to Stevens's: He asserted that because Texas had chosen to provide p o s t -c o n v ic t io n review and had guaranteed the appointment of counsel, "it must fo llo w the statutory requirements in accordance with due process." Id. I n Bishop v. Epps, a Mississippi death row inmate argued that

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No. 09-70009 d u e to the actions of the [Mississippi Supreme C]ourt in denying h im additional time, any potential procedural defaults that might h e r e be imposed against his claims should be excused due to his in a b ilit y to raise such claims at the State court level. Petitioner a s s e r t s that the heavy workload of the [MOCPCC], combined with t h e lack of qualifications of post-conviction counsel, denied him any p o s s ib le redress to his constitutional violations. B is h o p v. Epps, No. 1:04CV319-MPM, 2007 WL 2363465, at *6 (N.D. Miss. Aug. 1 6 , 2007) (unpublished). The district court denied habeas relief, and this court d e n ie d a COA, characterizing the claim as an ineffective counsel claim. Bishop v . Epps, 265 F. App'x 285, 290 (5th Cir. 2008) (unpublished) ("Because Bishop h a s no right to counsel in post-conviction proceedings, he can allege no u n c o n s t it u t io n a l denial of the effective assistance of post-conviction counsel."). O t h e r courts have also rejected due process challenges similar to the one a s s e r t e d by Stevens. See Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996) (" M o r a n may not avoid our holding that a petitioner is not entitled to effective a ssista n ce of counsel during habeas proceedings by alleging a due process, rather t h a n a Sixth Amendment, violation."); Simpson v. Norris, 490 F.3d 1029, 1033 (8 t h Cir. 2007) (rejecting habeas petitioner's claim that because state statute " r e q u ir e d the state to appoint an attorney to represent him in post-conviction p r o c e e d in g s , the state had a duty to provide him with effective assistance of c o u n s e l and its failure to do so deprived him of due process"). In Simpson, the E ig h t h Circuit said that in Pennsylvania v. Finley, 481 U.S. 551 (1987), "[t]he S u p r e m e Court has . . . left little doubt as to its view that a state's decision to g r a n t a right to counsel in post-conviction proceedings does not give rise to a due p r o c e s s claim if counsel performs deficiently." 490 F.3d at 1034. A c c o r d in g ly , we DENY Stevens's request to expand the COA. III.

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No. 09-70009 F o r the foregoing reasons, the district court's denial of habeas relief on S t e v e n s 's Batson claim is AFFIRMED, and Stevens's request for an expanded C O A is DENIED.

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No. 09-70009

H A Y N E S , Circuit Judge, concurring in the judgment:

I concur in the denial of the request for an expanded COA. Although I c o n c u r in the decision to affirm the district court regarding the strike of juror O liv e , I do so only because of the highly deferential review standard required by A E D P A . The state trial court's approach to deciding the Batson challenge leaves m u c h to be desired, and some of the comments by counsel and colloquies in the t r a n s c r ip t of the trial are disturbing and inappropriate. Had this been a direct a p p e a l of the state trial court's decision, my decision very likely would have been d iffe re n t. Applying the precedents of the Supreme Court and our court

c o n s t r u in g AEDPA, however, I am required to concur in the affirmance.

25