Lawrence v. Secretary, Department of Corrections et al
Filing
16
ORDER that Lawrence's petition is denied. The Clerk is directed to enter judgment against Lawrence and to close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 7/21/2017. (MLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
OMAR XAVIER LAWRENCE,
Petitioner,
v.
Case No. 8:16-cv-2327-T-33MAP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
______________________________/
ORDER
Omar Xavier Lawrence, a Florida inmate, filed a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1.) He challenges his convictions entered by the
circuit court for the Sixth Judicial Circuit, in and for Pinellas County. Respondent filed a
response, which does not challenge the petition’s timeliness. (Doc. 10.) Lawrence filed
a reply. (Doc. 15.) Upon consideration, the petition is denied.
PROCEDURAL HISTORY
Lawrence was convicted after a jury trial of one count of first degree murder with a
firearm (count one) and one count of attempted second degree murder with a firearm
(count two). (Doc. 12, Ex. 11, pp. 101-02.) The state trial court sentenced him to life in
prison on count one, and 25 years in prison on count two. (Doc. 12, Ex. 25, pp. 292-93.)
The state appellate court per curiam affirmed. (Doc. 12, Ex. 5.)
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
Page 1 of 20
proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert.
denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court
review of a state court adjudication, states:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this
deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a federal
habeas court to grant a state prisoner's application for a writ of habeas
corpus with respect to claims adjudicated on the merits in state
court. . . . Under the “contrary to” clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by
this Court on a question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable . . . an unreasonable application is different from
an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court's ruling
Page 2 of 20
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown
v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the
correctness per se, of the state court decision that [the federal court is] to decide.”).
Lawrence bears the burden of overcoming by clear and convincing evidence a state court
factual determination. 28 U.S.C. § 2254(e)(1).
The purpose of federal review is not to re-try the case. “The [AEDPA] modified a
federal habeas court’s role in reviewing state prisoner applications in order to prevent
federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the
extent possible under law.” Cone, 535 U.S. at 693. As Lawrence raises claims of trial court
error in his habeas petition, the relevant state court decision is the state appellate court’s
per curiam affirmance on direct appeal. Although issued without discussion, the state
appellate court’s decision warrants deference under § 2254(d)(1) because “the summary
nature of a state court's decision does not lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245
(2002). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a
state court and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”).
DISCUSSION
Grounds One and Three
Page 3 of 20
In Ground One, Lawrence alleges that the trial court erred in not allowing him to
impeach prosecution witness Andre Hoston with a prior inconsistent statement, in violation
of his Fifth, Sixth, and Fourteenth Amendment rights. In Ground Three, he contends that
the trial court erred by failing to allow him to confront Hoston “with evidence Hoston
provided false information by way of a written statement to law enforcement concerning his
name, address, [and] social security number,” contrary to Crawford v. Washington, 541
U.S. 36 (2004). (Doc. 1, p. 12.)
Lawrence’s claims are barred from review. A federal habeas petitioner must exhaust
his federal claims in state court before presenting them in his petition.
28 U.S.C.
§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner
must give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”). The requirement of exhausting state
remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” his
claim in each appropriate state court and alerts that court to the federal nature of the claim.
28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).
Lawrence did not present the federal nature of the claims to the state court on direct
appeal. (Doc. 12, Ex. 2, pp. 22-33, 36-38.) He argues to the contrary in his reply, asserting
that he alleged a “due process violation” and that Florida’s Evidence Code is “patterned
after the Federal Rules of Evidence.” (Doc. 15, pp. 2, 8.) However, Lawrence in his
appellate brief did not specifically allege a violation of his federal rights, cite any federal
decisions, or refer to any federal constitutional provisions. (Doc. 12, Ex. 2, pp. 22-33, 3638.) Instead, he relied solely on state law. (Id.) Accordingly, the manner in which he
presented his arguments did not alert the state appellate court that he intended to bring
Page 4 of 20
federal constitutional claims. See Pearson v. Sec’y, Dep’t of Corr., 273 Fed. App’x 847,
849-50 (11th Cir. 2008) (“The exhaustion doctrine requires the petitioner to ‘fairly present’
his federal claims to the state courts in a manner to alert them that the ruling under review
violated a federal constitutional right.”) (citing Duncan v. Henry, 513 U.S. 364, 365-66
(1995)); Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) (“To present a federal
constitutional claim properly in state court, ‘the petitioner must make the state court aware
that the claims asserted present federal constitutional issues.’”) (quoting Snowden v.
Singletary, 135 F.3d 732, 735 (11th Cir. 1998)).
Lawrence cannot return to state court to file an untimely, successive direct appeal.
See Fla. R. App. P. 9.140(b)(3) (a defendant must appeal a final judgment within 30 days
following rendition of a written order imposing sentence). Accordingly, his claims are
procedurally defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) (the
doctrine of procedural default provides “[i]f the petitioner has failed to exhaust state
remedies that are no longer available, that failure is a procedural default which will bar
federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage
of justice exception is established.”). Lawrence does not argue or assert that either
exception applies to overcome the default. Therefore, his claims are barred from review.
Ground Two
The United States Supreme Court has held that striking potential jurors “solely on
account of their race” violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S.
79, 89 (1986). Lawrence claims that the trial court violated his Fifth, Sixth, and Fourteenth
Amendment rights during jury selection by granting the prosecution two peremptory strikes
that were based on prospective jurors’ race. One individual in question, prospective juror
Page 5 of 20
18, stated during voir dire:
DEFENSE COUNSEL]: [ ] [Prospective juror 18]?
PROSPECTIVE JUROR [18]: Yes, sir.
[DEFENSE COUNSEL]: How do you feel about the presumption of
innocence? Do you think that’s the way it ought to be?
PROSPECTIVE JUROR [18]: That’s the way it is.
[DEFENSE COUNSEL]: Well, sometimes things are what they are, but we
don’t agree that’s the way it ought to be. What do you think?
PROSPECTIVE JUROR [18]: Well, you know, that’s the law. I accept the
law.
[DEFENSE COUNSEL]: All right. We’ve had a little bit of a discussion here
about being jurors and what you’d have to do as far as coming up with what
the facts show and what they don’t show. Do you feel like you’re up to the
task?
PROSPECTIVE JUROR [18]: Yes.
[DEFENSE COUNSEL]: You don’t sound very enthusiastic?
PROSPECTIVE JUROR [18]: I just don’t know. I’ve got a lot of personal
stuff. You know, I’m black and he’s black. Originally, that was supposedly
true, you know, about the history where race is concerned. I’m intuitive here.
I know that holds true. I’m being honest.
[DEFENSE COUNSEL]: All right. Well, you recall [the prosecutor] talking
about one of the most important things that we rely on the jurors, is that they
bring their common sense, right?
PROSPECTIVE JUROR [18]: Right.
[DEFENSE COUNSEL]: And common sense is, I guess, a combination of
everything you’ve seen, heard, learned, the hard lessons, the easy lessons,
everything that’s happened to us in the course of our lives, right?
PROSPECTIVE JUROR [18]: Right.
[DEFENSE COUNSEL]: We want you to bring that in here because that helps
them in analyzing the witnesses and the evidence.
Page 6 of 20
PROSPECTIVE JUROR [18]: Right.
[DEFENSE COUNSEL]: Okay. So, you know, I don’t think you need to be
afraid of your perspective. That’s the part of your life that you’re supposed
to bring with you, right?
PROSPECTIVE JUROR [18]: Right.
[DEFENSE COUNSEL]: Okay. Now, I know you’ve heard the words fair and
impartial dozens of times today, but you’ve brought up the fact that you’re
black and Mr. Lawrence is black.
PROSPECTIVE JUROR [18]: Right.
[DEFENSE COUNSEL]: Do you feel that because of that, that you, I guess
do you feel that that would cause you, perhaps, not to be able to be fair to the
State of Florida?
PROSPECTIVE JUROR [18]: I don’t think it would. I’m going to be honest
because of where I come from. Again, it’s going to be a problem based on
my home, and my religion, and my relationship with my people.
[DEFENSE COUNSEL]: Understood. And, of course, not having heard any
of the witnesses, not having heard any of the testimony, don’t you agree that
it’s difficult to assess what problems you may or may not have if you try to
decide what really happened, right?
PROSPECTIVE JUROR [18]: Exactly.
[DEFENSE COUNSEL]: Okay.
THE COURT: Excuse me. I want to jump in here a little bit. Okay.
[Prospective juror 18], you raised an issue that I certainly hear, and I think I
have some basic understanding of, but it also causes me the need to ask you
some more questions. Okay?
PROSPECTIVE JUROR [18]: Yes, ma’am.
THE COURT: All right. So, you stated something that you and I can easily
observe, and since you’re an African American, and so is Mr. Lawrence. I
don’t ask you to leave your common sense or your life experiences at the
door. Do you understand that?
PROSPECTIVE JUROR [18]: Yes.
Page 7 of 20
THE COURT: However, the law says that both sides are entitled to jurors
who can decide this case solely based on the evidence introduced in the
courtroom and the law as I give it to you.
One way of saying that, is that obviously we can’t have a jury that’s going to
decide one way because they’re white, and another way because they’re
black, or vice versa. Are you with me?
PROSPECTIVE JUROR [18]: Yes.
THE COURT: Okay. So I’m not asking you to set aside anything about your
identity as an African American male, but I do need to know if you can assure
me that you can follow the law in this case, and decide this case based on
the evidence as it is admitted here, and the law as I give it to you. Can you
do that?
PROSPECTIVE JUROR [18]: Your Honor, I’m going to be extremely honest
-THE COURT: Yes, sir.
PROSPECTIVE JUROR [18]: - - in the fact that I am the sum total of my life
experiences.
THE COURT: Yes, sir.
PROSPECTIVE JUROR [18]: I can’t conform [sic] myself from those things.
THE COURT: Yes, sir.
PROSPECTIVE JUROR [18]: For a point in time for any particular objective.
THE COURT: Yes, sir.
PROSPECTIVE JUROR [18]: I’m still going to be who I am today.
THE COURT: Yes, sir.
PROSPECTIVE JUROR [18]: I will do the very best I can on any given task,
but, you know.
THE COURT: Okay. Well, let me put it this way. You know, when we talked
about law enforcement officers.
PROSPECTIVE JUROR [18]: Yes.
Page 8 of 20
THE COURT: And one of the things [the prosecutor] said is, can you weigh,
and I think I said something about it at that point, can you weigh the
testimony of the law enforcement officers like you would any other witness?
And I said at one point, I did a series of rules that you’re supposed to use to
evaluate the testimony of the witness. So, can you assure me that you will
evaluate things in this case solely based on the law and the evidence?
PROSPECTIVE JUROR [18]: Yes.
(Doc. 12, Ex. 7, pp. 231-37.)
After prospective juror 18 made these statements, defense counsel addressed the
panel and questioned prospective juror 37:
[DEFENSE COUNSEL]: [ ] Mr. Lawrence is an African American. During the
course of this trial, you will also learn that there are a number of witnesses
who are African Americans. There is a gentleman who will testify, who
actually was shot, who is an African American, and there was a person
involved in a series of events who died, who was an African American.
And that’s just one of those facts that’s just out there. It’s part of this case.
And it is a concern, obviously, as to whether or not anyone in their life
experiences or otherwise, could not be fair and impartial in listening to the
evidence and the testimony in this case regarding these events because of
the involvement of witnesses who are African Americans, or people who may
have been shot who are African Americans.
And it’s a tough question to ask. It’s a hard question to answer, but we’ve got
to know. If anybody feels that that’s going to be a problem sitting as a juror
in this case, we need to know now. Anyone? [Prospective juror 37]?
PROSPECTIVE JUROR [37]: To some extent, I will do the best I can, but I
agree with what he says. I do understand the race issue with Mr. Lawrence,
but, again, I will do the best I can.
THE COURT: Okay. [Prospective juror 37], I ask you the same questions that
I asked [Prospective juror 18] then. We don’t expect you to leave your
common sense at the door. We don’t expect you to not have lived the life
that you have lived. But at the same time you can’t use a different standard
than everybody else in the room because you’re an African American male
instead of a Caucasian male, or female, or African American female.
PROSPECTIVE JUROR [37]: I understand.
Page 9 of 20
THE COURT: So can you assure me that you can decide this case solely
based on the law as I give it to you and the evidence introduced in this
courtroom?
PROSPECTIVE JUROR [37]: Yes, I can.
(Id., pp. 240-42.)
In addition, prospective juror 37 was questioned about his ability to follow the law
of principals.1 In giving an example applying the law of principals, the prosecutor stated
that a getaway driver in a bank robbery could be guilty of murder if a co-conspirator went
into the bank and shot someone. Another venireperson, prospective juror 48, stated that
she “[had] a problem with” the law, stating, “The guy in the car might not be guilty of
murder, because he didn’t actually pull the trigger. The man who pulled the trigger is the
one guilty.” (Id., p. 203.) The prosecutor inquired further of the panel:
PROSECUTOR]: [ ] Does anyone else feel like [prospective juror 48], anyone
else? Yes, sir? [Prospective juror 37]?
PROSPECTIVE JUROR [37]: I feel the same way. I agree with her, the guy
who pulled the trigger, he’s the one who’s guilty.
[PROSECUTOR]: Anyone else? We have lots of hands popping up now.
THE COURT: So, [Prospective juror 37], if the law that I gave you says
something else, could you follow the law that I gave you, or would you
replace the law that I gave you with your own opinion?
PROSPECTIVE JUROR [37]: I guess that depends on the situation. If the
1
Florida’s law of principals provides:
Whoever commits any criminal offense against the state, whether felony or misdemeanor,
or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such
offense is committed or is attempted to be committed, is a principal in the first degree and
may be charged, convicted, and punished as such, whether he or she is or is not actually or
constructively present at the commission of such offense.
§ 777.011, Fla. Stat.
Page 10 of 20
guy driving the car, if he didn’t pull the trigger, then I don’t feel like he’s part
of who killed him.
THE COURT: The question for potential jurors here is not whether they agree
with the law. I can assure you that I don’t always agree with the law, but that
doesn’t mean that I don’t have to follow it in my job.
PROSPECTIVE JUROR [37]: Right, I’m going to follow it.
THE COURT: Okay. So, if the law was that the guy driving the car, if the
evidence supported those facts, and the law that I gave you, and this is a
hypothetical question, but if the evidence supported those facts and the law
that I gave you essentially demonstrated that the person driving the car was
just as guilty as the person pulling the trigger, would you be able to follow
that law, or would you disregard it and say I don’t agree with it so I’m ignoring
it?
PROSPECTIVE JUROR [37]: I guess I could follow it. I wouldn’t ignore it.
THE COURT: Okay. And I’m not trying to be clever here, but this is
something that you all really need to address. It is truly not a matter of
whether you agree with the law. The law is written by the Legislature in
Tallahassee.
The law will be given to you along with instructions that you can take back to
the jury room after I read them. But it is essential that the people who are
selected to sit on the jury, can assure us that they will follow that law, even
if they think it’s odd or peculiar. They’d write it a different way. Like I said,
there are lots I’d write a different way, but nobody has asked me to do that
job.
PROSPECTIVE JUROR [37]: I can follow it.
THE COURT: Okay. So, will you follow the law as I give it to you whether
you agree with it personally or not, sir?
PROSPECTIVE JUROR [37]: Yes, ma’am.
(Id., pp. 204-06.)
A court faced with a Batson challenge engages in a three-step analysis to determine
whether the strike is permissible:
(1) the defendant must establish a prima facie case to support an inference
Page 11 of 20
of purposeful discrimination; (2) if a prima facie case is established, the
prosecutor must provide race-neutral reasons for the strike; and (3) the trial
court then has “the duty to determine if the defendant has established
purposeful discrimination.”
Taylor v. Culliver, 638 Fed. App’x 809, 814 (11th Cir. 2015), cert. denied, 137 S.Ct. 494
(2016), reh’g denied, 137 S.Ct. 844 (2017) (citing Batson, 476 U.S. at 96-98).
After the defense objected to the state’s proposed strikes, the prosecutor gave his
asserted race-neutral reasons for the strikes and the trial court granted the strikes.
Accordingly, the first element of the Batson inquiry is not at issue. See Hernandez v. New
York, 500 U.S. 352, 359 (1991) (“Once a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant had made a prima
facie showing becomes moot.”)
However, Lawrence argues that the prosecutor’s reasons for seeking to strike
prospective jurors 18 and 37 were not race-neutral, thus failing the second part of the
Batson inquiry. The prosecutor gave his reasons for seeking to strike prospective juror 18:
THE COURT: Okay. You’ve made timely objections, and you’ve requested
reasons for the strike. Racial group: That is African American male. I’m
going to think this through. Both sides can have their time. Go ahead,
[prosecutor], you’re first.
[PROSECUTOR]: Judge, he said since he is black and the Defendant is
black, he’s not sure if he can be objective and judge the facts. He may be
intuitive, which means to me going outside of the facts and the law and
making his decision. I’m not sure how much that would be a part of the
decision-making process. He wanted to be fair to us.
You indicated he said he could be fair. Perhaps, not enough to be cause,[2]
but I indicated that I had great concerns that he was going to be bringing in
2
The trial court rejected the prosecution’s cause challenges to prospective jurors 18 and 37.
Page 12 of 20
his shoes [sic] into the decision-making process that are not appropriate.
He brought that up and the Defense questioned him. That is race-neutral.
If he was a white person making those same statements, it wouldn’t make
any difference. The fact that an African American is making those
statements, shouldn’t make any difference. Race is not an issue in this
particular case.
He’s indicated that race may become an issue. He may not go purely
objectively on the facts, and go outside of that, which he is not supposed to
do.
(Doc. 12, Ex. 7, pp. 253-55.)
The prosecutor also explained his reasons for seeking to strike prospective juror 37:
THE COURT: Okay. So at this time the objection to [prospective juror 37] as
an African American male. [Prosecutor], go ahead and put it on the record
again your reasons for the strike.
[PROSECUTOR]: Judge, he said that he adopted everything [prospective
juror 18] said, which was intuitive. He said he can’t put the race issue behind
him. Will do the best he can, but because the Defendant is black he’s going
to have problems in those kind of decision-making processes ignoring race
as an issue. And since he adopted everything [prospective juror 18] said,
plus added to it, those are my race-neutral reasons.
(Id., pp. 260-61.) The prosecutor added that prospective juror 37 was “the one that had a
problem with the law, following the law, as regards to principals. He had a problem with
that as well.” (Id., p. 262.)
The record supports the conclusion that the prosecutor provided a race-neutral
reason for the strikes in accordance with Batson. The state must be “clear and reasonably
specific” in providing “legitimate reasons” for using its peremptory strikes. Batson, 476 U.S.
at 98 n.20. However, “[t]he reason given [by the prosecutor] need not be a good reason;
it can be irrational, silly, implausible, or superstitious, as long as it is facially race-neutral.”
United States v. Lovett, 662 Fed. App’x 838, 844 (11th Cir. 2016) (citing United States v.
Page 13 of 20
Hill, 643 F.3d 807, 837 (11th Cir. 2011)). See also Hernandez, 500 U.S. at 360 (“At [the
second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered
will be deemed race neutral.”); United States v. Walker, 490 F.3d 1282, 1293 (11th Cir.
2007) (“Under Batson, almost any plausible reason can satisfy the striking party’s burden,
as long as the reason is race . . . neutral.”).
The prosecutor believed that the two prospective jurors would not be able to
consider the case based solely on the evidence and the law. The prosecutor specifically
noted that prospective juror 18 said he was “intuitive.” The prosecutor stated that
prospective juror 37 agreed with prospective juror 18 and also expressed hesitation about
following the law of principals. Lawrence fails to establish that the potential inability to
decide the case based on the evidence presented and in accordance with the applicable
law is not “facially race-neutral.” Lovett, 662 Fed. App’x at 844. Thus, the record supports
the conclusion that the prosecutor provided race-neutral rationales for seeking to strike the
two prospective jurors, and the state court did not err in rejecting Lawrence’s claim based
upon this step in the Batson inquiry.
Under the third Batson element, the state court was required to determine whether
Lawrence had established purposeful discrimination by the prosecutor in moving to strike
prospective jurors 18 and 37. Lawrence argues that the state court unreasonably applied
Batson, and that the trial court abused its discretion in “making a credibility determination
of an allegedly race neutral reason given by the State.” (Doc. 1, p. 9.)
After the prosecutor provided his reasons for seeking to strike prospective juror 18,
defense counsel argued:
Page 14 of 20
[Prospective juror 18] indicated that he felt the way he did because of his
race. And he shared with us the fact that he could not divorce himself of the
experiences that he’s had as a black person, and that he was going to
analyze things from that perspective. And because of that, I don’t see how
it can be race-neutral.
(Doc. 12 , Ex. 7, p. 255.)
The trial court then granted the strike of prospective juror 18:
THE COURT: Well, the subject and his view of things would involve race,
they’re correct. But the problem that he said that he would have; that is, he
would take his experience. Had he not volunteered, you would have been off
on that.
I want Mr. Lawrence to have a panel that has some African American jurors
on it. Now, I know it’s not quite as important as some people might argue in
the case in which there’s a white victim and an African American Defendant.
Particularly, with some of the prejudice that is in our society.
However, in this analysis I’m supposed to look at whether [the prosecutor’s]
reason is a reason that a lawyer in selecting a jury would pick as the kind of
thing as a reasonable basis for striking someone.
I think just because some of [prospective juror 18's] thoughts relate to his
race, do not mean that he is being stricken because he’s an African
American. He was exceptionally honest. I imagine as honest or more honest
than anybody in that group. And because he was, he made a record that
puts us all in a difficult position right now.
...
Based on [prospective juror 18’s] comments regarding some uncertainty that
he had about how he would judge it intuitively. I mean, I really respected the
man. He was trying to be very honest in sharing with you, [defense counsel],
all the things that might come into play in deciding this case.
I’ll find that those are legally-sufficient reasons that are race-neutral as
considered by the law for a challenge. And I will grant the challenge.
(Id., pp. 255-58.)
Defense counsel also argued against striking prospective juror 37, stating:
I don’t recall that he adopted everything [prospective juror 18] said. I think
Page 15 of 20
he indicated that basically that he was in agreement with [prospective juror
18] to some extent, to the fact that he was black, that he had life experiences
et cetera that would honestly become part and parcel of his thinking in this
case.
(Id., p. 261.) Counsel asserted that the prosecutor sought to exclude prospective juror 37
because of his personal beliefs stemming from his experiences as a black individual, and
argued that this was not a race-neutral reason. (Id.)
After hearing from the parties, the court granted the strike of prospective juror 37:
THE COURT: He did eventually say that he would agree to follow that law [of
principals], but the basis for which he was finding problems with having to do
that originally, was very similar to [prospective juror 48] that we struck for that
reason.
Okay. I repeat, I was thinking it was wonderful if Mr. Lawrence had a jury
that mostly African Americans, but I am not here to judge whether I would like
a person on the jury or not. I would be happy to have all these gentlemen
that have been stricken, but that’s not the issue.
And I don’t think, by the State law, that it means that lawyers can no longer
evaluate witnesses on other qualities if they are African American and the
challenge is based on that racial question.
So, I will grant the preempt. . . . He clearly didn’t like the law about the bank
robber and the other robber who was out in the car. He didn’t want to follow
that and that’s the kind of issue that, whatever race somebody is, a neutral
point for a peremptory challenge.
(Id., pp. 262-63.)
The court further addressed the challenges to both prospective jurors 18 and 37:
Let me be clear, I’d rather [prospective juror 37] was on this jury. I would
rather [prospective juror 18] was on this jury. It would be great for me if
[prospective juror 13][3] was on this jury. The question is not, though, whether
I think it would be nice if they were on this jury.
3
Prospective juror 13 was another black prospective juror whom the State challenged with a
peremptory strike. Lawrence does not challenge the strike of prospective juror 13.
Page 16 of 20
The question is whether [the prosecutor] has laid a sufficient legal record. I
think that I am very forceful with the State on those issues. Particularly,
when I have any question about whether it is essentially racially motivated.
These questions, well [prospective juror 18] particularly, because
[prospective juror 37] does have a separate issue, are difficult issues
because [prospective juror 18] was using powers of observation and
stemming from his thought process that are things that are to be considered
by the State.
I don’t think the case law means that if [prospective juror 18] says I may look
at this differently because I am a black man, that that means he can’t be
challenged. I don’t think that’s what the law means.
(Id., pp. 263-65.)
To obtain federal habeas relief on the third step of the Batson analysis, Lawrence
must show that the state court unreasonably applied Batson by failing to consider all
relevant circumstances in reaching its conclusion, or, if the state court reasonably applied
Batson, by showing that the state court unreasonably determined the facts:
[W]e have held a state court unreasonably applies Batson’s third-step under
§ 2254(d)(1) when it does “not consider ‘all relevant circumstances’ in its
analysis of the trial court’s ruling.” McGahee, 560 F.3d at 1261; see also id.
at 1264. If the state court does not unreasonably apply federal law at
Batson’s third-step–that is, the state court “confront[s] the decisive question
and evaluate[s] the credibility of the prosecution’s explanation, in light of all
evidence with a bearing on it,” Parker v. Allen, 565 F.3d 1258, 1270 (11th Cir.
2009) (quotation marks and citation omitted)–the petitioner may obtain relief
only by showing that the state court’s conclusion was an unreasonable
determination of the facts under § 2254(d)(2). See id. at 1271.
Brannan v. GDCP Warden, 541 Fed. App’x 901, 904 (11th Cir. 2013). Lawrence bears the
burden of showing purposeful discrimination. See Purkett v. Elem, 514 U.S. 765, 768
(1995) (“[T]he ultimate burden of persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike.”); Adkins v. Warden, Holman CF, 710 F.3d
1241, 1250 (11th Cir. 2013) (“[I]t is a defendant’s burden to prove purposeful discrimination
Page 17 of 20
at Batson’s third step.”) (citations omitted).
In reaching its determination at the third step of Batson, the state court was required
to consider all relevant circumstances. See id. at 1252 (“Because courts must weigh the
defendant’s evidence [of purposeful discrimination] against the prosecutor’s articulation of
a neutral explanation, courts are directed by Batson to consider all relevant circumstances
in the third step of the Batson analysis. Failure to do so is an unreasonable application of
Batson within the meaning of § 2254(d)(1).”) (internal quotation marks and citation omitted).
Lawrence does not show that the state court unreasonably applied Batson. The
court considered the prospective jurors’ voir dire statements, the prosecutor’s rationale for
the strikes, and defense counsel’s arguments in analyzing and evaluating the propriety of
the strikes. The court also noted that the State accepted two black jurors. (Doc. 12, Ex.
7, pp. 257, 266.)
Furthermore, with respect to prospective juror 37, when defense counsel argued that
the law of principals might not apply in this case, the court stated it did not “have a problem”
with his being questioned about principals during voir dire “having sat through the first trial.”
(Id., p. 264.)4 Thus, the court considered whether the reason asserted by the prosecutor
was relevant to the case. Additionally, the court noted that although prospective juror 37
“eventually” said he would agree to follow the law of principals, “the basis for which he was
finding problems with having to do that originally, was very similar to [prospective juror 48]
that we struck for that reason.”
(Id., p. 262.)
The court therefore noted that the
prosecutor’s reason was applied to another prospective juror, and there is no indication
4
Lawrence’s first trial ended in a mistrial. (See Doc. 12, Ex. 25, p. 271.)
Page 18 of 20
from the record that this other prospective juror was black. Lawrence does not identify any
other relevant circumstances that the court failed to consider at this step of the inquiry.
In sum, the record supports a finding that the court considered all relevant
circumstances in determining whether Lawrence demonstrated purposeful discrimination
in light of the prosecutor’s reasons for using the peremptory strikes. Accordingly, he fails
to show that the state court unreasonably applied Batson.
Nor does Lawrence establish that the court unreasonably determined the facts in
accepting the prosecutor’s reasons and rejecting his allegation of purposeful discrimination.
The trial court’s findings in making its decision are entitled to deference. See Batson, 476
U.S. at 98 n. 21 (“Since the trial judge’s findings . . . largely will turn on evaluation of
credibility, a reviewing court ordinarily should give those findings great deference.”); Adkins,
710 F.3d at 1251 (“A federal habeas court must presume the [state] court’s factual findings
to be sound unless [the petitioner] rebuts the presumption of correctness by clear and
convincing evidence.”) (internal quotation marks and citation omitted). Although Lawrence
asserts that the trial court abused its discretion, he has not explained how this is so or
detailed any basis upon which to conclude that the court unreasonably determined the
facts. He has not rebutted the presumption of correctness by clear and convincing
evidence.
Accordingly, Lawrence does not show that the state court’s decision rejecting his
claim resulted in an unreasonable application of Batson or was based on an unreasonable
determination of the facts. Lawrence is not entitled to relief on Ground Two.
It is therefore
ORDERED that Lawrence’s petition (Doc. 1) is DENIED. The Clerk is directed to
Page 19 of 20
enter judgment against Lawrence and to close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is ORDERED that Lawrence is not entitled to a certificate of appealability (COA).
A 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(c)(1). Rather, a district court must first
issue a COA. Id. “A [COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a
showing, Lawrence “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)). Lawrence has not made the requisite showing in these circumstances. Finally,
because Lawrence is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on July 21, 2017.
Omar Xavier Lawrence; Counsel of Record
Page 20 of 20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?