Hogues v. Quarterman , 312 F. App'x 684 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2009
No. 07-11159
Charles R. Fulbruge III
Clerk
SCOTT DARREL HOGUES,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:07-CV-759
Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Scott Hogues appeals the denial of his petition for a writ of habeas corpus.
We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 07-11159
I.
Hogues was convicted by a Texas state jury of aggravated assault of a pub-
lic servant and evading arrest. He filed the instant petition after his convictions
were sustained on state direct and collateral review. He asserts that during jury
selection, the state exercised its peremptory challenges in a racially discrimina-
tory fashion, violating his rights under the equal protection clause of the Four-
teenth Amendment under Batson v. Kentucky, 476 U.S. 79 (1986). The district
court denied relief but granted a certificate of appealability (“COA”) as to the
Batson claim.1
The state used five of its ten peremptory challenges to strike black jurors
from the panel, so only one of six black veniremen was seated. Hogues objected
at trial, and the state provided race-neutral explanations.
In his brief, Hogues addresses only one of the strikes, of Chatea Mills.2
The state explained that it had struck Mills because of her “relationship [to] peo-
ple who were in the penitentiary,” referring to her husband, who was “on [two
and a half years of] felony probation currently” and to her brother-in-law, “who’s
convicted of a felony, who’s in the pen.” Because the state viewed Hogues’s pro-
secution as “a punishment case,” it struck veniremen who might be unable to
treat Hogues punitively.3
The trial court inquired as to why the state had not struck two white ven-
iremen who also, according to their questionnaires, had relatives under the su-
1
Hogues also unsuccessfully advanced an ineffective-assistance-of-counsel claim based
on Strickland v. Washington, 466 U.S. 668 (1984). He was denied a COA on that claim, so we
do not consider it. See United States v. Kimler, 150 F.3d 429, 430-31 & n.1 (5th Cir. 1998).
2
Hogues’s objections to the other four are accordingly deemed abandoned. Woods v.
Cockrell, 307 F.3d 353, 357 (5th Cir. 2002); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
3
Consistently with this, the state noted, it also struck certain veniremen who, on their
jury service questionnaires, had ranked “rehabilitation” higher than “punishment” on a list
of possible purposes of criminal sanctions.
2
No. 07-11159
pervision of the criminal justice system: Jeanine Byrd (whose grandson was
serving six months of probation on a drug offense) and Mary Tweed (whose ne-
phew had been to jail, and who was then serving six months of probation for
mail fraud). The state responded that the family relationships were closer in
Mills’s case, that Mills’s relatives’ crimes and punishments were more severe,
and that Mills had two convicted relatives, but Byrd and Tweed had only one
each. The court found no Batson violation.
II.
In Batson, the Court established a three-part test for racially discrimina-
tory use of peremptory challenges. See Moody v. Quarterman, 476 F.3d 260, 266-
267 (5th Cir. 2007). First, the defendant must make a prima facie showing that
the state used its peremptory challenges discriminatorily. Batson, 476 U.S. at
93-97. If the defendant does so, the burden shifts to the state to “articulate a
neutral explanation [for its challenges] related to the particular case to be tried.”
Id. at 98. “Unless a discriminatory intent is inherent in the prosecutor's explan-
ation, the reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S.
765, 768 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plur-
ality opinion)).
If the state answers the prima facie case in that way, “[t]he trial court then
will have the duty to determine if the defendant has established purposeful dis-
crimination” based on all the evidence. Batson, 476 U.S. at 98. The court evalu-
ates the state’s explanation, asking “not whether [the state’s] reason is suspect,
or weak, or irrational, but whether counsel is telling the truth in his or her as-
sertion that the challenge is not race-based.” United States v. Bentley-Smith,
2 F.3d 1368, 1375 (5th Cir. 1993) (per curiam). “Because of the importance of de-
meanor and credibility evidence in making such determinations, this step of the
analysis should lie solely in the province of the trial judge.” Moody, 476 F.3d at
3
 No. 07-11159
267.4 “[T]he ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike.” Elem, 514 U.S. at 768.
We review the state court’s treatment of Hogues’s Batson claim according
to the framework of the Antiterrorism and Effective Death Penalty Act of 1996,
28 U.S.C. § 2254. The state court’s finding at the central focus of this appeal,
Batson step threeSSi.e., that the state did not commit racial discrimination in its
use of peremptory challengesSSis a question of fact. See Miller-El, 537 U.S. at
339-41 (2003). Therefore, we look to § 2254(d)(2)and (e)(1) for our standard of
review. These provisions are highly deferential to the state court:
(d) 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 . . . unless the adjudication of the claim—
...
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
§ 2254(d)(2). We examine only the reasonableness of the result of the state
court’s adjudication, not “every jot” of its reasoning. Santellan v. Cockrell, 271
F.3d 190, 193 (5th Cir. 2001). Moreover,
[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
§ 2254(e)(1). In short, “[o]ur role on appeal is to determine whether the trial
court’s determination of the prosecutor’s neutrality with respect to race was ob-
4
See also Miller-El v. Cockrell, 537 U.S. 322, 339-40 (2003) (“[A] reviewing court, which
analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to
make credibility determinations. . . . [O]nce [the credibility of the prosecutor’s explanation] has
been settled, there seems nothing left to review.”) (internal quotation marks omitted) (quoting
Hernandez, 500 U.S. at 367).
4
No. 07-11159
jectively unreasonable and has been rebutted by clear and convincing evidence
to the contrary.” Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005) (quoting
Miller-El, 537 U.S. at 341).
Although Hogues has established a prima facie case, the state no less re-
sponded with race-neutral explanations. As to the ultimate question, the Texas
courts did not err in concluding that the state struck Mills, and declined to strike
Byrd and Tweed, for non-racial reasons.5 The trial court was entitled to credit
the state’s account; its decision to do so was not “unreasonable in light of the evi-
dence,” nor has Hogues brought “clear and convincing evidence” to rebut it.
AFFIRMED.
5
This court has accepted explanations similar to that proffered by the state concerning
Mills—albeit together with other factors—as to two black veniremen struck in United States
v. Valley, 928 F.2d 130, 135-36 (5th Cir. 1991).
5