Ricky D. Adkins v. Warden, Holman CF

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12380
________________________
D.C. Docket No. 4:06-cv-04666-SLB
RICKY D. ADKINS,
llllllllllllllllllllllllllllllllllllllll Petitioner - Appellant,
versus
WARDEN, HOLMAN CF,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
lllllllllllllllllllllllllllll Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 27, 2013)
Before TJOFLAT, BARKETT and MARTIN, Circuit Judges.
MARTIN, Circuit Judge:
Petitioner Ricky Adkins, an Alabama prisoner on death row, appeals from
the District Court’s denial of his first petition for writ of habeas corpus, brought
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pursuant to 28 U.S.C. § 2254. The District Court granted Mr. Adkins a Certificate
of Appealability (COA) for the following issues: (1) whether the state
unconstitutionally removed black jurors on the basis of their race in violation of
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986); and (2) whether Mr.
Adkins was denied his constitutional rights to fair proceedings and due process
because of a judicial conflict of interest and the appearance of impropriety. This
Court granted Mr. Adkins’s request to expand the COA to include a third issue:
whether his trial counsel rendered ineffective assistance of counsel during the
penalty phase of his trial. Because we determine that Mr. Adkins is entitled to
habeas relief based on his Batson claim, we do not decide his other claims.
I. Background and Legal Presentation of the Claim
The body of Billie Dean Hamilton, a real estate agent who was Caucasian,
was discovered in St. Clair County, Alabama, on January 18, 1988. See Adkins v.
State, 600 So. 2d 1054, 1057, 1059, 1060–61 (Ala. Crim. App. 1990) (Adkins I);
Ex parte Adkins, 600 So. 2d 1067, 1069 (Ala. 1992) (Adkins II). Right away, Mr.
Adkins, also white, was arrested and charged with capital murder for Hamilton’s
death. Id.
Jury selection began on October 24, 1988. During that process, the state
exercised nine of its twenty-four peremptory strikes to remove nine of eleven black
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veniremembers. Adkins II, 600 So. 2d at 1069. Mr. Adkins struck one of the two
remaining black jurors, and ultimately, only one black juror served on the jury. Id.
At the time of Mr. Adkins’s trial, the rule in Alabama was that a white defendant,
like Mr. Adkins, lacked standing to challenge the state’s exercise of peremptory
strikes to remove black jurors from the panel. See, e.g., Owen v. State, 586 So. 2d
958, 959 (Ala. Crim. App. 1990), rev’d sub. nom. Ex parte Owen, 586 So. 2d 963
(Ala. 1991). For this reason, there was neither an objection by the defense nor a
proffer of reasons by the prosecutor for striking the nine black jurors.
The jury convicted Mr. Adkins of capital murder and sentenced him to
death. See Adkins I, 600 So. 2d at 1056. On August 24, 1990, the Alabama Court
of Criminal Appeals affirmed his convictions and sentence on direct appeal. Id. at
1067. Before Mr. Adkins sought review in the Alabama Supreme Court, see
Adkins II, 600 So. 2d 1067, the United States Supreme Court delivered its ruling in
Powers v. Ohio, holding “that a criminal defendant may object to race-based
exclusions of jurors effected through peremptory challenges whether or not the
defendant and the excluded juror share the same races.” 499 U.S. 400, 402, 111 S.
Ct. 1364, 1366 (1991). Following Powers, Mr. Adkins raised a Batson claim in his
petition for writ of certiorari to the Alabama Supreme Court. Adkins II, 600 So. 2d
at 1069. The Alabama Supreme Court granted Mr. Adkins’s petition and
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remanded his case to the Alabama Court of Criminal Appeals for further
proceedings. Id. (citing Ex parte Bankhead, 585 So. 2d 112, 117 (Ala. 1991), aff’d
on remand, 625 So. 2d 1141 (Ala. Crim. App. 1992), rev’d on other grounds, 625
So. 2d 1146 (Ala. 1993)). 1 The Alabama Court of Criminal Appeals then
remanded Mr. Adkins’s case to the trial court for a Batson hearing on June 12,
1992, with the direction, “[d]ue return should be filed with this court within 90
days from the date of this opinion.” Adkins v. State, 600 So. 2d 1072, 1073 (Ala.
Crim. App. 1992) (Adkins III). The return was thus due on September 10, 1992.
The state trial court held the Batson hearing on July 29, 1992. During that
hearing, the prosecutor proffered reasons for striking each of the nine black jurors,
which the Alabama Court of Criminal Appeals summarized as follows:
Prospective juror number 59 . . . was struck because he came
forward and asked that he be excused from serving on the jury. He
was 61 years old and had ulcers.
Prospective juror number 39 [Billy Morris] . . . was struck because
he answered during the voir dire that he knew about the case and
because he was also single.
1
In Ex parte Bankhead, the prosecutor peremptorily challenged eight of ten black jurors on the
venire in a capital case with a white defendant. 585 So. 2d at 115, 117. Two blacks served on
the jury. Id. at 117. After Powers was decided, the Alabama Supreme Court remanded
Bankhead’s case for a Batson hearing even though no objection was made at trial. Id. (“Based
on Powers, we must now hold that Bankhead, a white, has standing under the Equal Protection
Clause to challenge the prosecutor’s allegedly racially motivated use of peremptory
challenges.”).
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Prospective juror number 8 . . . was struck because she stated that
she knew about the case. The prosecutor also had information that
she was married to or lived with an individual he had prosecuted.
Prospective juror number 52 . . . was struck because of his age and
because he was single. He also appeared inattentive and seemed
disinterested during voir dire.
Prospective juror number 36 . . . was struck because she was 53 and
single. She was also unemployed and asked to be excused from
serving on the jury because she had high blood pressure.
Prospective juror number 31 . . . was struck because she was single
and because she was known to associate with a former local chief of
police who had been forced to resign.
Prospective juror number 56 . . . was struck because he was 86
years old and because he indicated that he knew defense counsel.
Prospective juror number 14 . . . was struck because she was single
and because she worked for the Department of Human Resources
(DHR) and the district attorney’s office had frequent dealings with her
in her capacity as a DHR employee.
Prospective Juror number 60 . . . was struck because her father had
a federal conviction for a drug-related crime.
Adkins v. State, 639 So. 2d 515, 517 (Ala. Crim. App. 1993) (Adkins IV),
withdrawn, Ex parte Adkins, 662 So. 2d 925 (Ala. 1994) (unpublished table
decision).2 Also during the Batson hearing, the prosecutor’s notes from the voir
dire were admitted into evidence as exhibits.
2
Because our discussion of the Batson issue centers on juror Billy Morris, we identify him by
name.
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On September 9, 1992, several weeks after the Batson hearing, the state trial
court issued an order directing the prosecutor to supplement the Batson record by
affidavit with an “explanation, if any, as to the District Attorney’s contention that
Billy Morris was a single man.” The trial court’s order noted that during voir dire
Mr. Morris said he was married. In an affidavit submitted by the prosecutor dated
the same day, the prosecutor stated:
Mike Campbell and myself were at all times under the impression and
understood that Mr. Billy Morris was a single male and he was struck
by the state for that reason. We did not learn until long after the trial
and upon reading the transcript that Billy Morris was in fact married
and his spouse unemployed. The notes which we prepared in
preparation for the Batson [h]earing also reflected that Billy Morris
was single and no where [sic] in our notes taken during this jury
selection process is it noted that Billy Morris was a married man.
The next day, without argument or opportunity for cross-examination by Mr.
Adkins about the prosecutor’s affidavit, the state trial court entered its order
finding “that there was no purposeful racial discrimination in the peremptory
strikes exercised by the State as to Billy Morris, or any other black juror struck.”
The trial court’s order expressly relied upon the testimony at the Batson hearing
and the affidavit submitted by the prosecutor. With respect to Mr. Morris, the state
trial court found that he was struck because of the “mistaken” belief that he was
single. Invoking the trial court’s own personal experience with the prosecutor in
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other cases,3 the trial court found the prosecutor’s assertion of mistaken belief as to
Mr. Morris’s marital status “to be credible.” Upon the return from remand after
the Batson hearing, the Alabama appellate courts again affirmed Mr. Adkins’s
convictions and death sentence. See Adkins IV, 639 So. 2d 515;4 Ex parte Adkins,
639 So. 2d 522 (Ala. 1994) (Adkins V). The United States Supreme Court denied
certiorari. Adkins v. Alabama, 513 U.S. 851, 115 S. Ct. 151 (1994).
Mr. Adkins timely sought postconviction relief in the state court pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure. His Rule 32 petition was
denied by the state trial court, and the Alabama Court of Criminal Appeals
affirmed. Adkins v. State, 930 So. 2d 524, 550 (Ala. Crim. App. 2001) (Adkins
VI). The Alabama Supreme Court denied discretionary review, and the Supreme
3
In support of its finding that the prosecutor was credible, the state trial court’s order stated:
This Court having worked with District Attorney Davis on many other cases in
the past, finds that he has never intentionally misrepresented any fact to this Court
to gain an advantage in a criminal proceeding. He has many times admitted facts
which were to the detriment of his cases and accepted the consequences of facts
that were against his case. This Court has never found District Attorney Davis to
purposefully exclude blacks from juries in cases prosecuted by him. The Court
finds his statement as to mistaken belief as to the marital status of jury [sic]
Morris to be credible.
4
Judge Bowen dissented from the Alabama Court of Criminal Appeals opinion affirming the
trial court’s Batson decision. See Adkins IV, 629 So. 2d at 520–22 (Bowen, J., dissenting).
According to Judge Bowen, “[i]t is obvious here that the district attorney engaged in disparate
treatment of black veniremembers struck as opposed to white veniremembers possessing the
same characteristics.” Id. at 520. Judge Bowen dissented also because he believed “the trial
court’s finding of non-discrimination was clearly erroneous.” Id. at 522.
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Court denied certiorari. Adkins v. Alabama, 547 U.S. 1132, 126 S. Ct. 2022
(2006).
Mr. Adkins then timely filed the petition for writ of habeas corpus now
before us, pursuant to 28 U.S.C. § 2254, in the District Court for the Northern
District of Alabama on November 14, 2006. His petition asserted, among other
claims, that the state unconstitutionally exercised its peremptory challenges by
striking African-American jurors on the bases of their race in violation of Batson.
In respondent’s brief in the District Court, the state admitted that “ [ t] he merits of
[ Mr. A dkins’s Batson] claim were reviewed and rejected by the A labama
Court of Criminal A ppeals and the A labama Supreme Court,” but asserted
that the state courts’ denial of relief on this claim was entitled to deference under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
104-132, 110 Stat. 1214 (1996). Ultimately, the District Court denied Mr.
Adkins’s Batson claim on the merits. Mr. Adkins filed a timely notice of appeal
and as we recited above, the District Court granted him a COA on his Batson
claim.
After oral argument before this Court, and long since the parties had
submitted their briefs, we requested further briefing by the parties on the Batson
issue. In that briefing, the state raised an argument for the first time that, because
Mr. Adkins did not contemporaneously object to the prosecutor’s peremptory
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strikes at the time of trial, he cannot raise a Batson claim in his federal habeas
petition. The state did not raise this argument in the District Court or in its original
response brief filed in this Court. For this reason, we conclude that it has waived
this argument. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001)
(stating it is a “well-established rule that issues and contentions not timely raised in
the briefs are deemed abandoned”); United States v. Nealy, 232 F.3d 825, 830
(11th Cir. 2000) (“Parties must submit all issues on appeal in their initial briefs.”);
id. (holding that “parties cannot properly raise new issues at supplemental briefing,
even if the [new] issues arise based on the intervening decisions or new
developments cited in the supplemental authority”).
Although the dissent seems to suggest that Ardley is trumped by the policies
implemented by AEDPA, our court has applied Ardley and Nealy to a number of
cases, including § 2254 cases. See, e.g., Herring v. Sec’y, Dep’t of Corr., 397 F.3d
1338, 1344 n.4 (11th Cir. 2005) (applying Nealy to § 2254 habeas case); Bond v.
Moore, 309 F.3d 770, 774 n.5 (11th Cir. 2002) (applying Ardley to § 2254 habeas
case); Isaacs v. Head, 300 F.3d 1232, 1253 n.6 (11th Cir. 2002) (same).
But even if we accept the dissent’s premise, and assume that the state had
not waived its arguments based upon Mr. Adkins’s failure to contemporaneously
object to the prosecutor’s discriminatory exercise of peremptory challenges at the
time of trial, we would conclude that his federal claim is properly and squarely
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before us based on the state court record. Alabama law foreclosed Mr. Adkins, a
white defendant, from bringing a Batson challenge at the time of his trial based on
the state’s peremptorily striking black jurors. See, e.g., Owen, 586 So. 2d at 959.
Indeed, there can be no doubt that Powers was “clearly established federal law”
within the meaning of 28 U.S.C. § 2254(d) at the time Mr. Adkins’s case was
pending on direct appeal before the Alabama Courts. See Greene v. Fisher, ___
U.S. ___, ___, 132 S. Ct. 38, 45 (2011) (holding that “clearly established Federal
law,” as determined by the Supreme Court for the purposes of § 2254(d), includes
Supreme Court decisions in existence at the time of the state-court adjudication on
the merits).
Neither can there be any doubt that state courts are free to fashion and
enforce their own procedural rules to require that defendants make
contemporaneous objections to preserve constitutional claims. See, e.g.,
Wainwright v. Sykes, 433 U.S. 72, 86–87, 97 S. Ct. 2497, 2506 (1977) (applying
procedural bar to habeas petitioner’s constitutional claim because he did not
contemporaneously object during the trial and, under state law, this failure barred
state courts from hearing the claim on either direct appeal or state collateral
review). “The appropriateness in general of looking to local rules for the law
governing the timeliness of a constitutional claim is, of course, clear.” Ford v.
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Georgia, 498 U.S. 411, 423, 111 S. Ct. 850, 857 (1991) (emphasis added). Ford
confirms that Batson claims are no exception to the general rule:
In Batson itself, for example, we imposed no new procedural rules
and declined either “to formulate particular procedures to be followed
upon a defendant’s timely objection to a prosecutor’s challenges,” or
to decide when an objection must be made to be timely. Instead, we
recognized that local practices would indicate the proper deadlines in
the contexts of the various procedures used to try criminal cases, and
we left it to the trial courts, with their wide “variety of jury selection
practices,” to implement Batson in the first instance. Undoubtedly,
then, a state court may adopt a general rule that a Batson claim is
untimely if it is raised for the first time on appeal, or after the jury is
sworn, or before its members are selected.
Id. (citations omitted). Thus, the Supreme Court in Ford viewed state court rules
governing the timeliness of Batson claims to be procedural rules that “limit all
review of the constitutional claim itself,” so long as these rules are independent,
adequate and firmly established. Ford does not call for us to treat the state rules as
a prerequisite to, or element of, the constitutional claim. Id. at 423–24, 111 S. Ct.
at 857–88. We do nothing new here. We have previously viewed a petitioner’s
failure to comply with a state’s contemporaneous objection rule to preserve a
Batson claim as a procedural impediment, subject to traditional procedural default
analysis, rather than as a defect in the constitutional claim. See, e.g., Pitts v. Cook,
923 F.2d 1568, 1571 (11th Cir. 1991) (finding petitioner procedurally defaulted
Batson claim where he did not contemporaneously object at trial or on appeal as
Alabama law required and could not show exception to procedural default rule);
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see also Tarver v. Hopper, 169 F.3d 710, 712–13 (11th Cir. 1999) (finding
petitioner procedurally defaulted his Batson claim because he failed to
contemporaneously object at trial where state court determined, under state rule,
that claim was procedurally defaulted); id. at 713 (stating, “Alabama can pick its
own procedural rules and has done so here”); Cochran v. Herring, 43 F.3d 1404,
1409–10 (11th Cir. 1995) (concluding District Court properly addressed merits of
Batson claim after finding that state courts “ha[d] not consistently applied a
procedural bar” to cases like the petitioner’s).
We certainly recognize that contemporaneous objection rules can serve
important state interests, such as finality as well as giving a state trial judge the
opportunity to immediately address, and if necessary correct, a constitutional
injury. 5 For these reasons, as well as important interests of comity and federalism,
5
We are certainly aware that a contemporaneous objection would, in many cases, allow the trial
court to evaluate evanescent evidence relevant to Batson’s third step, like the demeanor of the
attorney exercising the peremptory challenge and the reasons offered by the attorneys relating to
the demeanor of the jurors. See Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208
(2008). But the passage of time by itself, where there is no procedural default, does not bar the
presentation of a Batson challenge or evidentiary proceedings after the trial in support of the
claim. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 328–29, 123 S. Ct. 1029, 1035 (2003)
(Miller-El I) (noting that petitioner’s Batson claim relied on pattern and practice evidence
presented pretrial before Batson was decided, and, after his case was remanded by the Texas
Court of Criminal Appeals for new findings based on Batson); Batson, 476 U.S. at 100, 106 S.
Ct. at 1725 (remanding case to the trial court for proceedings to determine prosecutor’s
explanation, unstated at trial, for his removal of all black persons on the venire and whether facts
establish purposeful discrimination); Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333,
1339 (11th Cir. 2012) (remanding petitioner’s case to the District Court for further proceedings
“to complete the final two steps of the Batson proceedings”).
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the procedural default doctrine does not permit federal habeas review of a claim
rejected by a state court “if the decision of [the state] court rests on a state law
ground that is independent of the federal question and adequate to support the
judgment,” and a defendant cannot show cause and prejudice, or a miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 729, 750, 111 S. Ct. 2546, 2553,
2565 (1991).
But this is not one of those cases. No Alabama court has ever decided that
Mr. Adkins’s failure to object precluded it from considering the merits of his
Batson challenge. Indeed, the record unambiguously shows just the opposite to be
true. After Powers was decided, Mr. Adkins raised his Batson claim for the first
time in his petition for writ of certiorari to the Alabama Supreme Court. The
Alabama Supreme Court granted that petition for a writ of certiorari, according to
its own procedural rules, and remanded the case to the trial court for a hearing on
whether the prosecution exercised its peremptory challenges in a racially
discriminatory manner in violation of Batson. This, notwithstanding Mr. Atkins’s
failure to object at trial. Adkins II, 600 So. 2d at 1069, 1071. Following from that
remand, the state courts considered and adjudicated Mr. Adkins’s Batson claim on
the merits. Under 28 U.S.C. § 2254(d), as amended by AEDPA, “[w]hen 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
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absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 784–85 (2011); see also
Harris v. Reed, 489 U.S. 255, 264–65, 109 S. Ct. 1038, 1044–45 (1989)
(presuming a merits determination when it is unclear whether a decision appearing
to rest on federal grounds was decided on another basis). Applying these
principles, there is simply no indication in any of the state courts’ opinions which
cause us to conclude that the Alabama courts adjudicated Mr. Adkins’s federal
claim on anything but the merits. The dissent may question the wisdom of whether
the Alabama Supreme Court should have excused Mr. Adkins’s lack of a
contemporaneous objection based on Alabama’s own court rules, but the Alabama
Court is entitled to implement its own wisdom on this. It is not for us to dictate to
the state courts of Alabama which procedural rules it should adopt. Mr. Adkins’s
Batson claim is properly before this Court.
II. Standard of Review
Our review of Mr. Adkins’s federal habeas petition is governed by 28 U.S.C.
§ 2254, as amended by AEDPA. Because Mr. Adkins’s claim was adjudicated on
the merits in his state court proceedings, § 2254(d) precludes habeas relief unless
the state court decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1), or (2) “was based on an
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unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” § 2254(d)(2). See also Harrington, 131 S. Ct. at 785.
Further, “[f]ederal habeas courts generally defer to the factual findings of
state courts, presuming the facts to be correct unless they are rebutted by clear and
convincing evidence.” Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008)
(en banc); see also 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue
made by a State court shall be presumed to be correct.”). However,
when a state court’s adjudication of a habeas claim result[s] in a
decision that [i]s based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding, this
Court is not bound to defer to unreasonably-found facts or to the legal
conclusions that flow from them.
Jones, 540 F.3d at 1288 n.5 (quotation marks and citations omitted); see also
Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 2858 (2007) (“When a
state court’s adjudication of a claim is dependent on an antecedent unreasonable
application of federal law, the requirement set forth in § 2254(d)(1) is satisfied.”).
If we determine that AEDPA deference does not apply, we must undertake a
de novo review of the claim. McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252,
1266 (11th Cir. 2009).
III. Discussion
It is clearly established federal law that, under the Equal Protection Clause, a
criminal defendant has a constitutional “right to be tried by a jury whose members
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are selected pursuant to nondiscriminatory criteria.” Batson, 476 U.S. at 85–86,
106 S. Ct. at 1717. In Batson, the Supreme Court established a three-step inquiry
to evaluate a prosecutor’s use of peremptory strikes. Id. at 96–98, 106 S. Ct. at
1723–24. The Court summarized Batson’s inquiry in Miller-El I:
First, a defendant must make a prima facie showing that a peremptory
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 light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
537 U.S. at 328–29, 123 S. Ct. at 1035 (citations omitted).
Here, we focus on Batson’s third step because the parties do not dispute that
Mr. Adkins established a prima facie case of purposeful discrimination or that the
state proffered race-neutral reasons for striking nine black jurors. Mr. Adkins’s
case was remanded by the Alabama Supreme Court for a Batson hearing, the state
proffered race-neutral reasons for its peremptory strikes, and the trial court ruled
on the ultimate question of discriminatory purpose. On the return from remand,
the Alabama Court of Criminal Appeals determined that the trial court found “that
a prima facie showing of discrimination had been made,” Adkins IV, 639 So. 2d at
517, and that the prosecutor offered race-neutral reasons for its peremptory strikes
of black jurors. Id. at 517–520. This satisfied Batson’s first and second steps.
Thus, we look to the state court’s application of Batson’s third step.
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We also focus our analysis, at least for § 2254(d)(1) purposes, on the
Alabama Court of Criminal Appeals decision on return from remand in Adkins IV,
639 So. 2d 515 (affirming determination that there was no Batson violation),
because it is the last reasoned state court decision discussing Mr. Adkins’s Batson
claim. 6
Before discussing that opinion, however, several important points about
Batson’s third step bear emphasis. First, it is a defendant’s burden to prove
purposeful discrimination at Batson’s third step. See Hernandez v. New York, 500
U.S. 352, 359, 111 S. Ct. 1859, 1866 (1991); Batson, 476 U.S. at 98, 106 S. Ct. at
1724.
Second, the Supreme Court in Batson emphasized that “[i]n deciding
whether the defendant has made the requisite showing [of purposeful
discrimination], the trial court should consider all relevant circumstances.” Batson,
476 U.S. at 96, 106 S. Ct. at 1723 (emphasis added). The reason for this is,
without it, a court cannot meaningfully evaluate the state’s proffered reason. See
McGahee, 560 F.3d at 1261 (“Because courts must weigh the defendant’s evidence
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
6
The Alabama Supreme Court summarily affirmed Mr. Adkins’s appeal on the return from
remand of his Batson hearing in Adkins V, 639 So. 2d 522. Thus, we “look through” to the
Alabama Court of Criminal Appeals decision for the purpose of our analysis under § 2254(d)(1).
See McGahee, 560 F.3d at 1261 n.12.
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analysis.”). As the Supreme Court has said, a facially neutral reason, on its own,
does not suffice to answer a Batson challenge. See Miller-El v. Dretke, 545 U.S.
231, 240, 125 S. Ct. 2317, 2325 (2005) (Miller-El II) (“If any facially neutral
reason sufficed to answer a Batson challenge, then Batson would not amount to
much more than Swain[v. Alabama, 380 U.S. 202, 85 S. Ct. 824 (1965), overruled
by Batson, 476 U.S. at 100 n.25, 106 S. Ct. at 1725 n.25].”). It is thus abundantly
clear that this principle is clearly established federal law. Under Batson, “a court
must undertake a sensitive inquiry into such circumstantial and direct evidence of
intent as may be available.” Batson, 476 U.S. at 93, 106 S. Ct. at 1721 (quotation
marks omitted).
With this being the state of the law, this Court has held a state court’s failure
to consider “all relevant circumstances” at Batson’s third step is an unreasonable
application of Batson under § 2254(d)(1). See McGahee, 560 F.3d at 1261–62.7
7
As this Court has observed:
The Supreme Court has repeated this point in later opinions applying Batson.
Snyder v. Louisiana, [552 U.S. at 478], 128 S. Ct. [at] 1208 (“[I]n considering a
Batson objection, or in reviewing a ruling claimed to be Batson error, all of the
circumstances that bear upon the issue of racial animosity must be consulted.”);
Miller El [II], 545 U.S. at 251–52, 125 S. Ct. at 2331–32 (“[T]he rule in Batson
provides an opportunity to the prosecutor to give the reason for striking the juror,
and it requires the judge to assess the plausibility of that reason in light of all
evidence with a bearing on it.”); Hernandez v. New York, 500 U.S. 352, 363, 111
S. Ct. 1859, 1868 (1991) (“An invidious discriminatory purpose may often be
inferred from the totality of the relevant facts.”) (quoting Washington v. Davis,
426 U.S. 229, 242, 96 S. Ct. 2040, 2048–49 (1976)).
McGahee, 560 F.3d at 1262 n.13.
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Third, we are mindful that a finding of no intentional discrimination is a
finding of fact that is ordinarily entitled to great deference. See Batson, 476 U.S.
at 98 n.21, 106 S. Ct. at 1724 n.21. 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.’” Miller-El II, 545
U.S. at 240, 125 S. Ct at 2325 (quoting 28 U.S.C. § 2254(e)(1)). But with respect
to a Batson claim in particular, the Supreme Court has stated:
Even in the context of federal habeas, deference does not imply
abandonment or abdication of judicial review. Deference does not by
definition preclude relief. A federal court can disagree with a state
court’s credibility determination and, when guided by AEDPA,
conclude the decision was unreasonable or that the factual premise
was incorrect by clear and convincing evidence. [A Batson claim] . . .
can be supported by any evidence demonstrating that, despite the
neutral explanation of the prosecution, the peremptory strikes in the
final analysis were race based. It goes without saying that this
includes the facts and circumstances that were adduced in support of
the prima facie case.
Miller-El I, 537 U.S. at 340, 123 S. Ct. at 1041.
A. The State Court’s Application of Batson
and Determination of the Facts
Our review of the state court record leads us to conclude that the Alabama
Court of Criminal Appeals unreasonably applied Batson’s third step when it failed
to consider all relevant circumstances bearing on whether Mr. Adkins established
purposeful discrimination. “Because courts must weigh the defendant’s evidence
[of purposeful discrimination] against the prosecutor’s articulation of a ‘neutral
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explanation,’ courts are directed by Batson to consider ‘all relevant circumstances’
in the third step of the Batson analysis.” McGahee, 560 F.3d at 1261. Failure to
do so is an unreasonable application of Batson within the meaning of
§ 2254(d)(1). See id. at 1261–62.
In Adkins IV, after reciting the procedural history of the case, the Alabama
Court of Criminal Appeals implicitly turned to Batson’s first step and stated:
The trial court’s findings show that the state struck 9 of the 11 black
prospective jurors on the venire. One black ultimately sat on the jury.
The court found that a prima facie showing of discrimination had been
made and it held a hearing at which the prosecutor gave the following
reasons . . . .
639 So. 2d at 517. The court then summarized the prosecutor’s reasons and found
at least one valid, race-neutral reason, to support each of the strikes. Id. at 517–20.
Thus, the state court implicitly completed Batson’s second step. From there,
however, the Alabama Court of Criminal Appeals’ entire discussion of the state’s
decision to strike Mr. Morris was limited to two sentences. The court stated it
“will not reverse a trial court’s decision on a Batson violation unless that decision
is ‘clearly erroneous,’” and then summarily concluded that “[w]e do not find the
trial court’s decision here clearly erroneous.” Id. at 520. There is no indication
from its opinion that the Alabama Court of Criminal Appeals considered any of the
relevant circumstances bearing on the ultimate issue of discriminatory purpose
beyond the fact that the prosecutor had proffered race-neutral reasons for its
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strikes. Because the Alabama Court did not even mention all the relevant
circumstances brought to its attention by Mr. Adkins in his brief—circumstances
that are supported by the record—we cannot say that it undertook “a sensitive
inquiry into such circumstantial and direct evidence of intent as may be available.”
Batson, 476 U.S. at 93, 106 S. Ct. at 1721 (quotation marks omitted); see also
McGahee, 560 F.3d at 1261–62 (holding that the Alabama Court of Criminal
Appeals unreasonably applied federal law that was clearly established in Batson
when it failed to consider all relevant circumstances at Batson’s third step).
Even giving the Alabama Court of Criminal Appeals the deference it is
certainly due, we are left to conclude that it did not perform its duty under Batson’s
third step by considering the relevant circumstances raised by Mr. Adkins in his
brief on return to remand to that court. These relevant circumstances include: (1)
the strength of Mr. Adkins’s prima facie case; (2) the fact that the prosecution
explicitly noted the race of every black veniremember (and only black
veniremembers) on the jury list the state relied on in jury selection; (3) the fact that
specific proffered reasons provided by the prosecutor were incorrect and/or
contradicted by the record; (4) the fact that the trial court relied upon, and did not
subject to adversarial testing, an affidavit from the prosecutor that was submitted
after the Batson hearing; and (5) the fact that the trial court relied upon facts not
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part of the record, such as the trial court’s personal experience with the prosecutor
in unrelated matters.
We will elaborate, first with regard to the strength of Mr. Adkins’s prima
facie case. During the voir dire in Mr. Adkins’s case, the state used peremptory
strikes to exclude nine of eleven eligible black jurors, resulting in a strike rate of
eighty-two percent. Such a “seriously disproportionate exclusion” of blacks
establishes a strong prima facie case. See Batson, 476 U.S. at 93, 106 S. Ct. at
1721 (quotation marks omitted). The Alabama Court of Appeals gave no
consideration or weight to this almost complete elimination of black jurors.
Second, the Alabama Court of Criminal Appeals failed to consider the fact
that the prosecution explicitly noted the race of every black veniremember, and
only black veniremembers, on the jury list the prosecutor relied upon in striking
the jury, marking each of them with a “BM” or “BF.” This is strong evidence of
discriminatory intent. See Miller-El I, 537 U.S. at 347, 123 S. Ct. at 1045 (“The
supposition that race was a factor could be reinforced by the fact that the
prosecutors marked the race of each prospective juror on their juror cards.”). 8
Third, the Alabama Court of Criminal Appeals did not consider the fact that
specific proffered reasons provided by the prosecutor were contradicted by the
8
Although we cite Miller-El I to support our conclusion, we need not rely on Miller-El I to draw
the inference that racial notations created by the prosecution on jury strike sheets are relevant
circumstances indicative of racial bias. Our conclusion is compelled by the facts.
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record. During the Batson hearing, the prosecutor said he struck Billy Morris
because Mr. Morris was single and had prior knowledge of the case. But the voir
dire transcript clearly shows that Mr. Morris said he was married. The other
reason given for striking Mr. Morris, that he had prior knowledge of the case, is
hardly persuasive on the facts of this case. All but five or six of the sixty-four
jurors on the venire knew about the case, including at least seven of the white
jurors who served on the jury. These contradictions in the record are relevant
because, “when illegitimate grounds like race are in issue, a prosecutor simply has
got to state his reasons as best he can and stand or fall on the plausibility of the
reasons he gives.” Miller-El II, 545 U.S. at 252, 125 S. Ct. 2332.
Fourth, the Alabama Court of Criminal Appeals ignored the fact that the trial
court relied on evidence that was not tested by the adversarial process of cross-
examination. Upon realizing after the Batson hearing that the prosecution’s
reason for striking Mr. Morris was not supported by the record (i.e., that he was not
single), the trial court solicited and relied upon an ex parte affidavit from the
prosecutor without giving Mr. Adkins an adequate notice or opportunity to be
heard.9 As we noted, the trial court on remand conducted the Batson hearing on
9
By ex parte, we mean the trial court solicited and considered evidence from one party only,
without adequate notice or argument from Mr. Adkins. Mr. Adkins’s counsel represented to the
Alabama Court of Criminal Appeals that he received both the final order and the solicitation
order “several days later” and the affidavit “was never served on defense counsel.” The state
does not dispute these facts.
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July 29, 1992, at which time both parties presented evidence. On September 9,
1992, the trial court entered an order soliciting an explanation from the prosecutor
for why Mr. Morris was struck for being single when the voir dire transcript
indicated he was married. The order was apparently served on the prosecutor on
September 9, 1992, but not on counsel for Mr. Adkins. The prosecutor responded
to the Court’s order by preparing an affidavit dated that same day. In the affidavit,
the prosecution claimed that it struck Mr. Morris under the mistaken belief that he
was single. The next day, September 10, 1992—the day the record and trial
court’s order were due to be returned to the Alabama Court of Criminal Appeals—
the trial court entered its order relying upon the prosecutor’s affidavit in denying
Mr. Adkins’s Batson claim.
Six days later, Mr. Adkins’s counsel objected to consideration of the ex
parte affidavit and moved for the ex parte affidavit to be included in the record on
appeal. Specifically, Mr. Adkins’s motion stated he “was provided no notice, no
opportunity to contest the reliability of the information solicited or relied upon
through cross-examination or other means, and no opportunity to be heard.”
Generally, Mr. Adkins argued the trial court’s solicitation and consideration of the
affidavit deprived him due process.
Although Mr. Adkins’s brief on return to remand to the Alabama Court of
Criminal Appeals brought these crucial facts to the court’s attention the court did
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not mention or consider them. See Adkins IV, 639 So. 2d at 517–520. The timing
of the prosecutor’s ex parte affidavit is relevant because it was offered only after
the trial court brought contradictions in the record to the prosecutor’s attention. As
such, it is “difficult to credit” and “reeks of afterthought.” Miller-El II, 545 U.S. at
246, 125 S. Ct. at 2328. Similarly, the state’s submission of the affidavit to the
trial court on the eve of the trial court’s Batson ruling, without service to Mr.
Adkins’s counsel, is relevant because it assured the affidavit would not be
subjected to cross-examination or other adversarial testing.10 Further, the Alabama
Court of Criminal Appeals did not consider that the trial court relied not only on
the ex parte affidavit, but also on non-record evidence which Mr. Adkins did not
have an opportunity to rebut, such as the trial court’s personal experience with and
opinion about the reputation of the prosecutor.11 These are relevant circumstances
that should have been considered by the Alabama Court of Criminal Appeals at
10
In other contexts, the Supreme Court has observed that “[t]he opportunity for cross-
examination . . . is critical for ensuring the integrity of the fact-finding process. Cross-
examination is the principal means by which the believability of a witness and the truth of his
testimony are tested.” Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct. 2658, 2662 (1987)
(quotation marks omitted).
11
The trial court based its finding of no purposeful discrimination in part on its own opinion of
the prosecutor’s reputation. However, there was no evidence presented during the Batson
hearing about the prosecutor’s reputation, other than assertions of good faith by the prosecutor.
Neither was there evidence of the prosecutor’s use of peremptory strikes against blacks in other
criminal proceedings. It was therefore not reasonable for the trial court to interject non-record
facts into its Batson analysis. Importantly, as with the prosecutor’s affidavit itself, Mr. Adkins
did not have notice or an opportunity to be heard on these matters.
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Batson’s third step. Instead, the Alabama Court of Criminal Appeals never
mentioned them.
We also conclude the state trial court’s failure to consider all relevant
circumstances in making its fact finding of no purposeful discrimination, as well as
its consideration of an ex parte affidavit, is “an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d)(2). Batson clearly established that the Alabama Court
of Criminal Appeals was required to consider all relevant circumstances in making
its ultimate factual determination. Because the court overlooked material facts in
its factfinding, it not only unreasonably applied Batson, it also unreasonably
determined the facts at Batson’s critical third step.
In sum, we conclude the Alabama Court of Criminal Appeals unreasonably
applied Batson because it failed to consider crucial facts which Mr. Adkins raised
in his brief to that court relevant to Batson’s third step. See McGahee, 560 F.3d at
1263 (“Because the court omitted from step three of its analysis crucial facts which
McGahee raised in his brief to that court, we find that the Court of Criminal
Appeals did not review ‘all relevant circumstances’ as required by Batson.”
(quoting Batson, 476 U.S. at 96, 106 S. Ct. at 1723)). For these reasons, we also
conclude the state trial court unreasonably determined the facts based upon the
state court record.
B. De Novo Review of Batson Claim
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Where, as here, “we have determined that a state court decision is an
unreasonable application of federal law under 28 U.S.C. § 2254(d), we are
unconstrained by § 2254’s deference and must undertake a de novo review of the
record.” McGahee, 560 F.3d at 1266. Our review of the record leads us to
conclude that Mr. Adkins has met his burden at Batson’s third step and shown
purposeful discrimination as to Mr. Morris. See id. at 1267–68. We emphasize
that our conclusion is not based upon any one particular fact, but the totality of
relevant circumstances in this case. See Miller-El II, 545 U.S. at 251–52, 125 S.
Ct. at 2331 (“[T]he rule in Batson provides an opportunity to the prosecutor to give
the reason for striking the juror, and it requires the judge to assess the plausibility
of that reason in light of all evidence with a bearing on it.”).
For example, we stress the strength of Mr. Adkins’s prima facie case for
discrimination. Batson recognized that “a ‘pattern’ of strikes against black jurors
. . . might give rise to an inference of discrimination.” Batson, 476 U.S. at 97, 106
S. Ct. at 1723. Again, the state here used peremptory strikes to exclude nine of
eleven potential black jurors, resulting in a strike rate of eighty-two percent. Only
one black juror served on Mr. Adkins’s petit jury. The Supreme Court has
observed that “total or seriously disproportionate exclusion of Negroes from jury
venires is itself such an unequal application of the law . . . as to show intentional
discrimination.” See Batson, 476 U.S. at 93, 106 S. Ct. at 1721 (quotation marks
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and citations omitted). Also here, like in Miller-El II, “[h]appenstance is unlikely
to produce this disparity.” 545 U.S. at 241, 125 S. Ct. at 2325 (quotation marks
omitted); see also id. at 240, 125 S. Ct. at 2325 (describing the prosecutor’s use of
peremptories as “remarkable” where one black juror served on the jury, but the
prosecutor peremptorily struck ten of eleven eligible black jurors). We conclude
the removal of so many eligible black jurors in Mr. Adkins’s case is difficult to
explain on nonracial grounds. But our conclusion is not based upon statistics
alone.
The record of the voir dire and the Batson hearing also support the
conclusion that Billy Morris was not excused for any legitimate reason. The state
said that it struck Mr. Morris because he was single and had prior knowledge about
the case. But in fact, Mr. Morris told the state during voir dire that he was married.
What’s more, almost all of the jurors on the venire had prior knowledge about the
case, including the majority of white jurors who sat on the jury. See id. at 241, 125
S. Ct. at 2325 (“If a prosecutor’s proffered reason for striking a black panelist
applies just as well to an otherwise-similar nonblack who is permitted to serve, that
is evidence tending to prove purposeful discrimination to be considered at Batson’s
third step.”). The absence of a legitimate reason indicates Mr. Morris was
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removed because of his race. See, e.g., McGahee, 560 F.3d at 1267 (reason found
pretextual where there was no evidence in the record to support it).12
It is also worth noting that our conclusion that the state struck Mr. Morris for
racial reasons is buttressed as well by the fact that the prosecution explicitly noted
the race of every black veniremember (and only black veniremembers) on its jury
list in preparation for voir dire, and the fact that the prosecutor acknowledged at
the Batson hearing that he “was not concerned with the Batson matter [during voir
dire] because it [w]as a white-on-white [crime].” This statement from the
prosecutor is an explicit acknowledgment that because Mr. Adkins’s trial occurred
before the Supreme Court’s decision in Powers, 499 U.S. 400, 111 S. Ct. 1364, the
prosecutor was not constrained by Batson in exercising his peremptory challenge
against black jurors. See, e.g., Bui v. Haley, 321 F.3d 1304, 1314–16 (11th Cir.
2003) (finding, in a similar post-Powers remand context, that the prosecutor’s
belief at the time of voir dire that Batson did not apply to the defendant’s case
because the defendant was not black, was relevant to the prosecutor’s state of mind
12
The removal of even one juror for discriminatory reasons is sufficient to violate Batson. As
this Court has previously stated, “under Batson, the striking of one black juror for a racial reason
violates the Equal Protection Clause, even where other black jurors are seated, and even when
valid reasons for the striking of some black jurors are shown.” United States v. David, 803 F.2d
1567, 1571 (11th Cir. 1986); see also Snyder, 552 U.S. at 478, 128 S. Ct. at 1208 (“Because we
find that the trial court committed clear error in overruling petitioner’s Batson objection with
respect to [one juror], we have no need to consider petitioner’s claim regarding [a second
juror].”); Parker v. Allen, 565 F.3d 1258, 1270 (11th Cir. 2009) (“It is not necessary to show that
all or even a majority of the prosecutor’s strikes were discriminatory; any single strike
demonstrated to result from purposeful discrimination is sufficient.”).
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and indicated the prosecutor believed he could strike black jurors for any reason,
including race).13
Our conclusion that the prosecutor exercised his peremptory strikes based on
race is also bolstered by the fact that Mr. Morris was not the only black juror for
whom the state offered reasons that were not supported by the record or were
otherwise suspect because they applied to white jurors who were not excused. See,
e.g., Adkins IV, 639 So. 2d at 521 (Bowen, J., dissenting) (identifying the
prosecutor’s reasons for striking jurors 56 and 60 as “highly suspect”). For
example, besides age, the prosecutor gave two reasons for the peremptory strike of
black juror number 60: (1) her father was either in prison or had been in federal
prison on drug related crimes; and (2) she did not respond during voir dire when
jurors were “asked if they had any family member that had ever been in prison.”
Id. But as Judge Bowen observed in his dissent, “[t]o the extent that the strike of
13
The prosecution’s ex parte affidavit asserting a good faith mistake about Mr. Morris’s marital
status is not an adequate explanation for striking him. The affidavit was solicited long after the
evidentiary hearing had concluded and without fair notice to or an opportunity to respond by Mr.
Adkins. This type of evidence, not subjected to the crucible of adversary testing, has little
weight. Neither can we ignore the fact that the prosecutor, with the benefit of the voir dire
transcript and ample notice of the Batson hearing, clearly justified striking Mr. Morris because
he was single at the Batson hearing. Indeed, we know from his testimony at the Batson hearing,
the prosecutor had reviewed the transcript of the voir dire in preparation for the Batson hearing.
Given these facts, and the strike rate of eighty-two percent of black jurors, a mere assertion of
good faith that the prosecution believed Mr. Morris was single at the time of the Batson hearing
is not sufficient to overcome the indication that the proffered reason was pretextual. Cf. Batson,
476 U.S. at 98, 106 S. Ct. at 1723–24 (“Nor may the prosecutor rebut the defendant’s case
merely by denying that he had a discriminatory motive or affirm[ing] [his] good faith in making
individual selections.”) (quotation marks omitted).
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prospective juror number 60 was based on the [prosecutor’s] assessment that the
juror displayed a lack of forthrightness by failing to answer the voir dire question
about ‘family member[s] in prison,’ that assessment was not supported by the
record on voir dire.” Id. (alteration in original). Indeed, the precise question asked
by the prosecutor during the voir dire was this: “[I]s there anyone on the jury panel
that has a relative or close friend, presently or in the past, in the State prison
system?” Id. Based on this, Judge Bowen reasoned, and we agree,
A reasonable juror with a friend or relative in the federal penitentiary
could conclude that the question dealt solely with the State prison
system, as specified, especially since the [prosecutor] inquired further
whether the fact that any of the jurors had a relative or friend in the
state penal system “would . . . make [them] feel ill toward the
[prosecutor] because possibly people like us are responsible for
putting a relative or loved one or friend in prison?”
Id. (alteration in original). While the prosecutor may have been justified in
striking juror 60 based on information that her father had been in prison, “[t]he
credibility of that reason, however, was called into question by the fact that the
district attorney failed to strike at least one white veniremember [juror 48] who
answered that he had a brother-in-law in prison. That veniremember in fact served
on the jury.” Id. (citation and footnote omitted). Again, “[i]f a prosecutor’s
proffered reason for striking a black panelist applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence tending to prove
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purposeful discrimination to be considered at Batson’s third step.” Miller-El II,
545 U.S. at 241, 125 S. Ct. at 2325.
In this same vein, we note that the state struck prospective black juror
number 56 because he was 86 years old, could not hear well, and “acknowledged
that he knew [defense counsel] personally.” Adkins IV, 639 So. 2d at 521 (Bowen,
J., dissenting) (alteration in original). While each of these reasons may be facially
race-neutral, two of them are suspect here. The prosecutor’s reliance on the fact
that juror 56 knew defense counsel is suspect because the state did not strike a
white verniremen, juror 48, who also acknowledged he knew defense counsel. Id.
Indeed, the prosecutor did not strike juror 48, and this juror served on the jury,
even though he “shared two characteristics used [by the prosecutor] to justify the
strikes of blacks—that he knew defense counsel and that he had a relative in
prison.” Id. at 522. This is further indication, under the third step of the Batson
analysis, that the prosecutor’s stated reasons for striking black jurors were
pretextual. Id.
Similarly, and again under this required analysis, the prosecutor’s reliance
on juror 56’s age is suspect in light of the fact that the prosecutor proffered “age”
as a reason for striking six prospective black jurors, ranging in age from 31 to 86
years old: black juror 59, age 61; black juror 52 (age 32); black juror 36 (age 53);
black juror 56 (age 86); black juror 14 (age 36); and black juror 60 (age 31). With
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respect to age, the prosecutor stated during the Batson hearing that “the defendant
was a single male and in that same age bracket of these people that were struck.”
Mr. Adkins was twenty-three years old at the time of voir dire. The prosecutor’s
“same age bracket” rationale clearly did not apply to all of the six black jurors
struck by the prosecutor on this basis.
The prosecutor’s reliance on age to strike prospective black jurors is also
undermined by the fact that the state did not strike white jurors of similar age. For
example, the prosecutor did not strike white juror 6 (age 44); white juror 13 (age
48); white jury 29 (age 48); white juror 28 (age 49); white juror 20 (age 58); and
white juror 17 (age 62). The prosecutor’s proffered justification of age as a reason
to strike such a wide range of prospective black jurors who were clearly not in the
“same age bracket” as Mr. Adkins, and the fact that white jurors of similar age
were allowed to serve, supports our conclusion that the prosecutor’s reliance on
age was pretextual. This fact, when considered with all of the other relevant
circumstances bearing on whether the defendant has proved purposeful
discrimination, bolsters our conclusion that there was a Batson violation in Mr.
Adkins’s case.
IV. Conclusion
For all these reasons, AEDPA deference does not apply to the state courts’
unreasonable application of Batson and unreasonable determination of facts based
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on the state court record. This record compels a finding that the state used its
peremptory strikes in a discriminatory manner and violated Mr. Adkins’s right to
Equal Protection as clearly established by Batson. See McGahee, 560 F.3d at
1270. Any contrary finding would be inconsistent with the clear and convincing
evidence.
The District Court’s order denying Mr. Adkins habeas relief is reversed, and
the case is remanded to the District Court with instructions to issue the writ of
habeas corpus conditioned on the right of the State of Alabama to retry him.
REVERSED and REMANDED.
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TJOFLAT, Circuit Judge, dissenting:
The issue in this appeal according to the certificate of appealability (“COA”)
the District Court issued 1 is “whether the State unconstitutionally exercised its
peremptory challenges by striking African-American jurors on the basis of their
race in violation of” Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.
2d 69 (1986). The Alabama Court of Criminal Appeals decided that the strikes did
not deny those jurors their right to serve on Ricky Dale Adkins’s jury on account
of their race. Adkins v. State, 639 So. 2d 515 (Ala. Crim. App. 1993). Adkins
argues that the court’s decision cannot be sustained because it is “based on an
unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2) (2006), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996); the State argues to the
contrary. Today, this court adopts Adkins’s position, reverses the District Court’s
decision adopting the State’s position, and directs the District Court to issue a writ
of habeas corpus setting aside Adkins’s murder conviction and death sentence. I
am convinced the court errs in ordering that the writ issue and therefore dissent.
Although, on its face, the opinion of the Court of Criminal Appeals states
that the court decided a Batson claim, the COA poses a Batson issue and the
parties have briefed that issue, I submit that the Court of Criminal Appeals, though
1
See 28 U.S.C. § 2253(c).
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its opinion purports to do so, did not decide a Batson claim at all; rather, it decided
a state law claim bearing the Batson label. Accordingly, because the Court of
Criminal Appeals adjudicated a determination of state law, the District Court
lacked Article III power to review that determination. The same is true of this
court.
I explain why in part III of this opinion, after describing, in part I, the
circumstances that led to Billy Dean Hamilton’s murder and Adkins’s conviction,
and in part II, the Alabama Supreme Court’s creation of the claim Adkins is
asserting.
I.
The Alabama Court of Criminal Appeals described how Mrs. Hamilton’s
murder occurred in Adkins v. State, 600 So. 2d 1054 (Ala. Crim. App. 1991) (as
corrected on denial of rehearing).
Mrs. Hamilton was a realtor. During the morning of Sunday, January 17,
1988, she left her home to put out some real estate signs and to go to her office to
do some paperwork. As she was putting out a sign, Adkins drove up in a Ford
Bronco and told her that he was looking for a house to buy. She agreed to show
him some that were for sale and got into his Bronco. According to Adkins at trial,
after seeing three or four houses, “they stopped at a park, and ‘held hands and
kissed.’” Id. at 1058. They stayed there for about thirty minutes, then left to look
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at more houses. “At one of the vacant houses they looked at, [Adkins] claim[ed],
Mrs. Hamilton voluntarily had sex with him twice.” Id. That evening, after
visiting with the owners of one of the houses for sale, Mrs. Hamilton, according to
Adkins, “directed him down a dirt road for one last sexual encounter.” Id. at 1059.
He put his sleeping bag on the ground and said that they “‘talked about the stars
and the night.’” Id.
[A]fter they finished having sex, he put the sleeping bag back in the
Bronco and told Mrs. Hamilton to hurry and get dressed. [He] claims
that [she] called him a “bastard” and that he told her that she was
“nothing but a whore.” At this, he said, [she] slapped him. [He]
stated that as [she] bent over to pull her jeans up, he hit her in the back
of the head with a wrench. [He] said he next remembered seeing his
victim lying on the ground with blood on her body. He admitted
slashing both of her wrists. He says he then got in the Bronco and
left.
Id. Dr. Joseph Embry, a pathologist with the Alabama Department of
Forensic Sciences, performed the autopsy.
Dr. Embry observed seven very deep lacerations to the victim’s scalp.
There was a stab wound to the upper abdomen which was six and a
half inches long. It extended into the liver, stomach, and heart.
There were six small scratches on the victim’s left buttock
which were consistent with fingernail scratches. She also had a bruise
on the inside of her left thigh. There were bruises, scrapes and
lacerations on both hands. [He] testified that these were defense
wounds.
When [he] examined the victim’s oral cavity and lungs, her
mouth and throat were filled with dirt and small rocks that went
through her larynx all the way down into her lungs. It was this
impacted dirt in the victim’s airway, in association with the stab
wounds and blunt force trauma to the head, that caused the victim’s
death. [He] testified that the incisions through the tendons of the
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victim’s wrists appeared to be post-mortem because there was no
bleeding in the wounds.
Id. at 1059–60.
The jury convicted Adkins of capital murder and, by a vote of 10 to 2,
recommended that he receive the death penalty. The Circuit Court followed the
recommendation and sentenced Adkins to death. Adkins then appealed his
conviction and sentence.
II.
The Court of Criminal Appeals affirmed Adkins’s conviction and death
sentence on January 18, 1991. Adkins v. State, 600 So. 2d 1054, 1067 (Ala. Crim.
App. 1991). The Alabama Supreme Court thereafter granted Adkins’s petition for
certiorari review. Ex parte Adkins, 600 So. 2d 1067, 1068 (Ala. 1992). While the
case was being briefed in that court, the United States Supreme Court decided
Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), which
held that, under the Equal Protection Clause, “a criminal defendant may object to
race-based exclusions of jurors effected through peremptory challenges whether or
not the defendant and the excluded juror share the same races.” Id. at 402, 111 S.
Ct. at 1366 (emphasis added). Citing Powers, Adkins urged the Alabama Supreme
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Court to invoke Alabama’s “plain error” doctrine 2 and remand the case to the
Circuit Court for a hearing on whether the prosecutor had used any of the State’s
peremptory challenges to discriminate against black members of the venire. The
Supreme Court noticed plain error 3 and, after affirming “each of the issues
presented to [the Court of Criminal Appeals],” Ex parte Adkins, 600 So. 2d at
1068, remanded the case for a hearing on the issue of whether, under Powers, “the
State improperly exercised its peremptory challenges by striking black jurors on
the basis of their race,” id. at 1069.4
On remand, the Circuit Court, following the Alabama Supreme Court’s
instructions (albeit implicit), used the three-step inquiry the United States Supreme
Court fashioned in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
2
The plain error doctrine is a statutory creation to be used in capital cases in which the
death penalty is imposed. Rule 45A, Alabama Rules of Appellate Procedure, “Scope of review
in death cases,” states:
In all cases in which the death penalty has been imposed, the Court of
Criminal Appeals shall notice any plain error or defect in the proceedings under
review, whether or not brought to the attention of the trial court, and take
appropriate appellate action by reason thereof, whenever such error has or
probably has adversely affected the substantial right of the appellant.
In Adkins’s case, the Court of Criminal Appeals could not have noticed plain error on the basis
of Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), because Powers
was decided after the court had affirmed Adkins’s conviction and sentence.
3
The court cited Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991), as its authority.
4
The Supreme Court remanded the case to the Court of Criminal Appeals; it, in turn,
remanded the case to the Circuit Court for the hearing. Adkins v. State, 639 So. 2d 515 (Ala.
Crim. App. 1993).
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69 (1986),5 in deciding whether the prosecutor peremptorily challenged the black
jurors solely because of their race. The first step required Adkins to make a prima
facie showing that the prosecutor “exclude[d] [an] otherwise qualified and
unbiased person[ ] from the petit jury solely by reason of [his or her] race.”
Powers, 499 U.S. at 409, 111 S. Ct. at 1370. The Alabama Supreme Court had
already made that prima facie showing for Adkins when, under the “plain error”
doctrine, it ordered his case “remanded to the circuit court for a hearing on” the
“Batson issue.” Ex parte Adkins, 600 So. 2d at 1069. The Circuit Court therefore
began with the second step of the inquiry, requiring the prosecutor to offer a race-
neutral reason for each of his strikes. After the prosecutor came forward with his
reasons, the court took the third step, inquiring whether Adkins had proven that the
prosecutor had struck any of the nine blacks solely because of the person’s race.
At the conclusion of the inquiry, the court credited the prosecutor’s representation
that he struck the blacks for non-racial reasons and upheld the constitutionality of
his strikes.
On return from remand, the Court of Criminal Appeals, “[a]fter a careful
review of the reasons given by the prosecutor and after examining the testimony
5
The three-step model in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.
2d 69 (1986), is akin to the model the Supreme Court created in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for adjudicating Title VII claims
of racial discrimination in employment, where, say, a member of a protected class claims that he
or she was denied employment or a promotion due to race.
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taken at the Batson hearing, . . . f[ound] that no Batson violation occurred.”
Adkins v. State, 639 So. 2d 515, 517 (Ala. Crim. App. 1993). The court therefore
affirmed the Circuit Court’s judgment. Id. at 520.
The majority of this panel faults the Court of Criminal Appeals’ decision
because the Court of Criminal Appeals “did not give any consideration at Batson’s
third step to several relevant circumstances raised by Adkins in his brief on return
to remand to that court.” Ante at 16. For example, the court “gave no
consideration to the strength of Adkins’s prima facie case at Batson’s third step,”
id.; to “the fact that specific proffered reasons provided by the prosecutor were
contradicted by the record,” id.; or to “the fact that the trial court relied on
evidence that was not tested by the adversarial process of cross-examination,” id.
at 18, i.e., the prosecutor’s affidavit stating that he “struck Morris under the
mistaken belief that he was single,” id. at 18–19. Given these shortcomings in the
Court of Criminal Appeals decision, the majority concludes that the Court of
Criminal Appeals “unreasonably applied Batson because it failed to consider
crucial facts which Adkins raised in his brief to that court relevant to Batson’s third
step,” and therefore failed to review “‘all relevant circumstances’ as required by
Batson.” Id. at 21–22. As a consequence, the Court of Appeals decision is
afforded no AEDPA fact-finding deference, id.; see 28 U.S.C. § 2254(e)(1) (“[A]
determination of a factual issue made by a State court shall be presumed to be
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correct.”), and this court reverses the judgment of the District Court, instructing the
District Court “to issue the writ of habeas corpus conditioned on the right of the
State of Alabama to retry Adkins.” Ante at 31.
III.
The federal habeas corpus statute, 28 U.S.C. § 2254, as amended by
AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996), and interpreted by the
United States Supreme Court, forbids a federal court from reviewing a state court
conviction to grant a writ of habeas corpus unless the state court adjudication of
the claim “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.” 28 U.S.C. § 2254(d)(1). The phrase “clearly
established Federal law” refers only to “the holdings, as opposed to the dicta,” of
the Supreme Court decisions extant at the time of the state court adjudication.
Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389
(2000) (emphasis added).
The first task the District Court faced in this case in reviewing the Alabama
Court of Criminal Appeals decision was to determine whether that court
“adjudicated [a federal constitutional claim] on the merits.” 28 U.S.C. § 2254(d).
According to the parties, the Court of Criminal Appeals adjudicated a Powers
claim using the Batson three-step inquiry. To possess a Powers claim or a Batson
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claim, a defendant must have objected to the prosecutor’s exercise of a peremptory
challenge for a discriminatory purpose, to exclude the venireperson from jury
service. See United States v. Tate, 586 F.3d 936, 943 (11th Cir. 2009) (“Under the
law of this Circuit, a defendant forfeits a Batson claim if he or she fails to object on
this ground in the district court.”). 6 “[A] Batson objection must be exercised
before the venire is dismissed and the trial commences.” Id. 7 Requiring an
objection prevents “sandbagging.” United States v. Pielago, 135 F.3d 703, 709
(11th Cir. 1998) (“The contemporaneous objection rule fosters finality of
judgment and deters ‘sandbagging,’ saving an issue for appeal in hopes of having
another shot at trial if the first one misses.”). 8
6
It is of no consequence that Powers had not been decided at the time of Adkins’s trial.
For new rules of conduct of criminal trials to apply retroactively, defendants must preserve their
constitutional claims with objections. See Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93
L. Ed. 2d 649 (1987); see also Jones v. Butler, 864 F.2d 348, 363–64 (5th Cir. 1988) (declining
to excuse petitioner’s failure to object to allegedly discriminatory peremptory strike even though
Batson had not been decided at the time of his trial because “the claim was familiar and had been
asserted in many other cases. . . . ‘Where the basis of a constitutional claim is available, and
other defense counsel have perceived and litigated that claim, the demands of comity and finality
counsel against labeling alleged unawareness of the objection as cause for a procedural default.’”
(quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575, 71 L. Ed. 2d 783 (1982))).
7
In United States v. Tate, the appellant argued that the district court erred because it
“failed to elicit or even provide counsel an[] opportunity to object.” 586 F.3d 936, 943 (11th Cir.
2009) (internal quotation marks omitted). This court “declin[ed] the invitation” to create a new
rule mandating that district courts provide counsel with an opportunity to raise Batson
objections. Id. at 944.
8
The majority notes that “state courts are free to fashion and enforce their own
procedural rules to require that defendants make contemporaneous objections to preserve
constitutional claims,” ante at 12, but that Alabama courts did the opposite in this case—they
excused Adkins’s failure to object. The majority then notes that it is not our province to “dictate
to the state courts of Alabama which procedural rules they should adopt.” Ante at 15. Although
it is true that Alabama courts are free to allow an equal-protection challenge to a peremptory
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Adkins did not have a Powers claim because he did not object to any of the
prosecutor’s peremptory strikes. 9 That the Circuit Court on remand and the Court
of Criminal Appeals on return to remand may have thought they were deciding a
Powers claim does not mean that Adkins had a viable Powers claim—that
Powers’s holding required the Alabama Supreme Court to remand the case for a
Batson hearing. What those courts were doing on remand was resolving an equal
protection of the laws issue—whether any of the nine blacks were struck from the
venire due to race—using Batson’s three-step inquiry.
strike without a contemporaneous objection as a matter of state law, they are not free to excuse
the requirement of an objection as a matter of federal constitutional law. The Supreme Court has
never explicitly defined “timely” in the context of a Batson challenge, but several of our sister
circuits have noted that the Supreme Court in Batson plainly envisioned an objection during jury
selection. These circuits have refused to grant a writ of habeas corpus where the petitioner did
not preserve his claim with an objection. See Haney v. Adams, 641 F.3d 1168, 1169 (9th Cir.
2011) (holding that a petitioner may not bring a Batson claim in his habeas petition if he did not
object to the peremptory strikes during his state trial); McCrory v. Henderson, 82 F.3d 1243,
1249 (2d Cir. 1996) (reversing a district court’s grant of a writ of habeas corpus where the
defendant did not preserve his claim of a discriminatory peremptory strike with a
contemporaneous objection); Jones v. Butler, 864 F.2d 348, 369 (5th Cir. 1988) (denying
rehearing en banc regardless of whether Louisiana state courts applied a state procedural bar
because “a contemporaneous objection to the use of peremptory challenges to exclude jurors on
the basis of race is a necessary predicate to later raising a Batson claim”). Because Adkins did
not meet this “necessary predicate” to a federal constitutional claim, he may not ask for federal
habeas relief.
9
The Alabama Supreme Court would undoubtedly agree that if Adkins were not a death
case reviewed under Rule 45A, Alabama Rules of Appellate Procedure, Adkins would not have a
Powers claim—because he did not object to any of the prosecutor’s strikes. This underscores my
point that, in Ex parte Adkins, the Alabama Supreme Court fashioned an equal protection rule
that applies only in death cases. The rule does not apply in non-death cases. In those cases, a
defendant cannot seek a remand for a Batson hearing unless he objected to the prosecutor’s
peremptory strike before the jury is empaneled.
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An equal protection issue like the one in Ex parte Adkins arises whenever
the Court of Criminal Appeals (or the Supreme Court on certiorari review as in Ex
parte Adkins), in discharging its statutory obligation to search the record in death
cases for plain error, 10 finds that the defendant had grounds to object to the
prosecutor’s strike of a prospective juror due to the juror’s race, but did not. Once
that finding is made, the case must be remanded to the trial court for a Batson
hearing. At the hearing on remand, because a prima facie case of race
discrimination has already been found by the appellate court, the trial court begins
with Batson’s second step, and if the prosecutor provides race-neutral reasons for
the strikes at issue, the court moves to the third step and determines “whether the
defendant has carried his burden of proving purposeful discrimination.” Floyd v.
State, — So. 3d —, 2012 WL 6554696, at *1 (Ala. Crim. App. Dec. 14, 2012)
(quoting Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 1866, 114
L. Ed. 2d 395 (1991)) (internal quotation marks omitted).
The Alabama courts refer to this plain error-generated equal protection issue
as a Powers claim or a Batson claim. Where the equal protection issue is gender-
based, the courts refer to the issue as a J.E.B. claim. See J.E.B. v. Alabama, 511
U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (applying Batson and Powers
to gender-based discrimination).
10
If the Court of Criminal Appeals has not found sufficient indicia to create an inference
of unlawful discrimination, there would be no reason to remand the case for a Batson hearing.
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In Ex parte Floyd, — So. 3d —, 2012 WL 4465562, at * 6–11 (Ala. Sept.
28, 2012) (Murdock, J., concurring in the result), Justice Murdock, criticizing the
Supreme Court’s creation of this equal protection claim by noticing plain error,
explained why the claim is not rooted in the Batson, Powers, and J.E.B., decisions
but, instead, was the court’s creation. In that case, Christopher Anthony Floyd was
convicted of capital murder and sentenced to death. On appeal, Floyd argued that
the prosecutor had exercised the State’s peremptory challenges to strike blacks and
women from the venire for the purpose of excluding them from jury service on
account of their race and sex. Floyd v. State, 2007 WL 2811968, at *1 (Ala. Crim.
App. Sept. 28, 2007). Floyd had not objected to the strikes in the trial court, and
therefore asked the Court of Criminal Appeals to notice plain error, citing Batson,
Powers, and J.E.B. The Court of Criminal Appeals concluded that the record
established an inference of purposeful race- and gender-based discrimination and
remanded the case to the trial court for a Batson hearing. Id. at *3.
On remand, the trial court found that the prosecutor’s reasons for the strikes
were race- and gender-neutral. On return to remand, the Court of Criminal
Appeals affirmed the trial court’s findings and affirmed Floyd’s murder conviction
and death sentence. Id. at *33 (opinion on return to remand, Aug. 29, 2008).
On writ of certiorari, the Alabama Supreme Court reversed and instructed
the Court of Criminal Appeals to remand the case again to the trial court for
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findings of fact and conclusions of law as to whether the prosecutor’s reasons for
striking blacks and women were race- and gender-neutral and whether the
defendant had carried his burden of proving purposeful discrimination. Ex parte
Floyd, — So. 2d —, 2012 WL 4465562, at *6 (Ala. Sept. 28, 2012).11
Justice Murdock, joined by Justices Malone and Bolin, concurred in the
result but opposed the practice of giving defendants who had waived their Batson,
Powers, and J.E.B. objections at trial an opportunity for a Batson hearing in the
trial court for the purpose of having the State offer nondiscriminatory reasons for
its peremptory strikes. In Justice Murdock’s opinion, what his court was doing
was contrary to the holdings in Batson and its progeny:
[T]he three-step evidentiary inquiry prescribed by Batson as a tool for
ferreting out purposeful discrimination was intended only for use in
“real time” during the trial in which the alleged discrimination occurs
and . . . the right to initiate a Batson inquiry is waived if not exercised
contemporaneously with the selection of the jury and cannot be
revived based on a plain-error review in an appeal after the trial is
concluded.
Floyd, 2012 WL 4465562, at *6 (Murdock, J., concurring). Justice Murdock
continued
I have found no federal cases that hold to the contrary or that even
stand as contrary physical precedent. That is, I have found no federal
cases in which the court has used a “plain error” review to initiate a
Batson inquiry on appeal when the defendant failed to initiate that
11
The Court of Criminal Appeals, on receipt of the Supreme Court’s mandate,
remanded the case to the trial court with the Supreme Court’s instructions. Floyd v. State, — So.
3d —, 2012 WL 6554696 (Ala. Crim. App. Dec. 14, 2012).
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inquiry during the trial. There appear to be good reasons why it is so
difficult to find such a case.
Id. (emphasis in original). In his view,
[T]here [we]re sound “policy” reasons why a Batson inquiry, if it is to
be conducted, must be conducted at trial contemporaneously with the
jury-selection process that is its subject. If the inquiry is launched
before the jury is sworn or before the venire is excused, remedies
other than reversal and retrial are available. More importantly, in most
cases, the type of inquiry contemplated by Batson simply cannot be
undertaken in any meaningful way months or years after the trial.
Pretrial research regarding jurors and real-time notes taken during voir
dire may have been lost, and, more importantly, unwritten memories
and impressions of body language, voice inflections, and the myriad
of other nuances that go into striking jurors likely will have faded, not
only for counsel, but also for the judge who must evaluate the
positions of both the defendant and the prosecutor in the context of his
or her own observations at trial (and who, in some cases, will have
even left the bench in the meantime).
Id. at *7. Justice Murdock amplified the Batson Court’s recognition that “‘a
finding of intentional discrimination is a finding of fact’ and that ‘the trial judge’s
findings . . . largely will turn on evaluation of credibility,’” id. at *8, with this
quotation from Snyder v. Louisiana:
The trial court has a pivotal role in evaluating Batson claims. Step
three of the Batson inquiry involves an evaluation of the prosecutor’s
credibility, and “the best evidence [of discriminatory intent] often will
be the demeanor of the attorney who exercises the challenge.” In
addition, race-neutral reasons for peremptory challenges often invoke
a juror’s demeanor (e.g., nervousness, inattention), making the trial
court’s first-hand observations of even greater importance. In this
situation, the trial court must evaluate not only whether the
prosecutor's demeanor belies a discriminatory intent, but also whether
the juror’s demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor. We have
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recognized that these determinations of credibility and demeanor lie
“peculiarly within a trial judge’s province,” and we have stated that
“in the absence of exceptional circumstances, we would defer to [the
trial court].”
552 U.S. 472, 477, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008) (internal
citations omitted) (emphasis in original).
An obvious reason for abandoning this plain error practice in cases like
Adkins and Floyd is the effect it must have on trial judges in capital cases.
Nothing is more onerous for trial judges than having to try a criminal case twice,
especially a capital case in which the State is seeking the death penalty. Because
the holdings in Batson, Powers, and J.E.B. condemn the discriminatory exercise of
peremptory challenges based on race and gender, a trial judge, to ensure that the
case will not be remanded for a Batson hearing, will be tempted to require the
prosecutor to provide race- or gender-neutral reasons for many if not all of the
State’s strikes. 12 The practical effect of the possibility of a later Batson hearing
12
Defense counsel, who like the prosecutor is a state actor when exercising peremptory
strikes, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 111 S. Ct. 2077, 2087, 114 L.
Ed. 2d 660 (1991), also denies a venireperson the equal protection right to jury service when not
objecting to what appears to be an unconstitutional strike. The Supreme Court’s opinion
remanding Adkins’s case for a Batson hearing is silent regarding the relevance of evidence that
defense counsel, in failing to object, might be complicit in the presumed racial discrimination by
the State.
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would be to eliminate the peremptory challenge in death cases. Nothing in Batson,
Powers, or J.E.B. requires the Alabama courts to go to that extreme. 13
The majority treats the Alabama Court of Criminal Appeals decision as
having adjudicated a federal constitutional claim on the merits for purposes of §
2254(d) because the State, in the District Court and in its brief on appeal, agreed
that the decision adjudicated a Batson claim. It argues that United States v. Nealy,
232 F.3d 825 (11th Cir. 2000), and United States v. Ardley, 242 F.3d 989 (11th
Cir. 2001), therefore bar the State from switching positions and arguing that the
decision at issue adjudicated a state law claim.
Our decisions in Ardley and its progeny involve direct appeals of federal
court convictions, not habeas petitions. In the Ardley appeal, we declined to
retroactively apply the Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which was decided after the
appellant was convicted but before his conviction became final, because he had not
raised the Apprendi issue in his opening brief on appeal. 273 F.3d at 1007. Since
Ardley, we have repeatedly followed the prudential rule that we will not consider
13
One of the reasons why the Batson, Powers, and J.E.B. holdings do not go to such an
extreme is this: When defense counsel does not object to the prosecutor’s strike, defense counsel
is indirectly informing the court that it would be in the best interest of counsel’s client that the
challenged venireperson not serve on the jury, that, in counsel’s mind, it is doubtful whether the
venireperson would be impartial and reach a fair verdict. Given this evidence—the failure to
object and the communication it yields—the inference that the venireperson is being challenged
in violation of the Equal Protection Clause is problematic. If that inference is problematic,
whether the inference is strong enough to establish a case of unlawful discrimination is likewise
problematic.
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the merits of issues not raised in the opening brief, even where they would be
resolved in appellant’s favor but for his failure to anticipate the new rule of law in
his opening brief. See United States v. Levy, 391 F.3d 1327, 1328 (11th Cir. 2004)
(denying appellant’s petition for rehearing after his conviction had become final
because he had failed to raise a claim under Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), until his petition for rehearing); United
States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005) (holding that the
appellant had abandoned his claim under United States v. Booker, 543 U.S. 220,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), by failing to address the claim Booker
created in his opening brief on appeal); United States v. Vanorden, 414 F.3d 1321,
1323 (11th Cir. 2005) (holding that appellant had abandoned any Apprendi-
Blakely-Booker claim by failing to brief it); United States v. Higdon, 418 F.3d
1136, 1137 (11th Cir. 2005) (Hull, J., concurring in denial of rehearing en banc)
(declining to reconsider panel’s denial of appellant’s motion to file a supplemental
brief raising a claim under Blakely).
Although these decisions would seem at first blush to bar our consideration
of the State’s argument that the Court of Criminal Appeals did not adjudicate a
federal constitutional claim, I submit that the prudential rule on which they are
based must give way to the policies AEDPA seeks to implement, namely the
interests of federalism, comity and finality of state criminal convictions. See
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Federal Habeas Corpus Reform: Eliminating Prisoners’ Abuse of the Judicial
Process: Hearing before the S. Comm. on the Judiciary, 104th Cong. 1, 10, 23, 30–
31 (1995) (statements of Sen. Orrin Hatch; Lee Chancellor, Vice President,
Citizens for Law and Order, Oakland, Calif.; Sen. Strom Thurmond; and Daniel E.
Lungren, California Attorney General). As I have written before, waiver “applies
to the right of a litigant to have his claim heard. . . . The scope of a petitioner’s
rights has no bearing on this court’s power. It is beyond dispute that, in general,
we have the power to consider issues that a party fails to raise on appeal, even
though the petitioner does not have the right to demand such consideration.”
Thomas v. Crosby, 371 F.3d 782, 793 (11th Cir. 2004) (Tjoflat, J., specially
concurring). The Supreme Court has said, “The matter of what questions may be
taken up and resolved for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the facts of individual cases.”
Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826
(1976).
Our task in this case is to determine whether the Alabama Court of Criminal
Appeals decision falls within § 2254(d)(1) or (2). 14 In the context of a habeas
14
See Harrison v. Richter, — U.S. —, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011)
(“Under § 2254(d), a habeas court must determine what arguments or theories supported or . . .
could have supported . . . the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.”).
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petition, we would be remiss if we did not consider sua sponte whether the
petitioner has a federal constitutional claim. Because Adkins did not object to the
allegedly discriminatory peremptory strikes, he did not preserve his Powers claim.
The Alabama courts thus adjudicated a state law claim, and we should not grant
federal habeas relief under AEDPA.
In sum, the Alabama Court of Criminal Appeals decision under
consideration did not adjudicate a claim contrary to a holding of the United States
Supreme Court. For that reason, the judgment of the District Court should be
affirmed.
53