holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the petitioner rebuts them by clear and convincing evidence
How later courts described this case
- holding the AEDPA requires federal habeas courts to accept as correct state court factual determinations unless the petitioner rebuts them by clear and convincing evidence
- none of juror alleged to be similarly situated to those challenged possessed the same combination of negative qualities as the struck jurors
- petitioner procedurally defaulted on an unexhausted claim for relief
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50170
DAVID HICKS,
Petitioner-Appellant,
versus
GARY JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeals from the United States District Court
for the Western District of Texas
August 23, 1999
Before POLITZ, DAVIS, and SMITH, Circuit Judges.
POLITZ, Circuit Judge:
David Hicks was convicted and sentenced to death in proceedings in Texas
state court for sexually assaulting and murdering his grandmother. Following
unsuccessful challenges to the conviction on direct appeal and through state habeas
review, he filed a petition in federal district court under 28 U.S.C. § 2254. The
district court denied that petition and Hicks’ application for a certificate of
appealability. Hicks now seeks that certificate from this court. For the reasons
assigned, we deny the application for a certificate of appealability.
Under the Antiterrorism and Effective Death Penalty Act of 1996,1 “[u]nless
1
28 U.S.C. § 2241 et seq.
a circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals from . . . the final order in a habeas corpus proceeding
in which the detention complained of arises out of process issued by a [s]tate
court.”2 A certificate of appealability will only issue if a habeas petitioner makes
a “substantial showing of the denial of a constitutional right.”3 “A ‘substantial
showing’ requires the applicant to ‘demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues (in a different manner); or that
the questions are adequate to deserve encouragement to proceed further.’” 4
Hicks, who is black, claims that his rights under the equal protection clause
of the fourteenth amendment were violated when the prosecutor exercised his
peremptory challenges in a racially discriminatory manner. In Batson v.
Kentucky,5 the Supreme Court outlined the methodology for evaluating a claim that
jurors were improperly stricken based on their race. Initially, the defendant must
make a prima facie showing that the challenged strike has been employed in a
racially discriminatory manner. Once this showing has been made, the prosecutor
must articulate race-neutral selection criteria. The district court then must
determine whether the defendant has established purposeful racial discrimination.6
2
28 U.S.C. §2253(c)(1)(A).
3
28 U.S.C. § 2253(c)(2).
4
Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
5
476 U.S. 79 (1986).
6
Id. at 93-98.
2
Of eleven potential black jurors, the prosecutor exercised peremptory strikes
against four. Hicks objected to the elimination of three of them. To establish a
prima facie case Hicks relied exclusively on statistics. The prosecutor articulated
numerous racially-neutral reasons in support of each challenged strike, ranging
from educational deficiencies to prior criminal convictions. The state court
credited the prosecutor’s explanations and found that Hicks had failed to show
intentional discrimination against blacks.
Our review of state court findings is sharply circumscribed under 28 U.S.C.
§ 2254, which requires us to accept as correct a determination of a factual issue by
a state court unless the habeas petitioner rebuts same by clear and convincing
evidence.7 We begin with the proposition that the state court appropriately
accepted the race-neutral reasons tendered by the prosecutor as truthful and
properly rejected Hicks’ charges of discrimination. In response Hicks contends that
the proffered reasons were pretextual and offers as proof of same the prosecutor’s
purported failure to strike similarly-situated whites. In support of this contention,
Hicks identifies several white jurors who had certain of the objectionable
characteristics cited by the prosecutor but were not stricken.
We are not persuaded. None of the individuals Hicks identifies possessed the
combination of the negative qualities attributable to the stricken veniremen. The
potential jurors were not similarly situated. We previously have rejected such
7
28 U.S.C. § 2254(e)(1).
3
submissions. In United States v. Webster,8 we stated:
[Defendant] offers no direct evidence of purposeful discrimination, but rather
argues that the government’s proffered reasons are pretextual, and the
government did not dismiss similar white jurors. Because the determination
turns on credibility assessments, we review for clear error. . . . The
government offered distinguishing characteristics for each of the jurors
[defendant] claims were similarly situated. They had different combinations
of qualities, and some had more government-desired qualities than did the
jurors the government preempted. . . . The court did not find the proffered
reasons pretextual and found no other evidence of purposeful discrimination;
we cannot say it clearly erred.9
Similarly, the evidence offered by Hicks in this case falls far short of what
would be required to cast doubt on the state court’s factual findings. Therefore,
Hicks has failed to make a substantial showing of a violation under Batson.
Hicks next contends that because Texas -- statutorily and extra-statutorily --
has made several changes to its capital sentencing scheme in the wake of Penry v.
Lynaugh,10 “similarly-situated . . . capital defendants . . . have been unjustifiably
sentenced to death under radically different sentencing schemes.” This purported
arbitrariness, Hicks submits, violates his constitutional rights under the eighth and
fourteenth amendments and requires that his sentence be vacated.
Although this claim would not likely overcome the bar of Teague v. Lane11
or survive a review on its merits, we must reject same on a more fundamental
8
162 F.3d 308 (5th Cir. 1998).
9
Id. at 350 (internal quotations and citations omitted); see also United States v.
Jiminez, 77 F.3d 95 (5th Cir. 1996); United States v. Cobb, 975 F.2d 152 (5th Cir.
1992)..
10
492 U.S. 302 (1989).
11
489 U.S. 288 (1989).
4
ground. The claim is procedurally barred under Tex. Code Crim. Proc. Ann. art.
11.071, § 5(a), which precludes state courts from entertaining a new issue in a
successive habeas petition absent facts giving rise to one of the statutory
exceptions. “In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate cause for
the default and actual prejudice as a result of the alleged violation of federal law,
or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.”12
Hicks failed to raise in his state habeas petition the sentencing contention
which he now advances. He does not contend that he qualifies for an exception
under Article 11.071, § 5(a). Nor does he make the showing required to obtain
federal consideration of the substantive claim notwithstanding the state procedural
default. Our review persuades that Hicks’ failure to raise the sentencing issue can
be excused under neither state nor federal law. Therefore, Hicks has failed to make
a substantial showing that he was unconstitutionally sentenced. For these reasons,
we DENY Hicks’ application for a certificate of appealability.
12
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
5