Akins v. Easterling

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0206p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TERRANCÉ AKINS,

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Petitioner-Appellant,

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No. 08-6161

v.

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Respondent-Appellee. -

JOE EASTERLING,

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 07-00971—Todd J. Campbell, Chief District Judge.

Argued: December 7, 2010

Decided and Filed: August 5, 2011

Before: MOORE and STRANCH, Circuit Judges; COHN, District Judge.*

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COUNSEL

ARGUED: Christopher S. Perry, JONES DAY, Washington, D.C., for Appellant.

Brent C. Cherry, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellee. ON BRIEF: Christopher S. Perry, Michael S. Fried, JONES

DAY, Washington, D.C., for Appellant. Brent C. Cherry, OFFICE OF THE

TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Terrancé Akins

was convicted in Tennessee state court of one count of especially aggravated robbery,

and the Tennessee appellate courts upheld his conviction. He now appeals the district

*

The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan,

sitting by designation.

1

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court’s denial of his petition for a writ of habeas corpus. We certified two issues for

appeal: whether the state trial court erred in (1) permitting the prosecution to exercise

a peremptory challenge to excuse an African American prospective juror, and

(2) permitting Akins to represent himself at trial. Because we cannot conclude that the

Tennessee Court of Criminal Appeals was unreasonable in its adjudication of Akins’s

claims, we AFFIRM.

I. BACKGROUND & PROCEDURE

In 1998, a jury in Williamson County, Tennessee, convicted Akins of one count

of especially aggravated robbery, TENN. CODE ANN. § 39-13-403, for his role in a

carjacking at the Cool Springs Mall in Franklin, Tennessee. Akins, seventeen years old

at the time of the crime, was charged in a juvenile petition but ultimately tried as an

adult. Akins was appointed counsel but moved to represent himself at trial. The trial

court granted Akins’s request to represent himself and permitted appointed counsel to

serve as elbow counsel. At sentencing, the trial court found that Akins was a violent

offender and sentenced him to twenty years of imprisonment. The jury also assessed a

$50,000 fine, which the trial judge reduced to $1000.

The Tennessee Court of Criminal Appeals affirmed the conviction on direct

appeal, State v. Groomes, No. M1998-00122-CCA-R3-CD, 2000 WL 1133542 (Tenn.

Crim. App. Aug. 10, 2000) (unpublished decision), and the Tennessee Supreme Court

denied Akins’s application for permission to appeal, State v. Akins, No. M1998-00122-

SC-R11-CD (Tenn. Mar. 4, 2002). Akins filed a petition for post-conviction relief,

which the state court denied. Akins v. State, No. 203-079 (Williamson Cnty. Cir. Ct.

Aug. 19, 2005). The Tennessee Court of Criminal Appeals affirmed the judgment, Akins

v. State, No. M2005-02215-CCA-R3-PC, 2007 WL 189461 (Tenn. Crim. App. Jan. 22,

2007) (unpublished decision), and the Tennessee Supreme Court denied Akins’s

application for permission to appeal, Akins v. State, No. M2005-02215-SC-R11-PC

(Tenn. May 14, 2007).

No. 08-6161 Akins v. Easterling Page 3

Akins filed a pro se petition for a writ of habeas corpus on September 6, 2007,

raising four grounds for relief. The state moved to dismiss Akins’s petition on the

merits. On August 12, 2008, the district court granted the state’s motion to dismiss and

denied the petition. The district court also declined to certify any of the four grounds for

appeal. Akins filed a timely notice of appeal. We granted Akins’s application for a

certificate of appealability on the two issues now before us and appointed counsel for

Akins.

II. ANALYSIS

A. Standard of Review

“We review the district court’s legal conclusions in habeas proceedings de novo

and its findings of fact for clear error.” Braxton v. Gansheimer, 561 F.3d 453, 457 (6th

Cir. 2009). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs Akins’s petition because he filed it after the effective date of AEDPA. Lindh

v. Murphy, 521 U.S. 320, 326–27 (1997). Under AEDPA, we may grant a writ with

respect to a claim adjudicated on the merits in state-court proceedings only if the

adjudication (1) “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of

the United States,” or (2) “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

With respect to § 2254(d)(1), “[a] state court’s decision would be considered

‘contrary to’ established law if it is ‘diametrically different’ from or ‘opposite in

character or nature’ to federal law as determined by the Supreme Court.” Pudelski v.

Wilson, 576 F.3d 595, 607 (6th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362,

405 (2000)), cert. denied, 130 S. Ct. 3274 (2010). “[I]f the state court identifies the

correct governing legal principle from the Supreme Court’s decisions,” habeas relief is

available under the “unreasonable application” clause if the state court “unreasonably

applies that principle to the facts of the prisoner’s case,” or “unreasonably extends or

No. 08-6161 Akins v. Easterling Page 4

unreasonably refuses to extend a legal principle from the Supreme Court precedent to

a new context.” Braxton, 561 F.3d at 458 (alteration omitted) (internal quotation marks

omitted); see also Williams, 529 U.S. at 407–09. “‘[A] federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established law erroneously or incorrectly.’”

Pudelski, 576 F.3d at 607 (quoting Williams, 529 U.S. at 411). Rather, “[t]he state

court’s application of clearly established law must be objectively unreasonable.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

With respect to § 2254(d)(2), “‘a decision adjudicated on the merits in a state

court and based on a factual determination will not be overturned on factual grounds

unless objectively unreasonable in light of the evidence presented in the state-court

proceeding.’” Braxton, 561 F.3d at 458 (quoting Miller-El v. Cockrell, 537 U.S. 322,

340 (2003)). The state court’s factual determinations are “presumed to be correct,” and

the petitioner has “the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); accord Braxton, 561 F.3d at 458.

B. Batson Claim

Akins’s first asserted ground for relief is that the state trial court erred, under

Batson v. Kentucky, 476 U.S. 79 (1986), in allowing the prosecutor to exclude an African

American juror with a peremptory strike. The jury venire had two African American

jurors, one of whom was excused for cause. The prosecutor sought to exercise a

peremptory challenge on the remaining African American juror, “Juror D,” and Akins

objected to the strike. In a conference outside the presence of the jury, the prosecutor

stated that he wanted to strike Juror D because

(1) she indicated on the juror questionnaire that she had a relative who

was charged with a crime or had been the subject of a criminal

investigation; (2) she indicated that she considers herself to be politically

slightly liberal; and (3) she indicated that, if she was a lawyer in this

case, she would want to know how a juror felt about blacks and crime,

their thoughts about blacks, and whether they had ever been robbed by

a black person.

No. 08-6161 Akins v. Easterling Page 5

Groomes, 2000 WL 1133542, at *10; see also R.36, Addendum (“Add.”) 3 (DVD 3 at

2:05:54–2:08:05).1 In particular, the prosecutor indicated that Juror D was the only juror

to indicate on her questionnaire that she had a close friend or family member convicted

of a crime. In response, Akins argued that the reasons given were not “good enough

reasons to exclude her from the jury,” especially because another juror had responded

affirmatively when Akins had asked the jury if anyone had a family member who had

been the victim of a crime. R.36, Add. 3 (DVD 3 at 1:54:10–1:54:40 (question to jury),

2:10:40–2:11:59 (conference)). During the course of the discussion, the trial judge

remarked to the prosecutor, “To be perfectly honest, this is not the only case where

you’ve excused the only black juror. It’s more often that you do that than not.” Id. at

2:13:35–2:13:44. The trial judge also rejected the prosecutor’s second proffered

reason—that Juror D identified herself as politically slightly liberal—as insufficient to

strike her in this case. The trial judge conducted an individual voir dire with Juror D,

in which she stated that her half-brother was convicted of selling drugs and that she

believed that “race has a bearing on the outcome of a trial, in that a white juror may

convict a defendant just because he is black.” Groomes, 2000 WL 1133542, at *12; see

also R.36, Add. 3 (DVD 3 at 2:45:20–2:47:55). After Akins renewed his objection, the

trial judge determined that Juror D’s relationship to her half-brother was sufficient to

excuse her. The trial judge permitted the strike, reasoning that the court had always

permitted a party to excuse a juror whose close relative was convicted of a crime or had

been the victim of a crime. The trial judge also overruled Akins’s motion for a mistrial

on the ground that there were no African American jurors.

Analysis of a claim of discrimination in the prosecutor’s exercise of peremptory

challenges in juror selection follows the three-part framework established in Batson:

(1) the defendant must make a prima facie showing of discrimination; (2) the burden

then shifts to the prosecution to provide a race-neutral explanation for the challenge; and

(3) the defendant then has the opportunity to rebut the proffered race-neutral reason as

1

The state-court record was filed manually in the district court, organized in twenty-four

addendums, including DVD recordings of the trial in lieu of written transcripts. See R.34 (Mot. to Manual

File Docs.); R.36 (Notice of Manual Filing).

No. 08-6161 Akins v. Easterling Page 6

pretext, and the trial court determines whether the defendant has established purposeful

discrimination. 476 U.S. at 93–98; accord Braxton, 561 F.3d at 458–59. The defendant

“always bears the ultimate burden of persuasion.” Braxton, 561 F.3d at 459.

The relevant state-court decision is the Tennessee Court of Criminal Appeals’

decision on direct review because it is the last state-court decision to adjudicate Akins’s

Batson claim on the merits. See Pudelski, 576 F.3d at 607. After reviewing the three-

step framework required by Batson, the state court discussed the discretionary nature of

peremptory strikes and stated that “the attorney’s judgment is acceptable unless

motivated solely by race.” Groomes, 2000 WL 1133542, at *11. The state court

concluded that “[s]ince the prosecution articulated race-neutral reasons for striking

[Juror D], the burden of proof shifted back to [Akins] to show purposeful

discrimination,” but that Akins failed to “carr[y] that burden.” Id. at *12. On review,

Akins’s “Batson claim presents a mixed question of law and fact.” Braxton, 561 F.3d

at 458. The district court concluded that “the facts before the Court of Criminal Appeals

supported its determination that the prosecution had demonstrated a racially-neutral

reason for challenging [Juror D], and that Akins had failed to establish that the reason

was a pretext for discrimination.” R.38 (Mem. at 8).

1. Contrary to, or Unreasonable Application of, Clearly Established

Federal Law

Akins asserts errors of law under both the second and third steps of Batson’s

framework. Akins first argues that the prosecutor’s third proffered reason for striking

Juror D was not race neutral and that the state court’s determination that the prosecutor

met his burden of producing a legally sufficient race-neutral explanation under step two

of Batson is contrary to clearly established Supreme Court law because the

impermissible race-based reason “taints” the other race-neutral reasons. Alternatively,

he argues that the legal standard applied by the state court to determine discriminatory

intent at step three—requiring that the prosecution’s decision to strike a juror be

motivated solely by race—is contrary to clearly established Supreme Court law. The

state responds that the prosecutor’s third reason was not impermissibly race based and

No. 08-6161 Akins v. Easterling Page 7

that the Supreme Court has not required the legal standard that Akins asserts is

constitutionally required.

a. Batson Step Two: Whether the Prosecutor’s Explanation

Was Race Neutral

Akins argues that the prosecutor’s third proffered reason was not race neutral and

that the impermissible race-based reason “taints” the other race-neutral reasons. The

prosecutor stated that the third reason he wanted to strike Juror D is because “she

indicated that, if she was a lawyer in this case, she would want to know how a juror felt

about blacks and crime, their thoughts about blacks, and whether they had ever been

robbed by a black person.” Groomes, 2000 WL 1133542, at *10; see also R.36, Add.

3 (DVD 3 at 2:05:54–2:08:05, 2:45:20–2:47:55). The state court did not explain its

analysis of step two of Batson and referenced the prosecutor’s third proffered reason

only when recounting that the trial court “asked [Juror D] about her answers related to

race” during the individual voir dire. Groomes, 2000 WL 1133542, at *12. Akins

argues that the state court’s conclusion that “the prosecution articulated race-neutral

reasons for striking [Juror D],” id., is contrary to the Supreme Court’s decisions in

Batson and Hernandez v. New York, 500 U.S. 352 (1991).

A race-neutral reason is “an explanation based on something other than the race

of the juror.” Hernandez, 500 U.S. at 360 (plurality opinion). “At this second step of

the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will

be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (alteration omitted)

(internal quotation marks omitted). The explanation need not be “persuasive, or even

plausible.” Id. Showing that discriminatory intent is inherent in the proffered reason as

a matter of law requires more than a showing that the prosecutor’s proffered reason has

a racially disproportionate impact, Hernandez, 500 U.S. at 359–60 (plurality opinion);

id. at 373–74 (O’Connor, J., concurring in the judgment), or is related to the issue of

race, see United States v. Payne, 962 F.2d 1228, 1233 (6th Cir.) (“affirm[ing] the district

court’s finding that the prosecutor offered a valid neutral explanation” when the

prosecutor stated that two black jurors were excused “not because of their race but

No. 08-6161 Akins v. Easterling Page 8

because of the advocacy groups [NAACP and Black Caucus] to which they belonged”),

cert. denied, 506 U.S. 909 (1992), and 506 U.S. 1033 (1992).

Akins argues that “[t]he only inference that could conceivably have supported

a strike based upon [Juror D’s] comments is that [she], as an African-American

expressing such views, would be more sympathetic to an African-American defendant

than a similarly situated white juror.” Appellant Br. at 21. He argues that such inference

is contrary to Batson, in which the Court stated that “the prosecutor may not rebut the

defendant’s prima facie case of discrimination by stating merely that he challenged

jurors of the defendant’s race on the assumption—or his intuitive judgment—that they

would be partial to the defendant because of their shared race.” 476 U.S. at 97.

The Fifth Circuit and the Ninth Circuit have rejected similar arguments that

striking a juror because of the juror’s expressed views on race in the criminal justice

system is the same as striking the juror because of the juror’s race. See Tolbert v.

Gomez, 190 F.3d 985, 987, 989 (9th Cir. 1999) (rejecting argument because the

defendant “failed to establish that [the juror’s] opinions about the importance of race [in

a juror’s evaluation of guilt] was peculiar to his race, or that the opinions stood as a

proxy for it” (citing Purkett, 514 U.S. at 769)); United States v. Fike, 82 F.3d 1315,

1319–20 (5th Cir. 1996) (“Batson does not forbid striking a juror who holds a particular

opinion about the U.S. justice system. Rather, it forbids striking jurors based on their

race.”), cert. denied, 519 U.S. 896 (1996), and 520 U.S. 1131 (1997), overruled on other

grounds by United States v. Brown, 161 F.3d 256, 259 n.8 (5th Cir. 1998) (en banc),

abrogated on other grounds by United States v. Cantu, 230 F.3d 148, 152 (5th Cir.

2000); see also United States v. Perkins, 105 F.3d 976, 978–79 (5th Cir. 1997). In

particular, the Ninth Circuit concluded that “[t]he assumption that race and an opinion

on race are inseparable is antithetical to the very type of racial stereotyping that Batson

forbids.” Tolbert, 190 F.3d at 989.

We need not and do not decide at this time whether we would adopt the

reasoning of the Fifth Circuit or the Ninth Circuit if we were considering this issue on

direct review. However, we find their reasoning persuasive for purposes of this habeas

No. 08-6161 Akins v. Easterling Page 9

petition. We conclude that the state court’s conclusion that the prosecutor provided

legally sufficient, race-neutral reasons for striking Juror D is not contrary to, or an

unreasonable application of, the clearly established legal principles in Batson and

Hernandez.

b. Batson Step Three: Determining Discriminatory Intent

Akins also argues that the state court’s application of a sole-motivation standard

at step three of Batson is contrary to clearly established Supreme Court law. He argues

that Batson and its progeny require a per se approach under which any improper

discriminatory motivation violates Batson. Alternatively, Akins argues that a mixed-

motive, or “but for,” standard is the constitutional minimum. See Kesser v. Cambra, 465

F.3d 351, 372 (9th Cir. 2006) (en banc) (Wardlaw, J., concurring) (“[W]here both

race-based and race-neutral reasons have motivated a challenged decision,” the Supreme

Court “allows those accused of unlawful discrimination to prevail, despite clear evidence

of racially discriminatory motivation, if they can show that the challenged decision

would have been made even absent the impermissible motivation, or, put another way,

that the discriminatory motivation was not a ‘but for’ cause of the challenged

decision.”).2

Akins quotes language from Supreme Court decisions subsequent to Batson that

support his arguments for the per se or mixed-motive standards.3 See Miller-El v.

Dretke, 545 U.S. 231, 238 (2005) (“When the government’s choice of jurors is tainted

2

The issue of dual-motivation analysis with respect to a Batson challenge is still relevant when

all of the prosecutor’s proffered reasons are race neutral because the trial court nonetheless may conclude

that one of the facially race-neutral reasons is pretextual or that there is other evidence demonstrating that

the prosecutor was motivated at least in part by race. See, e.g., United States v. Taylor, 92 F.3d 1313, 1321

(2d Cir. 1996) (“After noting that defendants had offered facially-sufficient race-neutral reasons for each

challenge, the Magistrate determined that the government had nonetheless met its burden of proving that

defendants exercised their peremptory challenges, at least in part, guided by race-based considerations.”

(internal quotation marks omitted)).

3

Akins also cites Justice Marshall’s dissent, joined by Justice Brennan, from the Court’s denial

of certiorari in Wilkerson v. Texas, 493 U.S. 924 (1989), to support his claim. Id. at 928 (“I would find

that this Court’s requirement that a prosecutor provide a ‘neutral’ explanation for challenging an Afro-

American juror means just what it says—that the explanation must not be tainted by any impermissible

factors.”). A dissent from the denial of certiorari does not constitute “clearly established Federal law”

under § 2254(d)(1). See Lockyer, 538 U.S. at 72 (“Section 2254(d)(1)’s ‘clearly established’ phrase refers

to the holdings, as opposed to dicta, of this Court’s decisions . . . .” (internal quotation marks omitted)).

No. 08-6161 Akins v. Easterling Page 10

with racial bias, that overt wrong casts doubt over the obligation of the parties, the jury,

and indeed the court to adhere to the law throughout the trial.’” (alterations omitted)

(emphasis added) (internal quotation marks omitted)); Powers v. Ohio, 499 U.S. 400,

402 (1991) (“Despite the clarity of these commands to eliminate the taint of racial

discrimination in the administration of justice, allegations of bias in the jury selection

process persist.” (emphasis added)). The Supreme Court, however, has not decided

explicitly the standard to apply at the third step of Batson for determining whether the

defendant has shown intentional discrimination. See Snyder v. Louisiana, 552 U.S. 472,

485 (2008); cf. Berghuis v. Smith, --- U.S. ---, 130 S. Ct. 1382, 1393 (2010) (noting, in

reversing the grant of a writ of habeas corpus on a Sixth Amendment fair-cross-section

claim because the state prisoner’s entitlement to federal-court relief was not “clearly

established,” that no Supreme Court decision “specifies the method or test courts must

use to measure the representation of distinctive groups in jury pools”); Knowles v.

Mirzayance, --- U.S. ---, 129 S. Ct. 1411, 1419 (2009) (“[I]t is not an unreasonable

application of clearly established Federal law for a state court to decline to apply a

specific legal rule that has not been squarely established by [the] Court”; “Instead,

[habeas] relief may be granted only if the state-court decision unreasonably applied the

more general standard . . . established by [the relevant Supreme Court decisions] . . . .”

(internal quotation marks omitted)).

The Court’s decision in Snyder suggests that proving discriminatory intent does

not require showing that race was the sole motivation for the peremptory strike:

In other circumstances, we have held that, once it is shown that

a discriminatory intent was a substantial or motivating factor in an action

taken by a state actor, the burden shifts to the party defending the action

to show that this factor was not determinative. We have not previously

applied this rule in a Batson case, and we need not decide here whether

that standard governs in this context. For present purposes, it is enough

to recognize that a peremptory strike shown to have been motivated in

substantial part by discriminatory intent could not be sustained based on

any lesser showing by the prosecution.

552 U.S. at 485 (citation omitted) (on direct review from the Louisiana Supreme Court).

Snyder, however, was decided well after the state court’s decision here and after Akins’s

No. 08-6161 Akins v. Easterling Page 11

conviction became final, and therefore does not qualify as “clearly established Federal

law” under § 2254(d). See Thaler v. Haynes, --- U.S. ---, 130 S. Ct. 1171, 1174 n.2

(2010).4

Akins also cites decisions of other state courts that have adopted the per se

approach,5 as well as decisions of our sister circuits that have adopted a mixed-motive

standard.6 Three judges in the Ninth Circuit’s en banc decision in Kesser, 465 F.3d 351,

concluded that the “failure to apply mixed-motive analysis constituted an

‘unreasonabl[e] refus[al]’ to extend clearly established federal law, as determined by the

Supreme Court, to a context where it should apply.” Id. at 375 (Wardlaw, Paez, and

Berzon, JJ., concurring) (alterations in original) (quoting Williams, 529 U.S. at 407).

Since that decision, the Ninth Circuit has rejected the application of a mixed-motive

analysis in favor of a modified version of the per se approach that considers “whether

the prosecutor was ‘motivated in substantial part by discriminatory intent.’” Cook v.

LaMarque, 593 F.3d 810, 815 (9th Cir. 2010) (quoting Snyder, 552 U.S. at 485). We

also note that we have considered mixed motives under Batson only in the dicta of an

unpublished, non-precedential opinion. See United States v. Peraza, 25 F.3d 1051, 1994

4

The Supreme Court has granted certiorari to decide whether the temporal cutoff for whether a

Supreme Court decision qualifies as “clearly established Federal law” under § 2254(d) is the date of the

relevant state-court decision or the date on which the petitioner’s state conviction became final. See

Greene v. Palakovich, 606 F.3d 85 (3d Cir. 2010), cert. granted, 79 U.S.L.W. 3310 (U.S. Apr. 4, 2011)

(No. 10-637). We have concluded that the date on which the petitioner’s state conviction became final is

the relevant date. See Miller v. Stovall, 608 F.3d 913, 919 (6th Cir. 2010), petition for cert. filed, 79

U.S.L.W. 3404 (U.S. Dec. 21, 2010) (No. 10-851). The Court’s resolution of the issue in Greene,

however, does not impact our analysis here.

5

See State v. Lucas, 18 P.3d 160, 163 (Ariz. Ct. App. 2001); Rector v. State, 444 S.E.2d 862, 865

(Ga. Ct. App. 1994); McCormick v. State, 803 N.E.2d 1108, 1113 (Ind. 2004); Payton v. Kearse, 495

S.E.2d 205, 210 (S.C. 1998); Riley v. Commonwealth, 464 S.E.2d 508, 510 (Va. Ct. App. 1995).

Additionally, the District of Columbia Court of Appeals has held that “even where the exclusion of a

potential juror is motivated in substantial part by constitutionally permissible factors . . . the exclusion is

a denial of equal protection and a Batson violation if it is partially motivated as well by the juror’s race.”

Robinson v. United States, 890 A.2d 674, 681 & n.12 (D.C. 2006). It declined, however, to decide whether

a party may “overcome a Batson challenge and save peremptory strikes tainted by racial . . . bias by

proving that the same strikes would have been exercised for [race-neutral] reasons in the absence of the

improper motive.” Id. The Texas Court of Criminal Appeals has applied a mixed-motive standard.

Guzman v. State, 85 S.W.3d 242, 253 (Tex. Crim. App. 2002).

6

See Wallace v. Morrison, 87 F.3d 1271, 1274–75 (11th Cir.) (habeas review, pre-AEDPA), cert.

denied, 519 U.S. 1044 (1996); United States v. Darden, 70 F.3d 1507, 1531 (8th Cir. 1995) (direct review),

cert. denied, 517 U.S. 1149 (1996), and 518 U.S. 1026 (1996); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.

1995) (direct review); Howard v. Senkowski, 986 F.2d 24, 30 (2d Cir. 1993) (habeas review, pre-AEDPA).

No. 08-6161 Akins v. Easterling Page 12

WL 228244, at *3 (6th Cir. 1994) (unpublished table decision) (concluding that the

defendant had waived the right to appeal an allegedly discriminatory peremptory

challenge but nonetheless commenting that “any of [the prosecutor’s proffered] neutral

reasons, standing alone, would have caused [the prosecutor] to exclude [the juror]”). On

the whole, we recognize that courts that have considered expressly the issue of mixed

motives in Batson challenges overwhelmingly reject a sole-motivation standard in favor

of some level of dual-motivation analysis.

Akins also is correct that equal-protection case law outside the context of Batson

claims generally does not require the plaintiff to meet the high hurdle of showing that

the improper motivation was the sole reason for the action taken. See, e.g., Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). In our review of a petition for a

writ of habeas corpus, however, we must not substitute our own judgment; rather, the

inquiry is limited to whether the state court’s decision is objectively unreasonable. See

Pudelski, 576 F.3d at 607; Braxton, 561 F.3d at 458. Therefore, although we may

conclude in our own independent judgment that the state court erred in applying a sole-

motivation standard, our review is for unreasonableness. We believe that the

reasonableness of a state court’s application of a sole-motivation standard in determining

discriminatory intent under step three is a closer question than when a state court applies

the per se or mixed-motive approaches. See Pecor v. Walls, 56 F. App’x 723, 727 (7th

Cir.) (unpublished order) (state court applied mixed-motive approach), cert. denied, 540

U.S. 822 (2003); Gattis v. Snyder, 278 F.3d 222, 232–35 (3d Cir.) (same), cert. denied,

537 U.S. 1049 (2002).

Most damaging to Akins’s claim, however, the Supreme Court used the word

“solely” in the Batson decision itself: “the Equal Protection Clause forbids the

prosecutor to challenge potential jurors solely on account of their race.” Batson, 476

U.S. at 89 (emphasis added). The Supreme Court has repeated the “solely” phrasing

from Batson in subsequent decisions. See United States v. Martinez-Salazar, 528 U.S.

304, 315 (2000) (“Under the Equal Protection Clause, a defendant may not exercise a

No. 08-6161 Akins v. Easterling Page 13

peremptory challenge to remove a potential juror solely on the basis of the juror’s

gender, ethnic origin, or race.” (emphasis added)); J.E.B. v. Alabama ex rel. T.B., 511

U.S. 127, 146 (1994) (“When persons are excluded from participation in our democratic

processes solely because of race or gender, this promise of equality dims, and the

integrity of our judicial system is jeopardized.” (emphasis added)); Powers, 499 U.S. at

409 (“We hold that the Equal Protection Clause prohibits a prosecutor from using the

State’s peremptory challenges to exclude otherwise qualified and unbiased persons from

the petit jury solely by reason of their race . . . .” (emphasis added)). Lower federal

courts also continue, even after Snyder, to include the “solely” phrasing in their

decisions. See, e.g., United States v. Taylor, 636 F.3d 901, 904 (7th Cir. 2011); United

States v. Lewis, 593 F.3d 765, 770 (8th Cir.), cert. denied, 130 S. Ct. 3375 (2010). The

Supreme Court in Batson and its progeny, and the lower federal courts in applying

Batson, may not have intended the inclusion of “solely” to preclude dual-motivation

analysis in appropriate cases, see Howard v. Senkowski, 986 F.2d 24, 28–30 (2d Cir.

1993), but it nonetheless informs our analysis of the reasonableness of the state court’s

decision.

Thus, we cannot conclude that the state court’s application of a sole-motivation

standard, rather than a per se approach or mixed-motive standard, is an unreasonable

application of the relevant clearly established Supreme Court law.

2. Unreasonable Determination of the Facts

The question at step three of Batson—whether the defendant has shown

intentional discrimination on the basis of race—is a question of fact. Braxton, 561 F.3d

at 458 (citing Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.), cert. denied, 540 U.S.

1004 (2003)). Akins argues that the state court erred in concluding that he did not show

discriminatory intent. The question of discriminatory intent “turns largely on an

evaluation of credibility” and therefore “[t]he trial court’s determination is entitled to

great deference.” Felkner v. Jackson, --- U.S. ---, 131 S. Ct. 1305, 1307 (2011) (internal

quotation marks omitted). Furthermore, under AEDPA, Akins must show that the state

court’s conclusion was “an unreasonable determination of the facts in light of the

No. 08-6161 Akins v. Easterling Page 14

evidence presented in the State court proceeding.” § 2254(d)(2); see Felkner, 131 S. Ct.

at 1307; Dretke, 545 U.S. at 240; Lancaster, 324 F.3d at 429 n.1. “Thus we presume the

[Tennessee] court’s factual findings to be sound unless [Akins] rebuts the ‘presumption

of correctness by clear and convincing evidence.’” Dretke, 545 U.S. at 240 (quoting

§ 2254(e)(1)).

In Akins’s case, the trial judge determined that the prosecutor’s first reason, that

Juror D’s half-brother had been convicted of a crime, was a sufficient ground to strike

her—i.e., that the reason was not pretextual and therefore Akins had not demonstrated

discriminatory intent. Groomes, 2000 WL 1133542, at *12. On direct appeal, Akins

attacked the reason on which the trial judge relied, arguing that discriminatory intent

could be inferred from the fact that a white juror also indicated that she had a brother

convicted of a crime but was not excused.7 In response to Akins’s argument, the state

court reasoned that at trial Akins never raised the unequal treatment with respect to the

white juror as an inference of discrimination. The state court further reasoned that the

prosecutor was not required “to pick one factor . . . and exclude every single juror who

has that factor, regardless of whether the attorney’s gut feeling is that the particular juror

would be favorable to his side.” Id. at *11. The state court ultimately concluded that

Akins did not show intentional discrimination.

We question the state court’s reasoning. Although the state court is correct that

the prosecutor is not required to apply equally a factor to all potential jurors, the fact that

he or she does not do so for otherwise-similar jurors of different races nevertheless “is

evidence tending to prove purposeful discrimination to be considered at Batson’s third

step.” Dretke, 545 U.S. at 241. Furthermore, simply attributing the unequal application

of a factor to a party’s “gut feeling” would eviscerate Batson. “It is true that

peremptories are often the subjects of instinct,” “[b]ut when illegitimate grounds like

7

The juror’s affidavit presented to the state court, as well as the completed juror questionnaires,

are not part of the record before us. It appears that the state trial judge ordered the juror questionnaires to

be shredded at the end of jury selection. R.36, Add. 3 (DVD 3 at 5:41:10–5:43:00); R.36, Add. 3 (DVD

16 at 1:57:38–1:59:00). We have only a blank copy of the questionnaire in the record. Appendix (“App.”)

at A20 (Juror Questionnaire).

No. 08-6161 Akins v. Easterling Page 15

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.” Id. at 252.

Nevertheless, we cannot conclude that Akins has put forth evidence “too

powerful to conclude anything but discrimination,” or that the prosecutor’s proffered

race-neutral reasons were “so far at odds with the evidence that pretext is the fair

conclusion.” Id. at 265. Akins presents compelling evidence of discriminatory intent

in the trial judge’s comment regarding the prosecutor’s pattern of dismissing black jurors

and in the prosecutor’s unequal application of a factor with respect to Juror D and a

white juror. The prosecutor’s reliance on Juror D’s race-related statements, although not

sufficient to prove discriminatory intent as a matter of law, also is some evidence of

discriminatory intent.8 If we were considering Akins’s claim on direct review, we would

come to a different conclusion. But we cannot conclude that the state court’s

determination that the prosecutor did not intend to discriminate on the basis of race was

objectively unreasonable.

C. Self-Representation Claim

Akins’s second asserted ground for relief is that the trial court erred in permitting

him to represent himself at trial. Akins was seventeen years old at the time of the

underlying robbery, and initially was charged in a juvenile petition but ultimately was

tried as an adult. He was appointed counsel, but throughout the course of the juvenile

and trial court proceedings, he wrote letters to the juvenile and trial court judges asking

to represent himself. On March 12, 1998, Akins, through his appointed counsel, filed

a motion to represent himself at trial. Akins filed an affidavit with the motion, swearing

that he had met with his appointed counsel numerous times to discuss the case, that he

had received copies of the discovery and motions filed in the case, that he knew he had

a right to counsel, that he had discussed his decision to represent himself with counsel,

that counsel had advised against his decision, and that he made the “decision freely and

8

The probative value of such evidence would be stronger if the prosecutor actively solicited the

jurors’ views on race, in comparison to when, as here, the juror first raises the issue of race. See Thomas

v. Roe, 138 F. App’x 936, 938 (9th Cir. 2005) (unpublished decision).

No. 08-6161 Akins v. Easterling Page 16

voluntarily.” Appendix (“App.”) at A15 (Aff.). The affidavit also included the

statement, “I am prepared to go to trial on April 7, 1998,” but the statement was crossed

out and initialed by Akins and his appointed counsel. Id.

At a motions hearing on April 6, 1998—one day before Akins’s trial was

scheduled to start—the trial judge engaged in a colloquy with Akins regarding the

motion. The trial judge asked Akins his age and level of education, whether he had any

past experience with the criminal justice system, if he understood the charge against him

and the penalty for the offense, and if he knew anything about the rules of evidence and

the rules of criminal procedure. In response to the trial judge’s questions about the rules

of evidence, Akins asked for elbow counsel to assist him. The trial judge advised Akins

that he thought Akins was making a serious mistake, and asked if Akins still wished to

represent himself. Akins confirmed that he did. When the trial judge asked why he

wanted to represent himself, Akins responded, “I feel in my heart that it’s the right thing

to do.” R.36, Add. 19 (DVD 2 at 2:16:15–2:16:20). Akins’s appointed counsel

questioned him as well. Akins confirmed in response to his counsel’s questions that he

knew he had a right to counsel, that he had discussed his case with counsel, that counsel

had provided him with a copy of the state’s discovery materials, that he was satisfied

with counsel’s representation thus far, that he wanted appointed counsel to remain as

elbow counsel, that no one influenced his decision to represent himself, and that counsel

had advised him that his decision was not a good idea. Akins then signed a waiver of

counsel form, and the trial judge granted Akins’s request to represent himself and

permitted appointed counsel to serve as elbow counsel. The trial judge asked Akins if

there was anything else, and Akins responded regarding some motions that his appointed

counsel had wanted to file. The trial judge interrupted Akins, asking if he realized that

the trial was set for the next day and stating that “we’re still going to try the case.” Id.

at 2:21:00–2:21:55. Akins indicated that he understood, and the trial judge again asked

Akins if he still wanted to represent himself. Akins responded that he did. Akins’s trial

in fact started the next day on April 7, 1998.

No. 08-6161 Akins v. Easterling Page 17

At his state post-conviction hearing, Akins described his requests to represent

himself as occurring in two stages. First, his mentally ill mother told him that he should

write the court requesting to represent himself. But then his mother was “out of the

picture” and he felt he “would have been a fool” to represent himself so he allowed the

court to appoint counsel. R.36, Add. 16 (Post-Conviction Hr’g Tr. at 22). In the second

stage, after counsel was appointed, Akins became dissatisfied with counsel’s

representation, and it was for this reason that he again, and ultimately, decided that he

wanted to represent himself.

It is well established that the Sixth Amendment provides a defendant the right

to the assistance of counsel, as well as the related right to refuse such assistance in

conducting his or her own defense. Faretta v. California, 422 U.S. 806, 832–36 (1975).

“A trial court evaluating a defendant’s request to represent himself must traverse a thin

line between improperly allowing the defendant to proceed pro se, thereby violating his

right to counsel, and improperly having the defendant proceed with counsel, thereby

violating his right to self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th

Cir.) (alteration omitted) (internal quotation marks omitted), cert. denied, 516 U.S. 884

(1995); see also United States v. McDowell, 814 F.2d 245, 248–49 (6th Cir.), cert.

denied, 484 U.S. 980 (1987). A defendant’s assertion of his right to self-representation

is analyzed as a waiver of the right to counsel. See Faretta, 422 U.S. at 835. The waiver

must “be knowing, voluntary, and intelligent,” Iowa v. Tovar, 541 U.S. 77, 88 (2004)

(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), and must be “done with sufficient

awareness of the relevant circumstances,” id. at 81 (internal quotation marks omitted).

In other words, the record should “establish that [the defendant] knows what he is doing

and his choice is made with eyes open.” Faretta, 422 U.S. at 835 (internal quotation

marks omitted). “[I]t is the [petitioner’s] burden to prove that he did not competently

and intelligently waive his right to the assistance of counsel.” Tovar, 541 U.S. at 92;

accord Johnson, 304 U.S. at 468–69.

The Supreme Court takes a “pragmatic approach to the waiver question,” Tovar,

541 U.S. at 90 (internal quotation marks omitted), and “[t]he information a defendant

No. 08-6161 Akins v. Easterling Page 18

must possess in order to make an intelligent election . . . will depend on a range of case-

specific factors,” id. at 88 (citing Johnson, 304 U.S. at 464). Therefore, “a judge must

investigate as long and as thoroughly as the circumstances of the case before him

demand.” Von Moltke v. Gillies, 332 U.S. 708, 723–24 (1948). In the context of a

defendant representing herself when entering a guilty plea, the Supreme Court has said

that

[t]o be valid such waiver must be made with an apprehension of the

nature of the charges, the statutory offenses included within them, the

range of allowable punishments thereunder, possible defenses to the

charges and circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter. A judge can

make certain that an accused’s professed waiver of counsel is

understandingly and wisely made only from a penetrating and

comprehensive examination of all the circumstances under which such

a plea is tendered.

Id. at 724; see also Tovar, 541 U.S. at 81 (“The constitutional requirement is satisfied

when the trial court informs the accused of the nature of the charges against him, of his

right to be counseled regarding his plea, and of the range of allowable punishments

attendant upon the entry of a guilty plea.”).

The relevant state-court decision is the Tennessee Court of Criminal Appeals’

decision on review of Akins’s petition for post-conviction relief because it is the last

state court to adjudicate Akins’s self-representation claim on the merits. See Pudelski,

576 F.3d at 607. The state court discussed the right of self-representation, citing the

Supreme Court’s decisions in Faretta, Johnson, and Von Moltke. The state court

concluded that Akins’s waiver of his right to counsel was knowing, intelligent, and

voluntary, and that the trial judge’s examination of Akins “was more than sufficient” to

make that determination. Akins, 2007 WL 189461, at *6. The district court concluded

that Akins’s claim is without merit with respect to either prong of § 2254(d).

No. 08-6161 Akins v. Easterling Page 19

1. Whether the Waiver Was the Exercise of a Meaningful Choice

Akins first argues that the waiver was not the exercise of a genuine and

meaningful choice because the court forced him “to choose between foregoing his right

of self-representation and proceeding to trial unprepared.” Appellant Br. at 36. The

state argues that Akins’s claim—“that he was denied sufficient time to prepare for trial

as a pro se litigant”—is waived and defaulted. Appellee Br. at 35–38.

We agree with the state that this argument, as framed in Akins’s appellate briefs,

was not presented to the district court and therefore should not be considered by this

court. See Chandler v. Jones, 813 F.2d 773, 777–78 & n.4 (6th Cir. 1987); see also

Prince v. Straub, 78 F. App’x 440, 442 (6th Cir. 2003) (unpublished order) (applying

Chandler post-AEDPA), cert. denied, 540 U.S. 1115 (2004). In his brief, Akins frames

the argument to be that the state court deprived him of the ability to assert meaningfully

his right to self-representation: “[H]e did everything that he could to seek the

opportunity to exercise his right of self-representation meaningfully. The state courts

denied him that right.” Appellant Br. at 39; see also Rule 28(j) Letter of Nov. 29, 2010

(submitting as additional authority United States v. Farias, 618 F.3d 1049, 1054 (9th Cir.

2010), in which the court concluded that, “by making it clear that [the defendant] would

have no time to prepare if he chose to proceed pro se, the district court denied him his

right to meaningfully represent himself”). The gravamen of this argument is not that

Akins did not want to represent himself or that he should not have been permitted to

represent himself, but rather that he did not have sufficient time to prepare to do so

effectively. In his habeas petition filed in the district court, however, Akins argued that

he did not want to represent himself but felt that he had to because he was unhappy with

his appointed counsel. Akins argued in his petition “that if he could have had another

attorney he would rather another attorney represent him than [appointed counsel] who

he was not satisfied with or himself.” R.1 (Pet. at 19) (emphasis added). Akins argued

that if the trial judge had probed deeper during his inquiry, the judge would have realized

that Akins wanted to represent himself because “he felt that his attorney was working

with the state to convict him so he felt he had no other choice.” Id. at 27. Akins’s

No. 08-6161 Akins v. Easterling Page 20

argument in his habeas petition that the trial judge’s decision to permit him to represent

himself “was the same as intentionally opening a door to a lion’s den and allowing,

permitting a little lamb to walk straight into a den full of starving lions . . . knowing . . .

that there is no way that the little lamb is capable of defending itself,” id. at 30, is

substantially different than the argument presented in his briefs to this court that he

simply needed more time to prepare. Moreover, the certificate of appealability that we

granted states the asserted ground for relief as whether “the trial court erred in permitting

[Akins] to represent himself at trial.” Order, Mar. 10, 2009, at 1 (emphasis added).

Akins responds that he did argue in his petition “that the trial judge should have

offered him ‘more time.’” Reply Br. at 17 (quoting R.1 (Pet. at 29)). But Akins did not

argue in his petition for more time to prepare; he argued for more time to consider his

decision whether to represent himself—i.e., if he had more time to think about it, he

would not have chosen to represent himself. Because Akins failed in his habeas petition

to the district court to raise the argument that he was unprepared to go to trial, we decline

to address it.

To the extent that Akins argues, as he did in his habeas petition, that he felt he

had no choice but to represent himself because he was unhappy with his appointed

counsel, it is not a basis upon which a writ of habeas corpus can issue. A defendant

generally can “seek[] to change the status of his representation” in two ways: seeking

to invoke the right to self-representation, or seeking to substitute counsel. Benitez v.

United States, 521 F.3d 625, 631 (6th Cir. 2008). Akins argues, in essence, that although

he filed a motion seeking the former, the trial judge should have figured out that he

wanted the latter. The state court, however, found Akins’s request that he wanted to

represent himself “clear and unequivocal.” Akins, 2007 WL 189461, at *5. We cannot

conclude that the state court’s determination was objectively unreasonable. Moreover,

even if we construed Akins’s complaints as seeking new counsel, “[i]ndigent defendants

do not have the right to counsel of their choice,” Wilson v. Parker, 515 F.3d 682, 696

(6th Cir. 2008) (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624

(1989); Morris v. Slappy, 461 U.S. 1, 14 (1983)), cert. denied, 130 S. Ct. 786 (2009), and

No. 08-6161 Akins v. Easterling Page 21

Supreme Court case law has not “clearly established” that a trial court must inquire

about the reasons for dissatisfaction when a defendant requests appointment of new

counsel, id.

Additionally, Akins’s case is distinguishable from our decision in James v.

Brigano, 470 F.3d 636 (6th Cir. 2006), in which the trial judge “summarily forced [the

defendant] to choose between self-representation and counsel that, by [counsel’s] own

admission, was unprepared.” Id. at 642 (granting habeas relief because the trial judge,

in granting on the first day of trial the defendant’s request to represent himself, made no

effort to determine whether the defendant’s waiver of his right to counsel was knowing

or voluntary). In James, appointed counsel was the defendant’s third attorney, and he

had not yet received discovery from the prosecutor. Counsel asked the trial judge for a

continuance, which the judge denied. Id. at 638–39. In Akins’s case, although Akins’s

letters reveal that he was worried about his counsel’s preparation for trial, the record

does not show that his counsel was unprepared for trial. Akins has not shown that the

choice that he faced rendered unreasonable the state court’s conclusion that he

knowingly, intelligently, and voluntarily waived his right to counsel.

2. The Trial Judge’s Failure to Warn of Mitigating Circumstances and

Penalties

Akins’s second argument with respect to his self-representation claim is that the

trial judge did not discuss with him the application of enhancing and mitigating factors

that would occur at sentencing and the potential monetary fine. The state responds that

Supreme Court law does not require more inquiry than that which occurred and that any

error is harmless.

We conclude that the state court’s decision that Akins’s waiver of counsel was

knowing and voluntary and that the trial judge’s inquiry was sufficient to make that

determination was not an unreasonable application of clearly established Federal law.

We reiterate that the ultimate constitutional question is whether Akins’s waiver was

knowing and voluntary. What the trial judge told Akins is relevant to the question of

Akins’s waiver because “the court serves a protective function” and “must ensure that

No. 08-6161 Akins v. Easterling Page 22

a waiver of counsel is appropriate” and ensure that the record establishes that it is

appropriate. Fowler v. Collins, 253 F.3d 244, 249 (6th Cir. 2001); see also Tovar, 541

U.S. at 90 (discussing “the type of warnings and procedures that should be required

before a waiver of [the right to counsel] will be recognized” (internal quotation marks

omitted)); United States v. Erskine, 355 F.3d 1161, 1169–70 (9th Cir. 2004) (“[T]he

appropriate inquiry is what the defendant understood—not what the court said or

understood.” (internal quotation marks omitted)). In seeking habeas relief, Akins has

the “burden to prove that he did not competently and intelligently waive his right to the

assistance of counsel.” Tovar, 541 U.S. at 92.

With respect to the argument that the trial judge did not inform Akins of potential

defenses or sentencing factors, it is not clearly established that the trial judge is required

to do so. Von Moltke states that the defendant must have “an apprehension” of the

possible defenses and mitigating factors when waiving counsel but does not require that

the judge must be the one to discuss this information with the defendant. See 332 U.S.

at 724. In that case, the defendant pleaded guilty without the opportunity to have

counsel “make an independent examination of the facts, circumstances, pleadings and

laws involved” to be able to “offer his informed opinion” of how she should proceed.

Id. at 721. Here, Akins had appointed counsel during pretrial proceedings. Akins swore

in his affidavit and testified in court at the motions hearing that he had discussed his case

with appointed counsel on numerous occasions. App. at A15 (Aff.); R.36, Add. 19

(DVD 2 at 2:17:30–2:18:00). Even if Akins was unsatisfied with counsel’s work and the

relationship was strained, we do not believe that the state court’s conclusion that the trial

judge’s warnings were sufficient is an unreasonable application of Von Moltke. Finally,

the “model inquiry” that we adopted in McDowell, 814 F.2d at 250, from the Bench

Book for United States District Judges, to ensure that waivers of counsel are knowing,

voluntary, and intelligent9 does not suggest that the trial judge must discuss the potential

defenses or sentencing factors with the defendant. See Akins, 2007 WL 189461, at *6

9

The function of McDowell’s model inquiry is similar to the function of Rule 11 of the Federal

Rules of Criminal Procedure in the context of guilty pleas: both are not constitutionally required but are

“designed to assist the [trial] judge in making the constitutionally required determination” of voluntariness.

See McCarthy v. United States, 394 U.S. 459, 465 (1969).

No. 08-6161 Akins v. Easterling Page 23

(noting that “the trial court’s inquiry carefully tracks the sixteen questions listed in the

bench book for federal judges, as well as additional relevant questions which were posed

by the trial judge”).

Akins’s argument that the trial judge did not inform him of the monetary fine is

more troubling but not a basis for habeas relief. Before waiving the right to counsel, the

defendant must understand “the range of allowable punishments.” Von Moltke, 332 U.S.

at 724. “The constitutional requirement is satisfied when the trial court informs the

accused of . . . the range of allowable punishments.” Tovar, 541 U.S. at 81. The

Supreme Court has not defined the phrase “range of allowable punishments,” but

McDowell instructs the trial judge to inform the defendant of the potential term of

imprisonment and monetary fine before accepting the defendant’s waiver of his right to

counsel. See McDowell, 814 F.2d at 250–51 (instructing the judge to ask, “You realize,

do you not, that if you are found guilty of the crime charged in Count I the court . . .

could sentence to you to as much as ___ years in prison and fine you as much as

$___?”); see also Fed. R. Crim. P. 11(b)(1)(H) (stating that, to accept a plea of guilty,

“the court must inform the defendant of, and determine that the defendant understands,

. . . any maximum possible penalty, including imprisonment, fine, and term of supervised

release”). Thus, we believe that the state court erred in stating that the trial judge

“reviewed . . . the extent of possible punishment which [Akins] was facing.” Akins,

2007 WL 189461, at *6.

Nevertheless, the record does not establish that Akins in fact did not know about

the fine before waiving his right to counsel. See Tovar, 541 U.S. at 92 (“[W]e note that

[the defendant] has never claimed that he did not fully understand the charge or the range

of punishment for the crime prior to pleading guilty.”); Erskine, 355 F.3d at 1170

(“[H]ad [the defendant] admitted . . . that he had known the maximum penalty all along,

this evidence would be relevant to our determination because it would shed light on the

state of his understanding at the time of the prior Faretta hearing.”). Moreover, Akins

suggests that the fine “might have tipped the scales in [his] decisionmaking,” or “may

[have been] a major factor in the decision to waive the right to counsel.” Reply Br. at

No. 08-6161 Akins v. Easterling Page 24

21 (emphases added). But this speculation is not sufficient for Akins to meet his burden,

on habeas review, to prove that his waiver of counsel was not knowing and voluntary.

See Tovar, 541 U.S. at 92–93.

After consideration of the facts and circumstances particular to Akins’s case, we

cannot conclude the state-court decision—determining that Akins’s waiver of his right

to counsel was knowing, intelligent, and voluntary—was contrary to, or an unreasonable

application of, clearly established Supreme Court law. See § 2254(d)(1).

III. CONCLUSION

For the reasons explained above, we AFFIRM the district court’s denial of

Akins’s petition for a writ of habeas corpus.