Blanton v. Quarterman

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 19, 2008

No. 07-70023 Charles R. Fulbruge III

Clerk

REGINALD W BLANTON

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States United States District Court

for the Western District of Texas

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Reginald W. Blanton, a Texas state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In

seeking habeas relief, Blanton challenges his conviction for capital murder and

his sentence of death. The district court granted a certificate of appealability

(“COA”) on two issues regarding ineffective assistance of counsel raised in

Blanton’s federal habeas petition, and we granted COA on a third ineffective

assistance of counsel issue. Blanton argues that (1) trial counsel was ineffective

in his investigation and presentation of mitigation evidence during the

sentencing phase of Blanton’s trial, (2) trial counsel was ineffective in his failure

to properly preserve Blanton’s Batson claim, and (3) appellate counsel was

No. 07-70023

ineffective in her presentation of his Batson claim on direct appeal to the Texas

Court of Criminal Appeals (“CCA”). For the following reasons, we affirm the

judgment of the district court denying habeas relief.

I

Blanton seeks habeas corpus relief from his conviction for the murder of

Carlos Garza. Blanton broke into Garza’s San Antonio apartment, shot Garza

twice in the head, and stole several pieces of jewelry and one hundred dollars.

A Texas jury convicted Blanton of capital murder for killing Garza while

committing robbery or burglary. See TEX. PEN. CODE § 19.03(a)(2) (defining

capital murder). At the punishment phase of Blanton’s trial, the jury returned

a verdict finding that (1) there was a probability that Blanton would commit

criminal acts of violence constituting a continuing threat to society, and (2)

taking into consideration all of the evidence, including the circumstances of the

offense and the petitioner’s character, background, and personal moral

culpability, there were insufficient mitigating circumstances to warrant a life

sentence for petitioner. See TEX. CODE CRIM. PROC. art. 37.071, § 2(g). The trial

judge sentenced Blanton to death.

Blanton appealed his conviction and sentence to the CCA. He argued,

inter alia, that the trial court erred by overruling his Batson objections. The

CCA affirmed Blanton’s conviction and sentence, holding that the trial court did

not err in overruling Blanton’s objections to the prosecution’s peremptory strikes

because the strikes were supported by race-neutral justifications. See Blanton

v. State, No. 74214, 2004 WL 3093219, *10-*12 (Tex. Crim. App. June 30, 2004)

(unpublished).

Blanton then filed a state habeas petition. Among the numerous claims

raised, Blanton contended that his trial and appellate counsel were ineffective

for failing to argue his Batson claim fully, and for failing to preserve the record

for the Batson claim. Blanton also argued that his trial counsel was ineffective

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No. 07-70023

in his investigation and presentation of mitigating evidence that could have been

used during the punishment phase of Blanton’s trial.

The state habeas court judge, the same judge who had presided over

Blanton’s trial, recommended denial of habeas relief on all grounds. The state

habeas court concluded that Blanton had not established that his trial or

appellate counsel performed deficiently, nor had he established that he was

prejudiced as a result of his representation at trial or on direct appeal. The CCA

denied Blanton’s habeas application in an unpublished order adopting the

habeas trial court’s recommendation, findings of fact, and conclusions of law.

See Ex Parte Blanton, WR-61,443-01 (Tex. Crim. App. June 22, 2005).

Blanton then filed a federal habeas petition. He raised twenty claims,

including ineffective assistance of trial and appellate counsel, but not a Batson

claim. In a thorough and well-reasoned opinion, the district court denied habeas

relief on all grounds. See Blanton v. Quarterman, 489 F. Supp. 2d. 621 (W.D.

Tex. 2007). However, the district court granted COA on two issues raised by

Blanton’s petition: (1) whether habeas relief is warranted based on trial counsel’s

failure to investigate and present adequate mitigating evidence regarding

Blanton’s background; and (2) whether habeas relief is warranted based on

appellate counsel’s failure to present Blanton’s Batson claim adequately on

direct appeal. See id. at 714. We subsequently granted COA on a third issue:

whether habeas relief is warranted based on trial counsel’s failure to properly

preserve Blanton’s Batson claim, namely by objecting to the State’s use of a jury

shuffle and preserving evidence concerning the discriminatory nature of the jury

shuffle. See Blanton v. Quarterman, No. 07-70023, 2008 WL 2871683, at *2 (5th

Cir. July 24, 2008). We first address Blanton’s two claims regarding the

ineffectiveness of trial counsel, and then move to his claim regarding the

ineffectiveness of appellate counsel.

II

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No. 07-70023

We apply the standards of review set forth in the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. Under AEDPA, when

a federal habeas petitioner’s claim has been adjudicated on the merits in a state

court proceeding, a federal court may only grant habeas relief if the state court’s

adjudication of the claim either (1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established federal law as

determined by the United States Supreme Court, or (2) resulted in a decision

that was based on an unreasonable interpretation of the facts in light of evidence

presented in the state court proceeding. See 28 U.S.C. § 2254(d). A state court’s

decision is contrary to clearly established Supreme Court precedent if it applies

a rule that contradicts the governing law set forth in Supreme Court cases, or

if it confronts a set of facts that are materially indistinguishable from a Supreme

Court decision and arrives at a different result. See Williams v. Taylor, 529 U.S.

362, 405-06 (2000). A state court unreasonably applies clearly established

federal law if it identifies the correct governing principle, but unreasonably

applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133,

141 (2005). An unreasonable application is different from an incorrect or

erroneous application. See Schriro v. Landigran, 127 S. Ct. 1933, 1939 (2007).

We defer to the state court’s factual findings unless Blanton rebuts those

findings with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro,

127 S. Ct. at 1939-40.

In reviewing the district court’s application of § 2254(d) to the state court

decision, we review the district court’s findings of fact for clear error and its

conclusions of law de novo. See, e.g., Foster v. Johnson, 293 F.3d 766, 776 (5th

Cir. 2002).

III

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No. 07-70023

Blanton’s ineffective assistance arguments, regarding both trial and

appellate counsel, are governed by the Supreme Court’s clearly established

standard in Strickland v. Washington, 466 U.S. 668 (1984). See Henderson v.

Quarterman, 460 F.3d 654, 665 (5th Cir. 2006) (recognizing that Strickland

applies to ineffective assistance of appellate counsel claims). Strickland provides

a two-pronged standard, and the petitioner bears the burden of proving both

prongs. 466 U.S. at 687. Under the first prong, Blanton must show that

counsel’s performance was deficient. See id. To establish deficient performance,

Blanton must show that counsel’s representation “fell below an objective

standard of reasonableness.” Id. at 688. This objective standard carries a strong

presumption that counsel’s conduct falls within a wide range of reasonable

professional assistance. Id. at 687-91. In reviewing counsel’s performance, we

make every effort to eliminate the distorting effects of hindsight, and attempt

to adopt the perspective of counsel at the time of the representation. See id. at

690.

Under the second prong, Blanton must show that his counsel’s deficient

performance resulted in prejudice. See id. at 687. To satisfy the “prejudice”

prong, Blanton must establish that, but for his counsel’s deficient performance,

there is a reasonable probability that the outcome of the proceeding would have

been different. Id. at 694. Blanton’s Strickland claim fails if he cannot establish

either the deficient performance or prejudice prong; a court need not evaluate

both if a he makes an insufficient showing as to either. See id. at 697; Foster v.

Johnson, 293 F.3d 766, 782 n.10 (5th Cir. 2002).

The state habeas court concluded that Blanton established neither

deficient performance nor prejudice with respect to his Strickland claims. The

district court, applying the standard set forth in AEDPA, found that this

conclusion was not unreasonable. Blanton argues that the state habeas court

unreasonably applied Strickland to the facts of his case. Therefore, the question

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No. 07-70023

before us is whether the state habeas court reasonably concluded that Blanton’s

ineffective assistance claims failed to satisfy either prong of Strickland. See

Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). In exercising our habeas

review under § 2254(d), we review only the ultimate decision of the state court,

and not the specific contents of its reasoning or opinion. See St. Aubin v.

Quarterman, 470 F.3d 1096, 1100 (5th Cir. 2006), cert. denied, 127 S. Ct. 2133

(2007); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc).

A

The district court granted COA on the issue of whether Blanton’s trial

counsel was ineffective in his investigation and presentation of mitigating

punishment-phase evidence. In assessing counsel’s performance in this context,

we look to how counsel prepared for sentencing, what mitigating evidence

counsel accumulated, what additional leads counsel had, and what results

counsel could have reasonably expected from those leads. See Neal, 286 F.3d at

237. The reasonableness of counsel’s investigation involves “not only the

quantum of evidence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate further.” Wiggins v.

Smith, 539 U.S. 510, 527 (2003). Looking to the ABA Guidelines, the Supreme

Court has recognized that “investigation into mitigating evidence should

comprise efforts to discover all reasonably available mitigating evidence.” Id. at

524. In reviewing the issue of prejudice at capital sentencing we weigh the

quality and quantity of the available mitigating evidence, including that

presented in post-conviction proceedings, along with the any aggravating

evidence. See Williams, 529 U.S. at 397-98. We then ask whether the changes

to the mitigation case would have a reasonable probability of causing a juror to

change his or her mind about imposing the death penalty. See TEX. CODE CRIM.

PROC. art. 37.071, § 2(f)(2) (stating that the jury must unanimously answer “no”

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No. 07-70023

to the mitigation special issue to impose the death penalty); Neal, 286 F.3d at

241.

The State’s punishment evidence included a long history of Blanton’s

trouble with the law, including participation in gang activity, theft, unlawful

possession of a handgun, and possession of marijuana. The State also presented

evidence of Blanton’s failure to abide by the conditions of his juvenile probation,

his long history of abusing marijuana and alcohol, and his assault of another

inmate while awaiting his capital murder trial.

Blanton’s trial counsel prepared his mitigation case by interviewing

Blanton and his family members, and having Blanton examined by Dr.

Schroeder, a court appointed psychological expert. Dr. Schroder found that

Blanton possessed average mental and academic capabilities, and she described

him as highly manipulative and unforthcoming during his interview. She

concluded that Blanton’s past indicated long-term impulsiveness and a failure

to conform to social norms of lawful behavior, suggesting a pervasive pattern of

disregard for the rights of others. Dr. Schroeder diagnosed Blanton as likely

suffering from antisocial personality disorder, and told Blanton’s trial counsel

that she would “not be much help” in terms of mitigation. Trial counsel decided

not ask Dr. Schroeder to testify, and did not have Blanton evaluated by any

other psychological professional. Counsel also utilized a court-appointed

mitigation expert. According to testimony during the state habeas proceeding,

this was the first use of a mitigation expert for a capital trial in Bexar County.

The mitigation expert obtained and reviewed some of Blanton’s medical, prison,

and social services records; she also interviewed members of Blanton’s family.

In total, the mitigation expert spent over sixty hours preparing her report.

At punishment, trial counsel presented the following evidence. A church

pastor who had known Blanton and his family opined that Blanton is a “God-

fearing person” who knows right from wrong. The mitigation expert testified as

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No. 07-70023

to the results of her investigation into Blanton’s background. Specifically, she

stated that Blanton’s mother was pushed down a flight of stairs while pregnant

with Blanton. Blanton had an unsupervised adolescence, began smoking

marijuana at age eleven, and experienced violence on a daily basis. The

mitigation specialist believed Blanton abused drugs to escape from his difficult

life, and joined a gang to replace the safety and protection his family did not

provide. Blanton’s drug addiction was not treated during his previous periods

of detention. Still, the mitigation specialist found Blanton “very intelligent,” as

he had earned his GED and attempted to inquire into joining the military or

attending college. The prosecution conducted a skillful cross-examination of the

mitigation specialist, focusing on her lack of experience.

Mrs. Blanton testified regarding her difficult pregnancy with Blanton,

including the physical and verbal abuse she suffered at the hands of her

husband and stepfather while pregnant. She stated that Blanton was born

“breech,” swallowed fluid and was blue at birth. As a child, Blanton was smart

but had trouble sitting still, so she allowed the school to place him on Ritalin.

Her children witnessed her husband physically abuse her and assault Blanton’s

older sister. After his parents divorced, Blanton began having trouble at school

and his relationship with his mother suffered. Blanton also had a bad

relationship with his father and possessed significant anger towards him.

In his habeas petition, Blanton argues that trial counsel was ineffective

for (1) failing to provide Dr. Schroeder with complete copies of Blanton’s birth

records and childhood medical records with which to conduct her evaluation, and

(2) failing to investigate and present evidence of Blanton’s background,

specifically with respect to prior medical issues, drug abuse, and abusive family

life during childhood. According to Blanton, the evidence that trial counsel

failed to uncover would have established that he suffered from organic brain

damage. Blanton attached exhibits to his state habeas filing, including

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No. 07-70023

childhood medical records concerning his difficult birth and childhood injuries,

school records, and reports from two psychological professionals, Gordon Potter

and Dr. Jim Cox. Mr. Potter and Dr. Cox concluded that Blanton likely suffered

from organic brain damage. They reached this conclusion based on the combined

effects of Blanton’s childhood injuries (including a childhood bike accident where

Blanton injured his head), his difficult upbringing, and his abuse of damaging

inhalants. According to Mr. Potter’s report, organic brain damage to the frontal

lobe of Blanton’s brain would fundamentally alter how he perceived the world,

reacted to stress, controlled impulses, and conformed to social norms.

During Blanton’s state habeas proceeding, lead trial counsel testified that

he and the mitigation specialist had trouble obtaining some of Blanton’s medical

records from another state. He admitted that if they had looked sooner, they

likely could have obtained them. Lead trial counsel admitted that the

prosecution “shredded” his mitigation expert on cross examination, but stated

that the mitigation expert provided the jury with useful information nonetheless.

In hindsight, trial counsel would have used the mitigation expert’s findings but

not called her as a witness because of her inexperience.

Blanton also called Mr. Potter as a witness at the state habeas hearing to

explain why he felt Blanton had organic brain damage. Mr. Potter testified to

the details of Blanton’s difficult birth, including his diagnosis with an Apgar

score of 1 (the lowest possible score) because he was oxygen deprived at birth.

Mr. Potter also explained how Blanton’s childhood injuries and abusive

upbringing placed stress on Blanton that could cause brain damage. On cross-

examination, Mr. Potter admitted that there was no hard evidence of organic

brain damage, and that at fifteen days old Blanton had a normal Apgar score.

He also admitted that antisocial personality disorder can cause many of the

same behaviors as organic brain damage and that oxygen deprivation at birth

does not necessarily result in organic brain damage.

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No. 07-70023

The State called Dr. Sparks, psychiatrist and medical director of Bexar

County jail. Dr. Sparks’ testimony largely refuted Mr. Potter’s; he focused on the

lack of objective evidence showing Blanton’s alleged organic brain damage. Dr.

Sparks also testified that he was more qualified to diagnose organic brain

disorder than Mr. Potter, because he was a medical doctor and Mr. Potter was

not.

The state habeas court ultimately concluded that Blanton failed to

establish either deficient performance or prejudice under Strickland, and the

district court found this to be a reasonable conclusion under the AEDPA

standard. As in the district court, under § 2254 Blanton must establish that the

state habeas court reached an unreasonable conclusion as to trial counsel’s

decision to end the investigation and proceed with the evidence obtained up to

that point. See Wiggins, 539 U.S. at 521. Blanton must also show that the state

habeas court reached an unreasonable conclusion as to prejudice. We agree with

the district court that Blanton has not established that the state habeas court

was unreasonable on either prong.

As to deficient performance, we note that Blanton presented no evidence

to suggest Dr. Schroeder was unqualified or that trial counsel had reason to

question the results of the psychological examination she performed. Blanton

also presented no evidence at state habeas to suggest how easily his childhood

medical records could have been obtained by trial counsel. Habeas testimony by

trial counsel showed counsel did recover some medical and social services

records. Trial counsel also testified that he and the mitigation specialist

attempted to obtain further medical records but could not do so because of

difficulties arising from the records being held in a different state. Further,

Blanton provided no evidence as to how his trial counsel could have reasonably

uncovered Blanton’s abuse of inhalants))no evidence produced at state habeas

indicated that Blanton or any of his family members mentioned use of inhalants

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No. 07-70023

to Blanton’s trial counsel. In fact, there is no record that Blanton mentioned

inhalant abuse prior to his conviction. Nor has Blanton shown that his

childhood medical records or trial counsel’s interviews with Blanton’s family

provided information that would lead a reasonable attorney to investigate

further any psychological disorder or brain damage. Blanton’s trial counsel

cannot be deficient for failing to investigate where no reasonable lead was

available. See Wiggins, 539 U.S. at 527.

Trial counsel knew that Blanton had suffered a difficult, oxygen-deprived

birth. Trial counsel also knew of Blanton’s troubled childhood, and that he had

abused non-inhalant drugs. However, trial counsel also knew that Blanton was

smart enough to obtain his GED, that he had been described by Dr. Schroeder

as manipulative, and that Dr. Schroeder did not identify any likelihood of brain

disorder. Finally, while Blanton’s mitigation expert was effectively cross-

examined by the prosecution, Blanton’s trial counsel were the first to utilize a

mitigation specialist for a Bexar County capital trial. While in hindsight, it is

easy to say that trial counsel could have done more, we find the state habeas

court reasonable in its conclusion that trial counsel performed reasonably based

on the context and circumstances at the time of the representation. See

Strickland, 466 U.S. at 690 (stating that courts must be careful to avoid

hindsight bias in evaluating counsel’s performance).

We also hold that, based on the mitigation evidence produced in the state

habeas proceeding, the state habeas court reached a reasonable conclusion as to

prejudice. Blanton did not establish that Dr. Shroeder would have altered her

diagnosis based on any of the evidence presented in the state habeas proceeding.

The evidence of organic brain damage presented by Mr. Potter and Dr. Cox was

persuasively rebutted by Dr. Sparks))so much so that the state habeas court

reached a factual conclusion that Blanton did not suffer from organic brain

damage. Blanton has not rebutted this conclusion with clear and convincing

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No. 07-70023

evidence to the contrary. See 28 U.S.C. § 2254(e)(1). While we agree with

Blanton that the medical records showing evidence of his childhood injuries and

his abusive home life could have provided more detail to the jury at punishment,

the substance of this mitigating evidence had already been presented through

the testimony of the mitigation specialist and Mrs. Blanton. Moreover, the

mitigating evidence presented by Blanton during the state habeas proceeding

was not nearly as strong as that submitted by petitioners in recent cases in

which the Supreme Court has found prejudice from trial counsel’s failure to

present mitigation evidence.1 Accordingly, we hold that the state habeas court

reasonably applied Strickland in concluding that Blanton was not prejudiced.

In sum, we agree with the district court that the state habeas court

reasonably applied Strickland in denying Blanton’s ineffective assistance claim

regarding his trial counsel’s investigation and presentation of punishment-phase

mitigating evidence.

1

In Rompilla v. Beard, the evidence which counsel failed to uncover and present))despite the

fact that the prosecutors provided defense counsel with the file including the evidence))showed that:

during Rompilla’s childhood he was beaten by his father with fists, straps, belts and sticks; that

Rompilla’s father locked him and his brother in a wire mesh dog pen that was filthy and excrement-

filled; and that Rompilla grew up in a home with no indoor plumbing and was not given proper clothing

by his parents. 545 U.S. 374, 391-92 (2005).

In Wiggins, trial counsel failed to present evidence that Wiggins suffered consistent abuse

during the first six years of his life. He also suffered “physical torment, sexual molestation, and

repeated rape during his subsequent years in foster care.” Wiggins was homeless for portions of his life

and was deemed to have diminished mental capacities. 539 U.S. at 535.

In Williams, the state court failed to address the fact that Williams had turned himself in,

expressed remorse for his actions, and cooperated with the police. 529 U.S. at 398. Trial counsel failed

to present evidence that Williams had been committed at age 11, and that documents prepared in

connection with his commitment detailed dramatic mistreatment and abuse during his early childhood.

The commitment documents also included testimony that he was “borderline mentally retarded,” had

suffered numerous head injuries, and might have mental impairments organic in origin. 529 U.S. at

370-71.

In each of these cases, trial counsel presented less mitigation evidence at trial than did

Blanton’s counsel. Further, the mitigation evidence that the attorneys failed to uncover was shocking

and starkly different than that presented at trial. Blanton claims that his counsel should have put on

new, different evidence of psychological damage and more detailed evidence of his difficult birth and

childhood. Blanton’s counsel had a psychological evaluation done, but the conclusion was not favorable.

Blanton’s counsel also presented evidence, albeit in general terms, of Blanton’s difficult birth and

childhood. As such, Blanton’s claim of prejudice is dissimilar from those presented in Rompilla,

Wiggins, or Williams.

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No. 07-70023

B

We granted COA on the issue of whether Blanton’s trial counsel was

ineffective in failing to properly preserve his Batson claim for appeal.

Specifically, Blanton claims counsel was ineffective for failing to properly

preserve objection to the prosecution’s use of a jury shuffle and failing to

preserve evidence concerning the discriminatory nature of the shuffle. Blanton

contends that trial counsel should have immediately objected to the shuffle,

which he argues was done to eliminate black jurors, and should have done more

to preserve evidence of the shuffle in the record for appeal.2 In reviewing a claim

alleging ineffective assistance of appellate counsel we apply the traditional

Strickland standard, described in Part III, supra.

The state habeas court rejected Blanton’s ineffective assistance of trial

counsel claim regarding the jury shuffle, holding that Blanton had not shown

deficient performance or prejudice. The district court found this conclusion

reasonable under the AEDPA standard. The pertinent facts are as follows.

Five of the one hundred prospective jurors on Blanton’s venire panel were

African-American. In the original panel order, three African-American venire

members were placed amongst the first twenty positions, and would almost

certainly have been questioned during jury selection. The African-American

venire members were in positions 2, 4, 20, 82, and 98. Before any questioning

of the venire panel, the prosecution requested a jury shuffle. This procedure

results in a random reshuffling of the panel members’ positions. See TEX. CODE

CRIM PROC. art. 35.11. After the jury shuffle, the African-American venire

2

Blanton did not present a Batson claim in his federal habeas petition, and he does not present

a Batson claim to this court. See Blanton v. Quarterman, 489 F.2d at 684 n.95. According to Blanton’s

brief on appeal, he decided not to proceed with a Batson claim because the evidence and arguments

necessary to make such a claim were not fully presented to the CCA on direct appeal. Blanton contends

that the jury shuffle component of his argument was not exhausted, and therefore, that it would have

been pointless to raise his Batson claim in federal habeas. We make no statement as to whether such

a claim would in fact be exhausted. We provide the facts and analysis related to Blanton’s Batson claim

only to the extent necessary to measure the effectiveness of Blanton’s counsel.

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No. 07-70023

members were in positions 64, 68, 76, 87, and 90. Blanton’s trial counsel raised

no objection at the time of the shuffle.

Later, when the prosecution exercised a peremptory strike of African-

American venire member Michelle Johnson, Blanton’s trial counsel objected

based on Batson v. Kentucky. See 476 U.S. 79, 89 (1986) (holding that the Equal

Protection Clause forbids prosecutors from challenging potential jurors solely on

account of their race). The prosecutor responded with a race-neutral

explanation for the peremptory strike involving Johnson’s views on the death

penalty and understanding of criminal law.3 Although trial counsel attempted

to refute this explanation, the court overruled the objection as to Johnson.

At this point, trial counsel lodged a second Batson challenge regarding

Johnson and argued that the prosecution should be compelled to explain why

they sought a jury shuffle. The trial court did not require the prosecution to

explain the shuffle, and again overruled the Batson challenge. Trial counsel

then asked the court to include pre-shuffle and post-shuffle evidence of the

placement of the venire members, and to have the court provide a statistical

analysis regarding this evidence. The court denied the request for a statistical

analysis but granted the request to have the original order of the one hundred

venire members included as part of the record.

Blanton’s trial counsel also raised a Batson challenge to the prosecution’s

peremptory strike of Ann Henderson, which the trial court overruled based on

the prosecution’s race-neutral reasons. The third African-American venire

member questioned was struck for cause.

In his state habeas petition, Blanton argued that trial counsel was

ineffective for failing to object to the racially motivated jury shuffle when the

shuffle actually occurred. He contended that Batson requires the trial court to

3

For a detailed description of the prosecutor’s race-neutral explanation, see Part III Section C,

infra.

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consider all relevant circumstances when determining whether a defendant has

made the requisite showing of purposeful discrimination. See Batson , 476 U.S.

at 96. Thus, Blanton’s argument then and now is that counsel should have

known the jury shuffle would be a relevant circumstance in a future Batson

challenge if the State subsequently used race-based peremptory strikes against

African-Americans. With that knowledge, counsel should have timely objected

to the shuffle in order to preserve it to shore up a future Batson claim. Further,

Blanton argues that trial counsel was ineffective for failing to ensure that the

record contained adequate evidence to raise the issue of the discriminatory jury

shuffle on appeal.

After an evidentiary hearing, the state habeas court found that Blanton’s

claims of ineffective assistance regarding the jury shuffle failed to satisfy either

prong of the Strickland test, in part because at the time of Blanton’s trial neither

Texas nor federal law recognized any relationship between a jury shuffle and a

Batson claim. The federal district court found the state habeas court’s resolution

of this claim to be a reasonable application of Strickland. Blanton v.

Quarterman, 489 F. Supp. 2d. at 690. Because Blanton has not shown that his

trial counsel performed deficiently in violation of Strickland, we agree with the

district court.

At the time of Blanton’s 2001 trial, no case law indicated that Batson

applied to an allegedly discriminatory jury shuffle. On the contrary, in Ladd v.

State the Texas CCA refused to extend Batson to jury shuffles. 3 S.W.3d 547,

563 n.9 (Tex. Crim. App. 1999) (“[o]ne scholar has argued that, logically, Batson

should extend to jury shuffles . . . [w]e wish to make it clear, however, that we

do not endorse such a view.”). Under Texas law, either side can call for a shuffle

once prior to the start of voir dire. See TEX. CODE CRIM. PROC. art. 35.11;

Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1983). The statute does

not require the side requesting the shuffle to explain its reasons for doing so. As

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trial counsel testified at the state habeas hearing, he did not detect

discrimination in the shuffle until the State peremptorily struck venire member

Johnson, and at that point he made a Batson challenge raising the issue of the

jury shuffle and its discriminatory effect on the jury selection process. The

prosecutor testified that she requested the jury shuffle based not on race, but on

the occupations of the venire members. Specifically, the prosecutor stated that

she exercised jury shuffles in order to move teachers and social workers back

and to move accountants, former military personnel, and law enforcement

personnel forward. The state habeas court accepted the prosecutor’s race-

neutral justification for the jury shuffle.

We cannot find the state habeas court’s conclusion that trial counsel’s

performance was not deficient to be an unreasonable application of the first

prong of Strickland. Based on the law regarding jury shuffles and Batson

challenges available to him at the time, it was reasonable for trial counsel to

believe that the prosecution could request a jury shuffle without cause, and that

a jury shuffle alone was not an adequate basis for a Batson challenge. Blanton

has not presented evidence sufficient to overcome the presumption, required by

Strickland, that trial counsel acted within the range of reasonableness by

delaying a Batson challenge until a peremptory strike actually occurred. When

the peremptory strikes against African-Americans did occur, counsel raised

timely Batson challenges and attempted to support them by reference to what

he then believed to be a racially-motivated jury shuffle. Far from being

deficient, with this argument counsel actually anticipated what the Supreme

Court would find two years later in Miller-El v. Cockrell: that a racially-

motivated jury shuffle, along with other factors indicating intent to exclude

African-Americans, can “raise a suspicion” of purposeful discrimination and

rebut a prosecutor’s race-neutral justification for a peremptory strike. See 537

U.S. 322, 346 (2003) (“Miller-El I”) (noting, however, that the jury shuffle alone

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“might not be denominated as a Batson claim because it does not involve a

peremptory challenge”). Counsel attempted to persuade the court that the jury

shuffle should be considered evidence rebutting a race-neutral explanation for

the peremptory strikes, but the court disagreed. As such, we find that trial

counsel was not deficient in raising the jury shuffle issue during Johnson’s

Batson challenge rather than at the time of the shuffle.

Further, trial counsel successfully preserved the Batson challenges for

appeal, as indicated by the CCA ruling on these claims on the merits. See

Blanton v. State, 2004 WL 3093219, at *10-*11. He anticipated that raising the

shuffle issue again on appeal would require evidence of the venire order, and he

successfully petitioned the court to enter the original list into evidence.

Although this apparently did not occur, for unknown reasons, Blanton fails to

identify any facts showing it was objectively unreasonable for trial counsel to

believe the court’s order would be complied with. We accordingly conclude that

trial counsel was not deficient in his preservation of evidence regarding the jury

shuffle and Batson challenges for appeal.

In his brief following our granting COA on this issue, Blanton raises

additional claims regarding trial counsel’s failure to preserve the record.4 We

agree with the district court that Blanton has failed to raise these specific claims

in his federal habeas petition. See Blanton v. Quarterman, 489 F. Supp. 2d. at

682 n.93. Since Blanton did not raise these claims in the district court, we

cannot consider them. See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001)

4

Specifically, Blanton argues in his supplemental brief that trial counsel was ineffective for

failing to preserve evidence of a discriminatory statement allegedly made by the prosecutor. He

maintains that prior to voir dire, the prosecutor described a situation in another Bexar County trial

where an African-American juror hung the jury. Further, he argues that trial counsel was ineffective

for failing to preserve evidence of the fact that three out of the five total African-American venire

members were seated in the first twenty of the venire panel. With regard to the first claim, it should

be noted that at the state habeas hearing, the prosecutor testified unequivocally that she had never

made such a statement and had no personal knowledge of any such situation ever occurring in Bexar

County.

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No. 07-70023

(finding that to the extent defendant did not raise a federal habeas claim in the

district court, the court of appeals could not consider it).

Accordingly, we agree with the district court that “[a]ny lack of success

petitioner’s Batson claims might have achieved on direct appeal cannot be laid

at the feet of [Blanton’s] trial counsel.” Blanton v. Quarterman, 489 F. Supp. 2d

at 489. Certainly, the clarification of the relationship between jury shuffles and

Batson challenges in Miller-El I indicates to us now that an immediate objection

to a suspect jury shuffle may help support a future Batson challenge. But to

require such knowledge of an attorney before Miller-El I was decided would be

a prime example of the “distorting effects of hindsight” that Strickland requires

us to avoid. See Strickland, 466 U.S. at 690. Considering the law at the time,

trial counsel responded reasonably and even with foresight into the development

of the law in attempting to use the jury shuffle to buttress his Batson challenges.

As Blanton has not met his burden of showing both deficient performance and

prejudice, we forgo discussion of the prejudice prong and hold that the state

habeas court reasonably applied Strickland in denying Blanton’s ineffective

assistance claim.

C

The district court also granted COA on Blanton’s claim that his counsel

on direct appeal to the CCA provided ineffective assistance for failing to

adequately present his Batson claim regarding venire member Michelle Johnson.

Blanton specifically argues that his appellate counsel should have addressed the

prosecution’s use of a jury shuffle, which Blanton contends was done to eliminate

African-American jurors. Blanton also argues that appellate counsel should

have done more to ensure that the record included the information necessary to

make such an argument.

The state habeas court rejected Blanton’s ineffective assistance of

appellate counsel claim, holding that Blanton had not shown deficient

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No. 07-70023

performance or prejudice. In reviewing a claim alleging ineffective assistance

of appellate counsel, we again apply the traditional Strickland standard

described in Part III, supra.

As described at Part III Section B above, Michelle Johnson was the first

African-American juror peremptorily struck by the prosecution. Blanton’s trial

counsel raised a Batson challenge to this strike, and when asked for a race-

neutral explanation the prosecution stated that Johnson: (1) suggested that the

death penalty was against her religious beliefs; (2) appeared confused about the

law regarding imposition of the death penalty; (3) stated that she believed that

capital punishment was appropriate only for premeditated cases; and (4)

testified she would “have to be convinced without any doubt whatsoever” in order

to return a guilty verdict.5 Trial counsel responded that Johnson had received

different questioning than other panel members, and that in response to re-

examination by defense counsel she stated that she could accurately apply the

law. The trial court overruled the objection as to Johnson. Then, trial counsel

lodged a second Batson challenge regarding Johnson and argued that the

prosecution must explain the reasons for requesting the jury shuffle. The trial

court overruled the objection a second time and did not require an explanation

for the jury shuffle. Trial counsel did, however, successfully petition the court

to include the original order of the one hundred venire members in the record,

although this did not occur for unknown reasons.

The state habeas court found that, on direct appeal, Blanton’s appellate

counsel also requested inclusion of the juror lists in the record.6 In her brief,

5

Johnson’s jury questionnaire indicated some ambivalence regarding her ability to impose the

death penalty. However, her questionnaire stated that she had no strong feelings one way or the other

about the death penalty. Johnson’s voir dire testimony indicated new sources of

ambivalence–specifically with regards to her testimony that the death penalty was somewhat “against

[her] religious beliefs” and that it was “really up to God, life and death.”

6

Blanton presents no evidence showing that this factual determination was erroneous.

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No. 07-70023

appellate counsel raised a point of error asserting that the trial court erred in

overruling Blanton’s Batson objections to venire members Johnson and

Henderson. Appellate counsel’s brief argued that the prosecution’s race-neutral

justifications were not credible with respect to Johnson and Henderson.

Appellate counsel attempted to undermine the prosecution’s race-neutral

justifications by arguing that the prosecution engaged in disparate questioning

of these two black panel members, and that similarly-situated non-black venire

members were not struck by the prosecution. Appellate counsel’s brief also

mentioned, in a footnote, the fact that Batson arguments logically could be

extended to a Texas prosecutor’s use of the jury shuffle mechanism. In Blanton’s

brief on appeal, appellate counsel did not make a specific argument that

evidence of a racially discriminatory jury shuffle undermines the credibility of

the prosecution’s race-neutral justifications for striking individual jurors.

Appellate counsel filed her brief with the CCA in December 2002. In

February 2003, the Supreme Court issued its opinion in Miller El I. In Miller-El

I, the Supreme Court looked to the discriminatory use of a Texas jury shuffle,

among other things, in analyzing the credibility of race-neutral reasons proffered

by the prosecution for exercising peremptory strikes. Miller-El I, 537 U.S. at

346.7 The CCA did not issue its decision prior to the Supreme Court’s decision

in Miller-El I. Nothing in the record suggests that Blanton’s appellate counsel

sought leave to file supplemental briefing to address Miller-El I, nor did

appellate counsel mention the case in her motion for rehearing to the CCA.

Throughout the course of the appeal, appellate counsel never made any

argument regarding the discriminatory jury shuffle beyond the footnote in her

original brief. Sixteen months after Miller-El I, in June 2004, the CCA affirmed

7

Miller-El I dealt with Miller-El’s Batson challenges at the COA stage. See Miller-El I, 537 U.S.

at 348. Eventually, in Miller-El II, Miller-El v. Dretke, 545 U.S. 231(2005), the Supreme Court decided

that habeas relief should be granted to Miller-El based on the state’s Batson violations during his

original trial. See id. at 266.

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No. 07-70023

the trial court’s decision on the Batson challenges, finding that the record

supported the race-neutral reasons given by the prosecution. See Blanton v.

State, 2004 WL 3093219 at *10-*12. The CCA also reaffirmed its prior holding

that a Batson challenge does not apply to the prosecution’s request for a jury

shuffle. See id. at *10 n.17 (quoting Ladd, 3 S.W.3d at 575 n.9). The CCA did

not mention Miller-El I in its opinion.

In his state habeas petition, Blanton argued that appellate counsel was

ineffective in her presentation of his Batson claim because counsel should have

raised the discriminatory nature of the jury shuffle. Blanton also argued that

appellate counsel should have done more to preserve the Batson claims for

review. Blanton posited that if the importance of the jury shuffle was not clear

based on Batson alone, it certainly became clear when the Supreme Court

decided Miller-El I. The state habeas court concluded that Blanton did not show

appellate counsel to have performed deficiently. The state habeas court also

concluded that Blanton was not prejudiced by appellate counsel’s representation.

The federal district court found the state habeas court’s resolution of this claim

to be a reasonable application of Strickland. Blanton v. Quarterman, 489 F.

Supp. 2d. at 709-10. For the following reasons, we agree with the district court.

We share the district court’s concern over the fact that Blanton’s appellate

counsel never addressed Miller-El I in the sixteen months between when the

Supreme Court issued the decision and the time the CCA decided Blanton’s

appeal. See Blanton v. Quarterman, 489 F. Supp. 2d at 713. That being said, we

pretermit consideration of appellate counsel’s performance because we conclude

that the state habeas court’s conclusion as to prejudice was reasonable. See

Strickland, 466 U.S. at 697; Henderson , 460 F.3d at 666.

To evaluate the state habeas court’s conclusion as to prejudice, we must

attempt to predict the likelihood that the outcome on appeal would have changed

if Blanton’s appellate counsel had made the jury shuffle argument made at state

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No. 07-70023

habeas. In determining whether there is a reasonable probability that the CCA

would reach a different conclusion, we keep in mind that the CCA’s standard of

review accords “great deference” to the trial court’s rulings as to the credibility

of a prosecutor’s reasons for exercising a peremptory strike, and that the CCA

overturns the trial court only if the ruling is clearly erroneous. See Howard v.

Gramley, 225 F.3d 784, 790 (7th Cir. 2000) (noting the importance of the

appellate court’s standard of review); Herron v. State, 86 S.W.3d 621, 630 (Tex.

Crim. App. 2002) (explaining the clearly erroneous standard for review of Batson

credibility determinations).

In rejecting Blanton’s Batson claim on direct appeal, the CCA addressed

a number of arguments regarding venire member Johnson. The CCA was not

convinced by Blanton’s arguments regarding the alleged disparate questioning

of Johnson, or the supposedly similar non-black panelists whom the prosecution

did not strike. The CCA determined that Johnson’s questioning was sufficiently

explained by suspect answers to earlier questions regarding the death penalty

and questions regarding the State’s burden of proof. The CCA also held that the

eventual panel members who served on the jury were not similarly situated to

Johnson because they gave different answers regarding premeditation. Blanton

v. State, 2004 WL 3093219 at *10-11. Finally, the CCA recognized that “the fact

that a prospective juror vacillates about her ability to choose the death penalty,

despite personal beliefs, is a valid and neutral reason to strike that person.” Id.

at *11. Because these arguments were found insufficient by the CCA in the first

instance, Blanton’s challenge is a limited one: his claim is that the addition of

the jury shuffle argument would have a reasonable probability of tipping the

scales in his favor on direct appeal. We note that in federal habeas, Blanton

must go even further to show that the state habeas court was unreasonable in

22

No. 07-70023

reaching a contrary conclusion.8

During the state habeas court’s evidentiary hearing, Blanton’s lead trial

counsel and the lead prosecutor testified regarding the circumstances of the jury

shuffle. Blanton presented the positions of the African-American venire

members both before and after the allegedly discriminatory shuffle: three were

positioned in the first twenty prior to the shuffle, after the shuffle the first

African-American was at position 64. Based on the concentration of African-

American panel members at the front, he argued there was a great likelihood

that a shuffle would move them back in the order. The prosecutor testified that

she requested the jury shuffle based not on race, but on the occupations of the

venire members. The state habeas court accepted the prosecutor’s race-neutral

justification for the jury shuffle.

The district court questioned the prosecutor’s race-neutral justification for

the jury shuffle. In fact, the district court stated that it found “no correlation

between the occupation based concerns voiced by the lead prosecutor . . . and the

composition of petitioner’s initial venire panel.” Blanton v. Quarterman, 489 F.

Supp. 2d. at 704. In reaching this conclusion, the district court noted that “the

teachers in petitioner’s jury venire were spread out fairly evenly.” Id. at 704

n.135. The district court’s analysis does not include reference to the other

occupation groups with which the prosecutor indicated concern. Taking into

consideration the teachers, social workers, accountants, law enforcement

personnel, and former military personnel on Blanton’s original venire panel, our

8

The district court was not as convinced that Johnson’s disparate questioning was justified.

See Blanton v. Quarterman, 489 F. Supp. at 703-04 & n.133. The district court also questioned the

CCA’s casting Johnson as a “vacillating juror.” Id. at 713. We believe that the CCA’s conclusions

regarding Johnson’s ambivalence towards the death penalty and her confusion regarding the State’s

burden of proof are supported by the voir dire record. However, we also feel it important to avoid too

much second guessing of the conclusions already reached by the CCA. Such second guessing leads us

into an actual Batson analysis, rather than analysis of the Strickland claim that is properly before us.

Because Blanton has not raised a Batson claim in federal habeas, we focus instead on the arguments

of which the CCA was deprived based on his appellate counsel’s representation and whether those new

arguments create a reasonable probability of a different outcome on direct appeal.

23

No. 07-70023

review of the record indicates that the prosecutor’s stated justification for the

jury shuffle finds some support in the record.9 We also note that the state

habeas court judge presided over the voir dire in this case; in accepting the lead

prosecutor’s race-neutral justification, the judge reached a conclusion that

reflected a positive credibility determination regarding the prosecutor’s

testimony. See Goodwin v. Johnson, 224 F.3d 450, 457 (5th Cir. 2000)

(indicating the high burden that a habeas petitioner faces in order for this court

to reverse an initial fact-finder’s credibility determination). We do not find that

the record provides clear and convincing evidence to rebut the state habeas

court’s conclusion accepting the prosecutor’s race-neutral justification for the

jury shuffle. See 28 U.S.C. § 2254(e)(1).

In ruling on the likely effect of appellate counsel’s representation, the state

habeas court also recognized that the evidence of racial animus in Blanton’s case

was markedly different from Miller-El I. As such, the habeas court concluded

that a jury shuffle argument along the lines of that presented in Miller-El I

would not have provided relief to Blanton.10 We agree with the state habeas

court that the evidence of race-based discrimination carried out by the

9

A review of the juror questionnaires shows that the groups identified by the lead prosecutor

were seated in the following positions in Blanton’s original venire panel. Teachers, whom the

prosecutor sought to move back, were at 3, 23, 31, 44, 53, 75, 98 (also military), and 100. There were

no venire members who could be identified as social workers. In terms of the occupations the

prosecutor sought to move forward, accountants were seated at positions 57 and 80. A local law

enforcement worker was seated in position 81. Venire members with military service experience were

scattered, but more heavily concentrated at the end of the original venire list, seated at positions, 2, 16,

32, 33, 35, 40, 61, 71, 77, 79, 80, 90, 93, 98 (also teacher), and 99. While these numbers might not

provide the strongest support for the prosecutor’s rationale, they also do not present clear and

convincing evidence to undermine the state habeas court’s acceptance of the prosecutor’s justification.

10

Unlike Blanton’s case, in Miller-El I the venire members were not retained for more than one

week. See Miller-El I, 537 U.S. at 334. Therefore, venire members sent to the end of the line in Miller-

El’s case were less likely to be questioned than in Blanton’s case. Further, in undermining the

credibility of the prosecution’s race-neutral reasons, Miller-El put forth startling evidence of the

prosecution’s pattern of racially motivated peremptory strikes, and long-standing office policy of racial

discrimination in jury selection by the Dallas County prosecutor’s office. See id. at 334-35. Such

evidence is lacking in this case.

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No. 07-70023

prosecutors’ office in Miller-El I is absent from this case. Blanton’s argument for

discrimination in the jury shuffle would have to arise from a disputed and vague

statement allegedly made by the prosecutor, the concentration of black venire

members at the front of the original panel, and the alleged pretext of the

prosecutor’s occupation-based reason; these elements do not rise to the level of

intentional discrimination present in Miller-El I.

The state habeas court accepted the prosecutor’s race-neutral justification

for the strike. This decision involved, at least in part, a credibility determination

made by the state habeas court. See Goodwin, 224 F.3d at 457. In overruling

Blanton’s Batson objection to venire member Johnson in the first instance, the

state trial court reached a positive finding regarding the credibility of the

prosecutor’s race-neutral reasons for striking Johnson. See Miller-El I, 537 U.S.

at 340 (“[T]he trial court’s decision on the ultimate question of discriminatory

intent represents a finding of fact of the sort accorded great deference on

appeal.”). As explained above, our review of the jury venire records do not

present the clear and convincing evidence necessary to overturn the state habeas

court’s acceptance of this testimony. See 28 U.S.C. § 2254(e)(1). We also believe

that the race-neutral justifications for striking venire member Johnson find

support in the record. Finally, we know that the CCA’s appellate review of

Batson claims is limited to clear error. We recognize that the jury shuffle

argument presented by Blanton at state habeas may have improved his chances

of prevailing on direct appeal. However, merely improving his chances does not

rise to the level required to show prejudice))Blanton must show that had

counsel acted differently, his case would have been reversed. See Strickland,

466 U.S. at 694 (finding that “defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different”). This he has not done.

Based on the factual and credibility findings made at the state trial and

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No. 07-70023

habeas proceedings, and the CCA’s limited review of Batson claims on appeal,

we find that the state habeas court reasonably concluded that Blanton suffered

no prejudice as a result of his appellate counsel’s failure to argue the jury shuffle

component to his Batson claim, and accordingly agree with the district court’s

denial of habeas as to this issue.

IV

For the foregoing reasons ,we AFFIRM the district court’s denial of habeas

corpus relief.

26