from the United States District Court for the Southern
District of Mississippi
STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS,
CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, HIGGINSON,
and COSTA, Circuit Judges.
BROWN CLEMENT, Circuit Judge, joined by JOLLY, JONES, SMITH,
OWEN, ELROD, SOUTHWICK, HAYNES, and HIGGINSON, Circuit
Chamberlin participated in a heinous double murder in
Mississippi. A jury convicted her of two counts of capital
murder. She was sentenced to death. Chamberlin, who is white,
appealed her conviction, arguing in part that the prosecution
invidiously discriminated against black prospective jurors
during jury selection at her trial in violation of Batson
v. Kentucky, 476 U.S. 79 (1986). Her appeal made its way
through the Mississippi court system, where it was denied at
every stage. She then turned to federal court, petitioning
for a writ of habeas corpus. The district court granted
Chamberlin's petition and ordered the State to give her a
new trial, finding that the Mississippi Supreme Court erred
when it concluded that the prosecution did not discriminate
against black prospective jurors at Chamberlin's jury
selection. Mississippi appealed to a panel of this court,
which affirmed in a split decision. We agreed to hear the
case en banc and now REVERSE the district court.
gruesome details of Chamberlin's crimes have been laid
out in detail several times-we need not reiterate them here.
The evidence against her was substantial; she was duly
convicted by a jury of her peers of two counts of capital
murder. What is essential to this appeal is not what happened
during the trial, however, but rather what took place before
the trial began.
jury selection began with a pool of 42 qualified jurors,
thirteen of whom-31%-were black. The prosecution and defense
were each entitled to exercise up to fourteen peremptory
strikes. The prosecution began by moving through a batch of
prospective jurors, striking or keeping as it went. The
defense then went through the jurors the prosecution had
accepted, exercising its peremptory strikes as it wished. Any
jurors that were accepted by both the prosecution and defense
were put on the jury, and the prosecution then began again
with a fresh batch. This procedure continued until twelve
jurors and two alternates were selected. The prosecution
exercised thirteen of its peremptory strikes throughout the
process; the defense used all fourteen. Ultimately,
Chamberlin's jury consisted of ten white jurors, two
black jurors, and two white alternates.
counsel objected to the prosecution's use of peremptory
strikes against black prospective jurors throughout jury
selection. The trial court expressed doubts that Chamberlin
had established a prima facie case under the Batson
framework, but asked the prosecution for its race-neutral
reasons for the strikes in any case. The prosecution's
race-neutral reasons for striking two specific prospective
black jurors are pertinent here. When asked to explain its
strikes of black prospective jurors Sturgis and Minor, the
prosecution pointed to their answers to three questions on
the jury questionnaire. Both answered questions 30, 34, and
35 in ways that indicated they were uneasy with the prospect
of announcing a verdict of death and might hold the
government to a higher burden of proof than the law requires.
The defense responded to these proffered race-neutral reasons
on general grounds, arguing that both Sturgis and Minor
"could be . . . fair-minded jurors on the question of
the death penalty." Relevant to this appeal, at no point
did Chamberlin's counsel seek a comparative juror
analysis between black jurors the prosecution struck and
white jurors it accepted, nor did the trial court conduct
such a comparison sua sponte. The trial court
rejected Chamberlin's Batson argument and the
trial proceeded apace. Chamberlin was ultimately convicted
and sentenced to death.
Mississippi Supreme Court
Mississippi Supreme Court had two separate opportunities to
review Chamberlin's Batson claim. It rejected
her contentions both times. First was Chamberlin's direct
appeal, where she argued that the trial court erred in
denying her Batson challenge, focusing on the
prosecution's strikes of seven black prospective jurors.
See Chamberlin v. State, 989 So.2d 320, 336 (Miss.
2008). The court concluded that Chamberlin's argument as
to four of the prospective jurors was procedurally barred.
See id. at 339. As for the other three, the court
concluded that "Chamberlin argued reasons why they would
make good jurors but failed to rebut the specific reasons
proffered by the State for striking them." Id.
Accordingly, the court found that, "[c]onsidering the
totality of the evidence, the trial court's ruling on
Chamberlin's Batson challenge was neither
clearly erroneous nor against the overwhelming weight of the
evidence." Id. Just as in the trial court,
Chamberlin's counsel never sought a comparative juror
analysis on direct appeal, nor did the Mississippi Supreme
Court perform such an analysis sua sponte.
Batson claim again came before the Mississippi
Supreme Court two years later when she filed a motion for
post-conviction relief, arguing in relevant part that her
state trial counsel was ineffective because he failed to
adequately argue her Batson challenge. This time
Chamberlin specifically argued that her counsel "should
have performed a comparative jury analysis, which would have
demonstrated disparate treatment of the jurors, indicating
that the State's strikes were pretextual."
Chamberlin v. State, 55 So.3d 1046, 1051 (Miss.
2010). In response to this contention, the Mississippi
Supreme Court conducted a "thorough review of the record
. . . including the jury questionnaires provided by
Chamberlin, " and concluded that each of the black
jurors struck gave responses "in his or her jury
questionnaire that differentiated him or her from the white
jurors who were accepted by the State." Id. at
1051-52. The court was therefore "unable to find
disparate treatment of the struck jurors" and concluded
that Chamberlin's Batson claim was "without
merit." Id. at 1052.
failed to get the desired relief from the Mississippi courts,
Chamberlin petitioned for a writ of habeas corpus in federal
court. Her petition listed thirteen grounds for relief, among
them that the Mississippi Supreme Court clearly erred in
denying Chamberlin's Batson claims. See
Chamberlin v. Fisher ("Chamberlin
I"), No. 11CV72CWR, 2015 WL 1485901, at *12 n.3
(S.D.Miss. Mar. 31, 2015).
district court granted Chamberlin's petition, finding
that her Batson claim warranted federal relief under
the Antiterrorism and Effective Death Penalty Act
("AEDPA"). AEDPA provides two grounds upon which a
federal court can grant habeas relief for claims decided in
state court: if the state court decision (1) "was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States, " 28 U.S.C. §
2254(d)(1); or (2) "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)(2). The district court concluded that both grounds
for relief applied in Chamberlin's case.
the district court interpreted the Supreme Court's
decision in Miller-El v. Dretke ("Miller-El
II"), 545 U.S. 231 (2005), as requiring a state
court to conduct a comparative juror analysis between black
jurors who were struck by the prosecution and white jurors
who were kept, even where the defendant had not sought any
such comparison. See Chamberlin I, 2015 WL 1485901,
at *17. Accordingly, the district court found that "the
Mississippi Supreme Court's failure to conduct a
comparative analysis was contrary to clearly established
federal law requiring that analysis, as announced in
Miller-El [II]." Id.
district court further held that the lack of comparative
juror analysis rendered "the state court's
conclusion that there was no showing of purposeful
discrimination . . . incomplete." Id. It
concluded that the lack of comparative analysis
"required by federal law" rendered the Mississippi
Supreme Court's "factfinding procedures . . .
[in]adequate for reaching reasonably correct results."
Id. (internal quotation marks omitted). The district
court thus held that the Mississippi Supreme Court's
factual findings were not entitled to AEDPA deference.
short, the district court concluded as a matter of law that a
state court must conduct a comparative juror analysis in
Batson cases sua sponte. It reasoned that
because the Mississippi Supreme Court failed to do so, its
decision on Chamberlin's Batson case was both
unreasonable as a matter of law and so infirm as a factual
matter so as to not be entitled to the substantial deference
AEDPA would otherwise require.
reviewing a grant of habeas relief, the Court examines
'factual findings for clear error and issues of law de
novo.'" Richards v. Quarterman, 566 F.3d
553, 561 (5th Cir. 2009) (quoting Barrientes v.
Johnson, 221 F.3d 741, 750 (5th Cir. 2000)).
case is governed by AEDPA. As noted above, AEDPA restricts a
federal court's ability to grant habeas relief after an
adjudication on the merits in state court to only two
grounds. Under § 2254(d)(1), a federal court "may
grant relief when a state court has misapplied a governing
legal principle to a set of facts." Id.
(quoting Wiggins v. Smith, 539 U.S. 510, 520
(2003)). But "[t]he question under AEDPA is not whether
a federal court believes the state court's determination
was incorrect but whether that determination was
unreasonable-a substantially higher threshold."
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Under § 2254(d)(2), "a federal habeas court must
find the state-court conclusion 'an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.'" Richards,
566 F.3d at 562 (quoting Rice v. Collins, 546 U.S.
333, 338 (2006)). Importantly for present purposes,
"[s]tate-court factual findings . . . are presumed
correct; the petitioner has the burden of rebutting the
presumption by clear and convincing evidence."
Id. (internal quotation marks omitted).
only claim at issue in this appeal stems from the Supreme
Court's decision in Batson. Batson set
up a three-step burden-shifting framework for determining
whether the prosecution has engaged in invidious racial
discrimination during jury selection. "First, the
claimant must make a prima facie showing that the
peremptory challenges have been exercised on the basis of
race. . . . [T]he burden [then] shifts to the party accused
of discrimination to articulate race-neutral explanations for
the peremptory challenges. Finally, the trial court must
determine whether the claimant has carried [her] burden of
proving purposeful discrimination." United States v.
Montgomery, 210 F.3d 446, 453 (5th Cir. 2000). "At
the second step, unless a discriminatory intent is inherent
in the prosecutor's explanation, the reason offered
should be deemed race-neutral. The proffered explanation need
not be persuasive, or even plausible . . . . The issue is the
facial validity of the prosecutor's explanation."
Williams v. Davis, 674 Fed.Appx. 359, 363 (5th Cir.
2017) (unpublished) (internal quotation marks and alterations
omitted) (quoting Purkett v. Elem, 514 U.S. 765, 768
(1995)). Throughout, "[t]he party making the claim of
purposeful discrimination bears the ultimate burden of
persuasion." Montgomery, 210 F.3d at 453.
Chamberlin's claim faces a formidable twofold hurdle: she
must overcome both the burden placed on her by the
Batson framework and the substantial deference AEDPA
requires us to give the state court's factual findings.
decide whether either of the two grounds for granting habeas
relief under AEDPA applies to Chamberlin's case. The
district court concluded that both applied. We disagree on
Clearly Established Federal Law
district court's interpretation of Miller-El II
compelled its conclusion that the state court's
"failure to conduct a comparative analysis was contrary
to clearly established federal law." Chamberlin
I, 2015 WL 1485901, at *17. Miller-El II
reiterated the three-step Batson framework for
determining whether a party has purposefully discriminated on
the basis of race in using its peremptory strikes of
prospective jurors. 545 U.S. at 239. This three-part inquiry
derives from the burden-shifting formula used in Title VII
cases; indeed, the Court cited a Title VII case when
discussing the third step. Miller-El II, 545 U.S. at
241 (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000)). Notably, the Court
demonstrated that this step requires the trial court to
determine whether, on the record as a whole, the
prosecution's explanation for the juror strike is
"unworthy of credence." Miller-El II, 545
U.S. at 241 (quoting Reeves, 530 U.S. at 147
Supreme Court in Miller-El II found that the
prosecution had invidiously discriminated in striking ten out
of eleven prospective black jurors. Miller-El II,
545 U.S. at 265-66. As one factor in considering the totality
of the pretrial record, the Court employed a comparative
juror analysis. The district court, however, took this
approach to set up as "clearly established law"
that Miller-El II "require[s]" a
comparative juror analysis. Chamberlin I, 2015 WL
1485901, at *17. Consequently, the district court held that
the Mississippi Supreme Court's decision not to conduct a
comparative juror analysis violated this "clearly
established law." Id. This holding is erroneous
on two grounds.
Miller-El II did not clearly establish any
requirement that a state court conduct a comparative
juror analysis at all, let alone sua sponte. Judge
Ikuta of the Ninth Circuit recently examined this issue in
depth; we find her analysis compelling. See McDaniels v.
Kirkland, 813 F.3d 770, 782-85 (9th Cir. 2015) (Ikuta,
J., concurring). Judge Ikuta explained:
Because Miller-El II considered only whether the
state court made an unreasonable factual determination, the
Supreme Court did not discuss, let alone squarely establish,
a new procedural rule that state courts must conduct
comparative juror analysis when evaluating a Batson
claim. At no point did Miller-El II suggest that the
state court in that case violated the petitioner's
constitutional rights by failing to adhere to such a
procedural rule. Accordingly, because Miller-El II
does not provide a clear answer to the question whether a
state court must conduct comparative juror analysis as part
of its Batson inquiry, we cannot hold that a state
court which fails to conduct comparative juror analysis
violates clearly established Federal law, as determined by
Id. at 783 (internal quotation marks and citation
omitted). This is especially true where, as here, the
defendant never sought a comparative juror analysis. Nowhere
in Miller-El II did the Supreme Court imply-let
alone clearly establish-that a state court must
conduct a comparative juror analysis sua sponte.
Cf. United States v. Atkins, 843 F.3d 625, 634 (6th
Cir. 2016) ("To begin with, the government is correct
that the district court's failure to conduct its own
comparative juror analysis is not sufficient to require
regardless of whether it was required to do so, the
Mississippi Supreme Court did conduct a comparative
juror analysis in Chamberlin's case, albeit in a
postconviction proceeding instead of on direct appeal.
Chamberlin's Batson claim was inextricably
intertwined with the ineffective assistance of counsel
argument she raised at the postconviction proceeding. She
argued in relevant part that her trial counsel was
ineffective because he should have sought a comparative juror
analysis in the trial court. In response to this contention,
the Mississippi Supreme Court stated that it had
conducted a "thorough review of the record . . .
including the jury questionnaires provided by
Chamberlin." Chamberlin, 55 So.3d at 1051-52.
It found no evidence of "disparate treatment of the
struck jurors, " and concluded that the identical
Batson claim that eventually came before the
district court was "without merit." Id. at
district court thus erred twice as it pertains to the
"clearly established law" ground for habeas relief
under AEDPA. First, it erred in concluding that clearly
established federal law required the Mississippi Supreme
Court to conduct a comparative juror analysis sua
sponte. Second, it erred in failing to address the
comparative juror analysis the Mississippi Supreme Court
did conduct, albeit in the postconviction context.
Unreasonable Determination of the Facts
district court further concluded that the state court's
factual finding that the prosecution did not invidiously
discriminate during jury selection was an unreasonable
determination of the facts in light of the evidence
presented. The district court rested its holding on a
comparative juror analysis between Sturgis/Minor and Cooper
reaching those arguments, however, it is important to stress
that the district court did not grant proper deference to the
Mississippi Supreme Court's factual findings at the
postconviction proceeding. As noted above, the district court
concluded it did not need to defer to the state court's
factual findings under AEDPA because those findings did not
include the requisite comparative juror analysis. We have
already explained that conclusion was error because there is
no requirement to conduct such a comparison,
particularly sua sponte. But even if such a
requirement did exist, the Mississippi Supreme Court's
factual findings during the postconviction
proceeding-findings made pursuant to a comparative juror
analysis-would be entitled to AEDPA deference. We federal
courts are required to defer to the Mississippi Supreme
Court's factual finding that a comparative juror analysis
in Chamberlin's case produced no evidence of disparate
treatment of black prospective jurors.
we were not required to defer to the state court's
factual findings, however, we would still hold that the
district court erred in concluding that Chamberlin
established that the prosecution's proffered race-neutral
reasons were pretextual. To show why this is so, we turn to
the comparative juror analysis.
Supreme Court has instructed that, when analyzing
Batson challenges, "bare statistics" are
not the be-all and end-all. Miller-El II, 545 U.S.
at 241. "Side-by-side comparisons of some black venire
panelists who were struck and white panelists allowed to
serve" can be "[m]ore powerful." Id.
The crux of the district court's ruling is its erroneous
comparison of black prospective jurors Sturgis and Minor, who
were struck by the prosecution, to white juror Cooper, who
district court's determination on this front can be
boiled down in this way: (1) the prosecution said questions
30, 34, and 35 were the reasons Sturgis and Minor were
struck; (2) Cooper answered those questions identically;
therefore (3) questions 30, 34, and 35 could not have been
the real reasons Sturgis and Minor were struck, else Cooper
would have been struck as well. Accordingly, the
prosecution's proffered race-neutral reasons for striking
Sturgis and Minor must have been pretextual.
questions 30, 34, and 35 were not the only questions
Sturgis, Minor, and Cooper had to answer. They were rather
three questions out of dozens on a pages-long jury
questionnaire. And if Cooper in particular gave other
responses that materially differentiated him from Sturgis and
Minor and made him a more favorable juror for the
prosecution, then the district court's ruling does not
for example, question 53, which asked prospective jurors to
circle the response that best matched their opinion on the
death penalty. Sturgis and Minor circled "Generally
Favor" and "No Opinion, " respectively.
Cooper, by contrast, circled "Strongly Favor, " and
then wrote in "for rape, murder, child abuse, [and]
spousal abuse" by hand in the margin. Cooper clearly
answered a key question in a way that materially
distinguished him from Sturgis and Minor. Thus, the most
logical explanation for the prosecution's not striking
Cooper was not because he was white while Sturgis and Minor
were black, but because Cooper was a more favorable juror
based on his answers to other questions.
conclusion is further confirmed by the existence of an
additional black juror, Carter, who was accepted by the
prosecution. Carter gave worse (from a prosecutor's
perspective) answers to question 30 and 34 than did Sturgis
and Minor, and gave the same answer as they did to question
35. But she answered question 53 in the same manner as
Cooper: circling "Strongly Favor" and then writing
in by hand additional crimes for which she felt the death
penalty was appropriate. And again, Carter-a black
prospective juror- was accepted by the prosecution.
the district court conceded that the prosecution could
reasonably have viewed Cooper as a more favorable juror than
Sturgis and Minor in light of his answer to question 53. But
it decisively concluded that it could not consider
Cooper's answer to question 53, because question 53 was
not one of the race-neutral reasons given by the prosecution
for striking Sturgis and Minor. See Chamberlin I,
2015 WL 1485901, at *6 ("While [his response to question
53] might have made Cooper a slightly more desirable juror,
it was not a rationale offered by the prosecutor."). The
district court concluded, in other words, that to look at
Cooper's other answers would be to allow the State to
construct an impermissible post hoc explanation for its
strikes of black jurors. This conclusion was erroneous for a
number of reasons.
the district court took out of context the Miller-El
II admonition that "a prosecutor simply has got to
state his reasons as best he can and stand or fall on the
plausibility of the reasons he gives." Miller-El
II, 545 U.S. at 252. The Court was careful to limit its
warning only to the prosecutor's "reason[s] for
striking [a] juror" at the second prong of the
Batson test. Id. at 251 (emphasis added).
This narrow focus is essential to maintaining the integrity
of the Batson framework, which requires a focus on
the actual, contemporary reasons articulated for the
prosecutor's decision to strike a prospective juror. The
timely expressed neutral reasons, after all, are what must be
tested for veracity by the trial court and later reviewing
courts. And this is what the Supreme Court meant in stating
the "stand or fall" proposition: it criticized both
the prosecutor and later reviewing courts for accepting
either entirely different substituted reasons or post hoc
reasons for strikes. The Court's rationale, however, does
not extend to preventing the prosecution from later
supporting its originally proffered reasons with additional
record evidence, especially if a defendant is allowed to
raise objections to juror selection years after a conviction
and to allege newly discovered comparisons to other
prospective jurors. Nothing in the "stand or fall"
statement means that the prosecutor would forfeit the
opportunity to respond to such contentions.
addition, the Court specifically noted that when a prosecutor
gives a facially race-neutral reason for striking a black
juror, a reviewing court must "assess the plausibility
of that reason in light of all evidence with a bearing on
it." Id. at 251-52 (emphasis added);
see also Snyder v. Louisiana, 552 U.S. 472, 483
(2008) ("We recognize that retrospective comparison of
jurors based on a cold appellate record may be very
misleading when alleged similarities were not raised at
trial. In that situation, an appellate court must be mindful
that an exploration of the alleged similarities at the time
of trial might have shown that the jurors in question were
not really comparable."). The Court thus drew a
distinction between: (1) inventing a new reason for
a strike after the fact (not allowed); and (2) reviewing the
record to test the veracity of the prosecution's reasons
already given in their proper time (required).
Cooper's answer to question 53 is an example of the
latter, because it goes directly to the key issue of whether
Sturgis' and Minor's responses to questions 30, 34,
and 35 were the real reasons they were struck.
is, accordingly, a crucial difference between asserting a new
reason for striking one juror and an explanation for
keeping another. They are not two sides of the same
coin, as the dissent asserts. In the former scenario, the
prosecutor effectively concedes that his initial
(race-neutral) reasons were insufficient bases for striking
the juror. Miller-El's "stand or fall"
requirement applies to this situation, blocking such post hoc
rationalizations. See Miller-El II, 545 U.S. at
250-52. In the latter, the prosecutor's bases for the
strike remain in full effect, so Miller-El's
requirement is not implicated. See United States v.
Wilkerson, 556 Fed.Appx. 360, 365 (5th Cir. 2014)
(unpublished) (noting that the prosecution should be afforded
the opportunity to demonstrate "meaningful
distinctions" between asserted comparators). Instead,
the prosecutor is ...