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Chamberlin v. Fisher

United States Court of Appeals, Fifth Circuit

March 20, 2018

LISA JO CHAMBERLIN, Petitioner - Appellee
v.
MARSHALL L. FISHER, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent - Appellant

         Appeal from the United States District Court for the Southern District of Mississippi

          Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, HIGGINSON, and COSTA, Circuit Judges.[1]

          EDITH BROWN CLEMENT, Circuit Judge, joined by JOLLY, JONES, SMITH, OWEN, ELROD, SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges:

         Lisa Jo 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.

         I

         The 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.

         A. Jury Selection

         Chamberlin's 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.

         Chamberlin's 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.

         B. Mississippi Supreme Court

         The 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.

         Chamberlin's 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.

         C. Federal Habeas

         Having 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).

         The 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.

         First, 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.

         The 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. Id.

         In 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.[2]

         II

         "In 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)).

         This 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).

         Chamberlin's 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.

         Thus, 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.

         III

         We must 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 both fronts.

         A. Clearly Established Federal Law

         The 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 (2000)).

         The 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.

         First, 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 Miller-El II.

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 reversal.").

         Second, 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 1052.

         The 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.

         B. Unreasonable Determination of the Facts

         The 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 alone.[3]

         Before 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.

         Even if 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.

         The 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 was kept.

         The 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.

         But 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 follow.

         Consider, 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.

         This 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.

         Indeed, 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.

         First, 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.

         In 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.

         There 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 ...


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