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Rhoades v. Davis

United States Court of Appeals, Fifth Circuit

January 28, 2019

RICK ALLEN RHOADES, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

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

          Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

         In 1992 a Texas jury convicted Rick Allan Rhoades of capital murder and he received a death sentence. After direct appeals and filing an unsuccessful state habeas petition, Rhoades petitioned for federal habeas relief. The district court denied his petition and declined to issue a certificate of appealability ("COA"). We granted a COA on three of Rhoades's claims, accepted further briefing, and heard oral argument. We now affirm the district court's denial of his petition.

         I.

         On the morning of September 13, 1991, the bodies of brothers Charles and Bradley Allen were discovered by a neighbor. Almost a month later, Rhoades was arrested leaving the scene of an unrelated school burglary. While in custody for the burglary, Rhoades gave the police a written statement admitting to killing Charles and Bradley Allen.

         In that statement, Rhoades related his activities on release from prison in Huntsville, Texas less than 24 hours before the murders occurred. Instead of reporting to his assigned halfway house in Beaumont, Rhoades travelled to Houston by bus. After an unsuccessful search for his parents, he went to an apartment complex where he had previously lived and proceeded to have several beers. In his statement, Rhoades recalled wandering around the neighborhood and encountering Charles Allen outside of his home around 2:30 a.m. After a quarrel, Charles entered his house. Believing he was planning to retrieve a gun, Rhoades went into the house after him. Rhoades picked up a small metal bar from a weight bench and entered the kitchen, where Charles Allen grabbed a knife. The men began fighting and Rhoades recounted hitting Charles Allen with the bar several times until he dropped the knife. At that point, Rhoades grabbed the knife and stabbed him a number of times. Bradley Allen entered shortly thereafter and started trying to punch Rhoades, who stabbed Bradley Allen with the knife. Rhoades took some cash and clean clothing, because his clothes had been bloodied. He saw on the news later that morning that the two men had died. In his statement, Rhoades mentioned that he had not told anyone about the murders and it had been "bothering [him] ever since." Rhoades claimed he could have outrun the police officer who arrested him for the school burglary, but was "tired of running" so decided to tell the police about the murders while in custody.

         A Harris County jury convicted Rhoades of capital murder on October 2, 1992. During the punishment phase of the trial, the State presented evidence of Rhoades's Naval court-martial for unauthorized absences and other previous criminal convictions including convictions for burglary and auto theft. The State also presented Rhoades as a danger to other prisoners, proffering evidence that when Rhoades was an inmate in an Indiana prison, prison officials had recovered a shank and a razor blade from his cell. Between 1986 and 1990 Rhoades stacked up various arrests and convictions for auto theft, possession of a prohibited weapon, theft, burglary, and carrying a weapon. During the punishment phase, Rhoades's trial counsel presented the testimony of Patricia Spenny, Rhoades's birth mother; Donna and Ernest Rhoades, Rhoades's adoptive parents; Meyer Proler, an assistant professor of physiology and neurology at the Baylor College of Medicine; Novella Pollard, Rhoades's teacher in his prison GED program; and Windel Dickerson, a psychologist. On rebuttal, the State presented testimony of David Ritchie, the Harris County jailer and Roy Smithy, an investigator with the special prosecution unit in Huntsville who testified about prison procedures.[1]

         On October 8, 1992, the jury answered two requisite questions: (1) whether Rhoades "would commit criminal acts of violence that would constitute a continuing threat to society" and (2) whether there were "sufficient mitigating circumstances or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed." The jury unanimously answered "yes" to the first and "no" to the second and Rhoades received a sentence of death. The trial court denied Rhoades's motion for a new trial in December 1992.

         On direct appeal, Rhoades raised eighteen points of error. The Texas Court of Criminal Appeals ("CCA") affirmed Rhoades's conviction and sentence in a published opinion in 1996.[2] Rhoades initiated state habeas proceedings the following year, raising thirty-eight grounds of error. Finding that there were unresolved factual issues, the state habeas court ordered trial counsel to file affidavits responding to Rhoades's allegations of ineffective assistance of counsel. The affidavits of James Stafford and Deborah Keyser were timely filed and the State filed its answer to Rhoades's habeas petition in October 2000. Nearly fourteen years later, the trial court entered its findings of fact and conclusions of law, denying Rhoades's state habeas petition. The CCA affirmed the denial in 2014.[3] With federally appointed counsel, Rhoades filed his federal habeas petition, raising five issues. The State filed a summary judgment motion in response and the district court entered an order denying Rhoades's petition, granting the State's summary judgment motion, and denying Rhoades a COA.

         We granted a COA on three of Rhoades's claims for habeas relief: (1) that the convicting court unconstitutionally prevented him from presenting mitigating childhood photographs of himself to the jury during the sentencing phase; (2) that the convicting court unconstitutionally permitted the jury to hear testimony about the possibility of release on furlough for capital defendants sentenced to life in prison; and (3) that the State violated Batson when it exercised racially motivated peremptory strikes against two prospective jurors.[4] We address each issue in turn.

         II.

         First, Rhoades argues that the trial court erred in excluding eleven photographs from Rhoades's childhood offered as mitigation evidence during the sentencing phase of trial. Before calling Rhoades's adoptive mother, Donna Rhoades, trial counsel sought to introduce photographs of Rhoades as a child from the ages of approximately four to ten.[5] Trial counsel argued that the photographs were admissible to counteract the dehumanizing photographs of Rhoades introduced by the State (e.g., his mugshots), to show the jury the defendant's development through his life and his human side, and to offset the effect of the emotional photos of the deceased victims and their families. The photographs depict typical childhood scenes such as Rhoades holding a trophy, fishing, and attending a dance. The State objected to the admission of the photographs as irrelevant, arguing that everyone was a child at one point, and that the photos did nothing to lessen his moral blameworthiness. The trial court agreed.[6] The CCA affirmed, holding that the trial court did not abuse its discretion in excluding the photos as irrelevant.[7] Specifically, the CCA held that there was no relationship between photos of Rhoades as a child and his moral culpability for the double murder.[8] On habeas review, the state court summarized the testimony of witnesses who testified on Rhoades's behalf during the punishment phase of the trial[9] and determined that trial counsel was able to submit other mitigating evidence that humanized Rhoades.[10] In his state habeas petition, Rhoades focused on the special issue of future-dangerousness, arguing that the photographs showed his ability to adapt to a structured environment.[11] The state habeas court rejected that contention, finding that the "childhood photos are not relevant to the issue of whether the applicant would be a threat to society while living in a structured environment and do not show whether he would or would not commit future acts of violence."

         The district court concluded that the state courts were not unreasonable in determining that the proffered photos were irrelevant to the jury's determination of the special issues[12] and that any error was harmless because the photographs would have been "only a small thread in an intricately violent mosaic of Rhoades' life."[13] The district court found persuasive the State's argument that any mitigating value of the photos would be eclipsed by the aggravating nature of the photos-essentially that Rhoades committed brutal murders despite being adopted into a loving family.[14]

         It is our task to assess whether the state court's determination that the proffered childhood photos were irrelevant was an unreasonable application of clearly established federal law.[15] The Supreme Court has adopted an expansive definition of relevant mitigation evidence.[16] "Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value."[17] A state court cannot, therefore, exclude evidence from the jury's consideration "if the sentencer could reasonably find that it warrants a sentence less than death."[18] This is a "low threshold for relevance."[19]

         In Lockett v. Ohio, a plurality of the Court concluded that Ohio's death penalty statute was invalid because it did not "permit the type of individualized consideration of mitigating factors [the Court held] to be required by the Eighth and Fourteenth Amendments in capital cases."[20] The Court determined that the Constitution required that the sentencer "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."[21] Four years later, the Court endorsed the plurality opinion in Lockett and held that a trial judge had erred in concluding that a defendant's violent upbringing and background was not relevant mitigating evidence.[22] Even where mitigating evidence does not "relate specifically to [the defendant's] culpability for the crime he committed," it may still be relevant as mitigation if the jury could draw favorable inferences regarding the defendant's character and those inferences "might serve 'as a basis for a sentence less than death.'"[23] Lockett, Eddings, and Skipper "emphasized the severity of imposing a death sentence and [made clear] that 'the sentencer in capital cases must be permitted to consider any relevant mitigating factor.'"[24]

         Despite the expansive definition of relevant mitigating evidence, trial judges still retain their traditional authority to exclude irrelevant evidence that does not bear on the defendant's "character, prior record, or the circumstances of his offense."[25] Furthermore, "gravity has a place in the relevance analysis, insofar as evidence of a trivial feature of the defendant's character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant's culpability."[26] This court has not accepted that it is unconstitutional to define mitigating evidence as evidence that reduces moral blameworthiness.[27]

         Acknowledging those strictures, Rhoades contends that the state court's finding erroneously defined the universe of evidence relevant to moral blameworthiness too narrowly, undermining the rule established in Lockett. We agree. The proffered photos are relevant to Rhoades's character, [28]humanizing Rhoades in the face of Rhoades's long criminal history and suggestions by the prosecution that Rhoades was a psychopath[29] who viewed society's rules as a joke.[30] While photos of Rhoades as a child do not "relate specifically to [Rhoade's] culpability for the crime he committed," they are "mitigating in the sense that they might serve 'as a basis for a sentence less than death.'"[31] We distinguish here between culpability for the specific crime committed by Rhoades and his moral culpability more generally. In other words, although the photos do not relate to the circumstances of the crime, they go to his character and distinct identity. While the State is correct in reminding us that gravity has a place in the relevance determination, childhood photos are not "trivial" in the same way as, for example, personal hygiene practices, an inconsequential fact the Court has acknowledged to be irrelevant.[32] Beyond evaluating whether the proffered evidence is trivial, "[t]he Court [has] emphasized that, in assessing the relevance of mitigating evidence, a reviewing court should not weigh the severity or sufficiency of the evidence."[33]We cannot reconcile the mandate that a sentencing court may not preclude the jury from considering, as a mitigating factor, any aspect of a defendant's character that the defendant proffers as a basis for a sentence less than death with the exclusion of the childhood photos by the trial court here.[34]

         That said, we need not reach the question of whether the Court's precedent speaks with such clarity as to render its application by the trial court unreasonable under the strictures of AEDPA. Even assuming that Lockett and its progeny "squarely establish" "a specific legal rule" that required the admission of these photographs, we agree with the district court that any such error was harmless.[35] Although Rhoades's counsel did not brief the issue of the effect of any error on appeal, during oral argument, counsel suggested that a trial court's exclusion of mitigating evidence is structural error, entitling Rhoades to a new sentencing. We disagree and find that any error was harmless.

         To obtain relief on collateral review, a habeas petitioner must establish that a constitutional trial error had a "substantial and injurious effect or influence in determining the jury's verdict."[36] In Brecht, the Court emphasized the distinction between trial error and structural defects, making clear that "[t]rial error 'occurs during the presentation of the case to the jury,' and is amenable to harmless-error analysis because it 'may . . . be quantitatively assessed in the context of other evidence presented in order to determine the effect it had on the trial.'"[37] On the other hand, structural errors warrant automatic reversal because "they infect the entire trial process."[38] Contrary to the assertion during oral argument of Rhoades's able counsel, the decision of the trial judge to exclude the photos as irrelevant, if error, is quintessentially a trial error subject to harmless error review.[39] The scope of the error is readily identifiable and we are able to engage in the "narrow task of assessing the likelihood that the error materially affected the deliberations of the jury."[40]

         We agree with the district court that the exclusion of the photos did not have a "substantial or injurious effect or influence in determining the jury's verdict."[41] Even if the photos of Rhoades as a young child had led the jury to a positive inference of Rhoades's character, these photos from over a decade earlier would be unable to counteract the aggravating evidence of the previous crimes committed by Rhoades or testimony describing his violent behavior while incarcerated. And the portrayal of a positive adoptive childhood risks cutting against other mitigating evidence presented by trial counsel of Rhoades's difficult childhood-for example, testimony of Rhoades's biological mother that Rhoades had witnessed his mother's rape by his father. The marginal humanizing force of the photos is outweighed by the extensive aggravating evidence and, as the district court noted, backfires to the extent it highlights that Rhoades committed two brutal murders despite his adoption by a loving family. The hard reality is that any positive force of the proffered photographs was overrun by what the district court called "an intricately violent mosaic" of Rhoades's life.[42] We need not conclude that they had no relevance to conclude that Rhoades has not shown how the exclusion of the photos had a substantial or injurious effect on the jury's deliberations. He has not met his burden for habeas relief.[43]

         III.

         Rhoades contends that testimony adduced by the State during the punishment phase of trial about the possibility of Rhoades's being released on a furlough was constitutional error. In the punishment phase of Rhoades's trial, the State called Roy Smithy, an investigator with the prison system's special prosecution unit.[44] Smithy testified to the classification and housing of prisoners, crimes committed within the prison, and the range of weapons within the prison. The prosecutor then asked about furlough eligibility:

[State]: If an inmate is in prison and behaves himself for a certain period of time, even if he has been convicted of capital murder, and, of course, is there on just a life sentence, is there an opportunity for him to get furloughed?
[Smithy]: If he obtained . . . state approved trustee 3 status, then he is eligible for furloughs.
[State]: Just exactly what does a furlough mean?
[Smithy]: You have different types. You have emergency furloughs. You have other . . .

         At this point, Rhoades's trial counsel asked for "a running objection to all of this," and the court instructed him to approach the bench. The transcript then reads: "Counsel went to the bench for an off-the-record conference; then the reporter was called to the bench . . . ." The first part of the bench conference was not transcribed by the court reporter.

         Back on the record, defense counsel argued that "to allow [the State] to go into this stuff and not let me allude to - to let the jury know he is going to stay locked up for thirty-five years is a gross miscarriage of justice." The court responded: "I don't know where your objection is in there. I understand what your previous objection was. She has been admonished."[45] Defense counsel objected to "any further questions along this line." The trial judge stated "I am going to allow her to complete her line of questioning. That is all I am going to say."

         After this exchange, the prosecution asked Smithy three additional questions about furloughs. Smithy explained:

[a] furlough is when an inmate is allowed to leave prison unescorted to attend whatever reason it is that he has requested to leave the unit, things such as funeral, family emergency . . . where he, in essence, signs a piece of paper that says that he is going to be released [at] a certain time and that he will go to wherever this emergency is and that he promises he will be back and turn himself back into the unit.

         On cross-examination, defense counsel asked Smithy who was responsible for deciding whether an inmate was eligible for a furlough. Smithy agreed that it was "basically the decision of the warden for each particular unit," subject to "certain guidelines . . . set by the overall prison system." Defense counsel then asked Smithy to confirm that "technically speaking, a person who has been convicted of capital murder and is serving a life sentence is technically eligible for a furlough." Finally, defense counsel asked whether Smithy had ever heard of a capital murderer serving a life sentence getting a furlough, and Smithy stated "I have not personally, no sir." In its closing argument, the State did not mention furloughs, but did emphasize that Rhoades had been out of prison for less than twenty-four hours when he committed the murder.[46]

         In a motion for new trial, defense counsel objected to the State's furlough testimony as misleading. Defense counsel pointed to an administrative directive from TDCJ which stated that the state classification committee (not unit wardens) decide whether an inmate will be released on furlough. Defense counsel characterized the directive as "evidence . . . that an individual convicted of capital murder assessed life imprisonment is not eligible for furlough." The State responded that the prohibition on furloughs for capital murderers only applied to "appropriate reason furloughs," not emergency furloughs. The State then argued that Smithy's testimony referred only to emergency furloughs, and thus "[t]here was nothing misleading or incorrect" about the testimony.

         On direct appeal, Rhoades challenged the furlough testimony as misleading. The CCA did not reach the merits, instead holding that Rhoades's claim was waived because "he failed to object to the line of questioning with ample specificity to notify the trial court of his contention."[47]

         Rhoades again challenged the furlough testimony in his state habeas application. He separately raised an ineffective assistance of counsel claim with respect to defense counsel's failure to preserve error related to the furlough testimony. To help resolve the ineffective assistance claim, the state habeas court directed Rhoades's trial counsel to file affidavits addressing the furlough objection. In his affidavit, Rhoades's trial counsel stated:

[T]he 'record' is not representative of the event at all. To the extent that we did not know that the court-reporter was not recording, or that conversations at the bench were not properly placed in the record, I admit error. However, the record, spotty as it might be, certainly reflects our object[ion]s to Roy Smithy's testimony as a whole, and to the furlough issue in particular.[48]
The trial prosecutor later submitted an affidavit stating:
With regard to the furlough eligibility of Roy Smithy, the applicant's trial counsel objected repeatedly and strenuously to such evidence. I was aware of the nature of the applicant's objections to such testimony, and I believe that the trial court was also aware of such objections, even if such objections did not make it to the written record.

         The state habeas court accepted this version of events when it found that "the trial court's reference to understanding counsel's 'previous' objection is a reference to trial counsel's objection to Smithy's testimony made during the unrecorded portion of the bench conference," and therefore that trial counsel was not ineffective.[49] Yet on substantive challenge to Smithy's testimony the state habeas court found that "the applicant is procedurally barred from advancing his habeas claims concerning Roy Smithy's testimony about prison furloughs" because "trial counsel's complaint . . . was not specific, so the complaint was waived." The state habeas court then found:

In the alternative, based on trial counsel's habeas assertion that counsel specifically objected to the furlough testimony during an unrecorded bench conference, the applicant is not procedurally barred from presenting his habeas claims, but the applicant fails to show that such claims have merit.

         On federal habeas, the district court elected to "bypass [the] procedural-bar argument" because the claim could be "resolved more easily by looking past any procedural default."[50] The district court proceeded to the merits and concluded that "while not a likely occurrence, Texas law did not preclude life-sentenced capital inmates from furlough eligibility" and that "the Supreme Court has not precluded [s]tates from presenting factually correct, yet unlikely, testimony relating to furlough."[51]

         Rhoades argues on appeal that his furlough claim is not procedurally barred and that the state court's determination that Rhoades had failed to show that the furlough testimony was false or misleading was unreasonable. With respect to the procedural bar, Rhoades contends that the state habeas court's finding on his ineffective assistance of counsel claim that trial counsel objected to Smithy's testimony during the unrecorded bench conference (meaning trial counsel was not ineffective), "undid" the CCA's holding on direct appeal that Rhoades had waived his claim by failing to adequately object during trial. Essentially he argues that the state habeas court's finding that the objection was sufficient to overcome the ineffective assistance claim displaces the earlier CCA opinion finding that the objection was insufficient to preserve the issue on appeal.[52] With respect to the state habeas court's finding that the substantive furlough claim had been waived, Rhoades contends that those decisions are contradictory: the objection can't be sufficient for one purpose and insufficient for another. If the objection was properly made such that counsel was not ineffective, it was sufficient to preserve the issue on appeal. In response, the State maintains that the issue of the trial counsel's effectiveness with respect to their lodging an objection to the testimony is distinct from the issue of whether the objection was sufficient to preserve any alleged error for appeal.

         We agree. If a state court is precluded from reaching the merits of a claim by a state-law procedural default, that claim cannot be reviewed in federal court.[53] "State procedural bars are not immortal, however; they may expire because of later actions by state courts."[54] The Supreme Court has made clear that if the last state court presented with a particular federal claim reaches the merits, that decision removes the procedural bar to federal court review.[55]A procedural default will not bar review of the federal claim on direct or habeas review "unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar."[56] The state court is free to reach the merits in the alternative, however, without interfering with the procedural bar.[57]

         Here, the last state court to consider Rhoades's claim on the furlough testimony clearly and explicitly held that the claim was procedurally barred.[58]The state habeas court addressed the merits in the alternative, finding that the claim was without merit. The fact that the state court found that trial counsel's objection was sufficient to preclude relief on an entirely separate ineffective assistance of counsel claim does not erase the procedural default on the substantive claim about the furlough testimony. The Supreme Court in Ylst made clear that procedural default must be considered with respect to each specific federal claim: "If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available."[59] Although the question of whether an objection was lodged is relevant to both the ineffective assistance claim and the substantive furlough testimony claim, a statement about the objection in discussion of one claim does not erase the clear and explicit finding of procedural default on the other.[60]

         Ordinarily, where the last state court to consider a claim finds that there is a procedural bar, we are precluded from review as a federal court sitting in habeas. But because the distinction made by the state court between the effect of trial counsel's objection as it relates to the ineffective assistance claim versus the substantive furlough testimony claim is admittedly a fine one, and the internal consistency of the state court's findings is debatable, we need not rest on the procedural bar, and proceed to consider Rhoades's substantive argument.

         Rhoades contends that the state court's determination that the furlough testimony was not false or misleading was an unreasonable determination of the facts. He argues that because there was no possibility that an inmate convicted of capital murder and sentenced to life in prison would be granted a furlough, Smithy's testimony was false and misleading. The state habeas court found that "Smithy's testimony . . . was not false or misleading" and found "unpersuasive the assertion that [Rhoades's] jury probably considered and speculated as to whether the applicant would receive furlough."

         To succeed on his claim for habeas relief, Rhoades must show that the state court's decision was based "on an unreasonable determination of the facts."[61] It is not enough to demonstrate that the decision was incorrect, rather Rhoades must show that the decision was "objectively unreasonable, a substantially higher threshold."[62] "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."[63]

         To support his contention that the information about the furlough testimony was not truthful, Rhoades relies on Simmons v. South Carolina.[64]In Simmons, the Supreme Court held that "where [a] defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible."[65] Future dangerousness was a focus of both sides during the punishment phase of Simmons's trial-the prosecution argued that Simmons was a continuing threat and the defense responded that Simmons's dangerousness was limited to elderly women and he would not be violent in a prison setting.[66] To show the jury that Simmons would be confined to prison for life, his counsel requested an instruction that state law made Simmons parole ineligible.[67] The trial judge refused, even after the jury sent a note asking whether a life sentence carried the possibility of parole.[68] The Supreme Court held that the defendant's due process rights were violated.[69]

         The refusal of the trial court to instruct the jury that Simmons was parole ineligible led to the jury's "grievous misperception" that it was choosing between a death sentence and a limited period of incarceration.[70] By allowing the prosecution to "raise[] the specter of petitioner's future dangerousness . . . but then thwart[ing] all efforts by petitioner to demonstrate that, contrary to the prosecutor's intimations, he would never be released on parole, "[71] the trial court in Simmons sanctioned a death sentence on the basis of information that the defendant "had no opportunity to deny or explain."[72]

         In Rhoades's case, on the other hand, defense counsel was permitted to cross-examine Smithy and solicited testimony that he had "never heard of a capital murderer serving a life sentence getting a furlough." The testimony elicited by the prosecution was factually true and Rhoades's trial counsel had an opportunity to "deny or explain" the testimony and show the likelihood of Rhoades actually being furloughed to the jury.[73] As the Court reiterated in Simmons, "nothing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release."[74]Rhoades attempts to analogize Simmons, arguing that the state court's basis for not giving an instruction that the defendant was parole ineligible in that case was that no statutory law prohibited an inmate from being furloughed or given work release. But the Court expressly noted that while no statute prohibited "petitioner's eventual release into society," "state regulations unambiguously prohibit[ed] work-release and virtually all other furloughs for inmates who [we]re ineligible for parole."[75] Here, as the state habeas court recognized, Rhoades would have been technically eligible for emergency furlough had he received a life sentence.[76]

         Finally, Rhoades contends that even if the testimony wasn't impermissible when it was given, it later "became false" which entitles him to relief. Rhoades points to an amendment to the furlough statute passed by the Texas legislature three years after his sentence which would require that all emergency furloughs be supervised. Rhoades relies on Johnson v. Mississippi, where the Supreme Court considered a death sentence that was predicated on the jury's finding of an aggravating factor-a prior violent felony conviction- where that prior conviction was vacated after his capital trial.[77] In Johnson, the jury found an aggravating circumstance that the defendant "was previously convicted of a felony involving the use or threat of violence to the person of another."[78] After sentencing, the New York Court of Appeals reversed his prior felony conviction.[79] Nonetheless, the Mississippi Supreme Court denied Johnson postconviction relief.[80] The Supreme Court reversed, finding that the "New York conviction provided no legitimate support for the death sentence imposed on petitioner" and that "the use of that conviction in the sentencing hearing was prejudicial."[81] The effect of the New York Court of Appeals' decision was that the New York judgment was not valid at the time the Supreme Court considered the case and it "was not valid when it was entered in 1963." Here on the other hand, while the furlough testimony would not have been accurate if given after the legislative amendment, it was valid at the time it was given and a subsequent change to the statute did not make the earlier testimony-based on an earlier version of the law-invalid. A change in statute is fundamentally different from an invalidated criminal conviction: the criminal conviction was never valid whereas the pre-amendment statute was. Johnson does not dictate the relief Rhoades requests.

         IV. In his last claim for habeas relief, Rhoades argues that the district court erred by failing to conduct a comparative analysis with respect to his Batson claim.[82] In his application for a COA, Rhoades challenged the district court's substantive determination that the state court was not clearly erroneous in finding that there was no Batson violation. In his brief, Rhoades has shifted ground-arguing that the error was the district court's failure to conduct a comparative analysis. Although Rhoades does not present any comparative argument or explain what he expects a comparative analysis to show, he contends that the district court's failure to conduct such an analysis is itself error requiring remand. At oral argument, Rhoades's counsel acknowledged that remand may not be necessary because we could engage in our own comparative analysis, referring us to the briefing in the district court.

         At the outset, we note that there is some debate about whether the district court actually conducted a comparative analysis. During argument, the State suggested that because the district court had a comparative analysis briefed before it and concluded that the Batson claim was without merit, that was sufficient.[83] In the alternative, the State contends we can resolve this question without remanding the case back to the district court after conducting our own comparative analysis. We agree.[84] So, despite the parties' disagreement over whether the district court was required to do a comparative analysis after Chamberlin, [85] whether the district court actually performed a comparative analysis, [86] and whether Rhoades's brief was adequate for us to consider his comparative analysis claim, the answer here is simpler: Rhoades's proffered comparisons do not lead to his desired result. After review of the voir dire record, we find that the state courts' decision that there was no Batson violation in the peremptory strikes of Mr. Randle and Ms. Holiday was not unreasonable.

         The Batson analysis proceeds in three steps: (1) a defendant must present a prima facie case that the prosecution exercised peremptory challenges on the basis of race;[87] (2) the burden then shifts to the prosecutor to present a race-neutral explanation for striking the juror in question;[88] and (3) the court must determine whether the defendant has met his burden of proving purposeful discrimination.[89] In analyzing whether a prosecution's use of peremptory strikes evinces invidious discrimination, the Supreme Court has employed a comparative juror analysis.[90] This court has recently provided a framework for such an analysis and has made clear that Miller-El II did not establish a requirement that the state court employ a comparative juror analysis sua sponte.[91]

         A state court's Batson ruling is a finding of fact "accorded great deference" on habeas review.[92] In order to prevail here, Rhoades must show that "[the] trial court's determination of the prosecutor's neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary."[93] Rhoades challenges the peremptory strikes of two jurors: Berniece Holiday and Gregory Randle.

         Ms. Holiday

         In its voir dire questioning, the court asked Ms. Holiday about her job as a second grade teacher, the occupation of her three children, her prior service as a juror in a burglary case, [94] her relationship with a first cousin who had been incarcerated, [95] and her views about capital punishment.[96] The State followed up with additional questions about Ms. Holiday's beliefs on the death penalty, probing whether her questionnaire accurately reflected her views and what she meant by her statement that she had "mixed emotions" about the death penalty.[97] The State then asked Ms. Holiday whether her experience as a teacher led her to believe that children with turbulent childhood were "less responsible" for conduct as adults, to which Ms. Holiday responded that she "believe[d] that is one of the problems." Ms. Holiday informed the prosecutor that her religious beliefs would not keep her from imposing the death penalty. Shortly after Rhoades's trial counsel began questioning Ms. Holiday, the prosecutor exercised a peremptory challenge.

         Rhoades's trial counsel then challenged the State's peremptory strike under Batson. Trial counsel argued that Ms. Holiday was the first and only black venireperson on that particular panel and that her responses could reasonably be read as pro-prosecution. Although the trial court did not find that Rhoades had made a prima facie case, the judge asked the prosecutor to explain the State's race-neutral reasons for striking Ms. Holiday "[o]ut of an abundance of caution."[98] The trial court acknowledged that by asking the State to provide these reasons, the CCA would proceed in its review as though a prima facie case had been made. The prosecutor offered several race-neutral reasons for striking Holiday, including:

(1) she "dozed off a couple of times" during earlier proceedings;
(2) her answers were "too succinct" and gave the impression that she was "not being open in her ...

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