[PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                         _____________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              JUNE 18, 2010
                             No. 10-10284                      JOHN LEY
                         ____________________                   CLERK

                   D.C. Docket No. 3:08-cv-00791-HLA

GARY RAY BOWLES,

                                                     Petitioner-Appellant,


                                  versus


SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                     Respondents-Appellees.


                           ------------------------
              On Appeal from the United States District Court
                    for the Middle District of Florida
                            -----------------------

                             (June 18, 2010)

Before TJOFLAT, BLACK, and CARNES, Circuit Judges.

CARNES, Circuit Judge:
      A man named Walter Hinton made the mistake of allowing Gary Ray

Bowles to move into his mobile home in Jacksonville, Florida. One night after

they had smoked marijuana and drunk beer, Hinton went to his room and fell

asleep. Bowles “went outside and picked up a concrete block, brought it inside

the mobile home, and set it on a table.” Bowles v. State, 

, 770 (Fla.

1998). “After thinking for a few minutes,” Bowles picked up the concrete block,

went into Hinton’s room, and “dropped” it on his head. 

of the blow

fractured Hinton’s face from cheek to jaw. 

was lying on the

floor conscious, Bowles started strangling him. 

stuffed toilet paper

down Hinton’s throat and shoved a rag into his mouth. Hinton smothered to death.

guilty to first degree murder and a jury recommended that

he be sentenced to death, which the trial court did. 

Supreme

Court affirmed the conviction but reversed the sentence after determining that the

trial court had erred in allowing the jury to hear that the victim was gay and that

Bowles hated homosexuals. 

At the resentencing proceeding, another

jury recommended death and the trial court again imposed that sentence. Bowles

v. State, 

, 1175 (Fla. 2001). One of the dozen claims that Bowles

raised on appeal from that new sentence was that “the trial court erred in allowing

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the use of peremptory challenges to remove prospective jurors who were in favor

of the death penalty but would only impose it under appropriate circumstances.”

The Florida Supreme Court rejected that claim on the merits. 

(citing San Martin v. State, 

, 1343 (Fla. 1997) (“[T]he State

may properly exercise its peremptory challenges to strike prospective jurors who

are opposed to the death penalty, but not subject to challenge for cause.”)).

Finding no merit in any of Bowles’ other claims either, the Florida Supreme Court

affirmed his death sentence. 

.

       After unsuccessfully seeking post-conviction relief in state court, Bowles v.

State, 

, 186 (Fla. 2008), Bowles filed a petition for habeas corpus

relief under 28 U.S.C. § 2254 in federal district court. That court denied relief on

all of Bowles’ claims, but issued a certificate of appealability on:

       the claim that [Bowles’] rights under the Sixth and Fourteenth
       Amendments were denied, i.e., his right to an impartial jury and his
       due process right to a jury from which no jurors have been
       systematically removed by the state, when the state used peremptory
       challenges to remove prospective jurors who, while in favor of the
       death penalty, expressed reservations about recommending capital
       punishment.

Doc. 18 at 58.1 Bowles’ petition to this Court for an expanded Certificate of


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        In his initial brief to this Court, Bowles states the issue as whether his “Due Process,
Equal Protection, and Right to an Impartial Jury under the Fifth, Sixth, and Fourteenth
Amendments were violated when the prosecution intentionally utilized its peremptory strikes on

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Appealability was denied.

       Bowles does not cite any decision of any court anywhere that establishes

any of the rights he is claiming in connection with the prosecutor’s use of

peremptory strikes to remove jurors who have reservations about the death penalty

but are not removable for cause under Witherspoon v. Illinois, 

, 

(1968). He concedes that the rights he is claiming are not to be found

in any decisions of the Supreme Court or of this Court. In the Statement

Regarding Oral Argument part of his brief, Bowles acknowledges that “the

instant issues are of great constitutional importance, and have not been decided by

this court and the U.S. Supreme Court.” Br. of Petitioner at iii. The second clause

of that statement shows why Bowles’ claims cannot succeed. Actually, it is more

than enough to show that, because even if there were some decision of this Court

in his favor Bowles would still lose in the absence of a Supreme Court decision

clearly establishing the rights he asserts.

       Under § 2254(d)(1) habeas relief may be granted only when the state courts’

adjudication of his federal claim “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as



eight ‘death scrupled jurors,’ in contemplation for service, solely for the penalty phase of trial.”
Br. of Petitioner at 15.

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determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The Supreme Court “has held on numerous occasions that it is not ‘an

unreasonable application of clearly established Federal law’ for a state court to

decline to apply a specific legal rule that has not been squarely established by [the

Supreme] Court.” Knowles v. Mirzayance, ___ U.S. ___, 

, 1419

(2009). And federal law is “clearly established” only when it is “embodied in a

holding” of the Supreme Court. Thaler v. Haynes, ___ U.S. ___, 

,

1173 (2010) (per curiam). Dicta in Supreme Court opinions is not enough. Carey

v. Musladin, 

, 74, 

, 653 (2006); Yarborough v. Alvarado,

, 661, 

, 2147 (2004); Lockyer v. Andrade, 

, 71, 

, 1172 (2003); Ramdass v. Angelone, 

, 165–66,

, 2119–20 (2000) (plurality opinion); Williams v. Taylor, 

, 412, 

, 1523 (2000). Nor can anything in a federal court of

appeals decision, even a holding directly on point, clearly establish federal law for

§ 2254(d)(1) purposes. Renico v. Lett, 

, 1865–66 (2010); see

, 

, 654; see also Hammond v. Hall, 

, 1340 n.21 (11th Cir. 2009) (“The Supreme Court has also instructed us

not to look to lower court decisions when we are deciding what is clearly

established federal law for § 2254(d)(1) purposes.”).

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      To the extent that Bowles’ claim involves the Sixth and Fourteenth

Amendment right to an impartial jury, the go to decision is Witherspoon, but

Bowles cannot get there. A measure of how far away the actual state of the law is

from the aspirations of his claim can be seen in an opinion of a former Justice

lamenting the fact that Witherspoon and the decisions applying it have not

restricted the use of peremptory strikes to remove jurors with reservations about

the death penalty. In the course of dissenting from the Court’s holding refusing to

extend the Witherspoon decision in another way, Justice Marshall acknowledged

that: “Witherspoon placed limits on the State’s ability to strike scrupled jurors for

cause, unless they state unambiguously that they would automatically vote against

the imposition of capital punishment no matter what the trial might reveal. It said

nothing, however, about the prosecution’s use of peremptory challenges to

eliminate jurors who do not meet that standard and would otherwise survive death

qualification.” Lockhart v. McCree, 

, 190–91, 

, 1774

(1986) (Marshall, J., joined by Brennan & Stevens, JJ., dissenting) (alteration,

citation, and quotation marks omitted)); see also Brown v. North Carolina, 

, 

, 424–27 (1986) (Brennan, J., joined by Marshall, J.,

dissenting from denial of cert.) (acknowledging that Witherspoon applies only to

challenges for cause and disagreeing with the Court’s refusal to consider

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extending it to peremptory challenges); 

at 424 (O’Connor, J.,

concurring in denial of cert.) (“Permitting prosecutors to take into account the

concerns expressed about capital punishment by prospective jurors, or any other

factor, in exercising peremptory challenges simply does not implicate the concerns

expressed in Witherspoon.”). The Sixth and Fourteenth Amendments impartial

jury aspect of Bowles’ claim fails to make it past the § 2254(d)(1) obstacle.

      Seeking relief under the Equal Protection Clause, Bowles also contends that

jurors with reservations about the death penalty are a distinctive group under

Batson v. Kentucky, 

, 

(1986), which is the go to

decision on that subject. Batson was initially limited to race. 

106 S.Ct.

at 1719. Although the Court has extended Batson to gender, it has drawn the line

of application at distinctive groups entitled to heightened scrutiny in an equal

protection analysis. See J.E.B. v. Ala. ex rel. T.B., 

, 143, 

, 1429 (1994) (“Parties may also exercise their peremptory challenges to

remove from the venire any group or class of individuals normally subject to

‘rational basis’ review.”). And the Supreme Court has never held that people who

are less than wholehearted supporters of the death penalty are a protected class

subject to heightened scrutiny for equal protection purposes.

      The final facet of Bowles’ claim is his contention that striking jurors who

                                          7
are hesitant to vote for death violated his Sixth Amendment right to a jury drawn

from a fair cross-section of the community (he phrases it in “representative

sample” terms). Not only is that part of the claim unsupported by any holding of

the Supreme Court, it is actually contrary to the decision in Holland v. Illinois, 

, 

(1990). That decision held that the Sixth Amendment

does not prohibit “the exclusion of cognizable groups through peremptory

challenges.” 

110 S.Ct. at 806. As the Holland Court explained, “[a]

prohibition upon the exclusion of cognizable groups through peremptory

challenges has no conceivable basis in the text of the Sixth Amendment, is without

support in [the Supreme Court’s] prior decisions, and would undermine rather than

further the constitutional guarantee of an impartial jury.” 

purposes,

that means Bowles’ claim would not have a chance of succeeding even if it were

not hobbled by § 2254(d)(1).

      Because clearly established federal law, as determined by holdings in

Supreme Court decisions, does not prohibit prosecutors from using their

peremptory strikes to remove venire members who are not ardent supporters of

the death penalty, the district court correctly denied Bowles relief on this claim.

      AFFIRMED.



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