MARTIN, Circuit Judge:
Petitioner Vernon Madison, an Alabama prisoner on death row, appeals from the District Court's denial of his petition for writ of habeas corpus after a federal evidentiary hearing. We granted Mr. Madison a certificate of appealability on the question of whether the prosecutor in his case engaged in racially discriminatory jury selection in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and the Fourteenth Amendment to the U.S. Constitution. After careful consideration of the record, and
Mr. Madison, a black man, has been tried three times for killing a white police officer in Mobile, Alabama. Madison v. State, 718 So.2d 90, 94 (Ala.Crim.App.1997) (Madison III).
At his third trial, which is the subject of this habeas appeal, Mr. Madison was convicted of capital murder and sentenced to death after the trial judge overrode the jury's 8-4 recommendation that he be sentenced to life in prison without the possibility of parole. Madison III, 718 So.2d at 94. Mr. Madison's conviction and death sentence were affirmed on direct appeal by the Alabama Court of Criminal Appeals, id. at 104, and by the Alabama Supreme Court. Ex parte Madison, 718 So.2d 104, 108 (Ala.1998). The Supreme Court denied Mr. Madison's petition for writ of certiorari. Madison v. Alabama, 525 U.S. 1006, 119 S.Ct. 521, 142 L.Ed.2d 432 (1998). He filed a petition for state postconviction relief, which was dismissed by the state trial court and affirmed by the Alabama Court of Criminal Appeals. Madison v. State, 999 So.2d 561 (Ala.Crim. App.2006) (Madison IV). He then filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the Southern District of Alabama, which was denied.
This is the second time this Court has considered the denial of Mr. Madison's federal habeas petition. The first time, this Court reversed the District Court's denial of Mr. Madison's Batson claim. Madison v. Comm'r, Ala. Dep't of Corr., 677 F.3d 1333, 1339 (11th Cir.2012) (per curiam) (Madison V).
Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005) (footnote, citations, and quotation marks omitted).
Our first opinion summarized the facts relevant to Mr. Madison's Batson claim as follows:
Madison V, 677 F.3d at 1337-38 (footnote omitted). We held that the Alabama Court of Criminal Appeals "reached a decision contrary to clearly established federal law under 28 U.S.C. § 2254(d)(1) because the court increased Madison's prima facie burden beyond what Batson requires." Id. at 1338.
Once we determined that the state court's decision was not entitled to deference under § 2254(d), we were required to review the merits of Mr. Madison's Batson claim de novo. See McGahee v. Ala. Dep't of Corr., 560 F.3d 1252, 1266 (11th Cir.
On remand, the District Court held an evidentiary hearing. The state presented two witnesses: (1) a female juror Geraldine Adams, who is black; and (2) trial prosecutor John Cherry. The District Court also admitted into evidence three state's exhibits: (1) jury strike list with hand written notations of jurors' occupations; (2) Mr. Madison's witness list from trial; and (3) Mr. Cherry's handwritten notes from voir dire.
Ms. Adams testified that at the time of Mr. Madison's trial her husband was a "mental health worker" at Searcy Hospital. Mr. Cherry testified that he worked with the Mobile County District Attorney's Office in 1994 and prosecuted Mr. Madison's third trial. Mr. Cherry authenticated his own handwritten notes from voir dire and confirmed these notes were made "contemporaneous" with the jury selection. Given that nineteen years had passed since the voir dire, Mr. Cherry said he would not be able to testify to the matters regarding the voir dire "fully and accurately" without his notes. Then, Mr. Cherry read into the record the last two pages of his voir dire notes, which indicate his purported reasons for exercising his peremptory strike for each of the six black jurors. Those reasons were:
On cross examination, prosecutor Mr. Cherry indicated that "race" was a consideration during voir dire:
[Defense] Just a couple more questions. At the time of the trial in [19]94, was race a consideration when you struck this jury?
[Mr. Cherry] It has to be one of the factors because you know how these things turn out when the defense is striking all white and you realize where they are going with that. I'm not sure, of course, at this point what their reasons were. I suspect if they struck all white, it had to be some indication about race there, ma'am.
[Defense] So it was a consideration when you were doing your own striking?
[Mr. Cherry] No, ma'am. As you can see, we were looking for folks that had prior arrests, people who grew up with Mr. Madison, people who knew witnesses, someone who knew Dr. Amyx.
[Defense] And you were aware of the cases between 1985 and 1994 where the state appellate courts had reversed the Mobile County District Attorney's Office for violation of Batson?
[Mr. Cherry] Yes, ma'am.
On redirect, Mr. Cherry explained that his awareness of Batson violations in his office prior to 1994 caused him to "exercise[] caution" in his decision making when striking jurors.
The defense presented the testimony of one witness, Angela Roberts, a retired director of library services and academic support services at Alabama Southern Community College. Ms. Roberts testified that Cozy Brown (who was listed as a defense witness at trial) is a prominent owner of a fish market in Prichard, Alabama, a predominantly black community, whom most black residents of Prichard would know. After Ms. Roberts testified, the defense rested and the parties presented argument. The District Court took the matter under submission and later issued a written order finding that Mr. Madison had failed to prove purposeful discrimination or pretext on the part of the prosecution.
A District Court's grant or denial of a habeas corpus petition is reviewed de novo. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.2010). Although we review de novo the District Court's conclusions on legal questions and mixed questions of law and fact, we generally review the District Court's findings of fact for clear error. Terrell v. GDCP Warden, 744 F.3d 1255, 1261 (11th Cir.2014). With respect to Batson's third step, the Supreme Court has "explained that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal." Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991) (plurality opinion).
Neither party has cited any Eleventh Circuit authorities applying a de novo standard of review to a district court's determination of purposeful discrimination at Batson's third step in the procedural posture of Mr. Madison's case. Specifically, the parties have presented no precedent governing our review of a federal district court fact finding made after its own evidentiary hearing to review a Batson challenge made many years ago before a different judge in a state criminal trial. The three Eleventh Circuit cases cited by Alabama are not controlling because each of those cases involves a federal direct appeal of a Batson claim where the same District Court judge presided over the actual jury selection in the case. See Walker, 490 F.3d at 1287; Houston, 456 F.3d at 1331-33; Stewart, 65 F.3d at 921. However, there is Eleventh Circuit precedent for applying the clear error standard of review to a federal district court's determination of a Batson claim after a federal evidentiary hearing. See Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir.1995) ("The ultimate question of whether Cochran has established purposeful discrimination in violation of Batson is a question of fact subject to deferential review. A district court finding of purposeful discrimination in violation of Batson will not be overturned unless clearly erroneous.") (citing Hancock v. Hobbs, 967 F.2d 462,
Mr. Madison relies on Holder as persuasive authority for us to review a district court's third step Batson determination de novo. Even assuming we were not bound to follow Cochran, we would not follow Holder. In Holder, as here, the habeas petitioner's case was remanded for a Batson hearing in federal District Court many years after a state trial in which the prosecutor had not given reasons supporting his strikes. Holder, 60 F.3d at 388. The Seventh Circuit recognized in Holder that ordinarily a reviewing court will only reverse the findings of a district court about whether a Batson error occurred, if these findings were clearly erroneous. Id. That is so, the Court explained, because typically the Batson findings being reviewed were made by the same trial judge who presided over the voir dire. Id. But Holder held the rationale for using the clearly erroneous standard does not apply where the Batson hearing was conducted before a federal magistrate more than eight years after the voir dire actually took place in state court. Id. The Seventh Circuit emphasized the federal magistrate judge was not in the same position as the judge who had presided. Id. Also, the Court noted the trial prosecutors who testified at the federal evidentiary hearing had to rely on the voir dire transcript and contemporaneously taken notes to testify at the federal hearing. Id. Under these circumstances, the Seventh Circuit reviewed the Batson claim de novo, reasoning no deference was due the magistrate judge's and District Court's findings because each court had essentially been provided with the same "cold record." Id.
Unlike the Seventh Circuit in Holder, we cannot say that no deference is due the District Court's Batson determination in the circumstances here, especially its credibility findings about Mr. Cherry. Findings of fact are reviewed for clear error "even when the district court's findings are drawn solely from documents, records, or inferences from other facts." Thompson v. Nagle, 118 F.3d 1442, 1447 (11th Cir.1997); see also Fed.R.Civ.P. 52(a)(6) ("Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility."); Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir.2012) (per curiam) ("Appellate courts reviewing a cold record give particular deference to credibility determinations of a fact-finder who had the opportunity to see live testimony." (quotation marks and alterations omitted)).
Notably, the District Court here considered more than the prosecutor's trial notes and the testimony authenticating it. The District Court heard the live testimony of
In light of Mr. Cherry's testimony, and the fact that he was subject to cross examination by defense counsel, the District Court was in a superior position to assess Mr. Cherry's credibility and the genuineness of his explanations for striking black jurors at Batson's third step. See Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21 ("Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference."). On this record, we decline to follow Holder. We are also mindful that the Supreme Court has rejected, albeit in a different procedural context, the notion of "`independent' appellate review of a trial court's rejection of a Batson claim." Hernandez, 500 U.S. at 366-69, 111 S.Ct. at 1870-71.
Instead, we review the District Court's conclusion on the ultimate question of discriminatory intent at Batson's third step as a finding of fact that "must not be set aside unless clearly erroneous, and [we] must give due regard to the trial court's opportunity to judge the witnesses' credibility." Fed.R.Civ.P. 52(a)(6); see also Hernandez, 500 U.S. at 364, 111 S.Ct. at 1869 ("Batson's treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases.").
We remanded this case "for the district court to complete the final two steps of the Batson proceedings." Madison V, 677 F.3d at 1339. Before turning to the District Court's Batson analysis, we pause to emphasize that it was proper, and indeed necessary, for the District Court to conduct an evidentiary hearing on remand.
"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's
In addition, the District Court properly determined that the Supreme Court's decision in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), did not apply to the remand proceedings. See id. at 1398 (holding that a federal court must determine whether a habeas petitioner has satisfied § 2254(d) based only on the "record that was before the state court that adjudicated the claim on the merits"). This Court's decision in Mr. Madison's first appeal that § 2254(d)'s deference did not apply was based solely on the record before the Alabama Court of Criminal Appeals at the time it rendered its decision in Madison III. Nothing in Pinholster,
Under Batson, "once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two)." Elem, 514 U.S. at 767, 115 S.Ct. at 1770. Batson's second step "does not demand an explanation that is persuasive, or even plausible." Id. at 768, 115 S.Ct. at 1771. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866.
As set out above, the state presented the prosecutor's notes from voir dire, the testimony of Ms. Adams, and the testimony of the prosecutor to establish that Alabama's reasons for striking six black jurors were valid and race-neutral. After considering the state's explanations, the District Court concluded the "prosecutor's explanations for striking jurors are credible, valid and race-neutral."
We cannot say the District Court committed any error in finding that the state satisfied its low burden at Batson's second step. The explanations offered by the state for its strikes are facially valid and race-neutral.
Once a race-neutral explanation is tendered at Batson's second step, "the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination." Elem, 514 U.S. at 767, 115 S.Ct. at 1770-71. The burden on Mr. Madison at Batson's third step is to prove purposeful discrimination by a preponderance of the
Miller-El v. Cockrell, 537 U.S. 322, 338-39, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003) (Miller-El I). Again, the District Court's decision on the ultimate question of discriminatory intent is a finding of fact that we will not set aside unless clearly erroneous. See Section II, supra; see also Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871.
We have carefully reviewed the record and considered the totality of relevant circumstances bearing on the ultimate question of whether the prosecutor excused even a single black juror based on race. See Parker, 565 F.3d at 1270 ("It is not necessary to show that all or even a majority of the prosecutor's strikes were discriminatory; any single strike demonstrated to result from purposeful discrimination is sufficient."); see also Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008) ("Because we find that the trial court committed clear error in overruling petitioner's Batson objection with respect to [one juror], we have no need to consider petitioner's claim regarding [a second juror]."). If our standard of review were de novo, this would be a difficult case. Both the state and Mr. Madison point to evidence and inferences in the record that support their respective interpretations of the prosecutor's motives for striking black jurors. On the one hand, the state clearly articulated facially valid race-neutral reasons to support each of its strikes. More importantly, each of the state's race-neutral reasons is supported by the record and "has some basis in accepted trial strategy," at least arguably so. See Miller-El I, 537 U.S. at 339, 123 S.Ct. at 1040. This is critical because a facially race-neutral reason, "on its own, does not suffice to answer a Batson challenge." Adkins v.Warden, Holman CF, 710 F.3d 1241, 1251 (11th Cir.
At the same time, the circumstances supporting Mr. Madison's prima facie case were strong. Relevant factors supporting purposeful discrimination include the following:
The history of racial discrimination at the Mobile County District Attorney's Office that prosecuted Mr. Madison is significant. See Miller-El I, 537 U.S. at 346-47, 123 S.Ct. at 1044-45 (according weight to historical evidence of racial discrimination by district attorney's office and noting that such history is "relevant to the extent it casts doubt on the legitimacy of the motives underlying the State's actions in petitioner's case"); see also Miller-El II, 545 U.S. at 266, 125 S.Ct. at 2340 ("If anything more is needed for an undeniable explanation of what was going on, history supplies it."). In the eight years between the 1986 decision in Batson and Mr. Madison's third trial in 1994, Alabama appellate courts had found Batson violations by the Mobile County District Attorney's Office on seven different occasions, including once at Mr. Madison's first trial.
Nonetheless, we defer to the findings of the District Court unless they are clearly erroneous. Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871. The District Court did not clearly err in finding Mr. Madison "failed to prove purposeful discrimination or pretext." Neither can we say that the District Court clearly erred when, "after considering the written notes and testimony of John Cherry, [it concluded] that the prosecutor's explanations for striking the jurors [were] credible, valid and race-neutral."
On remand the District Court gave both parties an opportunity to present evidence, briefing, and argument on the ultimate issue of discriminatory intent. After hearing the evidence, the District Court issued a seventeen-page order. The District Court's order properly noted Batson's third step "demands consideration of the totality of the circumstances." See also McGahee, 560 F.3d at 1261 ("Because courts must weigh the defendant's evidence [of purposeful discrimination] against the prosecutor's articulation of a `neutral explanation,' courts are directed by Batson to consider `all relevant circumstances' in the third step of the Batson analysis."). The district judge also noted "[t]he reasons stated by the prosecutor provide the only reasons on which the prosecutor's credibility is to be judged." Doc. 79 at 11 (quoting Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir.2009)). Further, the District Court correctly acknowledged the "[c]ircumstances that may support a finding of pretext are varied." Id. at 12 (citing Parker, 565 F.3d at 1271).
The District Court then carefully considered the state's proffered reasons supporting its peremptory strikes, once again grouping them into three broad categories: (1) "Employment/Occupation Based Strikes" (jurors Adams and Smith); (2) "Knew/Associated with Defendant or Defense Witness Strikes" (jurors Dawson, Hall, and McQueen); and (3) "Death Penalty Apprehension Strike" (juror Brown). The District Court separately concluded that each of the three categories was generally recognized as a valid race-neutral reason for striking prospective jurors.
For example, the District Court determined "[s]trikes based on employment / occupation have generally been upheld as a valid race neutral reason for striking prospective jurors." Doc. 79 at 13 (citing case law including J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n. 14, 114 S.Ct. 1419, 1428 n. 14, 128 L.Ed.2d 89 (1994) (suggesting that peremptory challenges based on a status or occupation do not
The District Court also considered and rejected Mr. Madison's arguments that the prosecutor's race-neutral explanations were mere pretext.
Similarly, the District Court considered Mr. Madison's argument that the prosecutor's strikes "based on a potential juror's knowledge of, or association with, defense
On this record, we cannot say the District Court clearly erred in making any of its factfindings. The clearly erroneous standard is very deferential. We may not reverse a District Court under the clearly erroneous standard of review where, as here, "the district court's account of the evidence is plausible in light of the record viewed in its entirety." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. This is so even if we were convinced, had we been sitting as the trier of fact, that we "would have weighed the evidence differently." Id.
After hearing the testimony and reviewing the evidence, the District Court credited the prosecutor's race-neutral explanations for striking six black jurors and rejected Mr. Madison's arguments that the prosecutor's reasons were pretextual.
We affirm the District Court's judgment denying Mr. Madison's Batson claim on the merits.
Id. at 1412 (Breyer, J., concurring in part and dissenting in part). Elsewhere the Supreme Court has also explained, "[w]hen a state court's adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires." Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 2859, 168 L.Ed.2d 662 (2007); see also Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 1520, 146 L.Ed.2d 389 (2000) (noting that "a federal court will be unconstrained by § 2254(d)(1) ... [if] the state-court decision falls within that provision's `contrary to' clause"); Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir.2014) (remanding for an evidentiary hearing and noting "[Petitioner's] satisfaction of the § 2254(d)(1) standard... requires us to review de novo his ineffective assistance of appellate counsel claim, rather than deferring to the [state court's] resolution of that claim." (emphasis added)); Sanchez v. Roden, 753 F.3d 279, 307 (1st Cir.2014) ("Pinholster, we believe, does not prohibit an evidentiary hearing once a petitioner has successfully shown the state court unreasonably applied federal law."); Smith v. Cain, 708 F.3d 628, 635 (5th Cir. 2013) (holding that "Pinholster's limitation on federal evidentiary hearings does not apply once the district court conclude[s], solely on the basis of the state court record, that the state trial court unreasonably applied federal law"); Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir.2012) ("If § 2254(d) does not bar relief, then an evidentiary hearing may be needed.").
565 F.3d at 1271 (internal citations omitted).
Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. This is not a case, however, where such factors are present such that we may find clear error despite the District Court's credibility findings.