Case: 17-30191    Document: 00514467377      Page: 1   Date Filed: 05/10/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals

                                  No. 17-30191
                                                                         Fifth Circuit

                                                                       FILED
                                                                   May 10, 2018

AMY HEBERT,                                                       Lyle W. Cayce
                                                                       Clerk
             Petitioner - Appellant

v.

JAMES ROGERS, WARDEN, LOUISIANA CORRECTIONAL INSTITUTE
FOR WOMEN,

             Respondent - Appellee




                 Appeal from the United States District Court
                    for the Eastern District of Louisiana


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.

EDITH BROWN CLEMENT, Circuit Judge:
      This habeas case is about a woman who, awaking in the night to an
alleged voice telling her to kill her children, grabbed several kitchen knives
and repeatedly stabbed her young children, leaving them to bleed to death.
Upon being charged with first degree murder, she pled not guilty by reason of
insanity. The jury found her guilty but did not sentence her to death. After
exhausting all forms of direct or collateral relief in Louisiana, Amy Hebert filed
a petition for habeas relief in federal court. The district court denied relief but
granted a certificate of appealability. Hebert raises two issues before us: (1)
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                                  No. 17-30191
defense counsel provided ineffective assistance by failing to object to the State’s
allegedly discriminatory peremptory strikes; and (2) a rational jury could not
have found that Hebert was sane at the time of the killings. We affirm.
                           Facts and Proceedings
      Amy Hebert had two children, a nine-year old girl named Camille and a
seven-year old boy named Braxton. In 2005, Hebert and her husband, Chad,
separated. In 2006, they divorced after she learned about Chad’s affair with a
woman from work, Kimberly. Over the next year, Chad’s relationship with
Kimberly became more serious, and they started to plan a wedding, which was
set for 2008. The children also had been developing a closer relationship with
Kimberly, a fact that Hebert observed and resented. Chad began building a
new home, where both children would have their own room.
      In the late summer of 2007, Hebert stabbed both of her children to death
at their home in Matthews, Louisiana. Both children suffered dozens of stabs
wounds in the chest, back, and scalp, and ultimately bled to death. After killing
both children, Hebert placed their bodies in her bed. She then killed the family
dog, made a pot of coffee, wrote two notes, and attempted to take her own life.
She slashed her wrists until she exposed her tendons; punctured her lungs,
collapsing them; and inflicted cuts to her legs, skull, neck, and eyelids. Then,
Hebert lay down in her bed to die beside her children.
      Hebert’s former father-in-law discovered this grisly scene the next
morning, and he summoned the police. When the authorities arrived and
entered the master bedroom, Hebert lifted a large knife and yelled, “Get the f-
-- out.” The police subdued her with a taser. The authorities’ attempts to
resuscitate the children were unsuccessful. Hebert was taken to the hospital.
      The police discovered the two notes that Hebert had written. The first
note was addressed to Chad. It stated:


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                                 No. 17-30191
                                                             Monday 8-20-07
      Chad,
      You wanted your own life. You got it. I'll be damned if you get the
      kids, too. Your ambition & greed for money won out over your love
      for your family. The hell you put us through & I do mean all of us
      because you don’t know what the kids used to go through because
      of course you weren’t here. This is no kind of life for them to live.
      I sure hope you two lying alduttering [sic] home wrecking whores
      can have more kids because you can’t have these. Actually I hope
      you can’t because then you’ll only produce more lying
      homewrecking adultering [sic] whores like yourselves. Maybe you
      can buy some with all of your money you will make from this house
      & the life insurance benefits you’ll get from the kids.
      The second note, which was addressed to Hebert’s former mother-in-law,
stated:
                                                            Monday 8-20-07
      Judy,
      You run from the very thing you support! Monica pairs up with a
      married man, becomes a kept woman & your response is maybe
      she is in love with him—so that makes it okay? How stupid! Your
      sons have affairs bring these whores home & you welcome them
      all in. I guess its okay for them to hurt the family as long as it is
      not you. Well when you started delivering my kids to that whore,
      Kimberly, that was the last straw! To all my friends thanks for all
      the help & support you tried to give me. I love you all,
      Sorry Daddy, Celeste & Renee I love you all too.
      Upon her arrival at the hospital, Hebert received treatment for her
physical wounds along with mental treatment from Dr. Alexandra Phillips, a
psychiatrist. Initially, Hebert was unresponsive. A few days after the children’s
deaths, Hebert informed Dr. Phillips that she had been hearing “the words of
Satan for a long time.” In response to a question from Dr. Phillips, Hebert said
that “Satan was in the room and was laughing at her.” Hebert then proceeded
to scream, and Dr. Phillips concluded that Hebert was “completely psychotic”
and prescribed anti-psychotic medicine for her.



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                                        No. 17-30191
      The State of Louisiana charged Hebert with first-degree murder of her
children. Hebert pled not guilty by reason of insanity. A trial was held in
Lafourche Parish, Louisiana.
      The jury venire comprised 200 people, 112 of whom were women. Both
parties received 12 peremptory strikes and two alternate juror peremptory
strikes. Before the final jury was selected, 23 women and 10 men were
randomly selected to sit on the jury. The court struck four men for cause or
hardship, and Hebert used four peremptory strikes on men, which left just two
men on the panel. The State used 11 peremptory strikes and one alternate
peremptory strike against women. Hebert’s counsel did not object. The final
jury included 10 women and two men, together with three men and one woman
as alternate jurors.
      The jury heard testimony from six experts during the guilt phase of the
trial. The defense called four experts: Dr. Alexandra Phillips, Dr. David Self,
Dr. Glenn Ahava, and Dr. Phillip Resnick. Dr. Phillips prescribed anti-
psychotic medication for Hebert after concluding that she was “completely
psychotic” when she claimed that she saw and heard Satan in the hospital
room. Dr. Resnick opined that Hebert was psychotic 1 when she killed her
children because she was having auditory hallucinations in which she heard
the voice of Satan commanding her to kill the children and then commit suicide
to keep the family together. The voice, according to Hebert, then instructed her
to write the notes left at the scene of the crime. Dr. Ahava, an expert in forensic
psychology, testified that Hebert was psychotic and likely could not distinguish
right from wrong on the day of the offense based on her history of mental health
problems and the excessive number of stabs wounds on the children. Dr. Self,
an expert in forensic psychiatry, diagnosed Hebert as suffering from major


      1   Dr. Resnick defined “psychosis” as being out of touch with reality.
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                                 No. 17-30191
depression with recurrent and severe psychosis. He further concluded that
Hebert must have been psychotic because “only the most psychotic people
attack their own eyes.”
      In response, the State called two rebuttal experts: Dr. Rafael Salcedo and
Dr. George Seiden. Dr. Salcedo, an expert in clinical and forensic psychology,
conceded at trial that Hebert suffered from a psychotic disorder but concluded
that Hebert was still able to distinguish right from wrong. In reaching this
conclusion, Dr. Salcedo relied on Hebert’s notes, which he opined revealed the
logical mental process of someone seeking revenge through a retribution
killing. Dr. Seiden, an expert in general and forensic psychiatry, opined that
Hebert was capable of telling right from wrong because there was no evidence
that Hebert exhibited psychosis before killing her children. He also relied on
the notes as evidence of Hebert’s mental state, and he opined that the line
“Sorry Daddy, Celeste & Renee” showed Hebert understood the wrongfulness
of her actions.
      The jury returned a verdict of guilty. The jury was unable to reach a
unanimous verdict on the death penalty, and the court sentenced Hebert to life
imprisonment. Hebert filed a direct appeal to the Louisiana First Circuit Court
of Appeals, which affirmed her conviction and sentence. Hebert then
unsuccessfully pursued habeas relief in state court. In response to a claim that
its peremptory strikes discriminated against women, the State provided
gender-neutral reasons for using its peremptory strikes. After exhausting all
other avenues of relief, Hebert filed a habeas corpus petition in the United
States District Court for the Eastern District of Louisiana. The district court
denied her petition for relief, but it granted a COA on all issues raised. Hebert
timely appealed.




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                                  No. 17-30191
                             Standard of Review
      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits
a federal court from granting habeas relief unless the decision of the state court
“(1) . . . was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United
States; 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). A state court’s decision is contrary to clearly established precedent
if the rule it applies “contradicts the governing law set forth in the [Supreme
Court’s] cases,” or if the state court confronts facts that are materially
indistinguishable from a decision of the Supreme Court yet reaches a different
result. Wooten v. Thaler, 

, 218 (5th Cir. 2010) (quoting Wallace v.
Quarterman, 

, 354 (5th Cir. 2008)). A state court commits an
unreasonable application of Supreme Court precedent if it identifies the correct
legal rule but unreasonably applies that rule to the facts. 

v. Taylor, 

, 407 (2007)).
      “Determining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an
opinion from the state court explaining the state court’s reasoning.”
Harrington v. Richter, 

, 98 (2011). A state court’s decision does not
even “require awareness of [the Supreme Court’s] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 

, 8 (2002).
      In an appeal from the denial of habeas relief, we review legal conclusions
de novo and factual findings for clear error. Perez v. Cain, 

, 593
(5th Cir. 2008). We presume the state court’s factual findings are correct unless
rebutted by the petitioner with clear and convincing evidence. 

.
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                                  No. 17-30191
                                  Discussion
                      I. Ineffective Assistance of Counsel
      Hebert argues that her counsel provided ineffective assistance because
he failed to object to the State’s use of its peremptory strikes against qualified
female venire members in a manner that she alleges was discriminatory. We
apply the legal standard articulated in Strickland v. Washington when
evaluating the effectiveness of Hebert’s trial counsel. 

(1984).
Under Strickland, a petitioner must prove both deficient performance and

. To prove deficient performance, petitioner must
show that her counsel’s performance “fell below an objective standard of
reasonableness.” 

For prejudice, petitioner “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 

The issue is whether
defense counsel’s representation “amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most
common custom.” Harrington v. Richter, 

, 105 (2011) (quoting

)).
      In the habeas context, attorney performance is scrutinized under a
“doubly” deferential standard. 

v. Mirzayance, 

, 123 (2009)). There is a strong presumption that defense counsel’s strategic
and tactical decisions fell “within the wide range of reasonable professional
assistance.” 

. “A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.”

the petitioner proves deficient performance, prejudice is not
presumed. See Virgil v. Dretke, 

, 607 (5th Cir. 2006).


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                                  No. 17-30191
      The Equal Protection Clause prohibits a prosecutor from intentionally
discriminating against a potential juror based on race or gender. J.E.B. v.
Alabama ex rel. T.B., 

, 129 (1994) (prohibiting discrimination in
jury selection based on gender); Batson v. Kentucky, 

, 86 (1991)
(prohibiting discrimination in jury selection based on race). Hebert contends
that her counsel’s failure to object amounted to deficient performance that
prejudiced her because the State’s alleged intentional discrimination
undermined the confidence in the proceedings and caused structural error. If
Hebert fails to show that a J.E.B. violation occurred, however, then she also
fails to show that her attorney’s performance was deficient or that she was
prejudiced thereby.
      Hebert raised her allegation of ineffective assistance of counsel for failing
to object to gender discrimination on state post-conviction review. The state
trial court denied her claim without performing an analysis under J.E.B. v.
Alabama ex rel. T.B., instead simply citing the State’s proffered gender-neutral
explanations for striking the female jury members:
      Of the jurors stricken, there were many sufficiently gender-neutral
      explanations for the use of peremptory challenges including:
      religious, moral or ethical considerations, self-employed business
      owners, jurors with medical or psychiatric problems, jurors with
      family members that had psychiatric problems, one juror who
      knew the defendant, and those jurors that had misgivings about
      imposing the death penalty.
The state court concluded that “[t]he record in this matter reflects that
petitioner’s counsel used their experience and training in the most skillful
manner to properly defend petitioner against the charges.” The Louisiana
Supreme Court adopted the trial court’s reasons when denying Hebert’s
petition.
      Acknowledging that the state court addressed her ineffective assistance
of counsel claim on the merits, Hebert contends that it—and the district
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                                   No. 17-30191
court—failed to articulate the J.E.B. legal framework, failed to consider
relevant facts, and unreasonably applied the law and facts. As previously
noted, a state court’s decision does not need to be thorough or directly address
Supreme Court’s cases, “so long as neither the reasoning nor the result of the
state-court decision contradicts them.” 

. Thus, the brevity
of a state court’s opinion is immaterial.
      To determine whether the reasoning and result of the state court’s
opinion comport with Supreme Court precedent, we undertake the J.E.B.
analysis as it is relevant to Hebert’s ineffective assistance of counsel claim. The
J.E.B. framework employs the same analysis as a Batson claim. See 

. The petitioner must present a prima facie case that the state
discriminated on the basis of gender during the jury selection. See Reed v.
Quarterman, 

, 368 (5th Cir. 2009). This step becomes “moot,”
however, “[o]nce a prosecutor has offered a [gender]-neutral explanation for
the peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination[.]” Hernandez v. New York, 

,
359 (1991). If the State articulates a gender-neutral reason for striking the
jurors in question, the court must determine if the petitioner has met her
burden to prove purposeful discrimination. See 

. “[A]
finding of pretext as to a single juror requires that a conviction be vacated . . . .”
Murphy v. Dretke, 

, 434 (5th Cir. 2005).
      Hebert argues that the State violated her constitutional rights when it
exclusively used its peremptory strikes to remove qualified women from the
jury. In support of this argument, Hebert observes that the State used 11 of its
primary peremptory strikes against women and then used one of its alternate
peremptory strikes against another woman. Hebert then concludes that the
State acted discriminatorily because 100% of the peremptory strikes used by
the State were against qualified women.
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                                  No. 17-30191
      Of all the venire members randomly selected before a final jury was
chosen, there were only two men left on the jury after four men were dismissed
for cause and Hebert struck the other four men with her peremptory strikes.
Thus, as the district court noted, the State’s strikes against qualified women
is hardly surprising or alarming. The State also provided gender-neutral
reasons for its strikes, and thus the initial step requiring proof of a prima facie
case is moot. See 

.
      When the State offered gender-neutral reasons for its strikes, the
primary question became whether the reasons were plausible. See Miller-El v.
Cockrell, 

22, 338–39 (2003); Miller-El v. Dretke, 

, 252
(2005) (“Miller-El II”) (“[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.”). At
the third step of the J.E.B./Batson analysis, courts consider whether the
State’s “proffered reason for striking a [female] panelist applies just as well to
an otherwise-similar [male] who is permitted to serve [because] that is
evidence tending to prove purposeful discrimination.” Miller-El 

. In Miller-El II, the Supreme Court held that the state used its peremptory
strikes in a racially discriminatory manner when the state struck black jurors
for reasons that applied equally well to white jurors retained on the jury. 

. The Court also found it significant that the final jury only
included one black juror: “[t]he numbers describing the prosecution’s use of
peremptories are remarkable. Out of 20 black members of the 108–person
venire panel for Miller-El’s trial, only 1 served. Although 9 were excused for
cause or by agreement, 10 were peremptorily struck by the prosecution.” 

      We have previously drawn three principles from the Supreme Court’s
analysis in Miller-El II. 

. First, the struck juror and the
comparator-juror do not need to “exhibit all of the exact same characteristics.”
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                                    No. 17-30191

the state presents a particular reason for striking a juror without
“engag[ing] in meaningful voir dire examination on that subject,” that is “some
evidence” that the asserted reason for the strike was pretext for discrimination.

must confine our inquiry to the reasons provided by the state for
its strikes. 

that “the preemptively offered gender-neutral reasons
provided by the State were demonstrably implausible.” She specifically
identifies the following female potential jurors as examples where the State
discriminated based on gender: J.L., M.M., H.P., E.U., F.R., A.O., C.L., and
T.F. She compares these women to B.J., J.O., and T.G.—three men who sat on
the final jury.
      During voir dire, the State asked each member of the venire to rate their
views on the death penalty using a 1-5 scale. The prosecutor described how this
1-5 scale worked: “[1], death is the only appropriate sentence for first degree
murder. [2], you favor death but can impose life. [3], you’re equally open to
either. [4], you favor life but could impose death. And, [5], life is the only
appropriate sentence for first degree murder.” To help view the relevant
individuals’ answers to this question side-by-side, here is a chart:


                              DEATH
                PERSON                            REASON FOR STRIKE
                             PENALTY
                J.L.        4, favored life      bipolar, suffered depression
                M.M.        4, favored life       brother was schizophrenic
                H.P.        4, favored life      believed Hebert mentally ill
        WOMEN




                E.U.        4, favored life     sympathetic to mental illness
                F.R.           3, neutral         more friendly with defense
                A.O.           3, neutral         more friendly with defense
                C.L.        4, favored life    strongly opposed death penalty
                T.F.        4, favored life    concerned about mental illness
                B.J.       2, favored death      served as an alternate juror
        MEN




                J.O.        4, favored life           served on the jury
                T.G.           3, neutral             served on the jury

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                                  No. 17-30191
      While a comparator-juror is not required to be identical in all regards,
the comparator-juror must be similar in the relevant characteristics. Hebert
argues that male juror B.J. “had moral objections to imposing the death
penalty, and he was never rehabilitated by the State.” It is true that, in his
questionnaire, B.J. indicated a moral opposition to the death penalty. But the
State asked him about this during voir dire. In response to the State’s
questioning, B.J. admitted he had misunderstood the questionnaire because
he actually favors the death penalty. (“I guess I understood it the opposite
way.”) Furthermore, when asked during voir dire about his views on the death
penalty, B.J. said “correct” to the statement that he “favor[ed] imposing the
death penalty but [he] could consider life.” This directly contradicts Hebert’s
argument that B.J. was not rehabilitated. As someone who favored the death
penalty, B.J. was an ideal juror for the State.
      More importantly for the issue presented on appeal, B.J. was not a
proper comparator for the women struck from the jury because he favored the
death penalty, unlike all of the women struck from the jury panel who
indicated they were either neutral or against it. Thus, the comparison to B.J.
is not valid because he is dissimilar to all the women on perhaps the most
important factual point, views on the death penalty.
      Hebert’s comparison to male juror J.O. is similarly unpersuasive. Hebert
argues that J.O. indicated that he could not impose the death penalty on his
questionnaire and in his voir dire answers. Near the end of the voir dire
questioning, however, J.O. admitted in response to a question about whether
he could impose the death penalty that “[i]n the most extenuating
circumstances, I could, if it came down to it, but I do favor life.”
      More importantly, J.O. is also distinguishable as a comparator in light
of another highly relevant fact. Unlike all of the women who were struck from
the panel, the State had a personal connection to J.O. because his aunt was an
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                                 No. 17-30191
Assistant District Attorney, a fact disclosed and explored during voir dire.
Thus, the comparison to J.O. is also not appropriate because he is factually
distinguishable on a highly relevant characteristic from the women who were
struck from the panel.
      That leaves T.G. as the only remaining male comparator-juror identified
by Hebert. T.G. indicated that he was neutral on the death penalty. From
among the women that Hebert identified as victims of gender discrimination,
F.R. and A.O. were the only ones who were neutral on the death penalty. All
the other women favored life over death. Thus, T.G. is not a valid comparator
to those women.
      This leaves two remaining potential comparisons: T.G. to F.R. and A.O.
The State claims that it struck F.R. and A.O. because they seemed friendlier
with defense counsel. Unless pretext for gender or racial discrimination, this
is a completely valid basis for exercising a peremptory strike because “a
prosecutor ordinarily is entitled to exercise permitted peremptory challenges
‘for any reason at all, as long as that reason is related to his view concerning
the outcome’ of the case to be tried.” 

(quoting United
States v. Robinson, 

, 473 (D. Conn. 1976)). Hebert does not
identify any man on the jury with the characteristic of being friendlier to
defense counsel than the State. Accordingly, Hebert does not show that T.G. is
an adequate comparator for any of the women the state struck.
      We conclude that Hebert has not met her burden to prove that the State
used its peremptory strikes with the intent to discriminate against women in
violation of J.E.B. Without showing a violation of J.E.B., Hebert has failed to
show that her attorney’s representation was prejudicial when he did not object
to the State’s use of its peremptory strikes. Yet, even if Hebert could show
prejudice, she fails to show that her attorney’s representation was incompetent
or objectively unreasonable. On appeal, Hebert acknowledges that “the State’s
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                                  No. 17-30191
delay in using all of its strikes made it more difficult to decipher that the
strikes were not supported by legitimate reasons.” This acknowledgement
supports the conclusion that her counsel provided effective assistance.
Although the state court did not mention J.E.B. in its analysis of her claim, its
rejection of her ineffective assistance of counsel claim was not contrary to
Supreme Court precedent and was not objectively unreasonable. The district
court was correct to deny habeas relief on this ground.
                                   II. Insanity
      Hebert claims that she overcame the presumption that she was sane so
convincingly that that no rational jury could have found her guilty. In
Louisiana, there is a rebuttable presumption that the defendant is sane at the
time the offense is committed. State v. Roy, 

, 665 (La. 1981); see
also Perez v. Cain, 

, 594 (5th Cir. 2008). The defendant may rebut
this presumption by proving insanity by a preponderance of the evidence. LA.
CODE CRIM. PROC. ANN. ART. 652. The test for insanity is whether a mental
disease or defect has made the defendant “incapable of distinguishing between
right and wrong with reference to the conduct in question.” LA. STAT. ANN. §
14:14. Although the state is not required to prove sanity in all criminal cases,
the state must prove all essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 

, 324 (1979) (holding that evidence
is insufficient and a habeas applicant is entitled to relief if no rational trier of
fact could have found proof of guilt beyond a reasonable doubt); Roy, 

at 665.
      As we have previously held, “the question under the Jackson sufficiency
standard is whether . . . any rational trier of fact could have found beyond a
reasonable doubt that [the defendant] did not prove by a preponderance of the
evidence that he was insane at the time of the offense.” 

(emphasis added). Moreover, under our precedent, “[t]he credibility of the
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                                       No. 17-30191
witnesses and the weight of the evidence is the exclusive province of the jury.”
United States v. Garcia, 

, 561 (5th Cir. 1993). Hebert
acknowledges on appeal that “the state court correctly identified the general
legal standard,” 2 but she contends that the state court’s “application of the
preponderance standard to the facts of this case was unreasonable.” We
disagree.
       Hebert argues that no rational juror could have found beyond a
reasonable doubt that she failed to prove insanity by a preponderance of the
evidence because she presented twice as many experts as the State, and there
was more than enough evidence from those experts for the jury to conclude she
was insane. She further argues that the factual basis the State’s experts relied
upon was incomplete. She contends that “[i]f a suicidal and clinically depressed
person’s belief that two children with promising futures would be better off
dead does not represent an ‘inability to distinguish right from wrong due to
mental disease or defect,’ then legal insanity under Louisiana law has little
meaning at all.”
       The State responds that the evidence was sufficient for a rational juror
to find that Hebert failed to prove by a preponderance of evidence that she was
insane. Contending that this court cannot sit as a “thirteenth juror,” the State




       2 The district court phrased the inquiry as being whether “any rational trier of fact
could have found that Hebert had not proven by a preponderance of the evidence that she
was insane at the time of the offense” with all evidence viewed in the light most favorable to
the state. This interpretation conflicts with our precedent stating that “the question under
the Jackson sufficiency standard is whether . . . any rational trier of fact could have found
beyond a reasonable doubt that [the defendant] did not prove by a preponderance of the
evidence that he was insane at the time of the offense.” 

(emphasis
added). The key point missing from the district court’s opinion is that the entire inquiry
requires proof that the evidence of sanity was “beyond a reasonable doubt.” We owe no
deference to the district court’s misstatement of the state court’s articulation of the legal
standard.
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                                    No. 17-30191
argues this court should not “substitute [its] analysis of the evidence for that
of the jury.”
      The leading case in our circuit on this issue is Perez v. Cain. 

(5th Cir. 2008). There, all of the experts to testify agreed that the
defendant was insane, yet the jury disregarded the expert testimony and found
the defendant guilty, a verdict that was affirmed on appeal. 

We held
that the state court’s conclusion that a rational jury could have found the
defendant was sane despite unanimous expert testimony to the contrary was
an “objectively unreasonable application of federal law.” 

In reaching
that holding, we analyzed whether there was any objective reason for the jury
to reject the expert testimony. 

The expert testimony could have been
rebutted with evidence that the expert’s factual assumptions were incorrect,
the reasoning was inadequate, the expert had an interest or bias, the opinion
was inconsistent or contradictory, or there was contrary expert testimony. 

state did not offer anything to rebut the unanimous expert testimony,
and thus there was no objective reason for the jury to reject the expert
testimony. 

      Perez stands for the proposition that a rational jury cannot reject
unanimous expert testimony if there is no objective reason to reject it. It does
not follow from this holding, of course, that—when the jury had objective
reasons to reject expert testimony—a federal habeas court may discard the
findings of the jury merely because it disagrees with the jury’s conclusion.
Weeks v. Scott, 

, 1063 (5th Cir. 1995) (“[D]ifferences in opinion go
to the weight of the evidence . . . and such disputes are within the province of
the jury to resolve.”).
      After reviewing the record, we conclude that the jury had objective
reasons to reject the expert testimony from the four defense experts. A rational
juror could have found the testimony of Dr. Salcedo and Dr. Seiden, the State’s
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                                 No. 17-30191
expert witnesses, to be more credible. That determination, as we stated in
Garcia, is the exclusive province of the jury and should not be disturbed on

.
      The jury also could have found that the factual assumptions underlying
the defense experts’ opinions were inadequate. For example, Dr. Phillips
admitted that she reached her opinion without knowing about Hebert’s
religious beliefs. Furthermore, there is evidence in the record and argument
on appeal that Hebert’s statement about hearing Satan was fabricated and
self-serving. The record indicates that Hebert did not mention hearing a voice
tell her to kill her children until several weeks after the killings. Hebert also
did not initially “ascribe an identity to th[e] voice” and only concluded
retrospectively that it must have been Satan that spoke to her that night. At
trial, the prosecution argued in closing that Hebert lied about hearing Satan
when she killed her children. This evidence and argument provided the jury
with an objective reason to conclude that Hebert was sane when she killed her
children.
      Dr. Resnick testified that Hebert was insane, in part, because the
number of stab wounds on the children was excessive, but he admitted that
there was no evidence that Hebert continued to stab the children after they
died. The trial record also indicates that Hebert went into the children’s room
twice and was unable to stab them, which the jury could have found as evidence
that Hebert knew her actions were wrong. The jury could have found that the
defense experts improperly dismissed the significance of the notes Hebert
wrote and the indications from those notes that Hebert knew her actions were
wrong. The jury also could have found it significant that there was no evidence
Hebert was psychotic prior to when she killed the children, a fact at least one
of the defense experts acknowledged in his testimony. (“Q. But you’ve not seen
anything in any medical records where prior to August, 20, 2007, defendant
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                                 No. 17-30191
was diagnosed as being psychotic? A. That’s correct.”) The jury could have
understood Dr. Resnick as testifying that Hebert had only had one auditory
hallucination—the night she killed her children—and found that her theory of
insanity was implausible given the rest of the record.
      Dr. Ahava, another expert for the defense, testified that a “central”
factual basis for his opinion was information Hebert provided. The jury could
have found that Dr. Ahava relied too much on Hebert’s characterization of the
facts, which may have been skewed because she had been charged with first
degree murder at the time she relayed those facts to him. For example, he
relied on Hebert’s statement that she had a history of mental issues to conclude
that she was psychotic when she killed her children. But he also admitted that
there were no records of mental health providers treating Hebert for mental
health problems from twenty years prior, as she originally claimed.
      Dr. Self, also a defense expert, admitted that it gave him pause when
Hebert told him that she had never had any hallucinations before the night
she killed her children. Although Dr. Self. followed up on that admission with
an explanation, a juror could have found that it seemed implausible for a
person who had never previously had a hallucination to suddenly have one on
such a tragic night. Dr. Self admitted that a factual basis for his opinion was
Hebert’s own statements about her history of depression, which could have led
a juror to disregard Dr. Self’s opinion because it was based on a self-serving
factual basis provided by Hebert. Dr. Self also stated that Hebert’s weight loss
from July to August 2007 indicated a major depression, but her medical records
indicated that her weight remained nearly the same throughout that entire
period. Although the record does show that the night Hebert killed her children
and attempted suicide she weighed about twenty pounds less than her last
previous medically-observed weight, a juror could have found that Hebert’s
weight loss was more likely from a loss of blood than major depression.
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                                 No. 17-30191
      In sum, this case is distinguishable from Perez, where there was no
objective reason to disregard the expert 

–95. Here,
there is contradictory expert testimony from the State. Furthermore, the
factual basis for the defense experts’ testimony is arguably unreliable, and
there are arguably inconsistencies in some of the opinions expressed. Any of
these could have served a rational juror as an objective reason to disregard the
testimony of the defense experts and find beyond a reasonable doubt that
Hebert failed to prove she was insane by a preponderance of the evidence.
Thus, the state court’s decision was not an objectively unreasonable
application of the law, and habeas relief is not warranted on this ground.
                                 Conclusion
      For the reasons stated above, we AFFIRM the district court.




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                                  No. 17-30191
CARL E. STEWART, Chief Judge, specially concurring:
      The majority opinion accurately identifies the two issues before us on
appeal: (1) whether Hebert received ineffective assistance of counsel; and (2)
whether the evidence sufficiently supported the jury’s finding that Hebert was
not insane. I agree with the majority opinion’s well-reasoned analysis
regarding Hebert’s insanity claim. However, I write separately to express my
view that the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and
the record support a different ineffective assistance of counsel analysis.
      The majority opinion concluded that Hebert’s counsel’s performance was
not deficient. However, before doing so, it conducted a comparative juror
analysis to determine that the State did not discriminate in using all of its
peremptory strikes against women. Using the reasons the State proffered five
years after voir dire in its response to Hebert’s post-conviction Strickland
claim, the majority opinion holds that Hebert failed to prove intentional
discrimination because there were sufficient differing characteristics to render
the men who served as jurors as inadequate comparators to the stricken
women. These reasons were not a part of the trial record because Hebert did
not object to the State’s strikes at voir dire. As a result, the State did not have
the opportunity to provide a contemporaneous nondiscriminatory explanation.
Instead, it offered the reasons five years later when Hebert first raised
ineffective assistance of counsel in her application for post-conviction relief,
arguing a Batson violation as the basis.
      Without thoroughly analyzing the substance of her discrimination
argument, the state court found that Hebert’s ineffective assistance of counsel
claim should be denied because her counsel’s performance was not
unconstitutionally deficient. Instead of evaluating whether this decision was
an erroneous application of the law or was based on an erroneous
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                                  No. 17-30191
determination of the facts, the majority opinion undertakes a J.E.B./Batson
analysis because it is “relevant.” I, however, would follow the path AEDPA
requires of us and evaluate the actions of the state court without conducting a
Batson analysis because the State’s nondiscriminatory explanations were
proffered five years after voir dire and because the state court correctly
determined the substantive claim: Hebert’s counsel was not ineffective.
                                        I.
      After her conviction on May 14, 2009, Hebert unsuccessfully filed a direct
appeal with the Louisiana First Circuit Court of Appeal. State v. Hebert, No.
2010-KA-0305, 

, *1 (La. App. 1st Cir. Feb. 2, 2011). The
Louisiana Supreme Court denied her cert petition without opinion. State v.
Hebert, No. 2011-K-0864, 

(La. 2011). Hebert then filed an
application for post-conviction relief on January 16, 2013, claiming for the first
time that her trial counsel was ineffective for failing to make an objection to
the state’s use of its peremptory challenges under Batson v. Kentucky, 

(1986). The trial court ordered the State to file an answer to Hebert’s habeas
application. It was in this answer, filed September 12, 2014, that the State—
more than five years after voir dire—proffered explanations for only using its
strikes against women.
      Following a hearing, the state trial court found “there were many
sufficiently gender-neutral explanations for the use of peremptory challenges .
. . .” Ultimately, the trial court determined Hebert’s claim had no merit because
the record showed her “counsel used their experience and training in the most
skillful manner to properly defend [her] against the charges.” Hebert sought
writ of review which was denied without written opinion by the Louisiana First
Circuit Court of Appeal. State v. Hebert, No. 2015-KW-0289, 2015 La. App.
Lexis 783, at *1 (La. App. 1st Cir. April 20, 2015). In the last-reasoned state
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                                  No. 17-30191
court opinion, the Louisiana Supreme Court denied Hebert’s claim because she
“fail[ed] to show she received ineffective assistance of trial counsel.” State v.
Hebert, No. 2015-KP-0965, 

, 23 (La. 2015). In a well-reasoned
opinion that accorded AEDPA deference to the state court decision, the
magistrate judge conducted an analysis under Strickland v. Washington, 

(1984), to find Hebert’s ineffective assistance claim was undermined
by the record and she failed to make a prima facie showing of intentional
discrimination. Hebert v. Rogers, No. 15-cv-4950-LMA, 

, at
*14–16 (E.D. La. Nov. 10, 2016). The district court adopted the report and
recommendations. Hebert appealed.
                                        II.
      A federal habeas court cannot disturb a state court’s decision denying
habeas relief unless the state court’s adjudication of the claim
      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
      (2) resulted in a decision that 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). This court does “not function as a superior state court,
reviewing challenges to convictions as if we were part of the state appellate
review system.” Woodfox v. Cain, 

, 818 (5th Cir. 2010) (Southwick,
J., dissenting). Our responsibility at this level is to evaluate “not whether [we]
believe[] the state court’s determination was incorrect but whether that
determination was unreasonable.” Chamberlin v. Fisher, 

, 837
(5th Cir. 2018) (en banc).
      In order to prevail on a claim for ineffective assistance of counsel, a party
must prove—by a preponderance of the evidence—her counsel performed

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                                   No. 17-30191
deficiently and that deficient performance caused her prejudice. See

; see also Montoya v. Johnson, 

, 408
(5th Cir. 2000). To prevail on deficient performance, petitioner “must show that
counsel’s representation fell below an objective standard of reasonableness.”

. Our “scrutiny of counsel’s performance must be
highly deferential.” 

We must indulge and petitioner must rebut “a
strong presumption that counsel’s conduct falls within the wide range of
professional assistance.” See 

on prejudice, petitioner must show
that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 

The
petitioner must prove there is a substantial likelihood of a different result. See
Harington v. Richer, 

, 112 (2011). Because Strickland is a
conjunctive test, petitioner must prove both deficient performance and
prejudice. See Amos v. Scott, 

, 348 (5th Cir. 1995). Failure to prove
either is fatal. See 

court may dispose of a claim if the petitioner fails
to meet either prong. 

state court did not conduct a Batson analysis. It instead disposed of
Hebert’s substantive claim employing the Strickland framework and
determining her counsel’s performance was not deficient. This was a
reasonable application of Strickland. As determined by the state court,
Hebert’s claim has no merit because her counsel’s decision not to object was
not marred by incompetence so serious she was effectively denied her Sixth
Amendment right to counsel. See 

. Hebert failed to
overcome the “presumption that, under the circumstances, the challenged
action ‘might be considered sound strategy.’” 

(quoting Michel v.
Louisiana, 

, 101 (1955)). This determination is supported by the
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                                  No. 17-30191
record. As the magistrate judge pointed out, many of the women who the State
allegedly struck because they were women also could have been seen as
undesirable jurors by her counsel. Hebert’s side-by-side comparison illustrated
that some of the women who were stricken were more supportive of the death
penalty than the men who were seated. This illustrates that Hebert’s counsel
did not necessarily fail to object because they were incompetent, but they could
have strategically chosen not to object to avoid the death penalty. The jury
voted unanimously to convict but could not agree to sentence Hebert to death.
Given the requirement to be “doubly deferential” to both the trial counsel’s
strategic decisions and the state court’s determinations, Burt v. Titlow, 

, 15 (2013), the state court did not act unreasonably when it rejected
Hebert’s ineffective assistance of counsel claim, without determining prejudice.
                                       IV.
      In this circuit, a failure to lodge a Batson challenge is fatal. See United
States v. Skilling, 

, 562 (5th Cir. 2009) (citing Dawson v. Wal-Mart
Stores, 

, 208–09 (5th Cir. 1992). If a petitioner’s counsel fails to
object on Batson grounds, that challenge is procedurally defaulted. See 

prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation of federal law.”
See Martinez v. Ryan, 

, 10 (2012). “[W]hen attorney error amounts
to constitutionally ineffective assistance of counsel, that error is imputed to the
State (for the State has failed to comply with the constitutional requirement to
provide effective counsel), rendering the error external to the petitioner.” See

(Scalia, J., dissenting). In determining whether Hebert was
prejudiced, the majority opinion analyzed whether a Batson violation actually
occurred. However, if counsel was not constitutionally ineffective, there was no
error to impute to the State. Thus, there was no need to evaluate prejudice.
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                                       No. 17-30191
       There is little guidance on whether a trial court must evaluate deficient
performance before prejudice. With good reason, that process is left to the
discretion of the trial courts. Here, given the facts and circumstances of this
case, the road to prejudice seems much more arduous: (1) there were no Batson
objections lodged at voir dire; (2) the State was not given the opportunity to
proffer contemporaneous reasons and instead developed its explanation five
years later; and (3) even the State contested the use of the long-delayed reasons
as juror comparators. Furthermore, Hebert’s Batson argument is not her
substantive claim. It is evidence of her substantive claim that her counsel
provided ineffective assistance by failing to object. Logically, the state and
district courts judiciously took the path of greatest logic and least resistance.
       In order to prevail on an ineffective assistance of counsel claim, a
petitioner must prove deficient performance and prejudice. See 

; see also 

. In this case, in order to prove
prejudice, the court must evaluate whether the State committed a Batson
violation. Under usual circumstances, in order to raise a Batson violation, the
defendant must object and “make out a prima facie case of purposeful
discrimination.” See 

–94. Then the prosecution must
raise contemporaneous 1 nondiscriminatory reasons for its strikes and “stand



       1 The timeliness of the reasons are important in analyzing whether the explanation is
pretextual. Cf. 

(noting that the State’s later proffered explanation
“reek[ed] of afterthought” and questioning the Fifth Circuit’s willingness to accept the
reasons, ignoring its “pretextual timing”). In Chamberlin, this circuit also recognized the
importance of contemporaneous reasons.
       This narrow focus is essential to maintaining the integrity of the Batson
       framework, which requires a focus on the actual, contemporaneous 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.

(emphasis added).
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                                      No. 17-30191
or fall on the plausibility of the reasons he gives.” See Miller-El v. Dretke, 

, 252 (2005). The trial court is then responsible for determining if these
reasons are pretextual. See 

–38.
       But here there were no contemporaneous reasons to test for veracity
because there were no Batson objections. What the state court had—to no fault
of the State—were reasons mulled over and rendered five years after voir dire,
“reek[ing] of afterthought.” Cf. 

(noting the difficulty
in crediting later-developed explanations for striking a juror). The state court
committed no error in disposing of the case without conducting this analysis.
       Notably, Hebert did not make a prima facie showing of discrimination.
At the state and district courts, in making her substantive ineffective
assistance claim, Hebert contended prejudice was presumed “[w]here trial
counsel fails to object to a prima facie case of discrimination” because
discrimination in jury selection is a “structural error that requires automatic
reversal.” 2 Analyzing this argument, the state court found there was no prima
facie case of prejudice and “petitioner’s counsel used their experience and
training in the most skillful manner to properly defend petitioner against the
charges.” Hebert argued that because the State offered reasons for why it may
have struck the women, her requirement to make a prima facie case of
discrimination was waived. The majority opinion seems to agree with this
point. Also citing Hernandez, Hebert argues “once the prosecution has
proffered gender-neutral reasons, the question of whether a prima facie case



       2  This circuit previously refrained from holding that “a structural error alone is
sufficient to warrant a presumption of prejudice in the ineffective assistance of counsel
context.” See Virgil v. Dretke, 

, 607 (5th Cir. 2006). However, the error “serves
as an important guidepost in our evaluation of whether the state court’s denial of
[petitioner’s] ineffective assistance of counsel claim was ‘objectively reasonable’ under
AEDPA.” 

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                                 No. 17-30191
existed becomes moot.” This simplification misinterprets and misapplies
Hernandez because: (1) the Supreme Court decision in Hernandez illuminates
the discretionary power the trial court holds in Batson claims; and (2)
Hernandez is distinguishable from the facts of this case.
      In Hernandez, after nine jury members were empaneled, defense counsel
objected to the prosecutor’s use of its peremptory strikes against Latino venire
members. 

Without (1) waiting for the judge to rule on whether
the defense established a prima facie showing or (2) arguing that the defense
did not make a prima facie showing, the prosecutor volunteered reasons for his
strikes. 

The trial court denied defense counsel’s motion. 

On appeal, after reiterating the three-step process for evaluating a Batson
claim, the Supreme Court ratified the trial court’s actions. 

It held
there was no error in the not evaluating whether the defense made a prima
facie case, and under those particular facts and circumstances the “departure
from the normal course of proceedings” was of no concern. 

and circumstances surrounding this case are completely
distinguishable, and thus the question whether Hebert presented a prima facie
case is not moot. Unlike in Hernandez, here, Hebert did not timely object, so
the State did not offer a contemporaneous explanation. Furthermore, when
Hebert raised this argument in her post-conviction application, the trial court
had not yet ruled on intentional discrimination. Thus, she maintained the
burden of making a prima facie showing of discrimination. Cf. 

(“Once a prosecutor has offered a race neutral explanation for the
peremptory challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant
made a prima facie showing becomes moot.” (emphasis added)). The State
submitted its explanations five years later in briefs responding to Hebert’s
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                                 No. 17-30191
Batson argument. Before proffering those reasons, the State argued Hebert
failed to make a prima facie showing of discrimination. Because of the unusual
procedural posture, the State did not have the option of waiting until the trial
court ruled on its prima facie argument before proffering a nondiscriminatory
explanation. Thus, offering the explanation did not render the question moot
and Hebert failed to make a prima facie showing of discrimination. Under
these circumstances, the state court prudently avoided determining whether
Hebert was prejudiced by a Batson violation by instead making a
determination on her substantive claim, the effectiveness of Hebert’s counsel.
This was not an unreasonable application of clearly established law.
                                      V.
      As such, I would have accorded deference to this determination and held
the trial court did not act unreasonably in not reaching the prejudice prong
and evaluating Hebert’s Batson argument because Hebert failed to prove by
the preponderance of the evidence that her counsel performed deficiently.
Nevertheless, I specially concur in the judgment denying relief.




                                      28