Puckett v. Epps (615 F. Supp. 2d 494, 2009)

MEMORANDUM OPINION AND ORDER

HALIL SULEYMAN OZERDEN, District Judge.

I. PROCEDURAL HISTORY

Larry Matthew Puckett was convicted of the capital murder, while in the commission of sexual battery, of Rhonda Hatten Griffis. Puckett was sentenced to death by the Circuit Court of Forrest County on August 5, 1996. On direct appeal the Mississippi Supreme Court remanded the case to Forrest County for a hearing on whether the jury selection process had unconstitutionally discriminated against black jurors, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Puckett v. State, 737 So.2d 322 (Miss.1999). The court denied relief on every other issue. The Circuit Court held a hearing on that issue and denied relief, after which the case returned to the Mississippi Supreme Court. On its second review of the Batson question, that court also denied relief. Puckett v. State, 788 So.2d 752 (Miss.2001). Puckett petitioned the court for post-conviction relief, but that request was denied. Puckett v. State, 879 So.2d 920 (Miss.2004). Puckett filed his habeas petition with this Court on April 28, 2005, advancing seven grounds for relief.

II. FACTS

Rhonda Hatten Griffis’s husband found her near death, in her home in the Sunrise Community of Forrest County, Mississippi, on October 14, 1995. She had been severely beaten, and she died a short time later. One paramedic who treated her at the scene noted a large amount of blood coming from a large laceration to her neck, “pretty much from ear to ear....” He also observed a large amount of blood coming from a “large crushing-type injury” to the back of Rhonda’s head, “with gray matter, brain matter.” Additionally, there was blood coming from her vagina, and she was dressed only in a blood-stained shirt, although some other clothing was wrapped around her left foot. Rhonda had no pulse by that time, but she was still breathing, although her respiration was described as “minimal.” Apparently, that ceased while she was being transported to the hospital, and the paramedic treating her testified, “[W]e had to breathe for her----” The doctor who examined Rhonda at the hospital also noted bruising on her hands, face, and ribs. Attempts to resuscitate her failed, and she was pronounced dead at the hospital.

Dr. Stephen Hayne, who performed the autopsy on Rhonda, testified that the cause of death was cranial cerebral trauma, secondary to blunt force trauma. Dr. Hayne discovered a multitude of injuries to Rhonda’s body, including defensive wounds on her arms and hands. There were numerous lacerations on her head and face, which were consistent with being struck by a hard, dense object with a rounded edge. Rhonda also suffered five slash wounds to her neck, none of which would have been lethal. Dr. Hayne found lacerations at the opening of Rhonda’s vaginal vault, as well as bruising within the vault that indicated penetration by a blunt object.

On the day that Rhonda was murdered, her husband, David, took their two boys with him to gather pine straw that was being given to him by Joel Holder, a neighbor who lived about five miles away. David operated a landscaping business, and he planned to use the pine straw for that purpose. David had made several trips that day to .gather the straw and return it to his home. The boys went with him on the last trip. Another neighbor testified that he saw David and his boys at about 4:00 .p.m. that afternoon. Joel’s wife, Becky Holder, testified that David and his boys were at the Holders’ for approximately an hour, and that they departed close to 5:00 p.m. She also testified that, at about 3:30 p.m. that afternoon, she saw Puckett pull into her father-in-law’s driveway, about 300 yards away. Her father-in-law had parked a truck near the road with a “For Sale” sign on a roll bar in the bed of the truck, and she walked down to the road to talk to Puckett about it.

At the time of the murder, Larry Matthew Puckett, who goes by “Matthew” or “Matt,” was eighteen years old. He had worked for David Griffis in his landscaping business until about six months before the murder. David had fired him after a woman from a subdivision in which they were working complained that Puckett had followed her on a walking trail. After he was terminated, Puckett worked at different odd jobs. He had enlisted in the Navy and was to report for basic training in November.

One of the men Puckett worked for was Mark Hicks, an agent with the Mississippi Alcoholic Beverage Control Board. Hicks was driving home on the afternoon of the murder and saw Puckett’s truck near Rhonda’s home at about 4:40 p.m. Rhonda’s mother, Nancy Hatten, lived on the same property as Rhonda and David, in a house about 150 to 175 feet from their trailer. Hatten was in ■ her front yard when she heard a scream and a thud coming from the trailer. She went inside her house to call Rhonda, but got no answer. Hatten started walking toward Rhonda’s trailer, and, when she was almost there, she saw David and the two children pulling into the driveway.

Hatten went inside the trailer and was immediately confronted by Puckett, who raised a “club” and started toward her. As Hatten backed away from him, David and the children came through the door. Hatten hurried the children to her house and called 911. Records of that call show that it was placed at 5:01:15 p.m., and it was answered five seconds later. Hatten reported that there was an intruder in her daughter’s home and that she had left her son-in-law with him. After about twenty seconds, the call was placed on hold.

After Hatten left, David confronted Puckett and asked why he was in his house. Puckett told David that he had hit a deer on the road and had come for help and to use the telephone. David called for Rhonda, but Puckett told him that she had gone to Hatten’s house. David picked up the telephone and called 911. Records show that this call was made at 5:01:27 p.m., or twelve seconds after Hatten’s call. It was answered fourteen seconds later, immediately after Hatten’s call was placed on hold. David told the dispatcher who answered the call that there was someone in his house who should not be there, and he identified the intruder as Puckett. The call lasted about a minute, after which it was put on hold while the dispatcher went back to Hatten’s call. The dispatcher told Hatten that she was talking to a man in the trailer, and Hatten’s call ended after about another minute. The dispatcher then went back to David’s call, which lasted for another minute.

During the 911 call, David saw that Puckett had a club in his hand, with blood and “white stuff’ on it. He asked him about the blood on the club, and Puckett said it was from the deer. David’s 911 call ended at 5:04:42 p.m., apparently as the two men struggled. David ultimately wrested the club from Puckett and managed to pin him down briefly, but Puckett escaped from him and ran out the door. As he did, David swung the club and hit Puckett on the shoulder, then he threw it out the door. David ran to the back of his trailer to look for a gun. When he did, he saw Rhonda on the floor in the den, with blood all over her hair. David called 911 again to report her injuries. Records show that this call was made at 5:05:01 p.m., or about nineteen seconds after David’s first call ended. Deputies and paramedics arrived minutes later. Crime scene employees arrived shortly thereafter and began processing the scene.

Puckett was apprehended a short distance from his mother’s home on Michael Watkins Road, just inside Perry County, Mississippi, two days later. The Sheriff of Forrest County was present at the arrest. He testified that, when Puckett was arrested, he commented to his mother, “This is a lot of law enforcement for somebody who just committed a burglary.” Puckett made no further statement, except to explain how he had survived in the woods for two days. He was examined by the coroner, Dr. Michael West, who testified that a wound on Puckett’s shoulder was consistent with being struck by the club that was found at the scene.

The clothing that Puckett was wearing at the time he was captured tested negative for human blood. A rape kit was prepared using samples from Puckett and Rhonda. No evidence of semen was found on Rhonda’s body. Crime lab personnel examined hairs collected from the carpet in the den where Rhonda was found, as well as from her body, and none of them matched Puckett’s.

Puckett testified at trial and admitted to being in David and Rhonda’s trailer on the day she was murdered. He claimed, however, that he had entered the home only to burglarize it, in order to obtain money to make his next truck payment. -According to Puckett, he and Rhonda had a sexual encounter in the spring of that year, but he said that it had never occurred again, nor had either of them communicated with the other. When he knocked at Rhonda’s door, he said -that she let him in and led him into the den-. Puckett stated that he asked Rhonda when David would return, and she told him it would be an hour and a half before he got home. Then Rhonda let him act out a fantasy in which he would undress a woman while he remained clothed. After he undressed Rhonda and they were kissing, she saw her mother coming. Rhonda grabbed her clothes, told Puckett to get rid of her mother, and ran into the bedroom.

Puckett admitted to using the club to try to scare Hatten away. He saw David walk in, but claimed that he did not see the children. Puckett said that, after Hatten took the children and left, David realized that Puckett was there to have sex with his wife, who had returned from the bedroom, fully clothed. Puckett testified that David began hitting Rhonda with the club. Puckett grabbed him to make him stop, but David threw him to the floor. He saw Rhonda fall to the floor, and David pulled off her clothes. Puckett tried to run away, but David grabbed him and told Puckett that, if he ever said anything about the incident, the same thing would happen to Puckett’s “mama.” Puckett admitted to being in the trailer when David made the first 911 call, but he then seized an opportunity to run out of the door. He further conceded that David hit him with the club as he was leaving.

The club that was found at the scene was admitted into evidence. One of Puckett’s earlier employers, Ray Watkins, testified that it was the handle from a sixteen-pound maul (a tool similar to a sledgehammer) that had been broken. Watkins stated that he had seen the stick on a couple of occasions in-Puckett’s truck. Puckett denied that the club was the maul handle, claiming that, while burning trash for another -employer, he had made a torch out of it to carry a flame from one trash pile to another.

After hearing all of this evidence, the jury found Puckett guilty of capital murder. During the sentencing phase, Puckett presented several character witnesses to offer mitigation testimony. Susan Greer, his former teacher, Pat Jones, the Superintendent of Education for Perry County, Bill Wall, an inmate chaplain at the Forrest County Jail, Dora Harrington, a family friend, and Lamar Pritchard, a scout leader (Puckett was an Eagle Scout), all testified that Puckett had redeeming character qualities and that he should be given a chance to live. Puckett’s mother, Mary Puckett, also asked the jury to spare her son. In response, the State called Katherine Halford, who described the incident in which Puckett'followed her on a walking trail in her subdivision, which led to David’s firing him. Eric Harding, a former co-worker, testified that Puckett resented authority and, on one occasion, tried to break into a water tower. After about two hours of deliberation, the jury sentenced Puckett to death.

III. ANALYSIS

A. Standard of Review

The applicable portions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. 104-32, 110 Stat. 12144, modified 28 U.S.C. § 2254 and now provide:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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).

Under the AEDPA, where the state court adjudicates the petitioner’s claim on the merits, this Court reviews questions of fact under § 2254(d)(2), while questions of law or mixed questions of law and fact are reviewed under § 2254(d)(1). Factual findings are presumed to be correct, and the Court defers to the state court’s decision regarding factual determinations unless it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000); 28 U.S.C. § 2254(d)(2). The Court independently reviews questions of law and mixed questions of law and fact to determine whether the state court’s decision thereon was either “contrary to” or an “unreasonable application of’ federal law. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Williams v. Puckett, 283 F.3d 272 (5th Cir.2002); Hill, 210 F.3d at 485.

For purposes of this analysis, “federal law” is determined by the Supreme Court of the United States, and this Court must determine whether the state court’s decision was “contrary to” or “an unreasonable application of’ that established federal law. Williams, 529 U.S. at 378, 406, 120 S.Ct. 1495; § 2254(d)(1). A state court’s adjudication of a claim is contrary to clearly established federal law “if the state court applies a rule different from the governing law set forth in [the Supreme Court’s] cases or if it decides a case differently than [the Supreme Court has] on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S.- 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Robertson v. Johnson, 234 F.3d 890, 897 (5th Cir.2000). A state court’s application of the correct legal precedent to the particular facts of a petitioner’s case will be an unreasonable application of the law if it identifies the correct federal law but unreasonably applies it to the facts, unreasonably extends the correct legal principle to a new context where it should not apply, or unreasonably refuses to extend the principle to a new context where it should apply. Williams, 529 U.S. at 406, 120 S.Ct. 1495. The term “unreasonable,” was distinguished in Williams from “erroneous” or “incorrect;” thus, a state court’s incorrect application of the law may be permitted to stand if it is, nonetheless, “reasonable.”

B. The Prosecution Violated the Equal Protection Clause by Using Its Peremptory Strikes in a Racially Discriminatory Manner to Remove All African-Americans from Petitioner’s Jury.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court adopted a case-specific, three-part test by which a defendant could establish that discrimination had occurred in the jury selection in his case. As a preliminary matter, the defendant must show that the prosecutor’s use of peremptory challenges raised an inference that the prosecutor was purposefully excluding members of his race from serving on the jury. Batson, 476 U.S. at 96, 106 S.Ct. 1712 (This holding has since been extended to members of any race. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). To do so, the defendant must show that a discriminatory intent motivated the strikes; it is not enough to show that the strikes disproportionately impacted jurors of one race. Hernandez v. Netv York, 500 U.S. 352, 359-60, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Establishing a pattern or practice of strikes against black jurors is one means of establishing a prima facie case, but it is not the only way; showing that jurors of different races were questioned differently may also raise an inference of a discriminatory motive. Batson, 476 U.S. at 97, 106 S.Ct. 1712. In fact, one discriminatory act in jury selection may be sufficient to establish a Batson violation. Johnson v. California, 545 U.S. 162, 169 n. 5, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).

Once the defendant establishes a prima facie case of discrimination, the prosecutor must come forward with a race-neutral explanation for his challenges. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Because the burden is always on the defendant to prove discrimination, the prosecutor’s explanation need not be persuasive; it must only be based on some factor other than the juror’s race. Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. However, the prosecutor must do more than simply deny that he had a discriminatory motive. Batson, 476 U.S. at 98, 106 S.Ct. 1712. Even if the prosecutor’s reasons are frivolous or nonsensical, the analysis does not end, it merely proceeds to the third step. Johnson, 545 U.S. at 171, 125 S.Ct. 2410; Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

During the third step, the trial court must determine whether the defendant has established purposeful discrimination in the jury selection process. Batson, 476 U.S. at 98, 106 S.Ct. 1712. At that point, the most persuasive evidence of discriminatory intent can be the demeanor of the attorney challenging the juror, which is best evaluated by the trial judge. Hernandez, 500 U.S. at 365, 111 S.Ct. 1859. Strikes based on a juror’s demeanor are also best evaluated by the trial judge. Snyder v. Louisiana, — U.S. -, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008). However, the judge may also consider other factors; for example, the fact that the prosecutor defended his strikes without being asked to may be viewed as favorable to his explanation for the strikes. Id. at 370. If the explanation includes reasons that are unacceptable, such as gender, the trial court is still not required to find that the other reasons are pretextual. Rice v. Collins, 546 U.S. 333, 341, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).

Once the trial court has made its determination with respect to discriminatory intent, that determination is a finding of fact that is entitled to a presumption of correctness. Hernandez, 500 U.S. at 364, 111 S.Ct. 1859. When a Batson challenge is considered in the context of habeas review, the federal court cannot reject the state court’s determination on the issue unless it was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Rice, 546 U.S. at 338, 126 S.Ct. 969 (quoting 28 U.S.C. § 2254(d)(2)). If the findings are made by a state appellate court, rather than by the trial court, they are equally entitled to the presumption of correctness. Sumner v. Mata, 455 U.S. 591, 592-93, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); Moody v. Quarterman, 476 F.3d 260, 268 (5th Cir.), cert. denied, — U.S. -, 128 S.Ct. 88, 169 L.Ed.2d 67 (2007). However, a finding of non-discriminatory intent must be based on the actual reasons proffered by the prosecutor; neither the trial judge nor a reviewing court may substitute a better reason for the strike. Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

In Miller-El, the Court recognized several factors that may be considered in evaluating whether discrimination has occurred. 545 U.S. at 239, 125 S.Ct. 2317; see also Snyder, 128 S.Ct. at 1208 (“[I]n considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.”). In Miller-El, in light of widely known evidence that the office prosecuting that case had a long-standing policy to exclude black citizens from jury service, the Court found that the prosecution’s striking ten of the eleven available black veniremen was statistically relevant to the claim of discrimination. Additionally, the Court considered the fact that the prosecution had made four requests that the jury be “shuffled” after blacks appeared near the front of the venire. Id. at 253, 125 S.Ct. 2317. The Court also found that the prosecution made different inquiries of black and white jurors, and, where the same questions were asked, they were worded differently to jurors of different races. Reasons offered by the prosecution for the challenges were discounted by the Court, noting that the reasons applied equally to white jurors who were permitted to serve. Id. at 244-47, 125 S.Ct. 2317.

Puckett raised the Batson issue at trial and on direct appeal to the Mississippi Supreme Court. In reviewing the claim, the Mississippi Supreme Court summarized the racial composition of the venire and the jury as follows:

Puckett is a white male and his victim, Rhonda Griffis, is a white female. Out of the entire venire totaling 112, there were only eleven (11) blacks. Out of the eleven (11), six (6) were excused for cause, one (1) was excused for medical reasons and the remaining five (5) were excused based on their indication that they could not impose the death penalty under any circumstances. Accord Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Consequently, there were only five (5) blacks remaining prior to the exercise of peremptory challenges being exercised, [sic] The State used all 12 of its available peremptory challenges, four against blacks and eight against whites. This resulted in Puckett being tried by an all-white jury, six males and six females.

Puckett v. State, 737 So.2d 322, 335 (Miss.1999).

The court then reviewed the voir dire of the four black jurors whom the prosecution struck and determined that the record was incomplete. Specifically, the court ruled that the trial judge did not find that Puckett had shown an inference of purposeful discrimination. The court found that the trial judge also had not made an independent inquiry as to each peremptory challenge and did not make factual determinations as to the reasons for the strikes. Id. at 337. For these reasons, the case was remanded for an evidentiary hearing. Id.

At the evidentiary hearing, the defense presented evidence regarding the racial makeup of Harrison County, where this case was tried after a change of venue. According to the evidence presented, blacks made up twenty percent of the population of Harrison County and forty percent of the voters in its First Judicial District, where Puckett was tried. Thus, the probability of selecting an entirely white jury from that population ranged from .001(.1%) to .006(.6%). Defense counsel then individually challenged each strike of a black juror, arguing that each proffered reason was pretextual. The prosecution responded to the arguments, and the trial judge ruled that no prima facie case had been established and that, even if it had, the reasons given for the strikes were adequate. On its second review of this issue, the Mississippi Supreme Court recognized that the trial judge was mistaken in his understanding that Puckett could not avail himself of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because he was white and because the jurors excused were of a different race. Puckett v. State, 788 So.2d 752, 756-57 (Miss.2001) (referred to hereafter as Puckett I). “[T]he pivotal question is ‘whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” ’ ” Id. (quoting Randall v. State, 716 So.2d 584, 587 (Miss.1998), quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712).

The court further held that, in light of the statistical evidence Puckett presented, as well as the State’s striking every available black juror, the trial court erred in finding that Puckett had not made out a prima facie case. Puckett II, 788 So.2d at 758. Since Puckett had established a prima facie case of racial discrimination, the burden shifted to the prosecution to articulate race-neutral reasons for each strike. Id. Even though the court found that a prima facie case had been established, its review of the reasons given by the State for each strike convinced the court that they were “ ‘neutral,’ related to the particular case tried, and supported by the record.” Id. Thus, the conviction and sentence were affirmed. Having been raised and determined on direct appeal, the issue was not advanced again during the post-conviction proceedings.

Puckett’s claims were premised on the prosecution’s striking Gloria Hawthorne, Martha Bridges, Gloria Grayer and Harvey Wesby from his jury. However, he raises only two claims of discrimination before this Court — the striking of Gloria Hawthorne and of Harvey Wesby. His arguments supporting these claims were summarized in his rebuttal brief, as follows:

• At the time he exercised strikes against Mr. Wesby and Ms. Hawthorne, the prosecutor was admittedly ignorant of the fact that his actions were subject to the rule of Batson;

• The prosecutor struck every available black prospective juror from the venire;

• The likelihood of seating an all-white jury in the absence of discrimination was statistically minute;

• The main rationale relied upon by the prosecution and accepted by the Mississippi Supreme Court — that Mr. Wesby and Ms. Hawthorne contradicted their questionnaires by failing to respond to a voir dire question that was never actually asked — is utterly without record support.

• The prosecutor’s purported concerns about Mr. Wesby’s and Ms. Hawthorne’s responses are flatly belied by his failure to remove or otherwise express the same concerns about similarly situated white jurors;

• The prosecutor’s purported concerns— particularly with regard to Ms. Hawthorne, whose questionnaire showed clear support for the death penalty— are further belied by his failure to pose followup questions to clarify any ambiguities he may have perceived; and

• The prosecutor’s modification and supplementation of his reasons for striking Mr. Wesby and Ms. Hawthorne at the hearing on remand was a transparently post hoc attempt to avoid detection of the Batson violation committed at trial.

Each of these contentions may be analyzed applying the rationale of the cases already discussed. First is Puckett’s assertion that the prosecutor was not aware of the effect of Batson on a case involving a white defendant. The record indicates that both the prosecutor and the trial judge misapprehended Batson’s application to such a case and were, apparently, not aware of Powers’s express declaration that Batson applied, even after this case was remanded for an evidentiary hearing. That situation is not dispositive of the outcome here, however, so long as the law was properly applied, even if the State was unaware of it. As the United States Supreme Court has recognized, a state court’s decision may avoid AEDPA review without citation to the proper cases, or even awareness of them, “so long as neither the reasoning nor the result of the state court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002).

Here, it is clear that the prosecutor did not know that Batson applied to the jury selection in Puckett’s case. However, at the first challenge to a peremptory strike, he acknowledged a mistaken belief that, while Puckett could not challenge the removal of black jurors, he might be able to challenge the removal of white ones. Thus, he proceeded to give reasons for the removal of each juror, and Puckett was not prejudiced by the prosecutor’s mistake.

Puckett next asserts that every black prospective juror was removed from the venire, which is established by the record, and that the odds of seating an all-white jury in the district where he was tried were minute. These facts were considered by the Mississippi Supreme Court in Puckett II, and the court there held that they did not create an inference of purposeful discrimination. Puckett II, 788 So.2d at 757-58. They were, however, factors that the court considered in finding that Puckett had established a prima facie case. Id. at 758. The state court’s treatment of this issue is consonant with United States Supreme Court precedent. In Miller-El II, the Court noted the prosecution’s striking of nineteen of twenty available jurors at trial, but did not base its ultimate finding of discrimination on that issue. Miller-El v. Dretke, 545 U.S. 231, 240-41, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Instead, the Court focused on comparing the black panelists who were stricken against the white panelists who served, finding that evidence “more powerful than ... bare statistics. ...” Id. at 241, 125 S.Ct. 2317. Having reached the stage where a prima facie case has been acknowledged in this case, these facts have limited relevance to resolving the ultimate issue of racial discrimination, and the Court is not persuaded they support Puckett’s claim.

The next issue raised by Puckett is whether the prosecutor relied on alleged “discrepancies” between Hawthorne’s and Wesby’s questionnaires and voir dire responses that did not actually exist. Puckett argues that the questions asked by the prosecution on voir dire were not designed to elicit answers from either juror that would have further clarified their positions on the death penalty. In order to fully consider this issue, it is necessary to review the entirety of the voir dire as it related to death penalty qualification of the jurors.

It is well established that the State cannot exclude jurors from service merely because they have conscientious scruples against the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Court later refined this test to require that such a juror should be subjected to additional voir dire to determine whether his scruples “would ‘prevent or substantially' impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). If that is the case, then he may be properly excluded. The reverse is also true; a defendant may challenge a juror who would automatically impose the death sentence for any capital murder. Ross v. Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In either case, the party seeking exclusion of a juror for bias in favor of or against the death penalty must demonstrate that bias through further questioning, which should be permitted by the trial court. Morgan v. Illinois, 504 U.S. 719, 734, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Lockhart v. McCree, 476 U.S. 162, 170 n. 7, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

Here, after questioning the jurors on other areas of bias and hardship, the trial judge told the jury that he and the attorneys had reviewed their questionnaires, which sought their opinions of the death penalty. He then made the following statement to the group:

Do any of you want to expound on what you put on your questionnaires concerning the death penalty? We will have to probably hear from you. We will probably do it here at the bench rather than go to chambers. We will use that procedure to begin with. If it gets too unruly or too out of hand, we will go to chambers. I hesitate to let you speak up in the presence of everybody else because you could say something prejudicial that will cause me to have to quash this jury panel. What we are going to do at this time, I am going to ask the Defendant, Defense attorney and State’s attorneys to join me at the bench and then if you will, come down one at a time and giving [sic] us your number as you come down. If any of you want to expound on anything that you had to say about the death penalty in addition to what you had in your questionnaire, we will try that first. Then we will let the State voir dire you. He has indicated that he would use the death penalty first. Before we get to the State’s posture, if any of you want to add anything — is there anyone that wants to add anything to what they had in the questionnaire?

No one answered, so the judge turned the questioning over to the prosecutor, who announced the following method for questioning people:

I want to question you in, I guess, about three different sections; one, you have people that have a firm opinion about the death penalty; you have other people who have the firm opinion against the death penalty and you have a lot of people that are in the middle.

He then inquired, row by row, whether any jurors had a firm opinion about the death penalty. The judge interrupted him briefly, and the prosecutor then asked jurors to indicate “if you have a firm opinion in favor of the death penalty when inflicted according to law.... ” The judge again interrupted and asked the prosecutor whether he intended to ask for firm opinions either for or against the death penalty. The prosecutor responded, “Right now I am going into the ones that are for it and — I will take it in three segments.” The judge thought the jurors did not understand that, prompting another explanation from the prosecutor:

There are three segments. I will take number one, those of you that are pro death penalty, have your minds made up that you could vote for the death penalty if the evidence justifies it. Then I will go to those who could not; then I will go to those who are in between. Are we okay? Does everyone understand?

Several jurors responded, and one asked him to clarify the question. Once more, the prosecutor said:

I am going to get — what I am trying to reach is just the ones that have a firm opinion that they could vote for the death penalty, of course, if the facts warranted it. Then I am going to those that oppose; then I am going to those in the middle. There is usually a lot of people in the middle that have different and varying degrees about it.

At this point, defense counsel objected and asked the court to take responding jurors to chambers for individual voir dire. He also asked that the prosecutor clarify his question, and he rephrased it as follows:

Let me clear it up. Maybe I didn’t phrase it right. I am talking about people who believe in the death penalty if the evidence, in fact, justifies it. I certainly do not want to give anybody the death penalty without the evidence. But if the evidence justifies it, that is what I am talking about, people who are in favor of the death penalty....

Several jurors responded to this question as it was asked in the forms quoted above, but neither Hawthorne nor Wesby responded. The prosecutor went further with the jurors who had answered affirmatively:

Now those of you who have indicated that you do believe in the death penalty if the facts justify it — in other words, is there anybody who just automatically, even though you believe in it, will just automatically vote for it regardless of what the facts might be; or do any of you have an opinion that strong, who are pro death penalty, that regardless of what the facts might be, you would just automatically vote for it; you cannot consider any other punishment is what I am getting at. Do any of you have an opinion about the death penalty that strong, anyone?

So each of you tell me — those of you who have indicated that you favor the death penalty, if the facts and evidence justify it, that you would consider all of the forms of punishment before imposing whatever you felt should be just punishment. Do all of you tell me that you could do that? In other words, open-mindedness even though you favor the death penalty, are you willing to be open-minded and consider all of the facts, all the evidence, the instructions of the Court and consider all forms of punishment before you render whatever your verdict might be? Is there anybody that cannot do that?

The record shows no response to that question. The prosecutor then announced that he was going to go “row by row on those who feel in their mind that they oppose the death penalty.” He began calling out juror numbers, apparently based on their questionnaire responses, and asked the following question:

Those of you who have indicated that you have an opinion that you do not— that you do oppose the death penalty, not in favor of it, do any of you with that belief feel that you would automatically not render the death penalty regardless of what the facts and circumstances are?

Defense counsel objected to the phrasing of that question, and raised another matter, and a conference in chambers ensued. A long discussion followed, in which defense counsel, at one point, argued that he should be able to individually voir dire any juror based on his questionnaire responses, “when they say they love the death penalty, or they like the death penalty, or something along those lines.” The trial judge held that the prosecutor’s questioning was proper under the language of Witherspoon, not mentioning Witt. Again, the prosecutor told the court that he was seeking to identify jurors with a fixed opinion for or against the death penalty. “Then I will get to the in between where you have a lot of individuals with differences.” The argument evolved to a question of whether the jury understood that the proceedings would be bifurcated and that the sentencing issue would not arise unless they returned a guilty verdict, and the prosecutor agreed to make that explanation.

Following his explanation of the bifurcated proceedings, the prosecutor said:

Then if you get to the punishment stage, of course, then you get to determine whether or not the death penalty can be inflicted. I have already asked those of you who have a fixed opinion about the death penalty whether or not you could consider any punishments before you would vote to inflict the death penalty. Do each of you tell me that you could do that? Is there anybody that couldn’t do it? And that you will invoke whatever punishment that you feel the facts justify; that is the whole issue is what the facts justify. Can all of you tell me that you can do that?

Now, is there anyone whether or not you had a fixed opinion for the death penalty or a fixed opinion against the death penalty that could not be set aside — would not let your fixed opinion interfere with your duty to deliberate and consider the facts of the case and render a fair verdict? Does anybody have that feeling?

Several jurors stated at that point that they could not return the death penalty under any circumstances. Again, neither Hawthorne nor Wesby responded to the question.

Shortly thereafter, defense counsel began his voir dire by asking whether any jurors had a connection to law enforcement. Wesby responded to this question by stating that he had a friend who had retired from the Gulfport Police Department. When defense counsel began asking jurors whether they had conscientious scruples against the death penalty, the trial judge announced that further questioning would proceed in chambers. Several jurors responded and were stricken for cause under Witherspoon. Defense counsel then announced that he wanted to “revisit” other jurors who had “expressed a very strong fixed opinion in favor of the death penalty.” Most of these jurors had indicated their opinion during the State’s voir dire; some were apparently chosen on the basis of their questionnaire responses. Neither Hawthorne nor Wesby was among that group.

At the conclusion of his voir dire, defense counsel asked this final question, “Is there anything — does anybody, from whatever we have discussed, is there anything in anybody’s mind — that is terribly important — that makes them feel that they could not be impartial and fair and open minded? Anything?” No juror responded. Following this, the attorneys, Puckett, and the trial judge retired to make the jury selection. When the prosecutor reached Gloria Hawthorne, the second black juror whose elimination is at issue here, the following colloquy occurred between prosecutors (Jones and Helfrieh) and defense counsel (Adelman is defense):

MR. HELFRICH: S2 would be Gloria Hawthorne; she was not responsive on her questionnaire; she was one way and not responsive in open court; on her off days, she likes to sleep half the day; I don’t think she would be attentive. S3.

MR. ADELMAN: Before we move from S2, note for the record that Gloria Hawthorne is a black female.

THE COURT: In anticipation of Batson, I did not delineate in this record, the racial or gender composition of this jury, and I don’t know that any — did any of you make that notation? I take your word for it, but I would just say—

MR. ADELMAN: I made the notation.

MR. JONES: If the Court please, we think it will be a reverse back for both sides. Because the Defendant is white, it is going to be not only the black but the white; that is why we are going to give them on everyone. We ask they do the same.

THE COURT: What I am saying is, when we get the jury back from the luncheon recess, we will have to distinguish in the record that, because we don’t have that in the statistical records before us and I did not make that notation. I did not anticipate a Batson motion, but we will do that after the luncheon recess.

MR. ADELMAN: Our position is that the reason given is not sufficiently a race neutral reason.

MR. HELFRICH: The fact that she sleeps half a day when she is off. I am afraid she will be sleeping here. She was not responsive to questions.

MR. JONES: She was not responsive to the death penalty questions, and her questionnaire is totally different in regard to the death penalty.

THE COURT: Let me ask you this: Since I did not make that determination in anticipation of Batson, can we all agree that she is a member of the African-American race for this record?

MR. HELFRICH: It is on the questionnaire.

MR. ADELMAN: On her questionnaire, there is no issue about it. First of all, on her off time, she can sleep 100 percent of the time. There is no indication that it has ever interfered with her employment. She is fully employed. As far as death penalty, she stated, “I feel that if you take another person’s life and the Court can prove that you did it, then you should get the death penalty.”

MR. JONES: If the Court please, our objection on the death penalty goes back, in open court, she was totally unresponsive, because she didn’t indicate when we asked if she was for the death penalty; and she was totally unresponsive to our voir dire, and it is contradictory to what she says in her questionnaire, and for that reason we feel it is race—

MR. ADELMAN: His question on the voir dire was whether or not they could put aside any feelings they had and view the evidence in light of the law.

THE COURT: The Court is of the opinion that cause has been exercised without regard to race or gender and as such would not be challenged under Batson. Who is next?

When the prosecutor got to Harvey Wesby, the following exchange occurred:

MR. HELFRICH: Juror 43, we will strike, Harvey Wesby.

THE COURT: S-10.

MR ADELMAN: Your Honor, for the record we note that Mr. Wesby is a black male. They have now struck all four blacks on the jury panel.

THE COURT: Let me hear your reasoning on the strikes.

MR. HELFRICH; For the record, Your Honor, the Defendant — before I get into my reasoning, the Defendant is white and the victim is white. I don’t know if that has been clear in the record; I would like that in the record. On his questionnaire, where he says he is pro— on the death penalty “It’s okay.” He is flippant, and he was -not responsive to the question in open court, and for those reasons we would strike him.

MR. ADELMAN: For the record, under Batson and subsequent progeny including Powers v. Ohio, it is irrelevant whether or not the Defendant is white and the victim is white. We submit that Mr. Wesby in his questionnaire is totally open; he said the death penalty was okay. I would like to know what is flippant about that. He works regularly in shipping and receiving. They have not given a race neutral reason.

MR. JONES: If the Court please, his answer on here, he says, It is okay. He did not respond in court about the death penalty. The death penalty is a race neutral reason to strike based upon that, and I am satisfied with the response.

MR. ADELMAN: Mr. Jones asked; were there any jurors who could not set aside whatever their opinion was and apply it to the facts and law.

THE COURT: The Court is of the opinion that strike was not based along racially motivated lines and as such will not be excluded under Batson.

As stated earlier, the Mississippi Supreme Court initially remanded this case for another Batson hearing, holding:

The inference of purposeful discrimination was not automatically invoked in this case. The trial judge did not make a ruling that Puckett had established this inference. The trial judge did not make on-the-record factual determinations and inquiry independently as required by Hatten regarding each peremptory challenge. We therefore remand this issue for a properly conducted Batson hearing in accordance with this opinion.

Puckett I, 737 So.2d at 335-37.

Such a hearing was held, and counsel for the defendant argued that the reasons given by the State were pretextual. The prosecutor responded as follows:

MR. HELFRICH: Your Honor, it’s important to know, and I want the record to be perfectly clear, that in this case you’ve got a white victim, you’ve got a white defendant.... Mr. Adelman says that Gloria Hawthorne should not have been stricken. We stated that her answers were unclear on the death, penalty.... Mr. Adelman was trying to compare her questionnaire with the questionnaire of Danny Earl Griffin, who was selected. Ms. Hawthorne stated she felt that if you take another person’s life and the court can prove you did it, then you should get the death penalty. Danny Earl Griffin, which is Exhibit D-7, stated he agreed with the death penalty as long as there’s certain proof. As you’re well aware, Your Honor, the Court does not prove anything. The State of Mississippi has the burden of proof, but it’s not the Court. She was uncertain and not clear as to what’s required. Further, during the voir dire that was conducted by Rex Jones, she was asked questions about her feelings on the death penalty, and she did not respond in open court.

Now, Mr. Wesby. And when this case was argued before the Supreme Court, they questioned my use of the term “flippant,” which I probably should not have used, but Mr. Wesby, on his questionnaire, as to his opinion of the death penalty, it was simply, “It’s okay.” When Mr. Wesby was questioned in open court as to whether or not he could impose the death penalty, he did not respond by raising his fan to the question, and that’s what we meant when we used the word “flippant.” He answered the questionnaire one way and would not respond in open court or responded in an opposite way in open court I think Justice McRae didn’t like the word “Flippant,” but what we meant by using “flippant” was that he responded one way on his questionnaire and responded the opposite way in open court, when he was questioned. And that’s why he was struck.

Defense counsel later responded:

MR ADELMAN: And there are lots of— in reviewing the transcript, when Mr. Jones asked questions about opinions on the death penalty, I’d say that the vast, vast majority of potential jurors at that point said nothing, and somehow for Mr. Wesby and for Ms. Hawthorne, the fact that they added nothing, said nothing different than what they had submitted in their questionnaire is being reinterpreted to have some kind of significance beyond the fact that they were standing on what they put in their questionnaire, just like most of the jurors. I mean, this is a problem we all face in jury selection, is that a lot of the jurors, the members of the venire tend not to answer questions, particularly if they are addressed in a group. And I submit that implications, adverse implications are being drawn from their silence which weren’t drawn from the silence of, say, Mr. Griffin. I saw nothing in the voir dire where Mr. Griffin said anything about the death penalty, other than what he had put in the questionnaire.

After other discussion, the prosecutor added:

MR. HELFRICH: And as to Ms. Hawthorne, Your Honor, as we stated at trial when we made that strike, another thing that concerned the State was her answer that when she’s away from work, she likes to sleep half the day. Well, serving on the jury, she’s going to be away from work, and we were also concerned about that answer.

After a brief recess, the trial judge made the following ruling:

As I understand and appreciate the matter that is before the Court today, this matter has been remanded to this Court solely for a Batson hearing. That being the case, I think that we all realize that in any Batson hearing it must first be shown that a prima facie case of purposeful discrimination exists, and that the three-prong criteria under the Bat-son express terms, that the defendant raising a Batson claim must show, number one, that he is a member of a cognizable racial group, and I think that would be the same of a gender group; number two, that the prosecutor has exercised peremptory challenges toward the elimination of a venire by his race, and I think and/or gender, and, three, that the facts and circumstances in further prosecuting his peremptory challenges for the purpose of striking minorities. Obviously, the prima facie ease has to be shown before it would trigger the State moving forward. I am of the opinion based not only on a review of the trial transcript and a review of my trial notes taken during the course of the trial, as well as the evidence produced in this evidentiary hearing today, that the defendant has not met that prima facie case. And that being the case, it would not be necessary for the State to move forward to show their reasonings behind the strikes. Notwithstanding that, the State, as I understand, initially put some of those reasons in the record during the trial. I understand the Supreme Court has said that all this Court needs to do is determine whether or not there’s a prima facie case without making reference to the reasonings, and thereby ruling that since they haven’t met the prima facie case, it’s not necessary to give those reasons. However, I will say that had that existed, by a review of what this Court has seen, that those reasons given by the State were not racially or gender motivated reasonings. And that’s probably -just surplusage in this record. The Supreme Court certainly didn’t direct me to do that, but I would say for the sake of this record, for whatever purposes it is worth to the appellate court, that had this Court ruled that Batson did exist, that one step further would have been a ruling by this Court that those were racially and gender neutral reasons for striking those individuals.

Although the trial judge found no inference of discrimination, the Mississippi Supreme Court reversed him on that issue. Puckett II, 788 So.2d at 758. The trial judge then apparently made an alternate finding that the proffered reasons for the strikes were racially neutral, and the appellate court affirmed that finding. Id. Puckett argues that no such finding was made, as the judge’s findings went only to the second part of the Batson test — that the reasons were race neutral — and not the third part of the test — that they were not racially motivated. He further argues that, even if the third-part findings were made, their affirmance was an unreasonable application of federal law on.this issue.

In applying the law to this case, the Court must first determine'what findings were actually made by the trial court or the appellate court, since there is a dispute among the parties. Puckett argues that, on remand, the trial judge only found that the reasons advanced for the strikes were race neutral. Thus, he argues, the Mississippi Supreme Court erred in deferring to the trial judge’s determination that the reasons were not pretextual, because that finding was never made. Respondents disagree, pointing to two statements made by the trial judge. The first was made immediately after he determined that a prima facie case of discrimination had not been established. . “However, I will say that had that existed, by a review of what this Court has'seen, that those reasons given by the State were .not racially or gender motivated reasonings.” Shortly thereafter, the judge addéd, “[H]ad this Court ruled that Batson 'did exist, that one step further would have been a ruling by this Court that those were racially and gender neutral reasons for striking those individuals.”

Respondents argue that the second statement was a finding on the second Batson test — that the reasons offered for the strikes were race neutral. They also argue, however, that the first statement was a finding on - the third test — that the reasons were not a pretext for racial discrimination. Puckett disagrees, contending that the context of the first statement shows that the judge was just proceeding from the first part of the Batson test — a finding of an inference of' discrimination— to the second. His interpretation of the judge’s statements is not supported by the record. The third part of the Batson test requires the defendant to show “purposeful discrimination.” Miller-El, 545 U.S. at 277, 125 S.Ct. 2317. Thus, the prosecutor’s explanation must go beyond a facially neutral reason and demonstrate that he did not intend to use his strikes in a discriminatory manner. By ruling that the reasons given for the strikes “were not racially or gender motivated,” the trial judge made a finding on the third prong of the Batson test.

Even so, the trial court’s ruling must rest on a. factual foundation that is supported, or, at least, not negated by the record. With regard to Gloria Hawthorne, the prosecutor gave as one of the reasons for striking her that she liked to sleep half the day when she was off work and the prosecutor thought she would be inattentive. There is nothing in the record to suggest otherwise, and there is no indication that white jurors with similar responses were unchallenged. The second reason given for striking Hawthorne, and the only reason given for striking Wesby, merit further examination.

The prosecutor maintained that questionnaire responses of these two jurors on the death penalty were somehow at odds with their responses, or lack thereof, given during voir dire. The record does not fully support that contention, and striking Hawthorne or Wesby on this basis could run afoul of two factors that Miller-El II concluded would support a finding of discriminatory purpose. First, Hawthorne and Wesby were treated differently than similarly situated white panelists who were not challenged, which is, as Miller-El II, announced, “evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” 545 U.S. at 241, 125 S.Ct. 2317. Second, the Court in Miller-El II faulted the prosecution’s failure to further question black jurors, stating, “ ‘[T]he State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.’ ” Id. (quoting Ex parte Travis, 776 So.2d 874, 881 (Ala.2000)).

Hawthorne’s response to the death penalty question was, “I feel if you take another person’s life and the Court can prove that you did it, then you should get the death penalty.” Wesby responded, “[I]t’s okay.” Puckett argues that three white panelists who served on the jury had questionnaire responses similar to Hawthorne’s and Wesby’s. In particular, Danny Griffin responded, “I agree with it as long as there is certain proof.” Steve Savarese said, “I feel it should be used for capital offenses.” Lavern Moran stated, “I believe in it.” In addition to Puckett’s argument, the record shows that other panelists who served had responses that were somewhat ambiguous. Susan McKnight answered, “I believe the death penalty needs to be enforced to let others know that murder is wrong.” Shantel René Swilley stated, “I like it.” Jerry Parker, who served as an alternate, said, “I believe in it when the crime calls for it.”

In addition to the jurors listed above, other panelists who did not serve had views on the death penalty that were similar to those of Hawthorne and Wesby. Richard Olson said, “For murder only, yes!” Dewey Turnage answered, “If crime warrants it, it should be carried out.” Herman Grimes said, “Necessary when the crime calls for it.” Joseph Holcomb said, “Yes.” Jesse Stephenson wrote, “If someone is convicted of first-degree murder then that person should receive the death penalty.” Angela Thomas stated, “If someone kills another -human being I feel their life should be taken also.” When the prosecutor asked, at the beginning of his voir dire, whether any juror had a firm view in favor of the death penalty, Turnage, Swilley, Parker, Stephenson, Holcomb, and Thomas raised their hands. Hawthorne, McKnight, Olson, Grimes, and Wesby failed to respond. None of these jurors was questioned at that time. The prosecutor re-phrased his question and asked whether, of those who favored the death penalty, there were any who would not consider other forms of punishment. Apparently, no one responded. Then he asked for a showing of hands of those who opposed the death penalty. After an objection, a lengthy conference was held in chambers. Several jurors indicated that they were opposed to the death penalty, but none of the jurors listed above responded. There was no follow up questioning on this subject from the prosecution.

Defense counsel began his voir dire on other subjects, but ultimately moved to questioning on the death penalty, individually examining the jurors who had indicated a fixed opinion against the death penalty. Then he questioned jurors who, in his opinion, had indicated that they had strong feelings in favor of it. During that questioning, McKnight, Olson, Turnage, Swilley, Grimes, Stephenson, Parker, and Holcomb were asked to further explain their answers. Neither the two black jurors, Hawthorne and Wesby, nor the jurors discussed in Puckett’s petition, Griffin, Savarese, and Moran, were questioned by the defense. All of the questioned jurors were retained, except for Holcomb and Thomas, who were successfully challenged by defense counsel for bias. Olson was later excused for another reason. McKnight, Griffin, Savarese, Turnage, Swilley, Moran, Grimes, Stephenson, and Parker were all tendered by the prosecution.

This summary of questionnaire responses shows that there were several prospective jurors whose views on the death penalty were somewhat ambiguous, but whose responses indicated they were in favor of imposing it. Two of those jurors, Hawthorne and Wesby, who were black, were struck on grounds that they were unresponsive to questioning on the issue. Some of the white jurors in this group were similarly unresponsive to questioning by the prosecution. In Miller-El II, the Supreme Court said that disparate questioning of similarly situated jurors is a factor indicating discrimination, particularly where the prosecutor failed to engage black jurors in meaningful voir dire on the areas of concern. Id. at 246, 125 S.Ct. 2317. However, Miller-El II did not hold that a prosecutor must, in all circumstances where he is concerned about an issue regardi