Manning v. Epps (695 F. Supp. 2d 323, 2009)

MEMORANDUM OPINION

W. ALLEN PEPPER, JR., District Judge.

Willie Jerome Manning, sentenced to death on two counts of capital murder by the Circuit Court of Oktibbeha County, has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his convictions and sentences are unconstitutional. Having considered the alleged circumstances, the cited authorities, and the record in this matter, the Court DENIES the application for the reasons set forth below.

Facts & Procedural History

In July of 1994, the Circuit Court of Oktibbeha County, Mississippi, returned a two-count indictment against Petitioner for the capital murders of Jon Steckler and Tiffany Miller while Petitioner was engaged in the commission of a robbery. Mississippi State University students Tiffany Miller and Jon Steckler were murdered in Oktibbeha County, Mississippi, on December 11, 1992. The couple was last seen alive leaving Jon’s fraternity house between 12:50 a.m. and 1:00 a.m. on December 11, 1992, in Miller’s two-seater Toyota MR2 sports car. At approximately 2:15 a.m. that morning, Jon Steckler was discovered lying in the right-hand lane of Pat Station Road. Deputy Sheriff Robert Elmore arrived on the scene approximately seventeen minutes later, and he discovered that Jon was still alive. Deputy Elmore discovered Tiffany’s body in nearby woods. She had been shot twice in the face at close range. A gold token, three shell casings, and a projectile were discovered near where Jon’s body was found, and deputies discovered a set of car tracks that ran through puddles of blood. It was later determined that Jon’s body bore extensive abrasions that occurred prior to his death, and he had other injuries that were consistent with his having been run over by a car at a low speed. Jon’s wallet was found in his back pocket, but it did not contain any money.

Later in the morning of December 11, 1992, Tiffany’s car was found parked in front of apartments on Old Mayhew Road. Hair and flesh were found on the underside of the car, and blood was found on and under the vehicle. Nearby on the pavement by the driver’s side door, coins were found. Several more coins and a ring identified as belonging to Tiffany were found about a hundred yards from the apartment complex driveway and approximately the same distance from Tiffany’s residence at University Hills Trailer Park.

At trial, witnesses presented testimony about the couple’s actions on the night prior to the murders. Around 11:00 p.m. on the evening prior to the murders, John Wise, one of Jon’s fraternity brothers and his roommate, had loaned his car keys to Jon so that Jon could retrieve something from Wise’s car, which was parked outside the fraternity house. Approximately two and a half hours later, which would have been early in the morning of December 11, 1992, Wise went to his car to get something, and he noticed that the passenger side door of his car was unlocked. He testified that he retrieved the item from his car and locked the door. He stated that around 8:00 or 9:00 a.m., he went out to his car and discovered it had been burglarized, though there was no sign of forced entry to the vehicle. Wise reported that a portable CD player and adapter, a brown leather bomber jacket, a silver monogrammed huggie, and several dollars of change that Wise kept in the console were missing. Included in the missing change was a token from a Grenada, Mississippi, gas station. The only two places in the State that used this type of token were a Kentucky Fried Chicken store in Laurel and a Dutch Oil Company gas station in Grenada.

There was evidence presented at trial that Jon wore a Cathedral High School class ring, which was gold in color, and a watch with several clocks on its face. The jury heard evidence that Petitioner attempted to sell a class ring immediately after the murders, as well as a watch that matched the description of Jon’s watch. Oktibbeha County Sheriff Dolph Bryan contacted Wise after hearing about the burglary, and Wise identified the coin found at the murder scene as being exactly like the token that was taken from his car. Sheriff Bryan then began to search for whomever burglarized Wise’s car as the possible murderer. In April of 1993, the Starkville Fire Department found Wise’s silver huggie while flushing out a hydrant on Industrial Park Road south of Stark-ville. This area is approximately five miles from where Petitioner lived with his mother. Petitioner, who was familiar to local law enforcement, became the primary suspect in the investigation.

Sheriff Bryan wanted to speak to Paula Hathorn, who lived on and off with Petitioner in the fall of 1992, to determine whether she had any information that would help the investigation. Paula and Petitioner lived at the home of Ruth Ann Bishop, Petitioner’s mother, in late 1992. In April of 1993, Sheriff Bryan spoke with Hathorn, and he asked her if Petitioner had any leather jackets. Hathorn gave the sheriff a jacket that Petitioner had given to her, which was identified by Wise as being the one which was stolen out of his car the night it was burglarized. Hat-horn also informed police that Petitioner used to target practice on a tree around his mother’s house. A search warrant was obtained for Ruth Ann Bishop’s home, and investigators recovered .380 projectiles and cartridges out of the tree described by Hathorn. It was later determined that the projectiles recovered during the investigation of the crime and the projectiles taken from the tree that Petitioner used for target practice were fired from the same weapon.

Hathorn testified that on December 9, 1992, Petitioner told Hathorn that he was going to Jackson, Mississippi. Hathorn testified he had a gun and some gloves with him at that time. When she next saw him on December 14, 1992, she stated Petitioner no longer had the gun but did bring several items into the house. One of the items was Wise’s leather jacket, which Petitioner gave to Hathorn in late January or early February of 1993. Petitioner also had a CD player that he took to a business named Sound Reasoning and tried without success to sell there. Petitioner eventually sold the CD player to a man who later pawned it at Metro Pawn in Jackson, Mississippi. Metro Pawn recorded the serial number, which matched the serial number of the CD player stolen from Wise’s car.

At trial, several witnesses placed Petitioner at the 2500 Club in Starkville, Mississippi, on the night of the murders, though no credible witness could place him there at the time of the murders. Frank Parker and Earl Jordan, both of whom were inmates at the Oktibbeha County Jail in May 1993 testified that Petitioner had made incriminating statements regarding the murder of the students. Petitioner was found guilty on both counts of capital murder on November 7, 1994, and Petitioner was subsequently found to be an habitual offender. Following a sentencing hearing, the jury returned a death verdict for the capital murder convictions on November 8, 1994. On Count I, the capital murder of Jon Steckler, the jury found as aggravating circumstances that the murder was committed during the commission of the crime of robbery, while engaged in the commission of the crime of kidnapping, and that it was especially heinous, atrocious, and cruel. On Count II, the capital murder of Tiffany Miller, the jury found that the murder occurred while Petitioner was engaged in the commission of a robbery, and that it was committed while engaged in the commission of a kidnapping. Petitioner was sentenced to death on both counts.

Petitioner’s convictions and death sentences were affirmed on direct appeal. See Manning v. State, 726 So.2d 1152 (Miss.1998), cert. denied, Manning v. Mississippi, 526 U.S. 1056, 119 S.Ct. 1368, 143 L.Ed.2d 528 (1999) (‘Manning I”). Petitioner filed a pro se petition for post-conviction relief in State court on February 2, 2001, almost a year and ten months following the Supreme Court’s denial of certiorari. On October 8, 2001, Petitioner filed an application for leave to file a motion for post-conviction relief in the trial court, which was almost two and one half years after the denial of certiorari on direct appeal. Post-conviction relief was denied on March 9, 2006 in a substituted opinion. See Manning v. State, 929 So.2d 885 (Miss.2006) (“Manning II”). Petitioner did not seek a writ of certiorari from the decision. Petitioner filed his federal habeas petition on October 12, 2005, prior to the completion of the State post-conviction process. Respondents moved to dismiss the petition for failure to comply with the time limitations under the AED-PA. See 28 U.S.C. § 2244(d). On December 28, 2006, 2006 WL 3827526, this Court denied Respondents’ motion for summary judgment based on the statute of limitations, finding that equitable tolling should allow Petitioner an opportunity to present his claims.

Applicable Standard

This petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (AEDPA applies to all federal habeas applications filed on or after April 24, 1996). Pursuant to the AEDPA’s scope of review, habeas corpus relief cannot be granted in connection with any claim adjudicated on the merits in State court proceedings unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); and 28 U.S.C. § 2254(d)(1) & (2). The factual findings of the State court are presumed correct, and Petitioner bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

The “contrary to” and “unreasonable application” clauses of 28 U.S.C. § 2254(d) have been held to have independent meanings. See, e.g., Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Federal habeas relief may be granted under the “contrary to” clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08, 120 S.Ct. 1495; see also Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). Whether a decision is “unreasonable” is an objective inquiry, and it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473, 127 S.Ct. 1933 (“The question under the AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”); Williams, 529 U.S. at 410-11, 120 S.Ct. 1495; Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir.2004) (habeas relief merited where state decision both incorrect and objectively unreasonable).

Additionally, habeas relief does not generally lie for rules of constitutional law which have not been announced or that were announced after the challenged conviction became final on direct review. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). A new rule is not retroactively applied unless the United States Supreme Court holds the rule to be retroactive. See Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). It is a violation of the principles of Teague for a federal court to create new constitutional rules on habeas review. See Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir.2001).

A petitioner must exhaust his remedies in State court prior to seeking federal habeas relief. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.2001); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.2001); 28 U.S.C. § 2254(b)(1). A petitioner has exhausted his claim when he has fairly presented the claim for which he seeks relief to the highest court of the State. See Morris v. Dretke, 379 F.3d 199, 204 (5th Cir.2004). The federal claims presented for habeas relief must be the substantial equivalent of those presented to the State court in order to satisfy the requirement of fair presentation. See Morris, 379 F.3d at 204-05; Fisher v. Texas, 169 F.3d 295, 302 (5th Cir.1999). A claim is not exhausted for purposes of federal habeas review if a petitioner presents the federal court with different legal theories or factual claims than those pursued in State court. See Wilder, 274 F.3d at 259 (“[W]here petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.”); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001). A federal court may not grant federal habeas relief on an unexhausted claim, but relief may be denied on an unexhausted claim. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); see also Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir.1999).

Where a petitioner fails to exhaust his State remedies, but it is clear that the State court to which he would return to exhaust the claim would find the claim procedurally barred, the claim is procedurally defaulted for purposes of federal habeas corpus relief. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001); Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.1995). Likewise barred from federal habeas review are claims that the State court held procedurally barred on review on the basis of independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 729-30, 111 S.Ct. 2546 (“The doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds.”); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In order to receive federal habeas review of procedurally defaulted claims, Petitioner must demonstrate “ ‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’ ” Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546 (internal citations omitted).

In order to demonstrate cause, a petitioner must show “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Prejudice may be demonstrated by showing that the errors “worked to [the petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494, 106 S.Ct. 2639 (internal quotations omitted). If a petitioner is unable to demonstrate cause and prejudice, he may obtain review of his claim by demonstrating that the application of the procedural bar would result in a miscarriage of justice because he is actually innocent of the crime. See House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). An allegation of actual innocence requires that a petitioner support his claim “with new, reliable evidence that was not presented at trial and show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.1999) (citing Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). In terms of the sentencing phase of trial, “miscarriage of justice” also means that, but for constitutional error, no reasonable juror would have found Petitioner eligible for the death penalty under the applicable state law. Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

Where a State court holds a claim barred on independent and adequate State law grounds and reaches the merits of the claim in the alternative, the bar imposed by the State court is not vitiated. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Hughes v. Dretke, 412 F.3d 582, 592-93 (5th Cir.2005) (alternate holding on merits by state court did not preclude imposition of bar on federal habeas review for petitioner’s failure to contemporaneously object on federal constitutional grounds in State court); Thacker v. Dretke, 396 F.3d 607, 614 (5th Cir.2005) (procedural bar imposed for petitioner’s failure to contemporaneously object and preserve claim for review not circumvented by State court’s alternative holding that constitutional claim lacked merit).

Finally, the Court notes that the AEDPA imposes the burden of obtaining an evidentiary hearing in federal court on the petitioner, and it limits the circumstances in which an evidentiary hearing may be granted for those petitioners who fail to diligently seek to establish the factual bases for their claims in state court. See Williams, 529 U.S. at 413-14, 120 S.Ct. 1495 (prisoners at fault for deficiency in state court record must satisfy heightened standard to obtain evidentiary hearing); Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir.2000); McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998); 28 U.S.C. § 2254(e)(2). Even where an evidentiary hearing is not precluded due to a petitioner’s lack of diligence, the decision to grant an evidentiary hearing is discretionary. See, e.g., Clark, 202 F.3d at 765-66. In order to be entitled to an evidentiary hearing in federal court, a petitioner must demonstrate that he was denied a “full and fair hearing” in State court and persuade the Court that his allegations, if true, would warrant relief. Id. at 766 (citations omitted).

With the foregoing standards in mind, the Court turns to Petitioner’s specific claims for relief.

I. Batson Violation

Petitioner, who is black, was convicted of murdering two white victims. Petitioner maintains that the prosecution engaged in race-based discrimination in the exercise of its peremptory strikes in order to eliminate qualified black jurors from serving on his jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Petitioner contends that the reasons given by the prosecution for striking the jurors were sometimes demonstrably false, and that several of the reasons proffered by the prosecutor applied to white jurors who were not challenged. The jury venire in Petitioner’s case consisted of eighty-five members, twenty-eight of whom were black.

On direct appeal, the Mississippi Supreme Court found Petitioner’s claim that the prosecutor’s proffered reasons for the strikes were pretextual had been waived by Petitioner’s failure to rebut the explanation offered, with the exception of one juror for whom no reason was given for the strike. See Manning I, 726 So.2d at 1183. The court engaged in an alternative discussion of the merits as to each prospective juror and found no reversible error. See id. at 1183-86. On post-conviction review, Petitioner brought a claim that trial counsel performed ineffectively in failing to preserve a number of issues for direct appeal, including a claim that the prosecutor violated Batson. See Manning II, 929 So.2d 885, 904 (Miss.2006). The State argued that the Batson claim was raised at trial, and the court noted that it reviewed the claim on direct appeal. Id. at 904. The court found that the issue of trial counsel’s performance was litigated on direct appeal, and it held the claim proeedurally barred. Id. at 904-05. The court found, alternatively, that Petitioner’s claims would not satisfy the test for ineffective assistance of counsel. Id. at 905.

Petitioner maintains that he raised this issue in rebuttal on direct appeal, thereby precluding a determination that he had waived his right to contest the strikes, and that the court otherwise failed to adjudicate Batson’s third step. (Pet. Memo. 13-14, 27-31). Petitioner contends that the Mississippi Supreme Court reversed its prior finding of default in its post-conviction opinion. (Pet. Memo. 14, Pet. Reply 6-7). In addition, Petitioner maintains that the finding that he had not made out a prima facie case of discrimination is an unreasonable determination of facts based upon the record. (Pet. Memo. 16). In the alternative, Petitioner argues that counsel failed to preserve this claim for review, such that he rendered ineffective assistance. (Pet. Memo. 31).

Respondents maintain that the State court held the underlying Batson claim barred on direct review, and that the court’s ruling on post-conviction dealt only with the ineffective assistance claim, which was not barred. (R. Memo. 43-45). Respondents assert that the failure to rebut or object to the reasons proffered by the prosecution fails to preserve the claim on direct review under Mississippi law, and that the rule is an adequate and independent one. (R. Memo. 47).

At the beginning of the exercise of peremptory challenges, a total of eight black jurors were included in the forty-five jurors on the panel from which Petitioner’s jury was ultimately selected. (See generally Trial Tr. vol. 16, 532-548). At Petitioner’s trial, the State tendered to the defense twelve jurors after exercising six peremptory strikes, four of which were against black jurors. (See Trial Tr. vol. 16, 533-34). Following defense counsel’s objections to the strikes, the trial court determined there was no prima facie showing of purposeful discrimination, but it nonetheless required the prosecution to state into the record race-neutral reasons for its exercise of the strikes. (Id. at 534). After the prosecutor submitted the reasons for striking the jurors, the trial court instructed defense counsel to begin exercising peremptory challenges, where it struck five white jurors. (Id. at 538-39). The prosecutor asked the trial court to demand that defense counsel provide race neutral reasons for striking the five jurors, all of whom were white. (Id. at 539). Defense counsel provided reasons for the strikes, and the trial court stated it “voiee[d] no opinions on the State’s reasons or on the defendant’s reasons.” (Id. at 542). The trial court then told the State to submit five more jurors, and defense counsel Williamson stated for the record that only one black juror had been selected. (Id. at 542). The trial court stated, “[w]hat I want to know is whether you have any motions or anything at this time. If you do, state them; if you don’t, I want [the prosecutor] to submit you five more names.” (Id. at 542). Williamson stated he wished to object to the racial composition of the jury, and the trial court determined the motion was premature and overruled it. (Id. at 543). The State selected five jurors after exercising two strikes, one of which was against a black juror. (Id. at 543). Williamson objected, and the trial court instructed defense counsel to make the objection after the State finished exercising all peremptory challenges. (Id. at 543). The trial court asked Williamson if he wanted the prosecutor to give “piecemeal” explanations for the strike, and despite Williamson’s concession that the prosecutor could do it at the end of jury selection, the trial court required the prosecutor to state his race-neutral reasons. (Id. at 543-44). When the prosecutor finished with the first strike, Williamson commented that there were “[t]wo blacks on this jury.” (Id. at 544). Williamson began exercising his peremptory strikes at the conclusion of the State’s proffered reasons without commenting further. (Id. at 544). Defense counsel struck three white jurors and stated its reasons for the strikes into the record. (Id. at 545-547). The State submitted the next three jurors without exercising any strikes, and defense counsel struck two of those jurors. (Id. at 547-48). The State used its ninth peremptory strike on juror number 42, a black female, and submitted two more jurors to the defense. (Id. at 548). Defense counsel did not request a race-neutral reason for the strike of juror number 42. (See id.). The State used a peremptory strike to challenge a black juror as an alternate, and no race-neutral reason for that strike was requested. (Id. at 549).

After the jury was selected, the defense objected to the jury’s racial composition, and the trial court suggested defense counsel develop his motion and present it before the jury was sworn. (Id. at 550-51). The next morning, on November 2, 1994, the defense made its motion. (Id. at 558-59). Specifically, the defense argued that Petitioner was being denied a jury of his peers, as the make-up of the jury did not represent the racial make up of Forrest County or Oktibbeha County. (Id. at 559). The trial court stated it had

already ruled on this on the Batson issue and the Batson challenges ... [and] required when the jury was selected to state race neutral reasons into the record for any challenge they made. Undoubtedly both sides were satisfied with those race neutral reasons for the exercise of peremptory challenges since no further request was made of the Court for any hearings thereon.... The defendant did not exhaust all peremptory challenges in the exercise of or during the course of voir dire and jury selection. Because of that fact the defendant could not now be heard to complain of the composition of the jury. The motion is overruled.

(Id. at 560). The trial court also noted that the defense had requested and been granted a change of venue twice. (Id.) Two black jurors, Linda Ann Moore, juror number 8, and Gerald Woodson, juror number 29, served on the jury. (See id.).

In order to raise a successful Batson challenge, the opponent of the strike must first make out a prima facie showing that a peremptory challenge has been exercised for the purpose of excluding a particular person from the venire based on his or her race. Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Then, the proponent of the strike must then give a race-neutral basis for the exercise of the strike. Id. Any reason offered is deemed race neutral so long as the reason is not discriminatory on its face, and it need not be a persuasive or plausible explanation. Purkett v. Elem, 514 U.S. 765, 767-78, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Finally, in light of the parties’ submissions, the court must determine whether purposeful discrimination has been shown. Batson, 476 U.S. at 98, 106 S.Ct. 1712.

The resolution of whether prosecutor acted with a discriminatory purpose in removing a juror is a factual determination that relies mainly upon credibility findings. See Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The question of whether there has been purposeful discrimination is one of intent, and there is no definitive proof of discrimination merely because the basis for a strike may be factually contradicted. See Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (“Reasonable minds reviewing the record might disagree about the prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial court’s credibility determination.”); United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.1993) (“But the ultimate inquiry for the judge is not whether counsel’s reason is suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-based.”). Rather, the trial court considers the proponent’s credibility, which may include the demeanor of the prosecutor, the reasonableness or probability of the explanation given, and whether there is some basis in trial strategy for the explanation. See Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A trial court’s decision is not disturbed unless it objectively unreasonable and rebutted by clear and convincing evidence. Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir.2005). Moreover, the deference afforded to the state trial court’s factual findings extends to “those unarticulated findings which are necessary to the state court’s conclusions of mixed law and fact.” Summers v. Dretke, 431 F.3d 861, 876 (5th Cir.2005).

Mississippi has long held that trial courts may resolve Batson issues on the basis of the explanations offered by the State where the defendant fails to rebut the justifications. See, e.g., Mack v. State, 650 So.2d 1289, 1297 (Miss.1994) (holding that the defendant’s failure to raise the argument of pretext before the trial court constitutes waiver of the claim). However, the Fifth Circuit has suggested that a defendant’s failure to rebut the State’s race-neutral reasons does not constitute waiver of a comparative analysis in capital cases. See Reed v. Quarterman, 555 F.3d 364, 372-75 (5th Cir.2009). The Court will not hold Petitioner’s claim procedurally barred insofar as it alleges that similarly situated white jurors were not struck, but it does note that when a defendant fails to object to the prosecutor’s explanation, he acquiesces in the explanation and the reviewing court may accept the trial court’s acceptance of the prosecutor’s reason as race-neutral. See Haynes v. Quarterman, 526 F.3d 189, 200 (5th Cir.2008) (court can accept prosecutor’s race-neutral explanation if the explanation is facially valid and the defendant does not object). In this case, defense counsel was not restricted from making an argument before the trial court, and he did not argue pretext. Petitioner must demonstrate that the state court’s decision that the prosecutor did not engage in purposeful discrimination on the basis of race is an unreasonable application of clearly established federal law, or that it is an unreasonable determination of facts in light of the evidence presented in State court. See 28 U.S.C. § 2254(d)(1) and (2).

Petitioner’s argument that the trial court per se violated Batson by it’s failure to articulate specific findings does not warrant relief. This Court defers to the implicit factual findings by the trial court regarding the credibility of the proffered reasons absent clear and convincing evidence otherwise in the record. See Miller-El, 537 U.S. at 347, 123 S.Ct. 1029 (“We adhere to the proposition that a state court need not make detailed findings addressing all the evidence before it.”); Moody v. Quarterman, 476 F.3d 260, 268-72 (5th Cir.2007) (holding state court’s factual findings on Batson claim entitled to deference even where state court failed to employ three-step approach required to analyze Batson claims).

Petitioner maintains that the prosecutor failed to give race neutral reasons for the strikes of prospective jurors Graves, Robertson, and Merritt, as one of his stated reason for striking each of those jurors was that they read “liberal” magazines that championed O.J. Simpson’s innocence in the charges he faced for the June 1994 murders of his ex-wife and her Mend, Ron Goldman. (See, e.g., Trial Tr. vol. 16, 536, 544, 537). Petitioner argues that the magazines read by the stricken prospective jurors included Ebony and Jet, which are marketed to a black audience, and that the prosecutor was using “liberal” as a code word for “black.” Petitioner has attached to his habeas petition articles from these magazines that reference the Simpson trial up to the time of Petitioner’s trial, in an attempt to demonstrate that the justifications given by the prosecutor are not race-neutral and are demonstrably false, as the articles do not proclaim Simpson’s innocence. (See, e.g., Pet. Memo. 20-25 and Pet. Memo., Ex. 1 & 2). Petitioner also notes that Charles Newcomer and Tonya Beisel, each of whom are white, were accepted on the jury even though they read some of the same periodicals that served the basis for striking Robertson. (See Pet. Memo. 25). Petitioner also notes that Linda Ann Moore, a black female, indicated on her questionnaire that she red Jet magazine and was accepted by the prosecution when it first tendered jurors to the defense. (See Trial Tr. vol. 16, 533).

The Court is not persuaded that the periodicals a person reads is inherently based on race. Petitioner urges the Court to find that the prosecution’s acceptance of Ms. Moore demonstrates that the prosecutor was not striking jurors merely because they read Jet magazine. (See Pet. Memo. 20 n. 19). However, the prosecution did not list what periodicals any potential juror read as the sole basis for exercising a peremptory strike against them. Instead, he listed a combination of characteristics of these jurors, one of which was reading materials, that led to the strikes. Moore v. Keller Industries, Inc., 948 F.2d 199, 202 (5th Cir.1991) (where multiple reasons for a strike exist, there is no proof of pretext merely because some of jurors share characteristic). While race-neutral reasons may be refuted by pointing out that similar claims can be made about non-excluded jurors, Petitioner has not demonstrated that the inclusion of Ms. Moore, a black juror who read Jet, on the jury refutes the explanations given by the prosecution and demonstrates that the strikes were racially motivated.

Mrs. Troy Fairley was struck by the State’s exercise of its ninth peremptory challenge, and defense counsel did not object to her exclusion from the jury. (See Trial Tr. vol. 16, 548). Fairley stated she would like to know the motive for the crimes before voting whether to inflict the death penalty, and she appeared late to court on the second day of voir dire. (See Trial Tr. vol. 16, 478-80; Trial Tr. vol. 15, 382). Punctuality is a race-neutral reason on which the prosecution was entitled to rely. See Davis v. State, 660 So.2d 1228, 1242 (Miss.1995) (juror tardiness is a race-neutral reason). Moreover, Fairley’s comments concerning motive, which was not part of the prosecution’s burden, could have certainly made the prosecutor think she would not be a juror highly favorable to the prosecution.

The prosecution struck James Graves because of his attire, the publications he read, and the fact that the trial court and prosecutor believed him to be unemployed. (See Trial Tr. vol. 16, 536). Graves indicated on his juror questionnaire that he read Jet magazine, and he did list an employer on his juror questionnaire. (See, e.g., SCP vol. 9, 1342, 1339). Petitioner argues that four white jurors either indicated on their questionnaires that they were unemployed or did not otherwise indicate an occupation, but they were not struck by the prosecution. (Pet. Memo. 20). Petitioner maintains that the prosecutor’s objections to Graves’ appearance, when considered in connection with the false reasons, requires a conclusion that Graves was struck because of his race. A prospective juror’s appearance is race-neutral. See Purkett, 514 U.S. at 769, 115 S.Ct. 1769 (explanation juror struck “because he had long, unkempt hair, a mustache, and a beard” deemed racially neutral” and sufficient to satisfy burden of stating nondiscriminatory reason for strike); United States v. Clemons, 941 F.2d 321, 324 (5th Cir.1991) (noting strikes based upon prospective jurors’ age, dress, and hairstyle are race-neutral). Petitioner argues that the remaining proffered reasons are demonstrably false. However, as the Court previously noted, the issue is not accuracy but intent. The fact that the trial judge and prosecution were mistaken about Graves’ employment does not make the proffer per se pretextual. Moreover, the Court also notes that the jurors cited by Petitioner for purposes of comparison all maintained on their questionnaires that they strongly agreed with the death penalty, while Graves did not indicate such strong agreement with the death penalty on his questionnaire. (See SCP vol. 8, 1136, 1128; SCP vol. 9, 1304, 1344; and SCP vol. 11, 1573).

Petitioner next maintains that the prosecutor violated Batson when he struck Cristi Law Marque Robertson, as he lived “in the functional equivalent of Brooksville Gardens in this community; he lives in an extremely bad neighborhood,” for reading “those same magazines” with articles concerning O.J. Simpson’s innocence, and for leaving numerous blanks on his juror questionnaire. (See Trial Tr. vol. 16, 544). The Court has already addressed the issue of the periodicals read by Robertson, and it found that what magazines a person reads is not inherently based on race. Petitioner argues that numerous white potential jurors left blanks on their questionnaires and were found acceptable by the prosecution. (See Pet. Memo. 24-26). The Court has reviewed the juror questionnaires, and it agrees that Robertson did not leave an inordinate number of blanks compared to some jurors found acceptable by the prosecution. However, multiple reasons were given for the strike of Robertson. See Moore v. Keller Indus tries, Inc., 948 F.2d 199, 202 (5th Cir.1991) (where multiple reasons for a strike exist, there is no proof of pretext merely because some of jurors share characteristic). Petitioner essentially makes the argument that the neighborhood Petitioner lived in was predominately all black, so an inference that the strike was racially motivated should arise. However, a fair reading of the record is that the prosecutor struck Robertson because he lived in a high crime area, which is not a race-based reason to exercise a strike. See Baldwin v. State, 784 So.2d 148, 155 (Miss.2001) (living in high crime neighborhood constitutes valid race-neutral reason); and Lockett v. State, 517 So.2d 1346, 1356 (Miss.1987) (same).

The prosecution stated that it struck Shirley Wooten because she stated in voir dire that she could impose the death penalty if “it was beyond a shadow of a doubt.” (See Trial Tr. vol. 16, 535). The prosecutor also stated that he had been informed that Wooten had told coworkers that she did not want to serve on the jury for this case. (Id. at 535-36). The record in this case demonstrates that the prosecutor could appropriately determine Wooten did not understand the distinctions between “no doubt” and “reasonable doubt,” and determine she might not be able to adequately follow the court’s instructions. (See Trial Tr. vol. 15, 417-425). The prosecutor is allowed to make such intuitions, and the strike based on her vacillating responses regarding the burden of proof is race-neutral. See, e.g., Uttecht v. Brown, 551 U.S. 1, 15, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (trial court could properly excuse juror for cause where juror’s statement that he could follow the law as given was “interspersed with more equivocal statements”).

The prosecutor stated several reasons for exercising a peremptory strike against Joyce Merritt. First, he stated that she responded in court that she had an opinion on the death penalty, while she indicated on her juror form that she had no opinion. (Trial Tr. vol. 16, 537). Next, he stated that she “watche[d] a tremendous amount” of television, and that she has a family member who had been convicted of a crime. (Id.). The prosecutor also stated that “she is unemployed and she was making some eye contact with defense counsel and ... the other men that were over there with defense counsel during some recesses.” (Id.). As a final reason, the prosecutor stated she read magazines that had published articles espousing O.J. Simpson’s innocence. (Id.). Petitioner does not argue that inconsistencies between a juror questionnaire and response on voir dire are not race neutral reasons. The Mississippi Supreme Court has held that they are. See Puckett v. State, 788 So.2d 752, 761 (Miss.2001). Moreover, a vacillating response on the death penalty is a race-neutral reason. See, e.g., Uttecht, 551 U.S. at 15, 127 S.Ct. 2218; see also Underwood v. State, 708 So.2d 18, 28 (Miss.1998). Additionally, a prospective juror’s eye contact or appearance of favoritism toward one particular side is a race-neutral reason to exercise a strike. See, e.g., United States v. De La Rosa, 911 F.2d 985, 991 (5th Cir.1990) (stating that “intuitive assumptions,” such as eye contact, may be a valid reason to exclude a potential juror); United States v. Fields, 72 F.3d 1200, 1206 (5th Cir.1996) (prospective juror avoiding eye contact with prosecutor and looked at defendants flirtatiously).

The prosecutor stated that he struck potential juror, Ronald Henry, because (1) Henry gave responses in his juror questionnaire inconsistent with the responses he gave during voir dire concerning the death penalty; (2) Henry repeatedly shook his head and shut his eyes when the trial court informed the potential jurors that the jury would be sequestered; and (3) Henry’s brother had been convicted of statutory rape. (See Trial Tr. vol. 16, 536). Petitioner maintains that the prosecutor found white jurors who had been arrested acceptable, which demonstrates the pretextual nature of the prosecutor’s stated reasons. (Pet. Memo. 21). The Court notes that it could not locate Henry’s juror questionnaire within the State court papers. The Court notes that vacillation on the death penalty and a relative’s criminal history are race-neutral reasons for the exercise of a strike. See, e.g., Underwood, 708 So.2d at 28 (death penalty views are race-neutral); Benson v. State, 551 So.2d 188 (Miss.1989) (relative convicted for crime is race-neutral). The prosecutor’s explanation regarding Henry’s body language and/or demeanor was race-neutral. See United States v. Perkins, 105 F.3d 976 (5th Cir.1997) (prosecution’s explanation that black juror shook his head and had disgusted look on his face was race-neutral). Multiple reasons were given for Henry’s strike, and Petitioner may not demonstrate that the reasons were pretextual merely by pointing out that another juror with an individual characteristic in common was not struck. See, e.g., Hicks v. Johnson, 186 F.3d 634 (5th Cir.1999) (none of juror alleged to be similarly situated to those challenged possessed the same combination of negative qualities as the struck jurors); Moore v. Keller Industries, Inc., 948 F.2d 199, 202 (5th Cir.1991) (where multiple reasons for a strike exist, there is no proof of pretext merely because some of jurors share characteristic). Petitioner has not demonstrated that he is entitled to relief on this claim. The “ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Rice, 546 U.S. at 338, 126 S.Ct. 969. He has not rebutted with clear and convincing evidence the determination that the strikes were not racially motivated. See 28 U.S.C. § 2254(e)(1). Petitioner has failed to demonstrate that the rejection of this claim was contrary to or an unreasonable application of clearly established federal law, or that it was unreasonable in light of the evidence presented in State court. See 28 U.S.C. § 2254(d)(1) & (2).

Petitioner alternatively argues that trial counsel performed ineffectively in failing to rebut the race-neutral reasons given by the prosecutor in order to avoid the imposition of a procedural bar. (Pet. Reply 9). In order to succeed on a claim of ineffective assistance of counsel, Petitioner must show that his trial counsel’s performance fell below an objective standard of reasonableness, determined under prevailing professional norms at the time the assistance was given. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Prejudice must be affirmatively proved, and if it is not, the Court is not required to address the issue of counsel’s performance. Id. at 693, 697, 104 S.Ct. 2052. As Petitioner has failed to demonstrate that his claim of purposeful discrimination has merit, he cannot meet the prejudice prong of Strickland. See Medellin v. Dretke, 371 F.3d 270, 279 (5th Cir.2004). This claim shall be dismissed.

II. Witherspoon v. Illinois

Petitioner maintains that two prospective jurors, Chanteau Bowens and Joyce Brown, were improperly excused from jury selection based upon their allegedly equivocal answers concerning their views of the death penalty. (Pet. Memo. 36-39). Chanteau Bowens indicated on her juror questionnaire that she could never personally vote to impose the death penalty, but she stated during voir dire that she could impose the death penalty if it was warranted by the presented evidence. (See SCP vol. 8, 1152 and Trial Tr. vol. 15, 325). Bowens was individually voir dired regarding the death penalty and stated that it would take the presentation of evidence to overcome the opinion she had already formed about the case. (See Trial Tr. vol. 16, 483). Bowen stated that though she could presume Petitioner innocent until proven guilty, it would take evidence to overcome her negative opinion of him. (Id. at 485-86). Bowen stated that she could vote to impose the death penalty upon sufficient evidence, but she “would have to choose life over death” if she had to give an answer during voir dire concerning her ability to vote to inflict the death penalty. (Id. at 488).

The prosecution moved to challenge Bowen for cause because she indicated she would be impartial in the sentencing phase, and because she stated it would take evidence to overcome the opinion she had already formed. (See, e.g., Trial Tr. vol. 16, 523). Defense counsel objected and argued that Bowen stated that the news coverage she heard would not influence her decision and she would give equal consideration to the sentencing options. (Id.). The trial court stated that both sides were entitled to jurors who would start the sentencing phase of trial with their options on “equal footing,” a statement to which defense counsel conceded. (Id. at 524). The trial court sustained the challenge.

Joyce Brown stated on her juror questionnaire that she mildly agreed with the death penalty and might be able to impose it. (See SCP vol. 9, 1208). When voir dired by the State as to her feelings regarding the death penalty based upon her questionnaire response, Brown stated she “probably could” vote to impose the death penalty if she heard the facts but could not truthfully answer affirmatively without knowing the facts. (See Trial Tr. vol. 15, 313). During sequestered voir dire on the death penalty qualification the next day, Brown stated that she would have to say that she could not vote to impose the death penalty if she had to give a definitive answer. (See id. at 389-90). She indicated this response three separate times in response to the State’s questions. (See id.). Defense counsel was allowed an opportunity to voir dire Brown, and her responses as to whether she could vote to impose the death penalty vacillated. (See id. at 393, 394-95). The prosecution challenged Brown for cause based upon her equivocation on the death qualification, and defense counsel argued that Brown stated she could impose the death penalty if the evidence warranted it. (See Trial Tr. vol. 16, 517-18). The trial judge stated it was his recollection that she had equivocated on the death qualification and sustained the challenge. (Id. at 518).

On direct appeal, the Mississippi Supreme Court found that both of these prospective jurors’ responses indicated either vacillation or equivocation that would substantially impair their ability to perform their duties as a juror in accordance with their oath. See Manning I, 726 So.2d at 1186-87. The court determined that deference was owed to the trial judge’s observations of juror demeanor, and that juror bias need not be found with unmistakable clarity. Id.

Petitioner’s claim alleges a violation of the Witherspoon-Witt rule. See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 521-22, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). These cases and their progeny hold that a venire member may not be excluded from serving on a jury in a capital case merely because he or she voices general objections to the death penalty or expresses conscientious, religious, or moral scruples against its infliction. Witherspoon, 391 U.S. at 521-22, 88 S.Ct. 1770. A venire member may only be excused for cause based on his views of the death penalty where those views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Witt, 469 U.S. at 424, 105 S.Ct. 844 (citing Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)). Where a court “is left with the definite impression” that the prospective juror would “be unable to faithfully and impartially apply the law,” then a court has the discretion to excuse that juror. See id. at 426, 105 S.Ct. 844. The bias of a potential juror need not be “proved with unmistakable clarity,” and deference is owed to the trial judge who is in a position, having heard and seen the juror, to form a definite impression as to whether a potential juror would be able to follow his or oath. Id.

A trial court may properly resolve ambiguity about a juror’s ability to impose the death penalty in favor of the State. See Uttecht v. Brown, 551 U.S. 1, 18, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (“Juror Z’s assurances that he would consider imposing the death penalty and would follow the law do not overcome the reasonable inference from his other statements that in fact he would be substantially impaired in this case ... ”). It is permissible to strike a prospective juror for cause if his or her responses are “equivocal and shifting.” Clemons v. Luebbers, 381 F.3d 744, 756 (8th Cir.2004); see also Martini v. Hendricks, 348 F.3d 360, 366-67 (3rd Cir.2003) (challenge for cause of juror expressing noncommittal and equivocal responses to voir dire questions relating to death penalty warranted for-cause challenge). Both Bowens and Brown gave contradictory answers, and the trial judge was in the best position to see and hear these jurors and make a determination of whether bias existed. That impression is entitled to a presumption of correctness that Petitioner has failed to rebut. Witt, 469 U.S. at 425-26, 105 S.Ct. 844. (“Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law____[T]his is why deference must be paid to the trial judge who sees and hears the juror.”); see also Ortiz v. Quarterman, 504 F.3d 492, 501 (5th Cir.2007) (holding that whether a juror is excludable under Witherspoon-Witt is a question of fact entitled to a presumption of correctness on habeas review). The decision of the Mississippi Supreme Court does not represent an unreasonable determination of the facts in light of the presented evidence, and the decision did not involve an unreasonable application of established Supreme Court precedent. This claim shall be dismissed.

III. Paula Hathorn

At trial, Petitioner’s ex-girlfriend, Paula Hathorn, provided testimony that linked Petitioner to the leather jacket John Wise identified as the one stolen from his vehicle, and her testimony also linked Petitioner to the firearm used in the murders. (See Trial Tr. vol. 19, 986-97). During December 1992, Hathorn lived with Petitioner on and off at the home of Petitioner’s mother, Ruth Ann Bishop. Hathorn testified that she saw Petitioner on December 14, 1992, after not having seen him for a few days, and that he came home with a number of items, including jewelry, clothing, and a compact disc player. (See, e.g., Trial Tr. vol. 17, 670-80). Sheriff Bryan testified that on or about April 27,1993, he approached Hathorn to attempt to question her about Petitioner, and that as a result of their conversations, he retrieved from her the leather jacket John Wise later claimed as the one stolen from his vehicle. (See, e.g., Trial Tr. vol. 18, 820-21). Hathorn also told Sheriff Bryan that she had seen Petitioner shooting a gun into a tree at his mother’s residence, which led Sheriff Bryan to obtain a search warrant for the residence. (See, e.g., Trial Tr. vol. 18, 820-22).

At trial, Hathorn admitted that she had previously been convicted of a felony for false pretense, and she had approximately twelve misdemeanor bad check convictions. (See Trial Tr. vol. 17, 689). Hathorn admitted that she had not served any jail time for the misdemeanor false pretense convictions, and that she had not paid the restitution to which she agreed under the terms of her plea on the felony charge. (See id. at 691-92). Hathorn admitted that she had gone to the penitentiary on the felony charge, and that she had been convicted on more misdemeanor charges after her release. (See id. at 690-91). She stated that after her release from the penitentiary, she began giving tips to the Sheriffs Department about possible crimes in the community. (See Trial Tr. vol. 17, 698, 700). Hathorn testified that she had worked out a plea on six misdemeanor charges by agreeing to pay restitution, and that no one had intervened on her behalf. (See id. at 692). On re-direct examination, Hathorn stated she encountered legal difficulties stemming from checks she had written because her attorney, Mark Williamson, failed to take care of them as promised. (See id. at 720, 724). Both Hathorn and Sheriff Bryan testified that Hathorn did not receive any leniency in the resolution of her legal difficulties in exchange for her cooperation with law enforcement in this case. (See, e.g., Trial Tr. vol. 17, 690; Trial Tr. vol. 18, 838).

At trial, Sheriff Bryan admitted that he had testified in prior proceedings that Hat-horn was untrustworthy, and he stated his belief that she continued to write bad checks while working with the Sheriffs Department. (See Trial Tr. vol. 19, 886, 888). Sheriff Bryan also stated that he would recommend that Hathorn get some of the $25,000 reward offered in the case due to the help she provided. (See id. at 885-86). Sheriff Bryan testified that he did not make any deals with Hathorn as to leniency on her pending charges, and that he did not speak to any prosecuting entity on her behalf. (See Trial Tr. vol. 19, 838).

Petitioner was in the Oktibbeha County jail in the spring of 1993 on charges unrelated to the students’ murders. (See Evid. Hr’g Tr. at 26-27). At that time, Sheriff Bryan arranged for Hathorn to secretly record her telephone conversations with Petitioner in an attempt to get information relevant to the murder investigation. (See id. 39-44). Sheriff Bryan arranged for the telephone calls to be recorded onto micro-cassette tapes, provided Hathorn with questions to ask, and he had at least one of the microcassette tapes transcribed. (See id. at 27-28). The tapes went undiscovered by any member of Petitioner’s defense team, however, until Petitioner’s post-conviction proceedings, when post-conviction counsel discovered two micro-cassette tapes upon inspection of Sheriff Bryan’s files. In response to a December 2, 2004, Order by the Mississippi Supreme Court, the trial court conducted an evidentiary hearing on January 12, 2005. (See Evid. Hr’g Tr.). Circuit Judge Lee J. Howard, who presided over Petitioner’s trial, heard evidence to determine whether Petitioner was entitled to a new trial based on the allegedly exculpatory evidence. (See id.).

At the evidentiary hearing, the prosecutor’s paralegal testified that the District Attorney’s office had never had the micro-cassette tapes. (Evid. Hr’g Tr. at 23-24). Williamson testified that the defense was never informed that Hathorn was acting as a State agent, and that they were never informed of the existence of the tapes. (See id. at 48-50). Williamson stated that Hathorn was “100 percent” of the case against Petitioner, and that he would not have overlooked such evidence had it been in the materials in the Sheriffs office. (Id. at 49-51). Defense co-counsel Richard Burdine also testified that he had not seen the tapes or transcripts at or near the time of trial, but that they would have been extremely important in impeaching Hat-horn’s testimony and uncovering her incentive to cooperate. (See id. at 78).

Sheriff Dolph Bryan testified at the hearing for the State and in rebuttal to defense witnesses. Sheriff Bryan testified that he arranged to have Petitioner call Hathorn into a private line where the conversations were taped, and that one of the two microcassette tapes produced as a result was partially transcribed. (See id. at 27-28). Sheriff Bryan stated that in the conversations Petitioner referenced the call being monitored several times, and he stopped taping the calls after determining that no useful information was going to be revealed. (See id. at 28-29). Sheriff Bryan stated he put the tapes and the transcribed portion in an envelope and put them in one of two big boxes of evidence, each of which measured about one-half of the size of a washing machine box. (See id. at 28-29). Sheriff Bryan stated that when he was instructed to get the evidence ready for defense counsel’s review, he had a deputy gather the evidence and bring it in his office. (See id. at 34). Sheriff Bryan testified that the tapes would have been in the box at that time. (See id.). Sheriff Bryan stated that defense counsel Williamson made only a cursory examination of the evidence in the boxes when he came to look at the file. (See id. at 35-36). Bryan also testified that the evidence had been put in new boxes since the time of the investigation due to the poor condition of the old ones, but that the evidence had not changed. (See id. at 36).

Also at the evidentiary hearing, Sheriff Bryan stated he helped Hathorn generate questions to ask Petitioner, which included a suggestion that Hathorn tell Petitioner she was being threatened with criminal charges. (See id. at 83-87). Bryan testified that Hathorn was never threatened with arrest, and that her inconsistent statements were a roleplay to attempt to get an admission from Petitioner. (Id. at 87). He also stated that Petitioner did not make any admissions on the tapes. (See id. at 41). Sheriff Bryan admitted that no detailed inventory was made of the evidence, but that he had no doubt that the tapes were in the box. (See id. at 97). He testified that evidence was easy to miss in the boxes, and he stated that the microcassettes were very small. (See id. at 88-89). Sheriff Bryan also stated that the tapes and transcripts were generated before Petitioner was indicted for capital murder in July 1993, and that defense counsel would have inspected the files after Petitioner’s indictment. (See id. at 96-97). Sheriff Bryan stated that he did not turn over the tapes to the District Attorney, though the evidence was in the boxes for his review. (See id. at 42). Williamson denied that the tapes or transcript were in the boxes, stating at the hearing that he went through the evidence “with a fine tooth comb.” (S