Jasper v. Thaler (765 F. Supp. 2d 783, 2011)

MEMORANDUM OPINION AND ORDER DENYING RELIEF

FRED BIERY, Chief Judge.

Petitioner Ray Jasper, III, filed this federal habeas corpus action pursuant to Title 28 U.S.C. Section 2254 collaterally attacking his January, 2000, Bexar County conviction for capital murder and sentence of death. For the reasons set forth below, petitioner is not entitled to federal habeas corpus relief from this Court but is entitled to a Certificate of Appealability on his Batson claim herein.

I. Statement of the Case

A. The Offense

There is no genuine dispute as to the operative facts of petitioner’s offense. Petitioner signed a detailed written statement confessing his role in the robbery and murder of music producer David Alejandro on the night of November 29, 1998. Petitioner corroborated the inculpatory aspects of his written statement in testimony he gave during both the punishment phase of his capital murder trial and the evidentiary hearing held in petitioner’s state habeas corpus proceeding.

The undisputed facts are; (1) petitioner informed his girlfriend Christina Breton that he and some friends planned to rob David Alejandro, (2) when Ms. Breton pointed out David Alejandro knew and would be able to identify petitioner, the petitioner responded “That’s why we’re going to have to kill him,” (3) petitioner solicited the assistance of two friends, i.e., petitioner’s musical collaborator Doug Williams and another friend named Steven Russell, to rob David Alejandro of electronic equipment located at David Alejandro’s recording studio, (4) on the evening in question, petitioner, Doug Williams, and Steven Russell drove multiple vehicles to David Alejandro’s recording studio and spent some time doing recording work with David Alejandro for petitioner’s and Doug Williams’ rap group “TRUE PLAYERS LIVIN SICK,” (5) petitioner approached David Alejandro from behind, grabbed David Alejandro’s hair and sliced across the front of David Alejandro’s neck from ear to ear with a knife petitioner had brought with him, (6) Steven Russell then stabbed David Alejandro many times with both a knife Steven Russell had brought with him, as well as petitioner’s knife, (7) petitioner covered David Alejandro’s body with a bed sheet petitioner had brought from his home, (8) petitioner then washed the blood off his hands and assisted Steven Russell in placing many items of David Alejandro’s property into a pair of black bags petitioner had purchased for this purpose and loaded the bags and many other items of electronic equipment from David Alejandro’s studio into the vehicles they had driven to the scene that evening, (11) petitioner and Steven Russell made so much noise moving David Alejandro’s equipment to their vans parked outside the recording studio they drew the attention of several residents of a nearby apartment complex, who telephoned the police, and (12) when police arrived at the scene, petitioner and his two accomplices all successfully fled the scene on foot, leaving behind their vehicles loaded with David Alejandro’s equipment.

B. Indictment

On June 1, 1999, a Bexar County grand jury indicted petitioner in cause no. 1999-CR-2645-A on a charge of capital murder: intentionally causing the death of David Alejandro by stabbing him with a deadly weapon, i.e., a knife, while in the course of committing and attempting to commit the offense of robbing David Alejandro.

C. Guilt-Innocence Phase of Trial

The guilt innocence phase of petitioner’s capital murder trial began on January 11, 2000.

1. The Prosecution’s Case

In addition to the facts summarized above, the jury heard evidence from the prosecution which established: (1) the many items of electronic equipment and other property found by police inside the vehicles driven to the crime scene by petitioner and his accomplices belonged to David Alejandro, (2) the two minivans police found parked outside David Alejandro’s recording studio loaded with David Alejandro’s equipment were registered to petitioner’s parents and Steven Russell’s parents, (3) a few days before the murder, petitioner purchased the pair of large duffel bags police found filled with David Alejandro’s property inside the minivans, (4) the steering columns of the two minivans were in tact and there was no sign either vehicle had been stolen, (5) petitioner’s fingerprints were found on items of electronic equipment found inside the minivans, on the exterior of one of the minivans, and on a soft drink can found near David Alejandro’s body, (6) petitioner could not be excluded as a possible source of the DNA found in a sample of saliva found on the parking lot adjacent to one of the minivans and on blood stains found on various items found in the minivans and inside David Alejandro’s studio, and (7) David Alejandro died from exsanguination, i.e., bleeding to death, as a result of having suffered multiple stab wounds (totaling twenty-five in number), several of which could have proven fatal independently of the others.

2. The Defense’s Case

After the prosecution rested, the defense called one witness, a San Antonio Police officer who had previously mentioned in his trial testimony that he had sketched the exterior crime scene, i.e., the parking lot outside David Alejandro’s studio, who now testified he could no longer locate his sketch of the exterior of the crime scene. The defense then rested and both sides closed.

3. The Verdict

On January 18, 2000, after deliberating less than ninety minutes, the jury returned its verdict, finding petitioner guilty of capital murder beyond a reasonable doubt.

D. Punishment Phase of Trial

The punishment phase of petitioner’s capital murder trial began on the same day the jury returned its verdict at the guilt-innocence phase of trial.

1. The Prosecution’s Case

The prosecution presented witnesses who testified: (1) petitioner had been found in possession of marijuana while on school property, (2) petitioner was sent to an alternative campus and later expelled, (3) on March 20, 1997, petitioner was observed driving 62 mph in a 45 mph zone and, when a police officer attempted to pull over the vehicle petitioner was driving without a driver’s license, petitioner led the officer on a high speed chase which reached speeds exceeding ninety miles per hour and which did not end until petitioner crashed his vehicle on a set of railroad tracks, (4) on November 23, 1998, just days before David Alejandro’s murder, an off-duty San Antonio Police robbery detective spotted petitioner, who appeared to be serving as a lookout for a burglary, and when the officer approached and identified himself as a law enforcement officer, the petitioner charged, repeatedly struck and assaulted the officer with sufficient ferocity the officer felt compelled to throw his handgun away until he could establish control over petitioner, (5) petitioner’s fingerprint was found on the exterior of a rear window, inside the backyard, of the residence where petitioner had been spotted by the officer petitioner assaulted, and (6) David Alejandro was a music composer and singer who gave many other artists a chance when they were just beginning their careers.

2. The Defense’s Case

Petitioner’s trial counsel called several character witnesses, including petitioner’s parents and pastor and a Bexar County Adult Detention Center classification officer who testified: (1) petitioner was a very smart young man, a natural leader, who since his arrest had begun to listen to spiritual things, to align himself with Christ and make frequent contact with his family’s congregation, (2) petitioner’s family had moved frequently during petitioner’s childhood and petitioner’s father, a recently retired member of the United States Air Force, had been away from the family during petitioner’s formative years, (3) an exceptionally talented student in California, upon moving to San Antonio in 1993, petitioner became depressed when he was placed in remedial classes, (4) upon his arrival in San Antonio, petitioner was harassed at school for his style of clothing, (5) petitioner was a caring person who had simply fallen in with the wrong group of individuals who led petitioner astray, (6) since his arrest, petitioner had undergone a transformation, matured a lot, and gotten God into his heart, (7) petitioner was the “baby” of his family, who loved him very much, (8) petitioner had not caused any problems at the BCADC, was always very respectful and soft-spoken, and could handle life in the general jail population, (9) as a child, petitioner had been an exceptionally talented student who participated in football and basketball, (10) petitioner’s problems began when the family moved to San Antonio and petitioner was no longer challenged by his school work, (11) God was now in petitioner’s life, (12) petitioner was closest to his father and, had his father not been away from home, petitioner would never have gotten into trouble, and (13) petitioner came from a loving family.

Dr. John C. Sparks testified: (1) he had evaluated petitioner for competence and sanity, (2) petitioner was at least average intellectually and communicated clearly, (2) petitioner reported alcohol and marijuana use, (3) petitioner appeared to be a moderately immature young man, (4) nothing in petitioner’s jail records indicated any problems with other inmates, (5) petitioner had become very religious while in jail, (6) petitioner reported having suicidal thoughts since age 14, which Dr. Sparks ascribed to petitioner’s inability to handle stress, (7) petitioner did not appear to have engaged in aggressive behavior while in jail, (8) young adults are much more impulsive and aggressive toward others and less so when they reach their mid-twenties and later years, (9) generally, aggressiveness tends to decline as people grow older, and (10) other than petitioner’s criminal offense, Dr. Sparks found no indication of aggressiveness in petitioner’s background.

Petitioner’s trial counsel then called petitioner to testify and the following exchange occurred:

Q. Mr. Jasper, you’re obviously— Ray, you’ve been through this whole trial with the rest of us and you’ve seen the evidence, and I think you have something you want to tell the Alejandro family; is that right?

A. Yes. First, I want to make, first and foremost, the point: This is not a plea about my case or about the verdict that’s been given already. I just want you to know personally that I did not kill David Alejandro. And that’s all I wanted to say to you.

I’m very sorry. I knew David. I knew him for quite some time. He was probably one of the nicest people I ever met in my life. And I just wanted to let you know that I know you suffered a great loss, but that man did not die in my hands. He was brutally murdered; stabbed twenty-five times. I’m not a killer. And I didn’t do it.

MR. COLLINS: I’m going to pass the witness at this time.

MR. MULLINER: I have no questions.

After the defense rested and the prosecution closed, petitioner’s trial counsel were permitted to recall petitioner to the stand, at which time the following transpired:

BY MR. REECE:

Q. Mr. Jasper, you had testified earlier. You spoke to the victim’s family. What exactly did you mean by the fact that you didn’t kill their son?

A. Means I didn’t kill him. How simple can it be. I did not kill him.

Q. Would you tell the jury exactly what your involvement was.

A. I was there. I witnessed a brutal murder. I witnessed a man getting stabbed twenty-five times, a man that I knew.

Q. And who did you see stab him?

A. Steve Russell.

Q. Okay. And you made a statement to the effect that you basically sliced his throat; is that correct?

A. Yes.

Q. All right. Is that, in fact, what happened?

A. No.

Q. Why did you put that in your statement?

A. Read the letter written from Steve Russell to me and you’ll see why.

MR. MULLINER: Objection, nonresponsive.

THE COURT: Sustained.

Q. (By Mr. Reece) Tell us-you need to tell the jury in response to my question.

A. Are you my defense lawyer? What are you doing? Are you my defense lawyer?

THE COURT: Mr. Jasper, listen to me, sir. Your job up there is to answer questions with your lawyers, and those lawyers, and nothing more. You’re not here to ask questions. Go ahead, Mr. Reece.

Q. (By Mr. Reece) I’ll repeat the question, Mr. Jasper. What exactly was your role in this offense?

A. I told you. I was there.

MR. REECE: Pass the witness.

CROSS EXAMINATION

BY MR. MULLINER:

Q. Did you review the letter from Steven Russell to you in preparation for your testimony today?

A. No.

Q. When is the last time you read it?

A. I haven’t read it since I got it.

Q. Where is it located.

A. With my lawyer.

Q. Where were you when you received it?

A. In jail.

MR. MULLINER: May I see the letter?

THE COURT: Show him the letter.

(Document proffered to counsel.)

Q. (By Mr. Mulliner) Christina Breton is the mother of your child, right?

A. Yes. she is.

Q. She visited you on Christmas Day, right?

A. She may have. She visits me often. I’m not sure. Which Christmas day are you talking about?

Q. If the records reflect that she visited you on Christmas day, you wouldn’t dispute that, would you?

A. '98 or '99?

Q. '99.

A. I wouldn’t doubt it. It may have happened. I’m not sure.

Q. She comes and sees you two or three times or more, week after week after week after week; doesn’t she?

A. Yes, she does.

Q. She told this jury that you told her that you hurt David Alejandro with a knife.

A. Uh-huh.

Q. Why is she lying to this jury about the father of her child, who is up on capital murder charges facing death, that she visits every week, why is she trying to harm you with her testimony by saying something that’s not true?

A. I believe that question should be directed towards her.

Q. Well, I’m directing it towards you.

A. I can’t answer for her.

Q. You planned his death, didn’t you?

A. Yes.

Q. If Steve Russell had never met you in his life, if your paths had never crossed, Steve Russell would have never caused these injuries to David Alejandro, would he?

A. That’s hypothetical.

Q. Steve didn’t record with David, did he?

A, Not to my knowledge. No.

Q. You’re the one who knew David—

A. Yes.

Q. —not Steve. You’re the one who knew David had stuff that might be valuable—

A. Uh-huh.

Q. —not Steve, right?

A. True.

Q. And Doug’s not the knife man?

A, No he’s not. He had no part in it, no part in nothing.

Q. Let’s talk morally. Taking that into consideration, you are the person that killed David Alejandro, regardless of what the Doctor said, aren’t you, Mr. Jasper?

A. No, I’m not. Action and thought are two different things. If I think right now to run over there and grab the officer’s gun and shoot everybody in here, that’s thought. If I go over there and do it, that’s an action. That’s two different things.

Q. Let me ask you. Did you have the thought?

A. A thought of what?

Q. Did you think about grabbing the officer’s gun and shooting everyone in here?

A. No, sir.

Q. How did you say it if you didn’t think it first?

A. It just popped in my mind.

MR. MULLINER: Okay. I have no further questions.

REDIRECT EXAMINATION BY MR. REECE:

Q. Ray, is there anything that you wanted to say to your parents?

A. Yes.

Q. What is that?

A. My mother is not here. But to my sister, I used to follow you around.

Take care of Chenelle. Make sure my daughter and her are close.

(Witness crying.)

A. To my father, you gave me your name. I’m sorry I brought this humiliation to your name, this embarrassment. And my mom, y’all are great parents. I love you with all my heart. Just know that everything will be all right. Everything will work out for the good.

Tell Christina that I’m sorry I let her down and I can’t help her raise my daughter. And tell my brother to keep striving. Tell him I love him.

Regardless of what happens, y’all know me. These people in this courtroom don’t know me. Y’all know me. And the Lord knows me. They don’t. They read in the papers manipulating lies. My lawyers’s not defending me, insufficient counsel on me. The D.A. has done a good job—

THE COURT: Ask another question. Let’s go.

MR. REECE: Pass the witness.

MR. MULLINER: I have no further questions.

THE COURT: Step down, Mr. Jasper.

3. The Verdict

On January 20, 2000, after deliberating less than three hours, petitioner’s jury returned its verdict at the punishment phase of trial finding: (1) beyond a reasonable doubt there was a probability the petitioner would commit criminal acts of violence that would constitute a continuing threat to society, (2) beyond a reasonable doubt the petitioner actually caused the death of the deceased or, if he did not cause the death of the deceased, petitioner intended to kill the deceased or another or anticipated that a human life would be taken, and (3) taking into consideration all of the evidence, including the circumstances of the offense, the petitioner’s character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant that a sentence of life imprisonment be imposed rather than a death sentence.

E. Direct Appeal

Petitioner appealed. The Texas Court of Criminal Appeals issued its opinion affirming petitioner’s conviction and sentence on November 28, 2001. Jasper v. State, 61 S.W.3d 413 (Tex.Crim.App.2001). Petitioner did not thereafter seek certiorari review from the United States Supreme Court.

F. State Habeas Corpus Proceeding

Petitioner filed an application for state habeas corpus relief on September 4, 2001, raising more than thirty claims, including a multi-faceted assertion of ineffective assistance by his trial counsel.

The state habeas trial court held an evidentiary hearing on May 18, 2005. Petitioner’s trial counsel testified during that hearing as follows: (1) they had not advised petitioner to testify at either phase of trial but, rather, had explained to petitioner his right to testify if he wished to do so, (2) petitioner’s repeated denials of any responsibility for the death of David Alejandro came as a surprise to them because that was not what they had discussed with petitioner prior to petitioner taking the stand, (3) petitioner’s punishment phase testimony hurt the petitioner’s chances for obtaining a life, sentence, (4) they went over petitioner’s written statement to police with petitioner and he never asserted to them there were any factual errors in said statement, (5) they discussed with petitioner his right to testify and counseled petitioner about the pitfalls of testifying on his own behalf, and (6) in hindsight, it would have been better if petitioner had not testified.

Petitioner testified during the same hearing, in pertinent part, that: (1) he learned about the Texas law of parties during voir dire, (2) he did not believe he was legally or morally-responsible for the death of David Alejandro because he did not deliver the fatal injury, (3) he sliced David Alejandro’s neck during the course of a robbery, (4) David Alejandro was killed in the course of a robbery in which he participated, (5) his assault upon David Alejandro was intended to assist in the same robbery, (6) he was unhappy the prosecution had made it sound at trial as if he were the killer when Steven Russell actually delivered the fatal injury, and (7) he did not tell his trial counsel what he was going to say before he took the stand at trial and denied any responsibility for David Alejandro’s murder.

Petitioner’s parents testified during the state habeas hearing that, had they been permitted to do so, they would have testified at the punishment phase of petitioner’s capital murder trial that: (1) petitioner was not a murderer, (2) it was a teacher’s fault petitioner dropped out of school, (3) petitioner was a “typical boy” who simply “got mixed up,” and (4) their son was not guilty of murder because “he’s not that type of person.”

In an Order issued October 11, 2007, the state habeas trial court concluded petitioner had not satisfied the standard for establishing ineffective assistance by petitioner’s trial counsel and recommended denial of petitioner’s state habeas corpus application. In an unpublished Order issued August 20, 2008, the Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application based on the trial court’s findings and conclusions. Ex parte Jasper, WR-68,832-01, 2008 WL 3855114 (Tex.Crim.App. Aug. 20, 2008).

G. Proceedings in this Court

On July 31, 2009, petitioner filed his federal habeas corpus petition herein, asserting fourteen claims for relief. Docket entry no. 10. Respondent filed his answer on November 19, 2009. Docket entry no. IJ. Petitioner filed a reply on February 12, 2010. Docket entry no. 18.

II. AEDPA Standard of Review

Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (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. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 1438, 161 L.Ed.2d 334 (2005); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d).

The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”). A state court’s failure to cite governing Supreme Court authority does not, per se, establish the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10.

Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1439; Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” McDaniel v. Brown, — U.S. -, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010) (“A federal habeas court can only set aside a state-court decision as ‘an unreasonable application of ... clearly established Federal law,’ § 2254(d)(1), if the state court’s application of that law is ‘objectively unreasonable.’ ”); Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court’s application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007) (“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.”); Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003) (“it is the habeas applicant’s burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner”).

Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003).

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court’s adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, — U.S. -, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”); Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court’s factual determination. Wood v. Allen, — U.S. at -, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).

In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence the state court’s findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 (“AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ”); Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005) (“[W]e presume the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254(e)(1). It remains unclear at this time whether Section 2254(e)(1) applies in every case presenting a challenge to a state court’s factual findings under Section 2254(d)(2). See Wood v. Allen, — U.S. at -, 130 S.Ct. at 849 (choosing not to resolve the issue of Section 2254(e)(l)’s possible application to all challenges to a state court’s factual findings); Rice v. Collins, 546 U.S. at 339, 126 S.Ct. at 974 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

However, the deference to which state-court factual findings are entitled under the AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240, 125 S.Ct. at 2325 (the standard is “demanding but not insatiable”); MillerEl v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) (“Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.”).

In this Circuit, a federal habeas court reviewing a state court’s rejection on the merits of a claim for relief pursuant to the AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court’s written opinion supporting its decision. See St. Aubin v. Quarterman, 470 F.3d 1096, 1100 (5th Cir.2006) (holding Section 2254(d) permits a federal habeas court to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 550 U.S. 921, 127 S.Ct. 2133, 167 L.Ed.2d 869 (2007); Amador v. Quarterman, 458 F.3d 397, 410 (5th Cir.2006) (holding the same), cert. denied, 550 U.S. 920, 127 S.Ct. 2129, 167 L.Ed.2d 866 (2007); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir.2003) (holding the precise question before a federal habeas court in reviewing a state court’s rejection on the merits of an ineffective assistance claim is whether the state court’s ultimate conclusion was objectively reasonable), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Anderson v. Johnson, 338 F.3d 382, 390 (5th Cir.2003) (holding a federal habeas court reviews only a state court’s decision and not the opinion explaining that decision); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (holding a federal court is authorized by § 2254(d) to review only a state court’s decision and not the written opinion explaining that decision), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003).

III. Batson Claim

A. The Claim

In his first claim, petitioner argues his constitutional rights recognized in the Supreme Court’s holding in Batson v. Kentucky were violated when the prosecution used a peremptory challenge to strike an African-American venire member named Vernon Galloway.

B. State Court Disposition

1. Voir Dire & Batson Hearing

As is often the case in complex litigation, petitioner’s venire members were each presented with a lengthy written questionnaire which they completed. Counsel for all parties and the state trial court reviewed the questionnaire answers with the venire members during the subsequent individual voir dire of the venire panel members. For unknown reasons, petitioner’s state appellate counsel did not designate the venire members’ questionnaires as part of the record on direct appeal.

The individual voir dire of venire member Vernon Galloway took place on November 30,1999.

a. Prosecution’s Voir Dire Examination

After offering a brief summary of the Texas capital sentencing special issues, the prosecutor began focusing on Mr. Galloway’s questionnaire answers:

Q. Okay. And with that in mind, I’d like to first draw your attention to — do you have a copy of your questionnaire?

A. Yes.

Q. To page three of your questionnaire. And the question reads: With reference to the death penalty, which of the following statements would best represent your feelings. And you indicated number six, which says: I believe the death penalty is appropriate in some cases, but I can never return a verdict which assesses the death penalty. Tell me a little bit about that question and your response to it and your feelings.

A. Well, it’s just that I can’t play the role of God. I can’t send nobody, you know, to death. But I understand that there’s got to be some kind of law for it, but I don’t think that I can be the one—

Q. If I hear you correctly, what I hear you saying is that you understand society has the death penalty law in the books. You don’t necessarily disagree with the need for such a law. If society has that law, you know, that may be something you could live with, but you personally could not be involved as one of twelve jurors who would ever answer those questions in such a way as a man’s life would be taken. Is that correct?

A. I don’t believe I can. But if I have to, I can make a decision. At this point in time I’ve never had to — I don’t know — not right now. But if I believe I had to, I could.

Q. Okay. And so you’re saying— would it be possible for you, if you were selected to sit as a juror in this case, could you answer those three punishment phase questions in such a way that you would know that the result of the way you answered those questions that a man would be sentenced to death? Would that be possible for you to answer them in that way?

A. Yes.

Q. And so, the way you responded to this question where you said I could never return a verdict which assess [sic] the death penalty, have your feelings changed or was this just a question that you didn’t have an answer that really fit the way you feel?

A. Well, answer to that question there, during the time, I was nervous and I didn’t fully understand some of it. And it was kind of a rush deal at the time.

Q. Okay. On page four of your questionnaire, there’s a question. It’s the second question from the top. It reads: Would you require the State to prove that a capital murder defendant had previously been in trouble with the law before you could assess the death penalty. And you indicated “yes.” Tell me your thoughts on that question and your response.

A. Well, have [sic] he ever been in a lot of trouble before. What type of trouble. Are you constantly getting in trouble, like stabbing, shooting or something real violent.

Q. Okay.

A. Something like a petty theft, I don’t — it all depends on what he was doing.

Q. Okay. Are you saying that unless somebody had a lot of those violent things in their past, that even if they were convicted of capital murder, if they had a clean past you could not assess the death penalty unless they had a bunch of violent stuff that came before it?

A. No, not necessarily. He wouldn’t have to have nothing in the past, really. It all depends on the evidence and everything that comes out in the case there that whether it’s intentionally [sic] or accidental.

Q. On page six, there’s a couple of questions that say: Do you think the death penalty is ever misused. And you said “yes.” And it says: Do you think the death penalty is used. And you put “too often.” Could you tell me a little bit about what your thoughts were when you were answering those.

A. Well, in some occasions, cases that I have heard about, they didn’t find out until later that the guy was — could have been innocent. They come up with this here new technique. And then the questions come in, could he or couldn’t he. But it’s too late.

Q. Do you have a particular case in mind that you were thinking of or just in general?

A. Well, about a couple of months ago they were talking about a couple of cases on the job. And the guy — it wasn’t — well, I didn’t know nothing about the cases, but they was [sic] explaining to me. The guy was supposed to be guilty, they found him guilty, but later on they had a deal that they come up with this DNA or something like that. They found out that it possibly wasn’t him, couldn’t have been the person.

Q. Okay. Page seven of your questionnaire, at the top. It says: What would be your greatest fear if you were selected to be a juror in a capital murder case. And you said “not having enough evidence.” How much evidence would you require before you could find a defendant guilty of capital murder— keep in mind—

MR. REECE: Objection, Your Hon- or.

Q. (By Mr. Mulliner) — that the burden of proof is beyond a reasonable doubt. What that means is that the standard of proof required means that you’re never required to be one hundred percent certain of a defendant’s guilt. You’re never required to be absolutely certain or totally convinced, but simply that you don’t have any doubts that are reasonable about a defendant’s guilt before the law would give you the duty to find the defendant guilty. How do you feel about that burden of proof.

A. What I mean by that is that, I don’t know how the case is going. If I can’t ask what I want to ask, you know, I look to your side, look to his side, and if I don’t get a chance to ask some questions, I don’t think — it’s not enough evidence for me to anything [sic]. I mean, if I can’t get my questions [sic].

Q. And what do you think would be the effect of it, if at the end of the case if you had some questions that you wanted one side or the other to ask, but nobody had asked them, what effect would that have?

A. If you asked me if I had any questions, I would respond. It means everything was really clear to me.

Q. And you understand, as a juror, you would not have the opportunity to ask any questions and you won’t have an opportunity to tell either side what questions you would wish they might ask. If you had questions in your mind at the end of the case, nobody is going to know what they are. And so how do you think that would play out?

A. Well, I’d have to go and ask the rest of the jurors. I’d ask them what they think.

Q. Again on page seven, you were asked to agree or disagree with a statement. And I’m looking at the second one. It says capital murder is absolutely never justified. And you checked that you agreed with that, that capital murder is absolutely never justified. Do you think that capital murder with the death penalty being assessed is an unfair punishment, too harsh?

A. Well, in some eases I believe so.

Q. And when would it not be too harsh?

A. When you don’t have enough evidence.

Q. Also on page seven, it says capital murder cannot be regarded as a sane method for dealing with crime. It’s the one, two, three, four — fifth one down, and you checked that you agreed with that, that capital murder is not a sane way of dealing with crime.

A. Which one is it?

Q. Let me show you. Right here. Capital punishment cannot be regarded as a sane method for dealing with crime. And you checked that you agreed with that. Can you tell me what your thoughts are on that.

A. First place. I really doesn’t (sic) understand it.

Q. On page eight, it’s the fifth one down. It says: Capital punishment is the most hideous practice of our time. And you were asked to agree or disagree with that. And you said that you agreed, that capital punishment is the most hideous practice of our time. Tell me your feelings about that.

A. That’s the hardest crime there is, to me. I mean, it’s either death or life. How much rougher can it be.

Q. You think that the State, having the ability to take a man’s life, is a proper use of power by the State in a proper case?

A. Yeah.

Q. You indicated on page eleven that you do know somebody who has been in jail or prison or who is in jail or prison. What is the relationship between that person and you? Is it a neighbor or—

A. A friend.

Q. It’s a friend. Did you follow his case at the time that he was found guilty, whether it was a plea or a trial or whatever, were you—

A. No.

Q. Do you know very much about the facts of the case or do you have an opinion as to whether his sentence was just or unjust.

A. Well, I believe it was just. He got caught stealing a car.

Q. Okay. And on page ten, if you go back one page, it says: If someone is accused of capital murder he should have to prove his innocence. And you said that you strongly agree.

Do you understand that people are presumed innocent by law and it is up to the State to prove that they’re guilty. It is not up to a defendant to prove their innocence. Would you, nevertheless, require a defendant charged with capital murder to prove his innocence?

A. I believe people have to prove it strongly. I mean, that’s just like if I walk out there and I start a fight, who are you going to believe? I mean, I’ve got — you can say I hit this guy and I can say I didn’t, you know, I’m innocent, that I know I didn’t. But the guy said I did. So, I’ve got to prove that I didn’t. I’ve got to strongly prove to you that I didn’t.

Q. If you were a juror in this case, and the Judge will tell you that the defendant doesn’t have any burden to prove his innocence. It is the State’s burden to prove his guilt. But would you, nevertheless, expect a defendant charged with capital murder to take it upon himself or herself to prove to you, hey, I didn’t do this?

A. Naw, that’s up to the lawyers to do it. I mean, he won’t be able to do it. It’s up to his lawyers.

Q. But you would expect the defendant’s lawyer to prove to you that he’s not guilty?

A. Right.

Q. Even if the Judge says it’s not their responsibility to give you that proof, it is our responsibility to give you the proof of his guilt?

A. He’d have to prove that’s he’s guilty, the same way.

Q. You were asked, I believe on page 24, 25 — page 25, you were asked to respond to the question: My friends describe me as. And you put “crazy.” Tell me in what way would your friends think that you’re crazy.

A. I joke a lot.

Q. If the defendant in a capital murder case was found guilty by the jury, and you were a member of that jury, and you were on the jury that now is considering the punishment phase, and you’re to answer these three questions. And if you answered these three questions with a yes, and a yes, and a no, you’re going to know that the result of that is going to be that the defendant is going to be sentenced to death. Could you, in a proper case, answer those three questions in such a way that a death penalty would be the result?

A. Yeah.

b. Defense Counsel’s Voir Dire Examination

After attempting to explain the State’s burden of proving petitioner’s guilt beyond a reasonable doubt, petitioner’s trial counsel continued his voir dire of Mr. Galloway as follows:

Q. Okay. And it is not beyond all doubt. It’s just beyond a reasonable doubt.

A. I understand.

Q. They might bring you evidence a particular defendant has made a confession. That would be pretty good evidence, wouldn’t you agree?

A. Right.

Q. Provided you think the confession was voluntary. The point is, in an appropriate case you could find the defendant guilty if the State met its burden and proved his guilt beyond a reasonable doubt; could you not?

A. Yes.

Q. And in an appropriate case you could answer the questions in such a way that would result in the death penalty being pronounced; could you not? I mean, if the evidence was there, you could answer the questions in such a way that the defendant would get the death penalty; could you not?

A. If I felt there was enough evidence.

Q. Okay. And do you think that you could give both the State and Defense both a fair trial?

A. Yes, I know I can.

Q. Now, I just happened to notice, and you probably noticed too, that the defendant in this case is Black. And you happen to be the only Black jury member in the entire panel. Would the fact that the defendant is Black cause you to treat him any differently—

MR. MULLINER: I object to that as being untrue. He is not the only—

THE COURT: Sustained. It has nothing to do with this case. Go ahead Mr. Reece.

Q. (By Mr. Reece) Would the fact that the defendant is Black, would that cause you to accord him any more bias or sympathy in his favor if he were White or Hispanic?

MR. MULLINER: I object to the question.

THE COURT: Sustained.

MR. MULLINER: I’d asked that the respective juror be instructed to disregard the question.

THE COURT: It’s denied. Go ahead.

Q. (By Mr. Reece) You can think of no reason why, whatsoever that you could not be fair and impartial; is that correct?

A. Huh-Huh.

Q. You wouldn’t let anything influence your decision other than the evidence in the case; is that correct?

A. Right.

Q. Okay. And in an appropriate case you could return a verdict that would result in the death of the defendant, is that correct?

A. If we voted that way, yeah.

Q. I’m sorry?

A. If we voted that way, yeah.

Q. And you heard the State ask you in the questionnaire something to the effect, you made the statement that, you said, I agree that capital punishment is the most hideous practice of our time.

You indicated that you didn’t understand some of the questions and you were in a hurry to answer them; is that correct?

A. Right.

Q. Okay. Just so the record is crystal clear on this point, you have no hesitation in assessing capital punishment in an appropriate case; is that correct? Whatever feelings you might have, you think sometimes it’s justified; is that correct?

A. Right.

Q. It just depends on the evidence, doesn’t it?

A. Depends on the evidence.

Q. And so in your questionnaire you’re saying that you answered that because you didn’t really understand the question; is that right?

A. (Moving head up and down).

Q. You also answered in your questionnaire that sometimes capital punishment gives the criminal what he deserves; is that correct? Sometimes he deserves it?

A. Right.

Q. And you do agree with that; is that correct?

A. Yes.

Q. And you also indicated in your questionnaire that we must have capital punishment for some crimes; is that correct?

A. True.

Q. And you agree with that, is that right? Now, you also said that capital punishment is wrong but it is necessary in our imperfect civilization. You said you agreed with that. But again, you also said you were confused when you made the answers; is that correct?

A. Right.

Q. So you would agree for the record then that sometimes capital punishment is not wrong. It is exactly what’s needed. It just depends on the evidence; is that correct?

A. Right.

Q. Okay. And in your questionnaire the prosecutor asked you what you meant when you said that I agree with the statement that capital punishment cannot be regarded as a sane method for dealing with crime. Again, you indicated to him that you were in a hurry, you didn’t really understand?

A. Didn’t understand.

Q. You would agree then that capital punishment can be a sane method for dealing with crime. Once again, it depends on the evidence in the case; is that right?

A. I can’t — I believe so, yes.

Q. And you said in your questionnaire, you said that you agreed that capital punishment is absolutely never justified. But, again, you indicated that you didn’t understand, because you told both the prosecutor and me that sometimes capital punishment is justified. Is that correct?

A. Right.

Q. You don’t have anything against the death penalty, do you?

A. No, not really.

Q. Okay. And you also said that you agreed that capital punishment is sometimes the best preventative to crime; is that correct? If you killed somebody, they can’t commit crime; is that correct?

A. Repeat that.

Q. That’s on page seven of your questionnaire. I believe you stated that you agreed that capital punishment may be wrong but it is the best preventative to crime. You agree that sometimes it is the best preventative; is that right?

A. Right.

Q. So, as you look at the prosecutors and as you look at the defense lawyer, and as you look at the Judge, you can tell all of us that if you’re selected to sit on the jury, if you take an oath to follow the law, that you would have no hesitation whatsoever in imposing the death penalty, if the State proved the defendant’s guilt beyond a reasonable doubt. And if they satisfied the burden of proof beyond a reasonable doubt to the first two questions, and the third question you were convinced that there were no mitigating evidence, you could, in fact, vote for the imposition of the death penalty, if the evidence was there. Is that correct?

A. Right.

MR. REECE: I have no further questions.

c. Belated Batson Objection and Batson Hearing

After the prosecutor asked Mr. Galloway a question about aircraft engines, counsel for both parties indicated they had no further questions. Thereupon, the following occurred:

MR. MULLINER: Yes, Judge, we exercise the challenge.

THE COURT: Mr. Galloway, you are excused from jury duty. Thank you very much for your time, sir.

[Prospective juror excused.]

MR. REECE: Your Honor, I just — at this portion I just want the record to reflect—

MR. MULLINER: Just wait.

(Pause.)

THE COURT: First of all, assuming you’re going to do a Batson challenge. You’re supposed to do that before I excuse the juror, but go ahead. The juror has already been excused, but go ahead, Mr. Reece.

MR. REECE: — in regard to that, we can bring him back in. I just—

THE COURT: I already excused the juror. I waited for you and you didn’t— I looked at you and you didn’t say anything. I excused the juror, but go right ahead.

MR. REECE: I wanted the record to reflect, Your Honor, that the State has excused one hundred percent of the Blacks, from our personal list, array.

THE COURT: There’s no evidence of that. I beg your pardon. Where’s the evidence of that?

MR. REECE: When they brought the jury panel in—

THE COURT: I’m sorry, but I don’t have any evidence of that.

MR. REECE: Well, we can produce testimony.

THE COURT: Before you do so, you need to produce that, but go ahead. There’s no evidence of that.

MR. REECE: Okay. I would ask the Court to notice that the—

THE COURT: I will notice that Mr. Galloway was African American.

MR. REECE: Okay.

THE COURT: Go ahead.

MR. REECE: And I would ask the Court to notice that the — that Mr. Galloway answered that he could impose the death penalty. He seemed like a very strong pro-State juror and I would ask the court to require the prosecutor to present some racially neutral reasons for—

THE COURT: I think the proper thing is that you can question them, if you’d like. Would you like to question them?

MR. REECE: Sure.

THE COURT: Mr. Mulliner, would you raise your hand?

MR. MULLINER: I respectfully object to being questioned unless the proper predicate has been laid under Batson. And it has not.

THE COURT: Raise your hand, Mr. Mulliner.

(Counsel sworn in.)

THE COURT: Go ahead.

MR. REECE: Question him from here?

THE COURT: Yes, sir.

JEFFREY MULLINER

having being [sic] first duly sworn, testified as follows:

DIRECT EXAMINATION

Q. Mr. Mulliner, is it your testimony that there was some other Black venireperson on the jury other than Mr. Galloway?

A. At a minimum there’s—

THE COURT: Let’s get to the issue of why he Struck him. That’s the whole point of this. Whether there’s fifty other Blacks or none, that’s not the issue at this point, because you haven’t proven anything along those lines.

Q. (By Mr. Reece) Okay. You heard the response to the questions propounded from you to Mr. Galloway and you heard the response to his questions propounded by the defense. Would you please state for the record exactly what it was that caused you to exercise your peremptory challenge with respect to Mr. Galloway.

A. It was, firstly, his responses to the questionnaire, which was, I put a great deal of weight on a person’s first impression. And with regard to Mr. Galloway’s first impression, I principally relied upon his response to the question on page three, where he answered to number six, which says: I believe the death penalty is appropriate.

And I believe Mr. Galloway believes that the death penalty is appropriate in some murder cases. “But I can never return a verdict which addressed the death penalty.”

Furthermore I relied on his response to the question on page four, which says that he would require the State to prove that a capital murder defendant previously had been in trouble with the law before he could assess the death penalty. He indicated, yes, that’s how he felt.

Additionally, his responses to two questions on page six, where he indicated, yes, he does think the death penalty is misused, and he does think the death penalty is used too often.

To his response on page seven where he indicated he agrees that capital punishment is absolutely never justified. Where he agrees that capital punishment cannot be regarded as a sane method for dealing with crime. He agrees that capital punishment has never been effective in preventing crime.

On page eight, he agrees that capital punishment is the most hideous practice of our time.

On page nine, where he indicated that he’s uncertain whether or not he trust [sic] the criminal justice system in Bexar County, San Antonio, Texas.

Having heard his explanation about knowing someone who is in jail or prison, I did not place any emphasis on his response to the questions on page eleven. I was more than satisfied that that would not cause him to be bias t the law that may favor the State in this case.

Q. Is that it?

A. No. On his response to the question on page twenty-five, where he. indicated that “his best friends describe me as crazy.” I did not care for that response. It was somewhat tempered by his explanation, but it still left me feeling a little bit unsettled in terms of the decorum I would want to have on a jury in this case.

I took a note of his gold-hoop earring, which in and of itself, was not a determinant factor, but weighed into my decision. He’s a fifty-two year old aged male, and wearing a gold-hoop earring, that’s a little bit — a statistician would say that that’s kind of an outline or an outlier. It’s not the norm. I’m not interested in having jurors that are outliers of the norm, if it’s possible.

Additionally, I took note of the fact that with regard to your questioning about him being the only Black juror, and your statement about him — which for the record I believe is incorrect— that he is the only prospective Black juror, and that your client is Black, I thought that was an inappropriate and objectionable comment. And the fact that it has been stated and it’s out there, I didn’t like that. In terms of the implied pressure that could bring to bear on him. Pressure that shouldn’t be there, if questioning would have pursued [sic] appropriately and unobjectionably (sic).

And in your questioning of him, you were talking to him about the question that appears on page seven. You asked him about this question: Capital punishment cannot be regarded as a sane method for dealing with crime. You said, do you think that it is a sane method of dealing with crime. He said, “Oh, I can’t” — and then there was something at that moment in his mannerisms that suggested to me that he still does not believe that it is a sane way of dealing with crime. It was his demean- or at that moment that I’m referring to.

But I said the words that he stated, so that on the record, the reviewing court will know the point and time I’m referring to his mannerisms.

And then you asked him if he had anything against the death penalty. He said “no, not really.”

And the “not really” part would receive the only line from me as, and implies that — was something that I took note of.

I think that would be the factors that entered into my mind at the time that I made a decision to exercise a preempt.

MR. REECE: May I proceed?

THE COURT: Yes, sir. Still your witness.

Q. (By Mr. Reece) Now you said that you placed all of those [sic] reliance on the questionnaire, but you heard him answer a lot of the indications that you just said now may even be favorable to the State. You said that he didn’t understand everything in the questionnaire and he was in a hurry of [sic] filling it out. Did you hear that?

A. I heard it and I also know to be the ease that he was not made to be in a hurry to fill it out. If he felt hurried to fill it out, that was something that he— the time constraint was artificial and he imposed it upon himself. And if he did not take the time to fully consider and give thoughtful reflectful (sic) answers to these questions. That’s just one more thing that enters into my mind. No one gave him a time limit.

In fact, I’m aware of the fact that one juror was here until well past 2:00 in the afternoon, having received the questionnaires early in the morning. No one said you have to have them turned in by a certain time.

Q. And you also heard him give very cogent responsive answers to the questions that were propounded by both yourself and myself; is that correct?

A. I heard him give answers.

Q. And he appeared to understand the questions, did he not?

THE COURT: What’s that got to do with it?

MR. REECE: I guess, Your Honor—

THE COURT: How are you getting to a racially or nonracial reason?

MR. REECE: I’ll move along.

Q. (By Mr. Reece) Let me ask you this. Then if you’re placing so much reliance on his questionnaire, why did you take 30 minutes to question him and then let me question him before exercising a peremptory challenge if you’re saying your peremptory challenge was based upon his responses to the questionnaire?

A. I didn’t.

Q. Or take twenty minutes, I’m sorry.

A. I took eighteen minutes and then you took your time. And that’s really not any different than the way it will go throughout this entire process.

Q. And you did hear him state that if you prove the case beyond a reasonable doubt he would, without hesitation, impose a death sentence. Did you hear him say that?

A. I heard him say that. And the record will reflect exactly what the question was and what his answer was. But I think that’s an inaccurate summary of what he stated to you.

Q. And you’ll notice, will you not on the questionnaire, that he said that the most important objective of punishment is to punish those convicted, on page sixteen. Do you recall that?

A. Could you rephrase your question. I didn’t hear the first part.

Q. Do you recall from looking at the questionnaire that, on page sixteen, that he rated the number one objective of punishment is to punish those convicted.

Do you want to look at that?

MR. MULLINER: As both the witness and prosecutor, I would object to the question and ask this: That juror’s questionnaire, for juror number seven, be admitted into evidence exhibit for the purpose of this Batson hearing?

THE COURT: I have no problem doing it. It’ll be done.

MR. REECE: Can he answer the question?

THE COURT: How is it relevant?

MR. REECE: Because he answered it in the way — the reason it’s relevant is because the prosecutor indicated that the first objective was to punish those convicted. That is a prosecution friendly objective. That makes him very likely to assess the death penalty based upon the answer to the question.

THE COURT: Was he questioned about that by Mr. Mulliner?

MR. REECE: It’s in the questionnaire.

THE COURT: No, was he questioned about that by Mr. Mulliner?

The questionnaire is going up to the reviewing Court, assuming there is one. So, if he saw it or didn’t see it, what does it have to do with it?

MR. REECE: Because Mr. Mulliner placed a lot of reliance on the questionnaire. He’s picking out selective portions to the questionnaire—

THE COURT: You could ask him about every single question.

MR. REECE: But I don’t plan to do that. I just want to—

THE COURT: Mr. Dickson, is there an objection to that question?

MR. DICKSON: Well, judge, I guess we’d simply object to, because the exhibit, namely the questionnaire, is going to be in the record—

THE COURT: Sustained. Next question?

MR. REECE: No other questions.

THE COURT: Do you have any questions of Mr. Mulliner, Mr. Dickson?

MR. DICKSON: No.

THE COURT: All right. I’m going to find that he gave racially neutral reasons and Mr. Galloway is excused as a juror.

Proper remedy, Mister — is for me to seat the juror, assuming that — give racially neutral reasons. Once I excuse him, I can’t do that. It is too late if you make any objections after I excuse him, for what it’s worth.

Bring in the next juror.

MR. REECE: Well, you said that you had already excused him, Judge.

THE COURT: I had already excused him. You could have said, wait a minute, I have a Batson challenge. There’s nothing to stop you. I didn’t prevent you from doing that. You need to do that.

MR. REECE: Okay.

THE COURT: Bring in the next juror.

2. D