Williams v. Davis (192 F. Supp. 3d 732, 2016)

MEMORANDUM OPINION AND ORDER

NANCY F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE

In 1983, a jury convicted Arthur Lee Williams of the capital murder of a police officer. The jury answered Texas’s special issue questions in a manner requiring the imposition of a death sentence. After unsuccessfully availing himself of Texas’s appellate and post-conviction remedies, Williams seeks federal habeas relief from his conviction and sentence pursuant to 28 U.S.C. § 2254 [Doc. #7].

Respondent Lorie Davis has answered the petition [Doc. #20]. The Court has thoroughly examined the record in this case, including the state court pretrial, trial, appellate, and habeas proceedings. Based on this review and the application of governing legal authorities—giving due consideration to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)—-the Court finds that constitutional error in the punishment phase jury instructions requires that Texas either (1) commute Williams’ sentence to one of life imprisonment or (2) hold a new sentencing hearing.' The Court concludes, however, that habeas relief is unavailable on all grounds relating to Williams’ conviction. The Court will discuss the reasons for these rulings at length below.

BACKGROUND

In 1982, the State of Texas charged twenty-three-year-old Williams with capital murder for “intentionally and knowingly, causing]-the death of Daryl Wayne Shirley ..., a peace officer in the lawful discharge.of an official duty, by shooting [him] with a gun, knowing at the time that [he] was a peace officer.” Clerk’s Record at 6. Williams stood trial in the 208th District Court of Harris County, Texas in 1983. Trial testimony showed the following: Williams, a convicted felon from Minnesota, had absconded to Texas after his parole td a half-way house. While in Texas, Williams lived with his sister and began using the name Marvin Dean Ho-gues.

Authorities in Minnesota issued a warrant for his arrest. The Harris County Police Department assigned Shirley, an officer in the Fugitive Criminal Warrant Division, to find and arrest Williams.

In the afternoon of April 28, 1982, Williams shot Detective Shirley during a scuffle at an apartment building where he was staying. Detective Shirley, who was wearing plain clothes and a cowboy hat, approached Williams as he left an apartment with a friend. Detective Shirley called Williams by his real name, drew his weapon, placed it against Williams’ head, and pushed Williams up against a wall. Williams yelled for his friend to get help. A struggle ensued and the men fought for Detective Shirley’s gun. As the two men wrestled on the ground, Detective Shirley shouted for an onlooker to call the police. Williams shot Detective Shirley twice with his own gun. Williams picked up Detective Shirley’s gun and fled.

The police soon arrested Williams. Williams was tried in 1983. The trial focused on the indictment’s allegation that Williams killed during the' “lawful discharge of [Officer Shirley’s] official duty ... knowing at the time that [he] was ■ a peace officer.” The State argued that the trial testimony and evidence -showed that Detective Shirley had unquestionably identified himself as a police officer, with the intent of arresting Williams. Williams’ trial attorneys argued that Williams did not know that the victim was a police officer. The defense disputed whether Detective Shirley had actually identified himself as such and argued that Williams fought with Detective Shirley because Williams had previously been assaulted by a man pretending to be a police officer. Williams’s federal petition explains:

a few months before the incident with Detective Shirley, he was accosted by a man with a gun who forced his way into his apartment by identifying himself as a police officer. The man then attempted to rob Williams and was shot in an ensuing struggle. These circumstances made Williams much more wary of strangers and caused him to react more defensively to any perceived danger.

Doc. # 7, p. 28. The defense asked jurors to find that Williams did not know that he was shooting a police officer.

The jury found Williams guilty of capital murder. Texas law required the jury to determine Williams’ sentence by answering three special issue questions:

Special Issue No. 1

Was the conduct of the defendant, Arthur Lee Williams, Jr., AKA Marvin Dean Hogues, committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

Special Issue No. 2

Is there a probability that the defendant, Arthur Lee Williams Jr., AKA Marvin Dean Hogues, would commit criminal acts of violence that would constitute a continuing threat to society?

Special Issue No. 3

Was the conduct of the defendant, Arthur Lee Williams Jr., AKA Marvin Dean Hogues, in killing Daryl Wayne Shirley, the deceased, unreasonable in response to the provocation, if any, by the deceased?

Clerk’s Record at 209-10. At the time of trial, Texas law did not include a specific instruction for jurors to consider mitigating evidence.

In the penalty phase, the prosecution presented testimony and evidence of Williams’ lawlessness. Williams had previously committed armed robbery and had carried weapons. The police suspected that Williams had. committed burglary. Eight people from Williams’ home state of Minnesota testified that he had a bad reputation for not being peaceful or law abiding. The defense did not call any witnesses or present any testimony in the punishment phase.

The jury answered Texas’ special issue questions in a manner requiring imposition of a death sentence. Williams appealed his conviction and sentence. Among other issues, Williams complained that the prosecution unconstitutionally used its peremptory strikes to remove African-Americans from the jury panel. The Texas Court of Criminal Appeals affirmed Williams’ conviction and sentence. Williams v. State, 682 S.W.2d 538 (Tex.Crim.App.1984). Williams filed a petition for a writ of cer-tiorari in the United States Supreme Court. While Williams’ petition was pending review, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Supreme Court subsequently held that Batson applied retroactively. Griffith v. Kentucky, 479 U.S. 814, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Supreme Court vacated the Court of Criminal Appeals’ judgment against Williams and remanded the case for renewed consideration in light of Batson. Williams v. Texas, 479 U.S. 1074, 107 S.Ct. 1266, 94 L.Ed.2d 128 (1987). In turn, the Court of Criminal Appeals remanded the case to the trial court for a Batson hearing. Williams v. State, 731 S.W.2d 563 (Tex.Crim.App.1987).

The trial court held a Batson hearing in 1988. The trial prosecutors provided race-neutral justifications for their peremptory strikes. The trial court issued findings of fact and conclusions of law rejecting Williams’ Batson claim. Supplemental Clerk’s Record at 29-40. The Court of Criminal Appeals again affirmed Williams’ conviction on appeal. Williams v. State, 804 S.W.2d 95 (Tex.Crim.App.1991). The Supreme Court denied certiorari review. Williams v. Texas, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991).

State habeas review spanned the next two decades, with long periods where Williams’ case languished in inactivity. On September 24, 1991, volunteer attorneys filed a petition for a writ of habeas corpus (“1991; application”) on Williams’ behalf raising thirty-nine grounds for relief. S.H.R. 6-155. Williams moved for discovery and for an evidentiary hearing on his claims. S.H.R. at 171-78, 187-88. In 1993, the State of Texas filed a lengthy answer. S.H.R. at 201-323. The State also requested that the trial court designate issues for resolution in the case. S.H.R. at 198-99.

At some point in 1991, Randy Schaffer, Esq., began representing Williams. On December 27, ■ 1993, Mr. Schaffer filed an Amended Application for Writ of Habeas Corpus (“1993 application”). S.H.R. at 354-482. The 1993 application i-aised sixteen allegations, with numerous subsections. The 1993 application contained numerous issues asserted in the 1991 application, and raised several other issues for the first time. The State filed a supplemental answer four years later. S.H.R. at 555-628.

On June 5, 2001, Mr. Schaffer sent the trial court a letter abandoning several claims in the 1993 application “in view of intervening caselaw.” Also, Mr. Schaffer told the trial court that it “need not consider the grounds raised in the initial application filed by volunteer lawyers from Minnesota [the 1991 application].” Supplemental S.H.R. at 2.

On the State’s motion in 2002, the trial court found that “no controverted previously unresolved factual issues material to the legality of [Williams’] confinement exist” and ordered the parties to submit proposed findings of fact and conclusions of law. S.H.R. at 634.

Williams filed proposed findings and conclusions in 2004. Before the trial court acted on parties’ filings, Williams filed a “Supplement to Amended Application for a Writ of Habeas Corpus” in 2005. S.H.R. at 653-65 (“Supplemental Application”). Relying on new Supreme Court precedent from Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), Williams again urged a Batson claim. Williams’ supplemental application, however, only argued that the State had unconstitutionally exercised a peremptory strike on one prospective juror because of her race.

In 2008, the State filed proposed findings and conclusions. With the exception of adding two conclusions of law, the trial court signed the State’s proposed order verbatim on November 19, 2008. S.H.R. at 746-82, The trial court found that Williams “abandoned his habeas claims” raised in the 1991 application, S.H.R. at 757, 769. Also, the trial-level habeas court found that Williams’ state habeas arguments lacked merit. The trial court sent the findings and conclusions to the Court of Criminal Appeals. The trial court’s recommendation did not adjudicate the issue raised by Williams’ 2005 Supplemental Application, but forwarded that document to the Court of Criminal Appeals.

On January 29, 2009, Mr. Schaffer sent a letter to the Court of Criminal Appeals clarifying that he had abandoned several claims from the 1993 application. Mr. Schaffer explained: “I filed an amended application in 1993 with 16 grounds for relief. I abandoned all or part of ten of those grounds in 2001 because of intervening caselaw.”

Observing that the trial court failed to make findings of fact and conclusions of law on one claim, the Court of Criminal Appeals remanded for the development of that issue. Ex parte Williams, 2009 WL 1165504, at *1 (Tex.Crim.App.2009). Also, the Court of Criminal Appeals found that the issues raised by Williams’ supplemental application satisfied the abuse-of-the-writ provisions of Texas Code of Criminal Procedure article 11.071, § 5, and remanded the Batson issue for consideration by the trial court.

The trial-level habeas court held a hearing, regarding the, issues on remand. The trial court orally denied the remanded issues. Supp. S.H.R., Transcription of Writ Hearing of June 7, 2010. On June 30, 2010, the trial-level habeas court signed the State’s proposed findings arid coriclusions denying relief on the remanded'-issues. Supp. S.H.R. at 68-78. After briefing and oral argument, the Court of Criminal Appeals denied habeas relief. Ex Parte Williams, No. AP-76455, 2012 WL 2130951 (Tex.Crim.App.2012).

Federal review followed. This Court appointed counsel. Williams filed a federal habeas petition that tracks many of the issues raised in the 1991 application, reurging several claims that Mr. Schaffer had abandoned. Williams’ federal petition raises the following grounds for relief:

1. The State denied Williams a fundamentally fair trial.

A. The State suppressed police dispatch tapes relating to a witnesses’ telephone call.

B. The State refused to disclose police personnel records concerning Detective Shirley and evidence relating to the policies and practices of the Houston Police Department. .

C. The State suppressed exculpatory • evidence concerning an earlier attempted robbery of Williams.

D. The State failed to produce exculpatory evidence from Houston Police Department records relating to the investigating police officers.

E. The State put into evidence photographs of the crime scene that police officers had allegedly staged.

2. The trial court violated Williams’ right to present a meaningful defense.

A. The trial court did not allow into evidence medical records for the man who had allegedly tried to rob him.

B. The trial court did not allow into evidence hotel receipts which corroborated trial testimony about the alleged previous robbery attempt.

C.The trial court erred by not allowing Williams to present other evidence relating to his trial defense.

3. Various alleged trial errors violated Williams’ constitutional rights.

A. The State allegedly harassed and intimidated witnesses.

B. The trial court improperly allowed the prosecution to impeach one of ■ its own witnesses with a prior written statement.

C. The trial court should have given the jury a limiting instruction regarding a witness’ prior inconsis- ■ tent statement.

D. The prosecutor violated Williams’ constitutional rights by telling jurors to consider character evidence in the guilVinnocence phase.

E.The prosecutor violated Williams’ constitutional rights by telling jurors to consider the charac- • ter of the victim and the impact of his death on'his family in deciding whether Williams was guilty of capital murder.

F; The trial court erred by allowing the consideration of victim character and impact evidence during guilt-phase deliberations.

G. Williams is not guilty of capital murder because the victim was not acting in the lawful performance of his duties at the time of the murder.

H. The trial court refused to order the release of criminal records of state and defense witnesses,

I. The trial court limited the funds available for expert and investigative assistance.

J. Prejudicial publicity and the inflammatory atmosphere surrounding the trial deprived Williams of a fundamentally fair trial.

4.Various circumstances during jury selection violated Williams’ rights.

A. The State violated the Sixth, Eighth, and Fourteenth Amendments by removing all black prospective jurors.

B. The State’s use of peremptory strikes to create an all-white jury violated the Thirteenth Amendment.

C. The trial court erred by failing to excuse prospective juror Patricia Hamilton.

D. The trial court erred by excusing prospective juror Wallace Smith.

E. The trial court erred by excusing . ..prospective juror Dorin Ewing.

F. The trial court erred by failing to excuse prospective juror Clell Bel-cher.

G. The trial court erred by failing to excuse prospective juror William Meador.

H. The trial court erred by failing to excuse prospective juror Shirlee Martin.

I. The trial court erred by failing to excuse prospective juror Davalene Fore.

J. The trial court erred when it denied Williams’ motion for additional peremptory challenges.

5. The trial court improperly allowed into'evidence Williams’ history of juvenile delinquency during the guilt/innocence phase.

6. The trial court erred at the punishment stage by allowing State’s witnesses to testify about Williams’ reputation in the community.

7. Texas’ special issue questions did not give jurors an adequate vehicle to consider and give effect to mitigating evidence under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

8. Structural deficiencies in Texas’ capital-sentencing scheme deprived Williams of his constitutional rights.

A. The absence of a specific special issue relating to mitigating evidence prevented trial counsel from providing effective assistance and denied Williams an individual determination of his sentence.

B. The absence of a mitigation special issue chilled counsel’s presentation of mitigating evidence.

C. The Texas capital sentencing statute unconstitutionally prohibited the trial court from instructing jurors at the penalty phase regarding the effect of a “No” vote by one juror.

■ ■ D. The trial court should have instructed the jurors to consider mitigating evidence.

E. The Texas capital statute called for a mandatory sentence of death without the consideration of mitigating circumstances.

F. The special issue questions are unconstitutionally vague.

G. The special issues impermissibly act as aggravating circumstances.

H. Williams’ death sentence was predicated on an invalid aggravating circumstance

I. The jury could not consider mitigating evidence relating to a prior attempted robbery.

J. The trial court erred in admitting proof of Williams’ parole revocation.

K. Texas’ special issue questions are unconstitutionally vague.

•• Respondent has moved for summary judgment [Doc. #20]. The Court denied summary judgment and ordered the parties to provide briefing on several issues [Doc. # 26]. The parties have> .provided the additional briefing [Docs. ## 33, 34]. This case is ripe for adjudication.

PROCEDURAL STATUS OF WILLIAMS’ CLAIMS

The Court’s first task is to determine which claims Williams presents in a manner that allows for federal review. Respondent argues that, even though Williams raised his federal claims in state court, he did not litigate all of them in a manner consistent with the federal exhaustion doctrine. Federal courts have long required inmates to give state courts the first chance to rectify constitutional violations. See Ex parte Royall, 117 U.S. 241, 251-52, 6 S.Ct. 784, 29 L.Ed. 868 (1886). Exhaustion “give[s] the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ....” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Cullen v. Pinholster, 563 U.S. 170, 208, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (“The exhaustion requirement thus reserves to state courts the first opportunity to resolve factual disputes relevant to a state prisoner’s claim.”). Federal courts “rigorously enforce[ ] total exhaustion”-and require inmates to purse “full relief first from the state courts .... ” Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (italics added). Inmates have fully exhausted claims after ,“giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845, 119 S.Ct. 1728; see also Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). AEDPA codifies the exhaustion doctrine and requires inmates to avail themselves of remedies “available in the courts of the State.” 28 U.S.C. § 2254(b)(1).

A. Williams’ Litigation in State Court

Respondent argues that, while Williams may have presented most of his federal claims in state court, he did not exhaust them as understood by federal law. Serious and difficult questions particularly arise concerning the manner in which Williams litigated issues on state habeas review. Williams filed three separate habeas applications, but not all the issues therein proceeded to adjudication. To summarize, the state habeas record contains: (1) a 1991 state habeas application filed" by Williams’ pro bono attorneys; (2) a 1993 application by appointed counsel Mr. Schaffer which renewed some claims from the 1991 application, .limited others, and raised new issues; and (3) a 2005 subsequent habeas application advancing a modified Batson claim. Williams’s federal petition closely tracks his 1991 application, but also includes claims contained in the two later state habeas applications. This convoluted state litigation history results in four categories of claims. Each category of claims presents different questions regarding whether Williams sufficiently exhausted his federal grounds for relief.

First, Williams’ federal petition includes claims from the 1991 petition that Mr. Schaffer did not renew in the 1993 application. In 2002, Mr. Schaffer informed the state courts that Williams had waived all claims advanced in the 1991 application. Respondent argues that Mr. Schaffer’s abandonment .of those claims means that Williams did not fully and fairly present them to the state courts for adjudication.

For the purposes of the exhaustion doctrine, “a state habeas petitioner’s disclaimer of an argument has the same effect as his failure to raise it in the first place.” Johnson v. Cain, 712 F.3d 227, 233 (5th Cir.2013); see also Daniel v. Cockrell, 283 F.3d 697, 701 (5th Cir.2002). By waiving the claims in the 1991 application, Williams “signaled] to the state courts that they need not pass judgment upon” those issues. Johnson, 712 F.3d at 233. Williams’ waiver forfeited his state court remedies and prevented the highest state court from considering those grounds for relief. Proceeding to federal adjudicátion of the claims from ■ the 1991 application “would be inconsistent with comity interests and would subvert the primary purpose of the exhaustion requirement.” Id. at 233-34. Williams has not exhausted the claims that he raised in the 1991 application but did not later renew.

Second, the 1993 application contained several claims that Mr. Schaffer later abandoned. The 1993 application renewed some claims from the 1991 application and also advanced several new grounds for relief. In 2002, Mr, Schaffer advised the state courts that Williams abandoned somé claims from the 1993 application. Because the abandonment prevented the Court of Criminal Appeals from ruling on Williams’ constitutional arguments, those’ claims are unexhausted.

Third, Williams’ federal petition includes at least one claim (claim 7) that Williams raised in the 1991 application, and Mr. Schaffer included with a narrower focus in the 1993 application, yet the Court of Criminal Appeals still gave expansive review. As the Court will discuss at greater length below, the Court of Criminal Appeals’ adjudication of Williams’ Penry claim defines the extent to which Williams has exhausted state court remedies. This Court’s review of the Penry claim should be co-extensive with that which the Court of Criminal Appeals adjudicated. See Jones v. Dretke, 375 F.3d 352, 355 (5th Cir.2004) (finding that exhaustion was satisfied, despite the fact that the inmate had argued a different theory, when the Court of Criminal Appeals “undertook to decide it on the merits sua sponte” under the same theory advanced in federal court). The extent of the Court of Criminal Appeals’ review defines the Penry issues available for federal review.

Fourth, Williams-’ federal petition raises several issues that he either exhausted on direct appeal or advanced in his 1993 application that Mr. Schaffer did not later abandon (claims 3(e); 4(a), (c), (e), (f), (g); and part of 8). The merits of those claims are fully before this Court.

Accordingly, the Court finds that Williams only raised claims 3(e); 4(a), (c), (e), (f), (g); 7; and 8(b), (d), (e) in a manner consistent with the federal exhaustion doctrine. The merits of those claims are fully available for federal review;

B. Procedural Bar

Respondent argues that this Court cannot consider the merits of any claims that Williams did not fully exhaust in state court. Federal precedent generally favors the dismissal of “mixed petitions”those raising both exhausted and unex-hausted claims-to allow state court review. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, Texas’ abuse-of-the-writ doctrine (codified at Texas Code of Criminal Procedure article 11.071, § 5) generally precludes inmates from filing successive state habeas applications, preventing inmates from returning to state court in order to exhaust their claims. Thus, a procedural default results when an inmate advances for the first time in federal court a claim that the state courts would bar on procedural grounds. See Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997).

A procedural bar is not insuperable. The Supreme Court has noted:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. '

Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added). Williams’ most recent briefing seems to suggest that state habe-as counsel’s litigation strategy should forgive the procedural bar.

The Supreme Court in Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309, 1318, 182 L.Ed.2d, 272 (2012), and Trevino v. Thaler, — U.S. —, 133 S. Ct. 1911, 185 L.Ed.2d 1044 (2013), held that state habe-as counsel’s representation may forgive federal impediments to review under limited circumstances. Here, Mr. Schaffer’s decision not to adopt various argdments from the 1991 application, and then to abandon issues from the 1993 application, provides a potential basis for Williams’ ineffective-assistance-of-habeas-counsel argument. Limitations on the Martinez exception, however, preclude deficiencies in habeas representation from opening the door to federal review in this case. Martinez and Trevino only created only “a narrow exception” for the “procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315; see Reed v. Stephens, 739 F.3d 753, 778 nn. 16 & 20 (5th Cir.2014) (declining to extend Martinez beyond ineffective-assistance claims). Williams’ federal petition does not appear to raise any ineffective-assistance-of-trial-counsel claim.

As Williams does not make any other argument to overcome the procedural hurdles, the Court cannot consider the claims he defaulted in state court. Only claims 3(e); 4(a), (c), (e), (f), (g); 7; and 8(b), (d), (e) from Williams’ federal habeas petition are fully available for federal review.

ANALYSIS OF CLAIMS AVAILABLE FOR FEDERAL REVIEW

Before turning to the merits of Williams’ exhausted claims, the Court discusses the deferential review afforded state court decisions. The Court then addresses the procedurally available claims relating to the guilt/innocence and penalty phase in turn.

I. STANDARD OF REVIEW

The writ of habeas corpus provides an important, but narrow, examination of an inmate’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). “Society’s resources have been concentrated at [a criminal trial] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.” Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also McFarland v. Scott, 512 U.S. 849, 859, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (stating that a “criminal trial is the ‘main event’ at which a defendant’s rights are to be determined”). The States, therefore, “possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating . constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Federal habeas law “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, — U.S. —, 134 S. Ct. 10, 15, 187 L.Ed.2d 348 (2013); see also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (recognizing AEDPA’s “presumption that state courts know and follow the law”). Given this required deference to the state court system, several principles circumscribe both the nature of federal habeas review and the availability of federal habe-as relief.

If the inmate has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides for a deferential federal review. “[A] habeas petitioner has the burden under AEDPA to prove that he is entitled to relief.” Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000); see also DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir.2002). “[T]ime and again,” the Supreme Court “has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose cláims have been adjudicated in state court.’” White v. Wheeler, — U.S. —, 136 S. Ct. 456, 460, 193 L.Ed.2d 384 (2015) (quoting Titlow, 134 S.Ct. at 16). Under AEDPA’s rigorous showing, an inmate may only secure relief after showing that the state court’s rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

Inmates arguing legal error in state court decisions must comply with § 2254(d)(l)’s “contrary to” and “unreasonable application” clauses. See Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A petitioner does not merit relief by merely showing legal error in the state court’s ■ decision. See White v. Woodall, — U.S. —, 134 S. Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (stating being “merely wrong” or in “clear error” will not suffice for federal relief under AEDPA). In contrast to “ordinary error correction through appeal,” AEDPA review exist only to “guard against extreme malfunctions in the state criminal justice systems .... ” Woods v. Donald, — U.S. —, 136 S. Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (quotation omitted). “[F]o-cus[ing] on what a state.court knew and did,” Pinholster, 563 U.S. at 182, 131 S.Ct. 1388, AEDPA requires inmates to “ ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Woodall, 134 S. Ct. at 1702 (quoting Richter, 562 U.S. at 103, 131 S.Ct. 770); Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010); Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102, 131 S.Ct. 770.

.[19] A petitioner challenging the factual basis for a state decision must show that it was an “unreasonable determination of the facts in light of the evidence ....” 28 U.S.C. § 2254(d)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). A federal habeas court must also presume the underlying factual determinations of the state court to be correct, unless the inmate “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341, 123 S.Ct. 1029; Young v. Dretke, 356 F.3d 616, 629 (5th Cir.2004) (“As a federal habeas court, we are bound by the state habeas court’s factual findings, both implicit and explicit.”).

An inmate’s compliance with 28 U.S.C. § 2254(d) does not guarantee habeas relief. See Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (observing that no Supreme Court case “ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]”); Robertson v. Cain, 324 F.3d 297, 306 (5th Cir.2003) (finding that 28 U.S.C. § 2254(d) “does not require federal habeas courts tó grant relief reflexively”). A habeas petitioner meeting his AEDPA burden generally must still comply with weighty jurisprudential tenets, such as the harmless error doctrine and the non-retroactivity principle, that bridle- federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n. 2 (5th Cir.2005). Thus, any error cannot require habeas relief unless .it “ha[d] a ‘substantial and injurious effect, or influence in determining the jury’s verdict,’” Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353.(1993)), or would not require the creation of new constitutional law, see Banks, 536 U.S. at 272, 122 S.Ct. 2147 (relying on Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)).

With those standards in mind, the Court turns to the exhausted issues presented in Williams’ federal petition.

II. GUILT/INNOCENCE PHASE CLAIMS

Claims 1 through 5 from Williams’ federal petition raise issues from the guilVin-nocence phase of trial. As discussed previously, only trial phase claims 3(e); 4(a), (c), (e), (f) and (g) are properly before this Court. Williams has not shown that those claims merit federal habeas relief.

A. The Prosecutor Improperly Told Jurors to Consider the Victim’s Family in the Guilt/Innocence Phase (Claim 3(e))

Williams argues that the prosecution’s plea for sympathy toward the victim’s family in the guili/innocence phase summation violated his constitutional rights [Doc, # 7, pp. 94-96]. The prosecutor closed the guilt/innocence arguments by reminding jurors that: “Detective Shirley’s family doesn’t have his love and comfort any more. He is not going to be able to come home and tell them that he loves them. He is not going to be around at Christmas.” Tr. Vol. 24 at 118. Trial counsel objected, and the trial court instructed the jury to “disregard [that] line of argument.” Tr. Vol. 28 at 119. The trial court denied trial counsel’s request for a mistrial. Tr. Vol. 28 at 119.

In Williams’ 1993 habeas application he argued that the State’s summation violated his rights to due' process and a fair trial. S.H.R. at 414. The state habeas court provided two reasons for denying this claim. First, the state habeas court found that trial counsel “objected to the State’s argument concerning the complainant and his family, and that the trial court instructed the jury to disregard such argument .... ” S.H.R. at 757. The state habeas court concluded that “harm, if any, in the State’s guilt-innocence argument ... was cured by the trial court’s instruction to disregard.” S.H.R. at 776. Second, the state habeas court found no constitutional error in what was essentially victim-impact argument. Citing Texas law, the state habeas court found that “the result of the proceeding would [not] have been different based on the overwhelming evidence of defendant’s guilt” and held that Williams “fail[ed] to show that the State’s jury argument that the complainant’s family no longer had his love, comfort, and presence at Christmas deprived [him] of due process and a fair trial.” S.H.R. at 776.

Williams’ federal petition again argues that “[v]ictim character and impact evidence has no relevance whatsoever to the question of guilt.” [Doc. #7, p. 96]. Williams, however, does not respond to the state habeas court’s primary holding: -that the trial court cured any error by instructing jurors to disregard that line of argument. Federal courts “presume that jurors understand and follow them instructions, abandoning that presumption only when there is an overwhelming probability that the jury will be unable to follow the instruction and there is á strong probability that the effect is devastating.” United States v. Patino-Prado, 533 F.3d 304, 313 (5th Cir.2008) (quotation omitted); see also Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Nothing suggests that jurors could not have followed the trial court’s instruction to disregard.

The state habeas court also found that the State’s argument, notwithstanding, did not violate Williams’ rights. S.H.R. at 776. The admission of victim-impact testimony does not violate the Fourteenth Amendment unless the evidence introduced “is so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 824, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Even when the State presents victim-impact testimony or argument in the guilt/innocence phase, an inmate must still show fundamental unfairness resulting therefrom. See Castillo v. Johnson, 141 F.3d 218, 223-24 (5th Cir.1998). A trial is fundamentally unfair when the prosecutor engages in persistent or pronounced misconduct, or the evidence was so insubstantial that in all probability but for the remarks the jury would not have returned a guilty verdict. See Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir.2000); Rushing v. Butler, 868 F.2d 800, 806 (5th Cir.1989).

The State’s reference to the family’s loss was fleeting and isolated. Respondent observes that “the complained-of remarks were brief-they constitute three short sentences in more than one-hundred pages of jury argument” [Doc. #20, p. 58]. The evidence of guilt far outweighed the brief mention of victim’s family. Thus, the alleged improper remarks did not cast serious doubt on the correctness of the jury’s verdict. Williams has not shown that the state court’s resolution of this claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).

B. Racial Discrimination in the Prosecution’s Use of Peremptory Strikes (Claim 4(a))

The State used six peremptory challenges to remove African-American prospective jurors from the panel. No black jurors served at Williams’ trial. Williams claims that the prosecution’s racially motivated use of peremptory strikes violated his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments [Doc. # 7, pp. 108-11]. The Court will discuss the background of Williams’ jury selection before turning to AEDPA review of the state court’s resolution of his Batson claim.

1. Background

The State of Texas tried Williams in 1983 beforé the law held prosecutors accountable for their use of peremptory strikes against individual jurors. Courts assessed cláims of discrimination in the jury selection process under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which required a defendant to “prove that his prosecutor had a systematic and intentional practice of excluding blacks from traverse juries in criminal trials through the exercise of peremptory challenges, and that this practice continued unabated in petitioner’s trial.” Evans v. Cabana, 821 F.2d 1065, 1068 (5th Cir.1987). In essence, Swain “allowed prosecutors to use peremptory strikes to create an all-white jury in individual cases, as long as they did not systematically keep blacks off juries.” Byrd v. Delo, 917 F.2d 1037, 1041 (8th Cir.1990). As a practical matter, lower courts used Swain to place “a crippling burden of proof’ on defendants. As the Supreme Court later noted, Swain “left prosecutors’ use of perempto-ries largely immune from constitutional scrutiny.” Miller-El v. Dretke, 545 U.S. 231, 238, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); see also United States v. Wilson, 816 F.2d 421, 424 (8th Cir.1987) (“Prosecutors seem ... to have been relying on Swain’s evidentiary standard to insulate themselves from being forced by the district court to provide the reasons for their use of peremptory strikes to eliminate black jurors.”).

The record is unclear as to the racial demographics of the entire jury venire in this case. The record, however, specifies the race of some jurors that the State removed. Three African-American prospective jurors were dismissed for cause. The prosecutor used peremptory strikes to remove six African-American prospective jurors: Mansfield Nelson (Tr. Vol. 9 at 810); Jennie Henley (Tr. Vol. 9 at 1359); Pearlie Mae Keller (Tr. Vol. 14 at 1790); Gussie Mae Jones (Tr. Vol. 14 at 1804); Wilburn Gibson (Tr. Vol. 16 at 2071); and Nan Roque (Tr. Vol. 18 at 2374).

Framing his objection in the context of the Swain requirements, defense counsel moved for a mistrial before the jury was seated because the State had consciously and systematically excluded all blacks from the jury. (Tr. Vol. 23 at 14). The trial court summarily denied the defense’s objection, and the law at the time of trial did not require it to do more.

On' direct appeal, Williams complained that the prosecutor used five peremptory strikés to remove African-American prospective jurors solely on the basis of race. The Court of Criminal Appeals relied on Swain to affirm the lower court’s judgment. Specifically, the Court of Criminal Appeals held that “[t]he mere exercise of peremptory challenges is not sufficient to sustain the ground of error; there is no showing of systematic exclusion.” Williams v. State, 682 S.W.2d 538, 543 (Tex.Crim.App.1984).

■ [26] Two years after the Court of Criminal Appeals denied Williams’ appeal, but during the pendency of his petition for a writ of certiorari, the' United States Supreme Court decided Batson. In contrast to the Swain framework, Batson did not require a criminal defendant to demonstrate a history of discriminatory practices by the prosecution. Batson individualized a criminal defendant’s ability to show racial animus, allowing a defendant to “make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case.” Batson, 476 U.S. at 95,106 S.Ct. 1712.

Batson created the scaffolding that a defendant would need to prove racial discrimination. When a party raises a Batson challenge, courts engage in a three-step burden shifting review:

First, the trial court must determine whether the defendant has made a pri-ma facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification profferéd by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

Rice v. Collins, 546 U.S. 333, , 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (quotations and citations omitted); see also Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); Miller-El v. Dretke, 545 U.S. 231, 251-52, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Batson’s burden-shifting scheme placed a greater emphasis on development of a factual record, placing primary importance on specific details reflecting the contemporaneous trial events rather than broad arguments that defined effective Swain claims.

With Batson’s focus on why a prosecutor removed specific individuals, the trial record in this case was insufficient to clarify the intent behind the dismissal of minority prospective jurors. After the Supreme Court granted his petition for cer-tiorari review and remanded the case, Williams v. Texas, 479 U.S. 1074, 107 S.Ct. 1266, 94 L.Ed.2d 128 (1987),the Texas Court of Criminal Appeals ordered the state trial court to hold a Batson hearing, Williams v. State, 731 S.W.2d 563 (Tex.Crim.App.1987).

Five years after jury selection, the trial court held a- hearing to discuss the State’s reasons for striking each black prospective juror. Williams called three criminal defense attorneys to discuss the pattern and practices of the Harris County prosecutor’s office at the time of trial. Each testified that the State would not accept African-American jurors in capital cases unless they could not find a way to dismiss them. The state trial court subsequently did not make any findings regarding the criminal defense attorneys’ testimony.

While both prosecutors had participated in voir dire, Assistant District Attorney Keno M. Henderson “had ultimate responsibility for exercising the peremptory strikes. Accordingly Mr. Henderson provided the reasons for the State striking the six black venire-members.” Supplemental Clerk’s Record at 31. In the 1988 Batson hearing, prosecutor Henderson provided narrative testimony about something the law did not require him to do at the time of trial: provide justifications the State’s exercise of peremptory challenges that, resulted in a jury without any African-American jurors. Courts view an attorney’s post hoc explanation for peremptory strikes with some suspicion. See Jones v. Butler, 864 F.2d 348, 370 (5th Cir.1988) (finding, in a case with a shorter period between trial and the Batson hearing than the instant one, that “[y]ears after trial, the prosecutor cannot adequately reconstruct his reasons for stóking a venireman”). Such .justifications are “subject to the usual risks of imprecision and distortion from the passage of time.” Miller-El, 545 U.S. at 243, 125 S.Ct. 2317.

The state trial court, nevertheless, found that Mr. Henderson gave justifications that “were credible, plausible, and legitimate _” S.S.H.R. at 165. The trial court found that “the State’s general strategy for jury selection in a capital case was to accept the first twelve people who could return a death penalty verdict under the unique set of facts presented in the subject case.” S.S.H.R. at 164; see also Supplemental Clerk’s Record at 29-40. In this case, the state trial court found, that “the State was looking for a juror who was intelligent, capable of understanding the issues, capable of concentrating on the issues without outside interference, capable of making an informed decision based on the evidence, and not prejudiced against either police officers or the State.” S.S.H.R. at 165; see also Williams, 804 S.W.2d at 98.

The Court summarizes Mr. Henderson’s explanations for each African-American juror who was removed:

' • Mr. Nelson did not believe in the death penalty in any circumstance, could not impose a sentence that resulted in death, became agitated during questioning, and changed his answers depending on who was questioning him.

• Ms. Henley preferred a sentence of life imprisonment to death, had difficulty understanding and answering questions, often made no sense, exhibited a lack of concern for the legal process, and expressed no problem with people fighting police officers.

• Ms. Keller possibly had weak ties to the community, had physical difficulties and parental responsibilities that would make it difficult to serve, initially had said that she had never thought about the death penalty but later expressed long-standing concerns about it, said that she could not vote for death, said she would panic if called as a juror, and gave inconsistent answers on cross-examination.

• Ms. Jones vacillated on whether she could answer the special issues, had parental responsibilities that would make it difficult for her to focus on a • capital murder case, was confused with questions, and gave inconsistent answers.

• Mr. Gibson said that he had never thought about the death penalty but later showed a predisposition against capital punishment, said that he’ could not answer the special issues, would have difficulty providing for his family during jury service, and vacillated in his opinion of the death penalty.

• Ms. Roque had parental responsibilities that would make jury service difficult, was not strongly in favor of the death penalty, would hold the State to a higher burden of proof than required by law, had a bias against law enforcement, and had difficulty understanding legal proceedings.

The trial court also found that Mr. Henderson gave “neutral, unambiguous, and non-racial” reasons for exercising those peremptory challenges ... S.S.H.R. at 165. On those findings, the trial court concluded that “the prosecutor in the instant ease did not exercise his peremptory challenges in a discriminatory manner to exclude venirepersons based upon racial considerations, nor did he, in any way, purposefully or deliberately deny jury participation to black persons because of race.” Supplemental Clerk’s Record at 39.

On appeal, the Texas Court of Criminal Appeals “examine[d] the record to determine whether the explanations provided by the State were indeed race neutral on their face, and if so, whether there is evidence which indicates that, notwithstanding such appearances, the utilization of the jury-strikes were nothing more than a pretext for the racially motivated exercise of the peremptory challenge which'provided the prosecutor with the opportunity - to discriminate.” Williams, 804 S.W.2d at 102. The Court of Criminal Appeals concluded after its review that the State’s reasons for dismissing the prospective jurors were legitimate and there was no evidence that the State put forth mere pretexts to hide its purposeful discrimination. See id. at 105.

During the pendéncy of the state habeas proceedings, the law again changed. In 2005, the United States Supreme Court decided Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), which recognized that Batson’s “individualized focus came with a weakness of its own owing to its very emphasis on the particular reasons a prosecutor might give. If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain.” Miller-El emphasized that a defendant at the third step of the Batson inquiry could “rely on all relevant circumstances to raise an inference of purposeful discrimination,” Id. at 240, 125 S.Ct. 2317. Miller-El identified various factors that may give rise to an inference of discrimination: a statistical review of stricken black jurors in comparison to the venire; “side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve”; “broader patterns of practice during the jury selection” including the general policy and practice of the prosecutor’s office; and “contrasting voir dire questions posed respectively to black and nonblack panel members.” Id. at 241, 253, 125 S.Ct. 2317.

After the advent of Miller-El, Williams filed a Supplement to Amended Application for a Writ of Habeas Corpus asking the Texas courts to reconsider the State’s peremptory strikes against black jurors. Williams, however, narrowly focused the arguments in his successive state habeas application.'While briefly mentioning that the “prosecutor used his peremptory challenges to exclude 100 percent of the eligible black veniremen,” Williams centered his briefing nearly exclusively on one element of the Miller-El analysis, a comparison between one stricken black juror, Ms. Jones, and one white juror the State accepted. Williams challenged one of the reasons the prosecutor gave for striking Ms. Jones—that she “would have a problem finding someone to take care of her children only if they got sick or the jury were sequestered-—because ■ “[t]he prosecutor was willing to accept a white female who had to care for a physically disabled husband ....” S.H.R. at 663.

In a footnote, however, Williams made a broader allegation, but without providing substantiation:

There were additional indications that the State exercised peremptory challenges based on race. The prosecutors shuffled several of the venire panels before asking questions. They questioned blacks differently than non-blacks regarding their views on the death penalty and the minimum acceptable sentence. The district attorney’s manual also expressed a general policy of excluding blacks from juries.

S.S.H.R. at 11.

The Court of Criminal Appeals found that Williams’ supplement to his habeas application satisfied the requirements of Texas Code of Criminal Procedure article 11.071, § 5, for the filing of a subsequent state application. On remand, the state habeas court held a June 7; 2010, hearing on Williams’ Miller-El claim. Williams’ ar-guraents in the hearing expounded on the allegations in his successive state habeas application. Williams discussed more broadly the concerns raised by Miller-El, placing greater emphasis on the composition of the venire as a whole in comparison to the stricken jurors. In addition, Williams extensively discussed a then-recent case in which a federal district court had found Batson error in a contemporaneous case in which Mr. Henderson also represented the State. Rosales v. Dretke, H-03-CV-1016, [Doc. #109] (S.D. Tex. Dec. 12, 2008). In Rosales, the petitioner had used the testimony from criminal defense attorneys adduced in Williams’ Bat-son hearing to argue that the Harris County District Attorney’s Office had a pattern and practice of removing black jurors at the time of Williams’ trial.

The trial court signed the State’s proposed findings and conclusions. The decision extensively compared Ms. Jones’ questioning with the white jurors and the entirety of the jury panel. S.S.H.R. at 166-70. With that comparison, the state habeas court again found that “the State’s decision to peremptorily excuse prospective juror Jones, resulting, in part, from Jones’ hardship in the event of a lengthy trial or sequestration, was not based on race, but was consistent with the State’s general, race-neutral strategy for finding jurors ....” S.S.H.R. at 170. The state habeas court concluded that Williams failed to show “disparate treatment ... or that the State’s proffered reasons ... w[ere] a pretext for racial discrimination.” S.S.H.R. at 170. The Court of Criminal Appeals adopted the lower court’s findings and conclusions and denied relief.

2. Williams’ Arguments on Federal Review

Williams has renewed his Batson claim on federal review. Williams’ petition provides two theories to find Batson error. First, Williams disputes Mr. Henderson’s race-neutral explanation because not all black jurors expressed an inability to consider a death sentence and, contrary to his testimony, did not express difficulty understanding his questions. Second, Williams summarily states that all black jurors “were excluded pursuant to the practice and policy of the Harris County District Attorney’s in general and was the regular practice of the prosecutor in this case” [Doc. # 7, p. 110]. Williams’ arguments are insufficient for a meritorious Batson claim, particularly in light of AEDPA deference owed to the state court findings.

“[A] habeas petitioner has the burden under AEDPA to prove that he is entitled to relief.” Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000); see also DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir.2002). A petitioner cannot meet this burden by merely alleging constitutional error in the state courts’ factual findings. Given “the importance of demeanor and credibility evidence in making such determinations,” federal courts “give strong deference to the determination of the trial judge [in Batson claims], consistent with AEDPA,” Woodward v. Epps, 580 F.3d 318, 336 (5th Cir.2009); see also Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (“[W]e decline to overturn the state trial court’s finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous.”). This Court’s role is “to determine whether the trial court’s determination of the prosecutor’s neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary.” Miller-El, 537 U.S. at 341, 123 S.Ct. 1029. Williams’ federal briefing must do more than allege error, he must provide clear and convincing evidence that the state court factfindings were incorrect, 28 U.S.C. § 2254(e)(1), and that its decision was unreasonable, 28 U.S.C. § 2254(d)(2). See Davis v. Ayala, — U.S.-, 135 S. Ct. 2187, 2199, 192 L.Ed.2d 323 (2015) (emphasizing AEDPA’s impact on Batson claims).

Williams first states that “[t]he voir dire of those black jurors does not support a conclusion that Keno Henderson ... exercised these peremptory challenges for race neutral ■ reasons,” specifically because “[tjhreeof the black jurors who were excluded ... expressed no opposition to the death penalty. Instead, the prosecutors alleged that all three were excluded because they could not understand his questions” [Doc. # 33, p. 17]. Williams’ briefing consists only of broad statements about the State’s use of strikes without particularizing his allegations or giving specific examples. Williams’ federal briefing does not identify which stricken jurors did not express opposition to capital punishment. See Murphy v. Dretke, 416 F.3d 427, 436-37 (5th Cir.2005) (finding that petitioner’s reference to “the entire voir dire record” did not show “that the State’s individualized reasons for peremptorily striking each African-American venireperson at issue were actually a pretext for racial discrimination or that any alleged disparate questioning did. not result from reasons other than race”). This is particularly problematic because prosecutor Henderson gave more than one reason for striking each prospective jurors.

Williams also makes two closely related arguments. He contends that “[a] comparison to other jurors is unnecessary in light of the record and the findings of the District Court in Rosales v. Quarterman, [No. H-03-1016,] 2008 U.S. Dist. LEXIS 125130 (S.D.Tex. Dec. 12, 2008).” In Ro sales, the petitioner raised a Batson claim on his conviction which occurred in the same time period as the State’s prosecution of Williams. The federal district court held an evidentiary hearing in which one of the trial prosecutors testified. After that hearing, and in light of the totality of the circumstances, the federal district court granted relief on the petitioner’s Batson claim. Williams’ recent briefing highlights two factors -from the Rosales decision: that (1) one of the prosecutors in the instant case, Keno Henderson, also tried the defendant in Rosales and (2) Mr. Henderson’s “pattern practice and the practice of the Harris County District Attorney’s Office” to discriminate in jury selection.

The federal district court in Rosales discussed those two factors supporting habe-as relief. Those, however, were only two of six factors that “while not conclusively proving discrimination, suggest that race was on the prosecutors’ minds as they selected the jury.” 2008 U.S. Dist. LEXIS 125130, at p. 14. Those factors did “not conclusively prove that the prosecution struck the jurors because of their race,” but were “inferences creating] a backdrop against which the Court must evaluate the prosecution’s justifications.” Id. at p. 20-21.

Recognizing that these two factors are significant, the Court concludes Williams’ token showing of discriminatory intent is insufficient to merit federal habe-as relief. The Supreme Court has not held that a history of discriminatory use of peremptory strikes is sufficient alone to merit Batson relief. Under the Miller-El decisions, a court must consider all relevant circumstances surrounding jury selection. However, a prosecutor’s personal and his office’s general prior history of discrimination, while relevant, does not of itself entitl