Garcia v. Director, TDCJ-CID (73 F. Supp. 3d 693, 2014)

United States District Court for the Eastern District of Texas 2014-11-10

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER OF DISMISSAL

TRAD HEARTFIELD, United States District Judge

Petitioner Gustavo Julian Garcia (“Garcia”), an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Garcia is challenging his capital murder conviction and death sentence imposed by the 366th Judicial District Court of Collin County, Texas in Cause Number 366-80185-91, in a case styled The State of Texas vs. Gustavo Julian Garcia. For reasons set forth below, the Court finds that the petition is not well-taken and that it will be denied.

PROCEDURAL HISTORY OF THE CASE

On December 17, 1991, Garcia was convicted of the offense of capital murder for shooting and killing Craig Turski in the course of committing a robbery at a liquor store where Turski worked. Tex. Penal Code § 19.03(a). After granting the State’s motion for' rehearing, the Texas Court of Criminal Appeals (“TCCA”) upheld Garcia’s conviction and death sentence. Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1996) (Garcia I). Garcia did not file a petition for a writ of certiora-ri.

Garcia filed his first application for a writ of habeas corpus in state court in 1997. On December 31, 1998, the state trial court issued findings of fact and conclusions of law. The TCCA denied the application without written order. Ex parte Garcia, No. WR-40,214-01 (Tex. Crim.App. Feb. 10, 1999) (unpublished).

Garcia filed his first petition for a writ of habeas corpus in this Court on August 23, 1999, which was supplemented on August 16, 2000. Garcia v. Director, TDCJ-ID, Civil Action No. 1:99cv134. In response, the Director confessed error as to Garcia’s claim that the trial court allowed improper testimony by the State’s expert witness during the punishment phase of the trial. On September 6, 2000, as a result of the response, the Court issued a conditional writ of habeas corpus, requiring the State to conduct a new sentencing hearing.

A punishment retrial was begun in January 2001. Based on the jury’s answers to the special issues, Garcia was sentenced to death a second time on March 23, 2001. The Texas Court of Criminal Appeals affirmed the judgment. Garcia v. State, No. AP-71,417, 2003 WL 22669744 (Tex.Crim. App. Nov. 12, 2003) (unpublished) (Garcia II). The Supreme Court denied his petition for a. writ of certiorari. Garcia v. Texas, 543 U.S. 855, 125 S.Ct. 267, 160 L.Ed.2d 91 (2004).

Garcia then filed a second application for a writ of habeas corpus in state court. On February 12, 2008, the state trial court issued thorough findings of fact and conclusions of law. The TCCA denied relief. Ex parte Garcia, No. WR-40,214-02, 2008 WL 4573962 (Tex.Crim.App. Oct. 15, 2008) (unpublished).

Garcia began the present proceedings on November 27, 2008. He filed a petition for a writ of habeas corpus (docket entry # 5) on October 11, 2009. The petition contains sixty-six claims, many of which overlap and are repetitious. Related claims will be grouped together for purposes of discussion and analysis. The Director filed an answer (docket entry #31) on August 1, 2012. Garcia filed a reply (docket entry # 37) on April 26, 2013.

FACTUAL BACKGROUND OF THE CASE

The TCCA summarized the facts of the offense as follows:

The evidence at trial established that on December 9,1990 [Garcia] and Christopher Vargas entered a liquor store, Beverage Warehouse, in the city of Plano.. [Garcia] was armed with a single shot .20 gauge sawed-off shotgun and had additional shells in his possession. [Garcia] ordered the clerk, Craig Turski, to give him the money from the cash register. At the same time, Vargas took beer from the store and put it in their car. A female customer walked in the store, saw [Garcia], and immediately left.

[Garcia] shot Turski at close range in the abdomen. Turski fled outside the store, pursued by [Garcia]. [Garcia] then reloaded the shotgun and shot Tur-ski in the back of the head. The female customer, Donna Delozier Sawtelle, subsequently returned to the store with her husband. Finding the store deserted, they called the police. Turski was found and was transported to the hospital, where he - later died from gunshot wounds.

On January 5, 1991 at. about 12:30 a.m., Vargas, [Garcia] and [Garcia’s] girlfriend (Sheila Phanae Loe) stopped at a Texaco station in Plano. While Loe pumped gas, [Garcia] and Vargas entered the station with the same .20 gauge shotgun used to kill Turski. The clerk, Gregory Martin, was on the phone with his girlfriend. As he saw them enter, he informed her he thought he was about to be robbed and asked her to call the police. Martin was taken into a back room and shot at point blank range in the back of the head. He died at the scene.

[Garcia] claimed Vargas shot Martin. Evidence introduced at trial, however, indicated Vargas was carrying beer to their car (as he did in the earlier robbery) while [Garcia] shot the clerk. In addition, the shotgun was found near the freezer in close proximity to [Garcia] at the time of his capture. Two firearms experts testified at trial that the shotgun found at the scene of Martin’s murder was the same weapon used in Turski’s murder.

Alerted by Martin’s girlfriend, the police arrived at the scene to find [Garcia], Vargas and Loe still present, Vargas was found, unarmed, standing over Martin’s body. He claimed to have just entered the store and found Martin lying there. [Garcia] was found hiding in the freezer area close to where the shotgun was found.

[Garcia] was transported to the Plano Police Department. He was read his “Miranda” warnings repeatedly. He subsequently confessed, both orally and in writing, to the murders of both Turski and Martin. His confessions were videotaped, and a separate written confession was prepared for each offense.

[Garcia’s] written statement regarding the killing of Turski in its entirety reads as follows:

Det. Wilson is writing my statement. Approx. 3-4 weeks from today’s date, Chris Vargas & I robbed a liquor store & I killed the clerk. The liquor store was behind a 7-11 store at Plano Pkwy. & Ave. K. I was driving Sheila’s Chev. Monza. We waited in the liquor store parking lot until the customers all left. Both Chris & I pulled a 20 ga. sawed-off shotgun on the clerk. I had the clerk give me the money out of the cash register & it was about $500. Chris was grabbing up beer. Chris went outside to pull the car up to the front door. I had the clerk go into a little room next to the cash register & I had him get on his knees. A customer, a white woman walked in the store & saw me & she walked back out. I then panicked and I shot-the clerk with the shotgun. The clerk started coming at me & threw a chair at me and then he ran outside. I loaded the shotgun & shot the clerk again outside the store. The clerk had jumped over the fence & was in some grass when I shot him the 2nd time. I then ran to the car & we drove off. I told Sheila my common-law wife about the robbery after we did it. End — G.G.

The statement was completed at 9:05 a.m. on January 5, 1991. Each page is signed by [Garcia] and two witnesses. The statement was taken by Det. David Wilson of the Plano Police Department. ...

At trial, an acquaintance of [Garcia], Bobby Flores, testified he was at Vargas’ house the night of the Turski murder. Flores testified that Vargas and [Garcia] left the house and subsequently returned with beer and a lot of money. Flores asked [Garcia] where he got the beer and money. [Garcia] in response stated he went into a store, took the beer and money, shot the clerk and left.

Garcia I, 919 S.W.2d at 383-85.

STANDARD OF REVIEW

The petition was filed in 2009, thus review is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, a petitioner who is in custody “pursuant to the judgment of a State court” is not entitled to federal habeas corpus relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). “By its terms § 2254 bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). AEDPA imposes a “highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (citation and internal quotation marks omitted). With respect to the first provision, a “state court decision is ‘contrary to’ clearly established federal law if (1) the state court ‘applies a rule that contradicts the governing laV announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts.” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir.2006) (en banc) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003)), cert. denied, 551 U.S. 1141, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007). “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). As such, “evidence later introduced in federal court is irrelevant.” Id. at 1400. “The same rule necessarily applies to a federal court’s review of purely factual determinations under § 2254(d)(2), as all nine Justices acknowledged.” Blue v. Thaler, 665 F.3d 647, 656 (5th Cir.2011), cert. denied, — U.S. -, 133 S.Ct. 105, 184 L.Ed.2d 49 (2012). With respect to § 2254(d)(2), a Texas court’s factual findings are presumed to be sound unless a petitioner rebuts the “presumption of correctness by clear and convincing evidence.” Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The “standard is demanding but not insatiable; ... [d]eference does not by definition preclude relief.” Id. (citation and internal quotation marks omitted). More recently, the Supreme Court held that a “state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Richter, 131 S.Ct. at 786. The Supreme Court has explained that the provisions of AEDPA “modified a federal ha-beas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Federal habeas corpus relief is not available just because a state court decision may have been incorrect; instead, a petitioner must show that a state court decision was unreasonable. Id. at 694, 122 S.Ct. 1843. Furthermore, when a state court provides alternative reasons for denying relief, a federal court may not grant relief “unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.” Wetzel v. Lambert, — U.S. -, 132 S.Ct. 1195, 1199, 182 L.Ed.2d 35 (2012) (emphasis in original).

DISCUSSION AND ANALYSIS

Claim Number 1: Plano police interrogated Garcia and obtained a confession in violation of Miranda v. Arizona and the guarantee against self-incrimination afforded by the Fifth Amendment to the United States Constitution.

Claim Number 2: Plano police interrogated Garcia and obtained a confession in violation of his Sixth Amendment right to effective assistance of counsel.

Claim Number 3: Plano police interrogated Garcia and obtained a confession in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Garcia’s first three claims concern his confession where he admitted killing Tur-ski. He asserts that the Plano police did not comply with the long-standing requirements of Miranda and the Fifth, Sixth and Fourteenth Amendments. He argues that his confession should not have been admitted.

The issue of whether Garcia’s confession should have been admitted into evidence was fully developed in his first direct appeal. In Garcia I, the TCCA discussed the facts surrounding the making of the confession as follows:

[Garcia] was transported to the Plano Police Department. He was read his “Miranda” warnings repeatedly. He subsequently confessed, both orally and in writing, to the murders of both Turski and Martin. His confessions were videotaped, and a separate written confession was prepared for each offense.The statement was completed at 9:05 a.m. on January 5, 1991. Each page is signed by [Garcia] and two witnesses. The statement was taken by Det. David Wilson of the Plano Police Department. At the top of the first page of the statement appears the following:

I, the undersigned Gustavo Julian Garcia, am 18 years of age, having been born on 9- 27-72 at_I now live at 804 N. Tennessee, McKinney, Tx. I have been duly warned and advised by Det. David Wilson, a person who has identified himself as an office of the Plano Police Department, that:

GG[](1) I have the right to remain silent and not make any statement at all and any statement I make will be used against me at my trial.

GG[ ](2) Any statement I make will be used as evidence against me in court. GG[](3) I have the right to have a lawyer present to advise me prior to an during questioning;

GG[](4) If I am unable to employ a lawyer, I have the right to have a lawyer appointed (without cost to me) to advise me prior to and during my questioning; and

GG[ ](4)[sic] I have the right to terminate the interview at any time.

Before each of the numbered warnings appear the initials “G.G.” These warnings are repeated on each page of the statement and the initials “G.G.” appear before each part of the warnings.

Finally, at the bottom of each page, immediately above [Garcia’s] signature, appears the following:

I have read each page of this statement consisting of 2 page(s), each page of which bears my signature, and corrections, if any bear my initials, and I certify that the facts contained herein are true and correct. I further certify that I have made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.

Garcia I, 919 S.W.2d at 384-85. Garcia subsequently filed a motion to suppress the confession. After a hearing, the trial court found that Garcia “evidenced his understanding of his rights and waiver thereof on the face of the statement by placing his initials by each of the warnings that appear on the face of his written confession .... The court also found he orally waived his rights after being informed of his rights under Miranda, supra, and pri- or to giving his written statement.” Id. at 387 (emphasis in original).

The issue of whether the written statement should have been admitted into evidence was the primary bone of contention in Garcia’s first direct appeal. The Texas Legislature codified the requirements of Miranda in passing Tex. Code Crim. Proc. Ann. art. 38.22. The TCCA initially reversed Garcia’s conviction and held that the written statement did not comply with art. 38.22 § 2(b). Id. at 379. The TCCA explained that “[u]nder art. 38.22, § 2(b) the written statement must show on its face the knowing, intelligent, and voluntary waiver of each of the rights of, art. 38.22, § 2(a). Art. 38.22, § 2(b) is clear and unambiguous, and ‘the Legislature is constitutionally entitled to expect that [we] will faithfully follow the specific text that was adopted.’ ” Id. (emphasis in original) (quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)). The TCCA chose to forego considering whether the statement substantially complied with the statutory requirements. Id.

The TCCA reversed itself after the State filed a motion for rehearing. The Court observed that Garcia was clearly given his warnings and that Garcia specified that he understood his rights and knew what he was doing when he gave his statement. Id. at 386. “[T]he individual initialing of the paragraphs by [Garcia] pertaining to his right to remain silent and to the likelihood that any statement he made would be used against him in court, when taken into context with the language at the bottom of each page next to his signature, is evidence that he knowingly, voluntarily and intelligently waived the protections afforded [Garcia] by Sections 2(a)(1) and 2(a)(2).” Id. The TCCA noted that the preferable practice is for a written statement, to unambiguously meet the requirements of Section 2(b), to include the words “I knowingly, voluntarily and intelligently waived the rights described above before and during the making of this statement.” Id. (citations omitted). The TCCA, nonetheless, found that “though a close call, [Garcia] did, on the face of his voluntary statement, knowingly, voluntarily and intelligently waive his Section 2(a) rights in a manner sufficient to comply with the legislature’s intent when it enacted Section 2(b).” Id.

Garcia challenged the admission of his confession in both of his state applications for a writ of habeas corpus. In the first habeas corpus proceedings, the trial court found that “review is procedurally barred from Habeas Corpus Review as each assertion has been raised and rejected on direct review.” SHCR-01 at 97. The TCCA subsequently denied the application without written order. Garcia challenged the confession again in claim numbers twelve through fourteen of his second state application for a writ of habeas corpus. The TCCA found that the allegations were procedurally barred from habeas review because they had already been raised and rejected on direct appeal. Ex parte Garcia, 2008 WL 4573962, at *1 (citing Ex parte Acosta, 672 S.W.2d 470, 472 (Tex.Crim.App.1984)).

In claim number one, Garcia argues that the police interrogated him and obtained a confession in violation of Miranda and the guarantee against self-incrimination afforded by the Fifth Amendment. The Supreme Court held that prior to custodial interrogation a suspect must be informed:

1) that he has the right to remain silent

2) that anything he says can be used against him in court

3) that he has the right to consult with counsel prior to questioning

4) that he has a right to have counsel present at the interrogation, and

5) that if he cannot afford an attorney, one will be appointed for him

Miranda, 384 U.S. at 468-70, 86 S.Ct. 1602. If an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, and/or that he wants an attorney, the interrogation must cease. Id. at 474, 86 S.Ct. 1602. However, a suspect’s invocation of either his right to remain silent or his right to counsel must be unambiguous. Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).

“Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and intelligently.’ ” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Miranda, 384 U.S. at 444, 475, 86 S.Ct. 1602). The inquiry has two dimensions:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran, 475 U.S. at 421, 106 S.Ct. 1135 (internal quotations and citations omitted). “Once it is determined that a suspect’s decision not to rely on his rights was un-coerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Id. at 422-23, 106 S.Ct. 1135.

In the present case, Garcia was clearly told of his rights and the written statement provides evidence that he understood those rights and voluntarily, knowingly and intelligently chose to waive them. Garcia emphasizes that although he was informed of his rights in writing, he did not explicitly waive them in writing. The Texas Court of Criminal Appeals initially held that under state law the form Garcia signed was inadequate because he did not sign an expressed waiver of his rights and that he only initialed that he understood those rights. On rehearing, the Texas Court of Criminal Appeals held that even without an expressed written waiver, the police had substantially complied with the state law requirements.

Garcia contends that “the written statements were clearly flawed in the absence of written waivers of Garcia’s Fifth Amendment rights.” Pet. 80. This contention is without merit. “[W]aivers may be direct or, in some instances, they may ‘be clearly inferred from the actions and words of the person interrogated.’ ” United States v. Collins, 40 F.3d 95, 99 (5th Cir.1994) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). “A refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstance of custody.” United States v. McDaniel, 463 F.2d 129, 135 (5th Cir.1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973). The Supreme Court recently emphasized that a “suspect who has received and understood the Miranda' warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.” Berghuis, 560 U.S. at 388-89, 130 S.Ct. 2250. Furthermore, Miranda “does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights.” Id. at 385, 130 S.Ct. 2250. The Fifth Circuit has accordingly held if the circumstances surrounding an arrest and interview reveal that a waiver was voluntary, then the confession is admissible despite the suspect’s refusal to sign a waiver form. United States v. Oliver, 630 F.3d 397, 410 (5th Cir.) (citing Berghuis, 560 U.S. at 384-85, 130 S.Ct. 2250), cert. denied, — U.S. -, 132 S.Ct. 758, 181 L.Ed.2d 490 (2011). It is clear under the circumstances of this case that Garcia’s waiver of his rights was voluntary. Garcia’s contention that he had to explicitly waive his rights in writing lacks any basis in clearly established federal law.

The Court would add that Garcia’s focus on an alleged violation of Texas law is misplaced. A petitioner seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir.1993). In the course of reviewing state proceedings, a federal court does “not sit as a super state supreme court to review error under state law.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir.2007), cert. denied, 552 U.S. 1314, 128 S.Ct. 1874, 170 L.Ed.2d 752 (2008); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984). Garcia’s first claim lacks merit.

Moreover, the TCCA’s analysis appropriately focused on whether Garcia knowingly, intelligently and voluntarily waived his rights in determining that the written statement was admissible. Garcia has not shown, as required by 28 U.S.C. § 2254(d), that the state court findings 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Claim number one should be denied because it lacks merit under clearly established federal law and for the additional reason that Garcia has not satisfied the requirements of § 2254(d).

Garcia’s second claim is that the police interrogated him and obtained a confession from him in violation of his Sixth Amendment right to effective assistance of counsel. Under Miranda, a suspect in custody must be informed of certain rights before he can be questioned, and three of those rights concern his right to the assistance of counsel. Garcia was informed of those rights, and nevertheless answered the detectives’s questions and confessed. He now contends that “had he been notified that he had the right not to waive the rights described to him, then it is possible that Garcia would have sought the advice of counsel, who would have advised him not to give a written confession ...” Pet 83.

In Davis v. United States, 512 U.S. 452, 462, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Supreme Court of the United States held that police questioning of a suspect must cease once the suspect clearly asserts his right to counsel, but ambiguous statements such as “maybe I should talk to a lawyer” are insufficient to invoke that right. In the present case, Garcia was clearly informed of his right to counsel. He made no statements at all concerning his right to counsel, ambiguous or otherwise, so the police’s interrogating Garcia and obtaining a confession from him did not violate his right to the assistance of counsel. The state court’s rejection of this claim was neither contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States in, Berghuis, Miranda and Davis.

The Director also appropriately noted that Garcia incorrectly alleged that the right to counsel attached at the time he confessed. The Sixth Amendment right to counsel attaches when the State commences prosecution against a defendant. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Prosecution commences at “the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Rothgery v. Gillespie County, Tex., 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (citations omitted). Garcia was not arraigned until after he had given his confessions. He did not invoke his right to counsel before confessing. He was not denied his Sixth Amendment right to effective assistance of counsel. Garcia’s second claim lacks merit.

Garcia’s third claim is that Plano police interrogated him and obtained a confession in violation of the Due Process Clause of the Fourteenth Amendment. The admission of a confession which was not made voluntarily and with knowledge of the rights being waived is a violation of the Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Moran, 475 U.S. at 421, 106 S.Ct. 1135. There are two inquiries to determine whether the accused has voluntarily and knowingly waived his Fifth Amendment privilege against self-incrimination. First, the waiver of the right must be voluntary in that it was not a product of intimidation, coercion, or deception. “[C]oercive police activity is a necessary predicate to a finding that a confession was not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Connelly, 479 U.S. at 167, 107 S.Ct. 515. Second, the relinquishment must be made with a full awareness of the nature of the right being waived and the consequences of the decision to waive it. “Once it is determined that a suspect’s decision not to rely on his rights was un-coerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.” Moran, 475 U.S. at 422-23, 106 S.Ct. 1135.

Garcia contends that the police engaged in deception in extracting his written statements. He asserts that the normal practice under state law was for a suspect to explicitly waive his Miranda rights by initialing a paragraph- so stating. The forms utilized by the police department for written statements originally contained these provisions, but the forms which contained Garcia’s written statements appeared to have been altered — the waiver provisions had been removed. Garcia also contends that he did not have full awareness of the rights he was waiving and the consequences of his decision to waive them because he was only four months past his eighteenth birthday, with moderate education, and he was exhausted, hung over, lacking his glasses, and unable to adequately read the statements written for him. Pet. 80.

Because the Constitution does not require an explicit written declaration of waiver of Miranda rights, the removal of provisions to that effect in a standardized form cannot constitute deception for purposes of the Due Process Clause. Further, the Court presumes that an English-speaking citizen over the age of 18 with moderate education understands the meaning of properly worded Miranda warnings. With respect to whether Garcia could read his confession, Detective Wilson testified that Garcia could not only read without his glasses, but also told him that he could read without his glasses. 12 RR(1991) 1037-38. Wilson added that he watched Garcia read it and appeared to understand it. Id. at 1038. On state ha-beas review, the state court found both that Garcia could and did read his written statements without his glasses. SHCR-01 at 96. The TCCA subsequently denied the application, meaning that it was a finding on the merits. See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.2000) (citing Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App.1997)). The TCCA further found that Garcia was not so intoxicated that his confessions could be considered involuntary. Garcia has made no attempt to show that these findings were unreasonable, as required by 28 U.S.C. § 2254(d); thus, the Court finds that the state court’s rejection of this claim was neither contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States in Connelly and Moran, nor based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Garcia’s third claim lacks merit.

Finally, with respect to the first three claims, relief should be denied even if there was error because the error was harmless. The Director correctly noted that the proper harmless error analysis on federal habeas corpus review is whether the error had a “substantial and injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Garcia argued that the Chapman harmless error analysis applies, but Chapman concerns the standard to apply on direct appeal. See Horn v. Quarterman, 508 F.3d 306, 322 n. 24 (5th Cir.2007), cert. denied, 553 U.S. 1020, 128 S.Ct. 2084, 170 L.Ed.2d 820 (2008).

Here, putting aside Garcia’s confession, the jury heard . testimony from Shawn Robinson and Bobby Flores, who were friends of Garcia and Vargas, regarding the events of that night. Bobby Flores testified that the four friends were at Vargas’ home in Plano, Texas on the afternoon of December 9, 1990. 62 RR(1991) 188. Shawn Robinson provided identical testimony. 64 RR(1992) 631-32. They were listening to music and drinking beer. 61 RR(1991) 190. Vargas and Garcia left to get more beer, taking a .20 gauge shotgun with them. 64 RR(1991) 633. When they returned, Vargas was described as “jumpy and hyper.” Id. at 639. Robinson went on to testify as to what Garcia told him about the events of that night. Robinson testified that Garcia stated that “he got the guy from behind the counter and he shot him in the chest or the back.” Id. at 641. Flores likewise testified that Garcia stated that he asked the clerk for money and “they took the beer and he shot him and he left.” 62 RR(1991) 218. They were interrupted by a woman entering the store. After she left, Garcia “noticed that the guy had crawled away and he went - and that the guy had crawled out the back of the store, went around the back of the store or something, and he reloaded the gun and shot him in the back of the head.” 64 RR(1991) 641-42. Robinson further testified that Garcia specified that he shot the clerk in the back of the head “so they couldn’t be identified.” Id. at 642. Consequently, even without Garcia’s formal confession to the police, the jury heard that he confessed to two friends and that those two friends told essentially the same story. The Director persuasively argued that any error from the admission of Garcia’s confession as contained in the written statement was harmless error. Garcia’s first three claims lack merit.

Claim Number 4: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Hazel Holmes on the basis of her race, thereby violating the Due Process Clause. of the Fourteenth Amendment.

Claim Number 5: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Hazel Holmes on the basis of her race, thereby violating the Equal Protection Clause of the Fourteenth Amendment.

Claim Number 6: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Hazel Holmes on the basis of her race, thereby violating the right to a Fair and Impartial Jury Clause of the Sixth Amendment.

Claim Number 7: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Hazel Holmes on the basis of her race, thereby violating the Cruel and Unusual Punishment Clause of the Fourteenth Amendment.

Claim Number 8: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Hazel Holmes on the basis of her race, thereby violating the Due Process

Clause of the Fourteenth Amendment.

Claim Number 9: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Albert R. Diaz on the basis of his race, thereby violating the Due Process Clause of the Fourteenth Amendment.

Claim Number 10: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Albert R. Diaz on the basis of his race, thereby violating the Equal Protection Clause of the Fourteenth Amendment.

Claim Number 11: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Albert R. Diaz on the basis of his race, thereby violating the right to a Fair and Impartial Jury Clause of the Sixth Amendment.

Claim Number 12: In the 1991 trial, the State improperly used a peremptory challenge to strike prospective juror Albert R. Diaz on the basis of his race, thereby violating the Cruel and Unusual Punishment Clause of the Fourteenth Amendment.

Claims four through twelve are based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Garcia argued that the State improperly used peremptory challenges to prospective jurors Hazel Holmes and Albert R. Diaz to strike them on the basis of race. The issue was raised on direct appeal and rejected by the TCCA. Garcia I, 919 S.W.2d at 394-95.

Garcia has clothed his Batson claims regarding Ms. Holmes in separate grounds citing individually the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Right to a Fair and Impartial Jury Clause of the Sixth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment; he added a fifth claim, ground Eight, but it is identical to ground Four (“Due Process”) and the Court considers it an inadvertent repetition. Garcia similarly cited the same four constitutional provisions with respect to his claims regarding Mr. Diaz. He does not make separate arguments as to each purported constitutional basis for his Batson challenge. Instead, he ultimately argues the Equal Protection analysis that is consistent with the Supreme Court’s holding in Batson. This Court considers all of the individualized claims together in the same Batson analytical framework.

Batson stands for the proposition that the prosecution may not use peremptory challenges to remove potential jurors from the petit jury simply because they are members of a minority racial group. Id. at 87, 106 S.Ct. 1712. The Supreme Court provided the following explanation for the decision:

[T]he component of the jury selection process at issue here, the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried, United States v. Robinson, 421 F.Supp. 467, 473 ([D.]Conn. 1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 ([2d Cir.]1977), the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

Batson, 476 U.S. at 89, 106 S.Ct. 1712 (footnote omitted). “Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (citing Hernandez v. New York, 500 U.S. 352, 358-59 and 375, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) and Batson, 476 U.S. at 96-98, 106 S.Ct. 1712). See also Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The ultimate burden of persuasion stays with the defendant throughout. Batson, 476 U.S. at 94 n. 18, 106 S.Ct. 1712.

Here, Garcia has brought identical Batson challenge claims with regard to the prosecution’s peremptory strikes of venire-members Ms; Holmes and Mr. Diaz. At the time of the 1991 trial, Garcia objected to the prosecutor’s peremptory strikes of Ms. Holmes and Mr. Diaz on the grounds that the strikes were racially motivated. 36 RR(1991) 3759-60 (Holmes); 39 RR(1991) 4358-59 (Diaz). In each instance, the trial court asked the prosecutor to state his reasons for the challenge. 36 RR(1991) 3760; 39 RR(1991) 4358-59. When a trial court calls “on the government to provide race-neutral justifications for the use of its peremptory strikes,” a reviewing federal court will assume that the petitioner satisfied his initial burden (step one), and the burden shifts to the government to proffer race-neutral explanations (step two). United States v. Webster, 162 F.3d 308, 349 & n. 55 (5th Cir.1998), cert. denied, 528 U.S. 829, 120 S.Ct. 83, 145 L.Ed.2d 70 (1999).

The record revéals that the prosecutor then offered the following explanation for striking Ms. Holmes:

In the selection process here we have determined or I have determined to exercise a peremptory strike in this case primarily because of this panel member’s stated opposition to the death penalty. I will note in the questionnaire that it was an unequivocal opposition to the death penalty. I will note the prior reasons that we requested that this juror be stricken for cause and ask that the Court recall those particular instances. Those are reasons as well that I am exercising a peremptory strike.

I note further that this juror has had a son who has been subjected apparently to multiple prosecutions some of which occurred in Collin County. She has expressed at least once that she feels that her son was not fairly treated either by police officers or the criminal justice system. I will also note the change in her answer at the very end of my examination of her. I asked her if she could ever answer special issue number two no and she responded huh-uh which I believe most people in this courtroom including me interpreted to be a no. When it was quickly pointed out to her that the Court and I did not hear that answer she essentially refused to give it and stated several times that she wanted me to ask the question again. When she was finally coerced into answering the question she said that her huh-uh had in fact meant yes rather than what was the apparently obvious no.

Judge, for those reasons we have exercised our peremptory strike.

36 RR(1991) 3763-64. The trial court found that the State had offered legitimate and racially neutral reasons for exercising a peremptory challenge. Id. at 3764-65.

The record reveals that the prosecutor also provided several race-neutral reasons for striking Mr. Diaz. He noted that Mr. Diaz “expressed a real concern with youth and participating in a capital murder case with a youthful defendant.” 39 RR(1991) 4359. He further noted that Mr. Diaz expressed 19 a real concern in imposing a death penalty in a 7-Eleven type holdup, and the present holdup of a beer and wine store was the same type of situation. Id. at 4360. One of the prosecutor’s biggest concerns involved Mr. Diaz’s response regarding the burden of proof on the special issues. Id. The prosecutor explained that although Diaz’s verbal response would not render a challenge for cause, his demeanor gave him the impression that he would hold the State to a higher burden of proof during the punishment phase. Id. The prosecutor expressed the opinion that Mr. Diaz’s standard of reasonable doubt was such a “very extreme standard” that he did not think “any prosecutor could meet it.” Id. He further noted that Diaz stated that he wanted a “significant track history of violence” in order to assess the death penalty. Id. at 4361. Finally, the prosecutor believed that the defense “obviously like[d] this juror” and was reluctant to accept him for that reason alone. Id. at 4361-62. The trial court found that “either side could have legitimately and from a racially neutral standpoint exercised a peremptory strike with respect to this particular juror, and so any objections to the State’s being able to exercise its peremptory strike are overruled.” Id. at 4364-65. The trial court went on to specifically find that the State’s explanations were racially neutral. Id. at 4365.

On direct appeal, the TCCA reviewed the statements by Holmes and Diaz, along with the development of this issue by the parties and the trial court, and found that the State had offered racially neutral reasons. The TCCA offered the following analysis in rejecting the Batson claim:

The record shows the State had legitimate concerns as to the impartiality of venirepersons Diaz and Holmes. [Garcia] fails to show any purposeful discrimination on the part of the State. Indeed, [Garcia] does not make a prima facie showing that the State’s peremptory challenges were racially motivated, which he is required to do. Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.Cr.App.1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 644 (1995). Each venireperson’s responses to questions posed to them during voir dire clearly demonstrate that they were not favorable to the State and that the State had very good reasons — having absolutely nothing to do with their race — for not wanting either on the jury. In exercising its peremptory challenges to Holmes and Diaz, the State was merely acting in a manner that the peremptory challenge system encourages — the selection of juries that are devoid of members who are markedly partial to either side. See Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990).

We have held that where the decision of the trial court with respect to peremptory challenges or challenges for cause is supported by the record and appellant fails to show an abuse of discretion, we will not reverse based on such decision. Vargas v. State, 838 S.W.2d 552 (Tex.Cr.App.1992). Cantu, supra; Caldwell, supra; White, supra. See also Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1989); Williams v. State, 804 S.W.2d 95, 101 (Tex.Cr.App.), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). In the present case, the record supports the findings of the trial judge that there were ample, non-raciab reasons to justify the State’s exercise of peremptory challenges to Diaz and Holmes; appellant fails to show any abuse of discretion on the part of the court in so finding. Furthermore, [Garcia] fails to show the State’s racially-neutral explanations given to justify these two peremptory challenges were merely a sham or were pretextural. See Williams, supra, at 101.

Garcia I, 919 S.W.2d at 395. Garcia did not raise the issue again in his first state application for a writ of habeas corpus-. On the other hand, he reurged the grounds in claims numbers 53 through 62 in his second state application for a writ of habe-as corpus. The TCCA dismissed the claims as “tantamount to a subsequent writ application and are dismissed pursuant to the provisions of Article 11.071 § 5.” Ex parte Garcia, 2008 WL 4573962, at *2.

In the present petition, Garcia discussed the case law at great length without showing how it applies to the present case. He argued that the reasons provided by the State for striking Ms. Holmes were pre-textual and that the “real reason for striking her was because they could ill afford the risks of a minority juror.” Pet. 109. With respect to Mr. Diaz, Garcia reviewed the explanations provided by the State and editorialized that several reasons were untrue and surmised that they were pretex-tual.

The Director, in response, noted that the requirement of a race neutral explanation (step two) “does not demand an explanation that is persuasive, or even plausible ... the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769 (citation omitted); see also Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (Batson “does not demand an explanation that is persuasive, or even plausible; so long as that reason is not inherently discriminatory, it suffices.”) (citing Purkett, 514 U.S. at 767-68, 115 S.Ct. 1769). The Director added that “the ultimate inquiry for the [trial] judge [in determining whether an explanation is race neutral] is not whether counsel’s reason is suspect, weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-biased.” Webster, 162 F.3d at 349 (citation omitted); see also Miller-El, 537 U.S. at 339, 123 S.Ct. 1029 (“In that instance the issue •comes down to whether the trial court finds the prosecutor’s race-neutral explanations credible.”). The “evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within the trial judge’s province.’ ” Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (citation omitted); The Director stressed that on federal habeas review, a petitioner is not entitled to have a court second-guess credibility determinations, and the resulting factual findings are entitled to a presumption of correctness. Purkett, 514 U.S. at 769, 115 S.Ct. 1769; 28 U.S.C. § 2254(e)(1). A federal court can only grant habeas relief “if it is unreasonable to credit the prosecutor’s race neutral explanations for the Batson challenge.” Rice, 546 U.S. at 338, 126 S.Ct. 969.

The Director’s arguments are persuasive. As a preliminary matter, there is no question that the state court employed the proper steps under Batson in evaluating Garcia’s claims. The only issue remaining is whether the state court’s findings of fact were unreasonable. The role of a federal court in a § 2254 proceeding in reviewing a Batson claim decided on the merits by a state court is very limited. “A state trial court’s finding of the absence of discriminatory intent is a pure issue of fact and is accorded great deference; it will not be overturned unless clearly erroneous. Therefore, the federal 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.’ ” Hoffman v. Cain, 752 F.3d 430 (5th Cir.2014) (citations omitted). In the present case, the trial court’s finding that the State provided “legitimate and racially neutral reasons” for striking Ms. Holmes is entitled to great deference. ' Garcia claims that the State’s reasons vrére pretextual, but he has not shown with clear and convincing evidence that the trial court’s determination on this issue was unreasonable. The trial court likewise found that the State’s reasons for striking Mr. Diaz were racially neutral. Garcia questions the reasons provided by the State, but he has not shown with clear and convincing evidence that the trial court’s determination on this issue was unreasonable. At best, he has. shown only that he disagrees with the findings, but a “[mjere disagreement with the state court factual findings is not sufficient to overcome those findings.” Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir.1995). Overall, with respect to the Batson claims, Garcia has not shown, as required by 28 U.S.C. § 2254(d), that the state court findings 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Relief on claim numbers four through twelve should be denied.

Claim Number 13: In the 1991 trial, the trial court improperly granted the State’s challenge for cause of venireman Robert Rea Phillips, violating the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution.

Claim Number 14: In the 1991 trial, the trial court improperly granted the State’s challenge for cause of venireman Robert Rea Phillips, violating the Cruel and Unusual Punishment Clause of the Eighth Amendment to the Federal Constitution.

Claim Number 15: In the 1991 trial, the trial court improperly granted the State’s challenge for cause of Venireman Robert Rea Phillips, violating the Effective Assistance of Counsel Clause of the Sixth Amendment to the Federal Constitution.

Claim Number 18: In the 1991 trial, the trial judge excused juror, Cornelius John Collins, Jr., who was opposed generally to the death penalty, thereby violating Witherspoon v. Ilinois.

Claim Number 19: In the 1991 trial, the trial court improperly excused venireman General A. Adam Gallo on grounds that he would always find a mitigating circumstance when answering special issue number four, thereby violating Witherspoon v. Illinois.

Claim Number 20: In the 1991 trial, the trial court improperly excused venireman Richard Eugene Wycoff on grounds that he would always find a mitigating circumstance when answering special issue number four, thereby violating Witherspoon v. Illinois.

Garcia raises several claims pursuant to Witherspoon with regard to the State’s removal of four prospective jur.ors in grounds 13 through 15 (venire-member Robert Rea Phillips), 18 (venire-member Cornelius John Collins, Jr.), 19 (General A. Adam Gallo) and 20 (Reverend Richard Eugene Wycoff). Here, Garcia contends that veniremembers Phillips, Collins, Gallo and Wycoff were improperly excused as prospective jury members because they “voiced general objections to the death penalty” in violation of Witherspoon. As the Fifth Circuit has observed, “[U]nder Witherspoon ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.’ ” Gomez v. Quarterman, 529 F.3d 322, 330-31 (5th Cir.) (quoting Witherspoon, 391 U.S. at 522, 88 S.Ct. 1770), cert. denied, 555 U.S. 1050, 129 S.Ct. 628, 172 L.Ed.2d 618 (2008). But,

nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Witherspoon, 391 U.S. at 522 n. 21, 88 S.Ct. 1770. The Supreme Court further amplified this reservation as follows:

That standard is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. We note that, in addition to dispensing with Witherspoon’s reference to “automatic” decisionmaking, this standard likewise does not require that a juror’s bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced.to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. [And] this is why deference must be paid to the trial judge who sees and hears the juror.

Wainwright v. Witt, 469 U.S. 412, 424-26, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal citations and quotations omitted); see also Gomez, 529 F.3d at 331.

Therefore, the standard under Witherspoon is not whether a prospective juror voiced an absolute determination against the death penalty but whether he or she “voiced general objections to the death penalty.”

A. Veniremember Phillips

With regard to grounds 13, 14 and 15, involving veniremember Phillips, Garcia “challenges the release for cause of a juror merely because he voiced general objections to the death penalty, thereby violating Witherspoon v. Illinois.” Pet. 121. He further contends that “[t]he State challenged prospective juror Robert Rea Phillips for cause on grounds that he would always find a defendant’s youth to be a sufficient mitigating circumstance in answering special issue number four in the sentencing phase.” Id. at 128. He therefore asserts that the removal was a violation of the Equal Protection clause of the Fourteenth Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Effective Assistance of Counsel clause of the Sixth Amendment in his three grounds for relief, respectively-

Mr. Phillips was subjected to voir dire on November 8, 1991. 53 RR(1991) 6828. The prosecutor examined Mr. Phillips on the issue of whether he would always find a defendant’s youthfulness a sufficiently mitigating circumstance under the fourth special issue to avoid imposition of the death penalty:

Q What I’m trying to determine is whether or not you’ve got a bias or prejudice on an area of the law on which I am entitled to rely as Mr. Blake explained bias and prejudice yesterday. Okay?

A Right

Q And what I hear you saying is that , in a case of a mass murderer in the case of a serial murderer you don’t have a problem?

A No. Not considering—

THE COURT: Excuse me.

Q No, you couldn’t do it, or no, you— you disagree with me?

A Consider the defendant’s age in a robbery-murder. I couldn’t do it. No.

Q Okay. So in the case of a youthful defendant, even though the law says anyone seventeen years of age or above can be sentenced to death?

A It doesn’t say should be sentenced to death.

Q No. I understand. ■ I understand. It’s an option. What I’m saying is in the case of a youthful defendant in a robbery-murder, you will never answer those questions in a way that will lead to the imposition of the death sentence. Is that correct?

A Not the fourth one. No.

Q Okay.

A That’s right. The first three — the first three, as far as convicting him of the crime—

Q Okay. You can find him guilty.

A Yes. Absolutely.

Q You could look at these first three special issues and answer them yes or no, depending on the evidence?

A Absolutely.

Q Absolutely. Fourth special .issue, though, is always going to be yes in the case of a youthful defendant in a robbery-murder, regardless of the facts? -

A That’s right.

53 RR(1991) 6833-35. Defense counsel then objected that the prosecutor was placing an additional fact of a “youthful defendant” into the examination. Id. at 6835. The trial court found the addition “appropriate” and overruled the objection. Id. The prosecutor continued:

Q So you can answer my question.

A That I would always say yes in the case of a youthful defendant in a robbery-murder.

Q In a robbery-murder, youth will always be sufficient so you will always answer this question yes?

A In my state of mind now and for the — I mean I don’t — people change, but now, and for some time now, that’s the way I feel. Yes.

Q So even — and that’s fine.

A I can’t say always. I mean, I come in here three years from now and it may not be. It may be something that happens to my own son and I have a totally different opinion of it.

Q I understand. But I need to know what—

A Right now.

Q Right now.

A Right.

Q And in this ease, not five years from now, ten years from now, if it’s your son that gets blown away—

A It’d be yes.

Q And I’m not quarreling with you, but are you essentially telling me that if you’re on this jury I don’t have a shot at the death penalty?

A That’s correct.

Q And that’s because—

A That’s because it’s sufficient mitigating circumstances due to the victim’s age — or the defendant’s age.

Q And you — just—just so that I’m clear, you just, even though the law allows a youthful defendant to be sentenced to death, you essentially disagree with that area of the law?

A Well, it allows, but it doesn’t require, as I said.

Q So — okay.... Judge, we’ll submit the juror for cause.

Id. at 6835-37. Defense counsel then cross-examined Mr. Phillips, but did not elicit any change in his responses. Counsel asked, “But I think what you’re saying is that in your mind someone who is a young enough age, whatever you deem that to be?” Id. at 6838. Mr. Phillips responded, “Uh-huh.” Id. Counsel then asked, “In your mind tha