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Thomas Joe MILLER-EL





Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: November 16, 1985
Date of arrest: 5 days after
Date of birth: April 16, 1951
Victim profile: Douglas Walker, 25 (Holiday Inn clerk)
Method of murder: Shooting
Location: Dallas County, Texas, USA
Status: Sentenced to death on February 26, 1986

U. S. Supreme Court


Miller-El v. Dretke_U.S._(June 13, 2005)


Miller-El v. Cockrell_U.S._(February 25, 2003)

syllabus opinion concurrence dissenting

United States Court of Appeals
For the Fifth Circuit

opinion 00-10784

Miller-El v. Dretke, 545 U.S. 231 (2005), is a decision by the Supreme Court of the United States that clarified the constitutional limitations on the use by prosecutors of peremptory challenges and of the Texas procedure appropriately termed the "jury shuffle."

Thomas Miller-El was charged with capital murder committed in the course of a robbery. After voir dire, Miller-El moved to strike the entire jury because the prosecution had used its peremptory challenges to strike ten of the eleven African-Americans who were eligible to serve on the jury. This motion was denied, and Miller-El was subsequently found guilty and sentenced to death.

In 1986, the US Supreme Court ruled in Batson v. Kentucky that a prosecutor's use of peremptory challenges may not be used to exclude jurors on the basis of race. Miller-El appealed based on the Batson criteria and asked that his conviction be overturned. In June 2005, the US Supreme Court ruled 6-3 to overturn Miller-El's death sentence, finding his jury selection process had been tainted by racial bias.

The Court had held in Batson that a defendant could rely on "all relevant circumstances" in making out a prima facie case of purposeful discrimination. Miller-El clarified that "all relevant circumstances" included evidence outside "the four corners of the case." Specifically, the Court allowed statistical analysis of the venire, side-by-side comparison of struck and empaneled jurors, disparate questioning, and evidence of historical discrimination.

The Court extended the holding of Miller-El in Snyder v. Louisiana, 128 S.Ct. 1203 (2008).


U.S. Supreme Court: Miller-El v. Dretke


On June 28, 2004 the U.S. Supreme Court granted Thomas Miller-El certiorari a second time (MILLER-EL v. DRETKE, No. 03-9659), in order to address whether the U.S. Court of Appeals for the 5th Circuit again erred in reviewing Miller-El's claim that the posecution purposefully excluded African Americans from his capital jury, in violation of Batson v. Kentucky. Arguments were heard in November 2004 and the case was decided on June 13, 2005 in Miller-El's favor. Prosecutors announced in July 2005 that they would seek a new trial. A summary of the Court's opinion follows:

In a 6-3 decision, the Supreme Court ruled that Thomas Miller-El, a Texas death row inmate, is entitled to a new trial in light of strong evidence of racial bias during jury selection at his original trial. In choosing a jury to try Miller-El, a black defendant, prosecutors struck 10 of the 11 qualified black panelists. The Supreme Court said the prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion. The selection process was replete with evidence that prosecutors were selecting and rejecting potential jurors because of race. And the prosecutors took their cues from a manual on jury selection with an emphasis on race.

Justice Souter, writing for the majority, set out the evidence that race governed who was allowed on the jury, including: disparate questioning of white and black jurors, jury shuffling, a culture of bias within the prosecutor's office, and the fact that the prosecutor's race-neutral explanations for the strikes were so far at odds with the evidence that the explanations themselves indicate discriminatory intent.

In 2002, Miller-El had previously petitioned the federal courts to enforce the rule of Batson v. Kentucky, which prohibits racial discrimination in the exercise of peremptory challenges in jury selection. The federal District Court denied him habeas relief and the Fifth Circuit ruled that there were no appealable issues, and denied a certificate of appealability.

In 2003, the Supreme Court reversed, finding that reasonable jurists could differ on whether Miller-El had appealable issues and ordered that the Fifth Circuit to grant a certificate of appealability to further review the case (Miller-El v. Cockrell, 537 U. S. 322 (2003)). The Court, in an 8-1 opinion, criticized the Fifth Circuit's "dismissive and strained interpretation" of critical facts and ruled that the lower court's refusal to consider Miller-El's Batson claim was based upon a standard of review that was too demanding. On remand, the Fifth Circuit held that Miller-El failed to show by clear and convincing evidence that the state court's finding of no discrimination was wrong, whether his evidence was viewed collectively or separately.

The Supreme Court reversed again. Because this was a habeas corpus proceeding, the Court needed to find that the state court's interpretation of the facts was unreasonable under the Anti-Terrorism and Effective Death Penalty Act of 1996. The Court stated that the Texas courts finding of no discrimination "blinks reality," and was both unreasonable and erroneous, reversing the Fifth Circuit, and granting Miller-El habeas relief and a new trial. (See Associated Press, June 13, 2005).


Earlier Miller-El Case

On February 25, 2003, the U.S. Supreme Court issued an 8-1 decision in favor of Thomas Miller-El, a Texas death row inmate who claimed that Dallas County prosecutors engaged in racially biased jury selection at the time of his trial in 1986. The Court ruled in Miller-El v. Cockrell that Miller-El should have been given an opportunity to present evidence of racial bias during his federal appeal. The Court sent the case back to a lower court, where Miller-El could be granted a new hearing on his claims. "Irrespective of whether the evidence could prove sufficient to support a charge of systematic exclusion of African-Americans, it reveals that the culture of the district attorney's office in the past was suffused with bias against African-Americans in jury selections," Justice Anthony M. Kennedy wrote. (Associated Press, February 25, 2003).

Miller-El asserts that Dallas County prosecutors systematically excluded African-American jurors during his trial. Ten of the 11 potential black jurors were eliminated by the prosecution. In their final analysis, the lower courts discounted evidence that, until at least the mid-1980s, prosecutors employed a policy of removing as many black jurors as possible from trials of black defendants.

In its 1986 ruling in Batson v. Kentucky, the U.S. Supreme Court reaffirmed that it is unconstitutional to strike jurors solely on the basis of race and put a greater burden on the state to show that it was not engaging in such behavior. Prior to this decision, prosecutors did not have to provide a reason for striking potential jurors. This opinion was issued one month after Thomas Miller-El was convicted and sentenced to death, but applied retroactively to his case because his sentence was still on direct appeal. In Miller-El v. Cockrell, the Justices will examine whether the lower courts' failure to examine Dallas County's history of racial discrimination in conjunction with the prosecutorial strikes in Miller-El's case was proper.


Justices Give Second Hearing in a Texas Death Row Case

The New York Times

Dec. 7, 2004

The scene at the Supreme Court as a Texas death penalty case was argued Monday morning was strikingly familiar.

The 2 lawyers who stood before the justices were the same 2 who argued for the same parties two years ago: Seth P. Waxman representing Thomas Miller-El, a convicted murderer; and Gena A. Bunn, representing the State of Texas, which has been trying to execute Mr. Miller-El for 19 years. And these were the same justices - except Chief Justice William H. Rehnquist, who is under treatment for thyroid cancer and will participate in the case from home - who ruled in February 2003 by a vote of 8 to 1 that Mr. Miller-El's evidence of discrimination in the composition of his jury was enough to entitle him to a hearing before a federal appeals court. That court, which had earlier dismissed his case, followed the order to reconsider it and promptly dismissed it again, rejecting the Supreme Court's majority analysis and adopting that of its sole dissenter, Justice Clarence Thomas.

But if all those elements were the same, there was also a difference. In the intervening 2 years, the Supreme Court has made clear its growing unease with the administration of the death penalty in Texas and its exasperation with the state and federal courts that hear appeals from the state's death row. The Supreme Court was now taking the unusual step of hearing Mr. Miller-El's appeal from the United States Court of Appeals for the Fifth Circuit for a 2nd time, and several justices indicated that the concerns they expressed the 1st time had not been allayed. Although Mr. Miller-El's life was at stake, in a sense it was the appeals court that was on trial in Miller-El v. Dretke, No. 03-9659.

"This case was here before and we all read the majority opinion," Justice Stephen G. Breyer told Ms. Bunn, an assistant state attorney general. "It might be in my interest if people followed dissents more often," he added wryly, while noting that it was the majority opinion and not the dissent that was binding on the appeals court.

Mr. Miller-El, a black man, was convicted of killing a clerk at a Holiday Inn in Dallas in 1985. Although the case is now in a new procedural stance, the underlying question is the same: did Texas prosecutors violate Mr. Miller-El's constitutional rights by deliberately excluding black jurors from his 1985 murder trial on the basis of their race?

Justice Breyer described the basis for the majority's previous conclusion that the way Mr. Miller-El's jury was chosen gave rise to a "strong suspicion" of racial discrimination. "I think that's what it is unless you have something to the contrary," he said. "What came out in the Fifth Circuit to change it? Is there something different in the Fifth Circuit that wasn't there before?"

Ms. Bunn replied that while the Supreme Court had looked at the "big picture" of the case, the Fifth Circuit appeals court had properly examined the precise circumstances that led to the removal of each black juror and found that each was "race-neutral and case-related."

The prosecution struck 10 of 11 black jurors; 6 of those strikes are now in dispute. Mr. Waxman, Mr. Miller-El's lawyer, argued in the 1st round and again on Monday that in removing black jurors from a black defendant's trial, the prosecution used a double standard, accepting white jurors while striking blacks who expressed equivalently ambiguous sentiments on whether they could impose the death penalty.

Mr. Waxman, who served as solicitor general during the Clinton administration, said that it was the big picture, "the totality of the evidence, the sheer weight of mutually reinforcing evidence" that the justices needed to look at to grasp what happened 19 years ago in a Texas courtroom and then to understand why the Fifth Circuit's finding of no constitutional violation was "unreasonable."

When Justice Antonin Scalia, who did an energetic job of reinforcing the state's argument at every turn, told Mr. Waxman that the state had an explanation for each juror and that "a buckshot attack" on the jury selection "has to be examined pellet by pellet," the lawyer responded:

"Let me switch metaphors on you. It is pointillistic. It's like walking up close to a Seurat and looking at a red dot and saying it's not necessarily a handbag. As a reviewing court, you have to step back and look at this."

Part of the context Mr. Waxman emphasized was a documented history of racial discrimination in the Dallas prosecutor's office. The two prosecutors who handled the jury selection in Mr. Miller-El's case were found by the Texas Court of Criminal Appeals to have engaged in improper racial discrimination in the selection of juries in other cases during the same period of the mid-1980's.

"Don't we have to have some reason to believe that the evidence of past practice has become irrelevant?" Justice David H. Souter asked Ms. Bunn. "Is it plausible to think there had been this change of heart?"

Ms. Bunn began her answer by saying that Mr. Miller-El was asking the court to assume that race was the only reason for the removal of the jurors. Justice Souter cut her off. "That's not his argument at all," he said, adding: "He's saying there is very strong circumstantial evidence that what tipped the prosecution to make the challenges here is racial. He's not saying nothing else could have been involved. He's saying race tipped it. Is there any reason that is unsound?"

The reason, Ms. Bunn answered, was that "the 6 strikes were not based on race" but because the black members of the jury pool expressed greater qualms about the death penalty than did the white members.

Justice Breyer then read from the record of what comparative pairs of jurors said in answers to questions about the death penalty; blacks whom the prosecution then struck, and whites who were allowed to remain. "I look at that and I say, 'My goodness, it's pretty hard to say' " whether there was any meaningful difference in the answers, Justice Breyer told Ms. Bunn.

The court's previous decision, Miller-El v. Cockrell, did not resolve the claim of discrimination. Rather, the justices held that the Fifth Circuit had erroneously failed to issue a "certificate of appealability" authorizing Mr. Miller-El to pursue his case through a petition for a writ of habeas corpus. Now the merits of the case are before the justices.

The state's insistence that there was a meaningful difference in potential jurors' answers on their attitude toward the death penalty is crucial to its defense of what occurred during jury selection. Under the Supreme Court's 1986 decision in Batson v. Kentucky, the use of peremptory challenges to shape a jury on a basis that appears to be racial is presumed unconstitutional unless the prosecution can provide a reason unrelated to race. Qualms about the death penalty would be an acceptable reason unless black and white jurors were held to different standards.

While Mr. Miller-El's case was tried shortly before the Supreme Court issued the Batson decision, the ruling applies to him retroactively. Nonetheless, the timeline proved something of a trap for Ms. Bunn and her vocal ally, Justice Scalia.

Several justices questioned the prosecution's practice of using cards to note the race of potential jurors in the pool. Justice Scalia provided a potential explanation for a practice that these justices found troubling. "Maybe the prosecution didn't want to come up with an all-white jury for fear it would be challenged," he said.

Ms. Bunn readily agreed. "It was necessary to keep track, as Justice Scalia noted, to be certain that you don't run afoul of Batson," she said.

Justice John Paul Stevens said, "Batson hadn't been decided yet."


High Court Asked to Intervene in Case It Has Already Decided

Death row inmate's lawyers say appellate judges didn't heed sufficiently an order to review their client's claim of racial bias.

By Henry Weinstein - Los Angeles Times

June 20, 2004

The U.S. Supreme Court is known for not liking to have to repeat itself. In a case before it this week, though, attorneys for a Texas death row inmate are joined by a coalition of courtroom veterans and citizen groups in asking the court to say it again, louder.

Last year, the high court rebuked a trio of federal appeals court judges for failing to adequately review the claims of a black inmate who argued that prosecutors had unfairly excluded African Americans from the jury in his 1986 murder trial. Prosecutors said they were simply trying to get jurors sympathetic to the death penalty.

By a vote of 8 to 1, the high court sent the case back to the U.S. 5th Circuit Court of Appeals with directions to reexamine whether jury selection was tainted. "Happenstance" cannot explain why more than 90% of the eligible black jurors were rejected by the prosecutors, Justice Anthony M. Kennedy wrote for the majority.

The 5th Circuit looked at the case again, and in February, let stand the conviction of 53-year-old Thomas Miller-El.

Those asking the Supreme Court to intervene a 2nd time argue that the review was so cursory that the authority of the high court has been defied. Rather than basing its review on the majority opinion in the case, the 5th Circuit relied on the rationale offered by prosecutors and the lone justice who dissented in the case, they say.

Miller-El's lawyers have been joined in the new appeal to the Supreme Court by former FBI Director William S. Sessions and a coalition of former federal judges and prosecutors, the NAACP Legal Defense Fund, Common Cause and the League of Women Voters.

The high court has scheduled a conference on the case for Thursday.

If the 5th Circuit ruling stands, it "will undermine the public reputation and integrity of the courts," according to a brief filed on behalf of the dozen former federal judges and prosecutors.

"It seems to me that the 5th Circuit is thumbing its nose at the Supreme Court," said John Gibbons, a member of the group and a former 3rd Circuit Court of Appeals judge appointed by President Nixon. "You don't have the rule of law if intermediate appellate courts think they can ignore directions from the top."

The judges' brief asserts that the 5th Circuit "disregarded specific conclusions drawn by [the Supreme] Court," among them that prosecutors questioned prospective black more jurors more intensely about their attitudes on the death penalty than prospective white jurors.

Rather than conducting its own analysis, the brief says, the 5th Circuit "adopted, sometimes verbatim and always without attribution," prosecution arguments and the dissenting opinion written by Justice Clarence Thomas.

The brief, submitted by Miller-El's lead lawyer, Jim Marcus of the Texas Defender Service, and Washington attorney Seth P. Waxman, also contends that the 5th Circuit flouted the Supreme Court's ruling.

The case stems from a 1985 robbery at a Holiday Inn in a Dallas suburb by Miller-El, his wife Dorothy and Kenneth Flowers.

Hotel employee Doug Walker was shot and died from his wounds; fellow worker Donald Hall survived and testified against Miller-El. The state sought the death penalty only against Miller-El, having concluded that he was the triggerman.

The jury that convicted Miller-El and voted for a death sentence consisted of nine whites, one Latino, one Philippine American and one African American.

Miller-El's lawyers argued at the time that prosecutors had systematically excluded African Americans from the jury pool by making challenges based on race and utilizing "jury shuffles," a process whereby attorneys are able to rearrange the order in which prospective jurors come up for questioning.

Those claims were rejected by the trial judge, Texas appeals courts, a federal district judge and a 5th Circuit panel composed of Harold R. DeMoss Jr., an appointee of President George H.W. Bush, and W. Eugene Davis and Edith H. Jones, both appointed by President Reagan. Jones frequently has been mentioned as a possible nominee for the Supreme Court if a vacancy occurs during the presidency of George W. Bush.

Last year, the high court said the trio, like the other courts that had reviewed the case, had turned a blind eye to evidence that prosecutors violated the law.

During appeals, the Texas attorney general's office maintained that the Dallas prosecutors had done nothing wrong.

Although the Supreme Court did not overturn the conviction, it did rule that Miller-El had presented sufficient evidence of bias to entitle him to a full hearing on the issue.

In his majority opinion, Kennedy noted that prospective black jurors were subjected to more penetrating questions about their attitudes on the death penalty.

Moreover, Kennedy emphasized that evidence showed that "the culture of the district attorney's office [in Dallas] in the past was suffused with bias against African Americans," and that the appeals court had failed to take sufficient account of this.

"We question the dismissive and strained interpretation" that permitted the 5th Circuit judges to explain away the evidence, Kennedy wrote.

In his dissent, Thomas said Miller-El had failed to present "anything resembling clear and convincing evidence of purposeful discrimination."

A year later, after rehearing the case, the same three 5th Circuit judges came to the same conclusion as they had the first time, affirming the decision of a federal trial judge who had rebuffed Miller-El's claims that his constitutional rights had been violated.

In opposing further Supreme Court review, Gena Bunn of the Texas attorney general's office countered that the 5th Circuit "conscientiously followed the dictate" of the Supreme Court, but after carefully reviewing the facts ruled against Miller-El.

The brief filed by Miller-El's lawyers argues that the 5th Circuit's failed to follow the Supreme Court's direction to consider fully evidence of a pattern and practice of discrimination by Dallas prosecutors.

"Both the prosecutors involved in [Miller-El's] jury selection joined the [Dallas] district attorney's office when that office formally trained its prosecutors to exclude minorities from juries,'' Marcus and Waxman wrote, citing the Supreme Court decision.

"As this court indicated, that evidence leads to the 'supposition that race was a factor' in [Miller-El's] jury selection, and this supposition 'could be reinforced by the fact that the prosecutors marked the race of each prospective juror on their juror cards,'" they wrote.

Those who joined in seeking new intervention by the Supreme Court include Sessions, who headed the FBI from 1987 to 1993; Gibbons and Arlin Adams, former federal appeals court judges in Philadelphia; Robert S. Litt, a former federal prosecutor in New York; Eric H. Holder Jr., deputy attorney general in the Clinton administration; and Beth A. Wilkinson, one of the attorneys who prosecuted and obtained a death sentence against Oklahoma City bomber Timothy J. McVeigh.

The judges' friend of the court brief was prepared by veteran Supreme Court litigator Carter G. Phillips, along with attorney Elisabeth Semel, who runs the death clinic at UC Berkeley's Boalt Hall Law School, and Boalt student Jessica Goneau.

Representatives of Common Cause and the League of Women Voters, neither of which has a formal position on the death penalty, acknowledged that it is unusual for their groups to enter this arena, but they said this case compelled them to sign on to a friend of the court brief.

"The League's basic mission is to encourage the active participation of citizens in government, and racial discrimination that prevents citizens from participating in that system offends our core values," said Elizabeth Lawson, the League's senior lobbyist.

Edwin H. Davis, Common Cause vice president of policy and research, said "a concern with how government works, the process of government," is "at the core" of the organization's agenda and activity. "Jury selection is certainly one of the key elements in our system of justice, and in this case that element broke down," Davis said.



Dallas Morning News

August 14, 2005

Nov. 16, 1985: Douglas Walker a 25-year-old clerk, dies from a gunshot wound to the back after being bound and gagged during an early morning robbery at a Holiday Inn near Dallas/Fort Worth International Airport. A co-worker, Donald Ray Hall, 29, survives the shooting but is left paralyzed.

Nov. 20, 1985: Thomas Joe Miller-El is arrested after a shootout in Houston.

Nov. 22, 1985: Dorothy Miller-El, his wife and a former worker at the hotel, and Kennard Sonny Flowers are arrested in the robbery-murder.

December 1985: Mr. Miller-El is indicted on a charge of capital murder after Mr. Flowers agrees to testify against him.

March 1986: During jury selection, a judge denies a defense motion to quash the jury after prosecutors used their peremptory strikes to eliminate 10 of 11 eligible black jurors. The seated jury includes nine Anglos, one black, one Hispanic and one Filipino. During the trial, Mr. Hall identifies Mr. Miller-El as the shooter. Mr. Miller-El is sentenced to die by injection.

April 1986: The U.S. Supreme Court bars race bias in jury selection nationwide in the landmark case of Batson vs. Kentucky. It cites a study by The Dallas Morning News that shows the near-total exclusion of eligible black jurors by the Dallas County district attorney's office.

September 1986: Mrs. Miller-El is convicted of murder and attempted capital murder by a jury and receives 2 consecutive life sentences for helping her husband in the hotel robbery. Those sentences are later reduced to 15 years each.

March 1988: The Texas Court of Criminal Appeals orders hearings in Dallas to decide whether prosecutors used race bias in excluding eligible black jurors in Mr. Miller-El's trial. 2 months later, the trial judge rules that he has found no racial motive on the part of prosecutors.

November 1992: The Texas Court of Criminal Appeals upholds Mr. Miller-El's capital murder conviction.

November 1992: Mrs. Miller-El is paroled from prison for her role in the robbery and murder.

February 2002: Mr. Miller-El's appeals attorneys persuade the U.S. Supreme Court to stay his execution while the justices hear arguments on the issue of race bias in jury selection.

February 2003: In an 8-1 decision, the U.S. Supreme Court orders the 5th U.S. Circuit Court of Appeals to reconsider Mr. Miller-El's appeal after citing evidence that the Dallas County district attorney's office in 1986 was "suffused with bias."

December 2004: For the 2nd time, the U.S. Supreme Court hears arguments on whether Mr. Miller-El was denied a fair trial because eligible black jurors were discriminated against and barred from the jury in his death penalty trial.

June 13, 2005: The Supreme Court reverses Mr. Miller-El's conviction and orders a new trial.

July 8, 2005: Dallas County District Attorney Bill Hill announces that Mr. Miller-El will be tried. He says the office will seek the death penalty.


261 F.3d 445 (5th Cir. 2001)

THOMAS JOE MILLER-EL, Petitioner-Appellant,

No. 00-10784

For the Fifth Circuit

Aug. 7, 2001

Appeal from the United States District Court for the Northern District of Texas

Before JONES, DeMOSS and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Thomas Joe Miller-El ("Miller-El"), who was convicted of capital murder in Texas state court and who was sentenced to death therefor, and whose petition for habeas corpus relief and request for a Certificate of Appealability ("COA") therefrom were both denied by the federal district court below, now seeks from this Court a COA pursuant to 28 U.S.C. 2253(c)(2). For all of the reasons set forth below, we DENY the request for a COA.


In 1985, Miller-El's wife, Dorothy Miller-El, was employed as a night maid for the lobby area of the Holiday Inn South. She arranged for a religious convention for the Moorish Science Temple's Feast on November 8-10, 1985. Her husband was among the attendees. After the convention, Dorothy did not return to work. Shortly before midnight on November 15, 1985, Dorothy returned to the Holiday Inn claiming that she was there to pick up her paycheck. She was given access to the office area near the vault.

During this time period, four hotel employees were working, Doug Walker, Donald Hall, Anthony Motari, and Mohamed Ali Karimijoji. Hall, the chief auditor, was training Mohamed regarding the hotel's daily closing procedures. Hall instructed Mohamed to close out the cash registers, a process which would take one-half hour. Mohamed encountered a woman who claimed that she needed accompanying while she waited for her ride. Mohamed sent her to the front desk area without leaving the locked area he was in.

At the front desk, a man later identified as Miller-El appeared and requested a room from Hall. Witnesses identified Miller-El from having seen him at the Moorish Feast convention the previous week. A younger man, later identified as Kenneth Flowers and dressed in army fatigues and a headset, peered around the corner as Hall was giving Miller-El his room key, and once spotted by Hall, he also approached the counter. Miller-El told Hall that he would be needing two beds. Seconds later, Miller-El and Flowers pulled out weapons. Miller-El brandished a semi-automatic "tech" nine millimeter machine gun, with a flash suppressor for night use. Flowers had a .45 caliber hand gun.

Hall complied with Miller-El's instructions to empty the cash drawer and place the money on the counter. Miller-El then ordered Hall to bring any other people in the back out front. Hall instructed Walker to come out. Flowers jumped over the counter and the two men instructed Hall and Walker to lay on the floor. The two men led Hall and Walker to the bellman's closet which they ordered opened. Once the two men removed all of the valuables from the closet and took Walker's and Hall's wallets, Miller-El tied Walker's hands behind his back, tied his legs together, and gagged him with strips of fabric. Flowers did the same to Hall. Walker was laid on his face and Hall was laid on his side.

Miler-El asked Flowers if he was going to "do it" and Flowers responded that he couldn't. Flowers then left. Miller-El stood at Walker's feet, removed his glasses and then shot Walker in the back two times. Hall closed his eyes after the first shot. He heard two more shots and realized that he had also been wounded. Hall tried to talk to Walker but only heard him choking. When he heard familiar voices outside, Hall screamed for help.

Several days after the robbery-murder, Officer Cagle was on surveillance of an apartment complex believed to be Dorothy Miller-El's. He spotted Dorothy and Flowers. With the assistance of back-up units, he stopped their vehicle and arrested them both. Search warrants were executed for the residence, and "walkie-talkie" headsets were found. When Miller-El was later arrested, found in his possession was an arsenal of weapons including the "tech" nine millimeter murder weapon.


Miller-El pleaded not guilty to and in March 1986 was tried before a jury on the charge of capital murder during the course of committing a robbery. On March 24, 1986, the jury returned with a guilty verdict and at the conclusion of the sentencing phase, the same jury answered in the affirmative to the special issues set forth in the Texas Code. Accordingly, the trial court imposed upon Miller-El the sentence of death.

Miller-El's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals. On December 14, 1992, that court affirmed Miller-El's conviction and sentence in an unpublished opinion. See Miller-El v. State, No. 69,677 (Tex. Crim. App. 1992)(en banc)(unpublished). And on October 4, 1993, the Supreme Court denied Miller-El's petition for writ of certiorari. See Miller-El v. Texas, 114 S. Ct. 100 (1993).

Miller-El then filed an application for state habeas relief. The state trial court judge entered findings of fact and conclusions of law recommending denial of Miller-El's state habeas petition. On June 17, 1996, the Texas Court of Criminal Appeals adopted the trial judge's findings of fact and conclusions of law and denied Miller-El's application for state habeas corpus relief. See Ex parte Miller-El, No. 31,001-01 (Tex. Crim. App. 1996) (unpublished).

On June 17, 1997, Miller-El filed his petition for habeas corpus relief pursuant to 28 U.S.C. 2254 in federal district court. On August 12, 1997, Miller-El filed an amended petition for habeas corpus. Miller-El's petition was referred to a magistrate judge who, on January 31, 2000, issued findings and conclusions, recommending a denial of relief. On June 5, 2000, after receiving objections and conducting a hearing on the magistrate judge's report and recommendation, the district court adopted the magistrate's findings and conclusions and denied Miller-El's petition for a writ of habeas corpus. The district court subsequently denied Miller-El's motion to alter or amend the final judgment denying relief on June 21, 2000. Miller-El then filed a notice of appeal in this Court and a motion for a COA in the district court. On August 14, 2000, the district court denied Miller-El's request for a COA on each of the issues raised herein. It is Miller-el's renewed request for a COA that is presently before us.


Miller-El seeks from this Court a COA on each of the following issues: (1) whether the district court erred in overruling his challenges of improper peremptory juror strikes; (2) whether the state court erred in failing to conduct a sua sponte evidentiary hearing regarding his competency to stand trial and in finding that he was competent to stand trial in 1986; (3) whether the district court likewise erred in failing to conduct a hearing regarding his competency; and (4) whether the district court erred finding that his First and Fourteenth Amendment rights were not violated by admission of evidence, during the punishment phase of his trial, relating to his affiliation with the Moorish Science Temple..

Miller-El's petition for writ of habeas corpus was filed on June 17, 1997, and is thus governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997); United States v. Carter, 117 F.3d 262 (5th Cir. 1997). Under AEDPA, before an appeal from the dismissal or denial of a 2254 habeas petition can proceed, the petitioner must first obtain a COA, which will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). The same standards that governed issuance of the pre-AEDPA version of the COA, the certificate of probable cause ("CPC"), apply to requests for a COA. See Slack v. McDaniel, 120 S. Ct. 1595, 1603 (2000). A petitioner makes a "substantial showing" when he demonstrates that his petition involves issues which are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are adequate to deserve encouragement to proceed further. See id. at 1603-04.

Additionally, pursuant to 2254(e)(1), a state court's determination of a factual issue must be presumed correct, and the habeas petitioner bears the burden of rebutting the presumption by clear and convincing evidence. The presumption of correctness is especially strong, where, as here, the trial court and the state habeas court are one and the same. See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, 121 S. Ct. 84 (2000).

And while the nature of the penalty in a capital case is an appropriate consideration for determining whether to issue a COA, the severity of the penalty at issue does not, in and of itself, require the issuance of a COA. See Clark, 202 F.3d at 764 (citing Lamb, 179 F.3d at 356). However, in capital cases, doubts as to whether a COA should issue must be resolved in favor of the petitioner. See Lamb, 179 F.3d at 356. Cognizant of the foregoing principles, we turn now to consider those issues raised by Miller-El in his request for a COA.


Miller-El first contends that he is entitled to a COA regarding his challenge to the prosecution's alleged improper use of peremptory strikes to exclude African-Americans from his jury. Miller-El argues that the Supreme Court's decision in Swain v. Alabama, 85 S. Ct. 824 (1965), is still the applicable law regarding challenges to improper peremptory strikes when evidenced by data indicating historic, systematic discrimination against African-Americans. However, during the pendency of Miller-El's direct appeal, the Supreme Court decided Batson v. Kentucky, 106 S. Ct. 1712 (1986), in which it stated that "[t]o the extent that anything in Swain v. Alabama is contrary to the principles we articulate today, that decision is overruled." Batson, 106 S. Ct. at 1725. Yet Miller-El contends that Batson only overruled one part of Swain. According to Miller-El, while under Batson, a defendant is no longer required to establish a prima facie case of racial discrimination based upon proof of historical, consistent, and systematic exclusion of African-Americans from juries, if racial discrimination is proffered, nevertheless, under Swain, then either the Swain or Batson evidentiary formulations apply. Miller-El argues that the evidentiary formulation of Swain is, thus, applicable to his claim of systematic exclusion. The government contends that the Batson evidentiary formulation overruled the Swain formulation on which Miller-El relies.

Under Swain, a defendant was required to show the prosecutor's "systematic use of peremptory challenges against Negroes over a period of time" as a predicate. See Swain, 85 S. Ct. at 839. Assuming that a defendant would be able to demonstrate a historical pattern of discrimination continuing unabated to the defendant's trial, the burden would then shift to the prosecutor to rebut the defendant's allegations. See Alexander v. Louisiana, 92 S. Ct. 1221, 1226 (1972). To satisfy his burden, the prosecutor could do one of two things. First, the prosecutor could show that the systematic disparity resulted from racially-neutral selection procedures. Second, the prosecutor could "show neutral reasons for the striking of all the blacks in petitioner's trial itself." Willis v. Zant, 720 F.2d 1212, 1220-21 (11th Cir. 1983). However, in any case under Swain, we have held that it is not sufficient to prove a Swain violation based solely on statistical evidence from prior trials without some concomitant showing that the intentional and systematic discrimination continued "unabated" through to the petitioner's trial. See Evans v. Cabana, 821 F.2d 1065, 1068 (5th Cir. 1987). Additionally, the prosecutor could rebut the petitioner's showing with a showing of neutral reasons. Miller-El argues that his showing under Swain requires only a showing of historical and systematic discrimination in order to establish a prima facie case.

In Batson, the Supreme Court, recognizing the "crippling burden of proof" which Swain created, replaced the Swain evidentiary formulation with the new Batson standard. That new standard involves the following three steps:

First: A defendant can establish his prima facie case of purposeful discriminatory petit jury selection solely upon evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. Alternatively, the defendant can make a prima facie case by proving historic, systematic discrimination;

Second: If a defendant makes a prima facie showing, the burden then shifts to the government to provide a race-neutral explanation for challenging the excluded jurors;

Third: The trial court must then determine if the defendant has established purposeful discrimination, and the trial court's determination is a finding fact entitled to the applicable level of deference on appellate review.

See Batson, 106 S. Ct. at 1723-24.

Despite Miller-El's contention that the Swain evidentiary framework was untouched by Batson, the Supreme Court has itself explicitly stated "we reject [Swain's] evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause." Id. at 1721; see also Georgia v. McCullum, 112 S. Ct. 2348 (1992) (stating that "[i]n Batson v. Kentucky, [] the Court discarded Swain's evidentiary formulation").

With respect to the second step in the Batson analysis, the Court stated specifically:

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's [race-neutral] explanation need not rise to the level justifying exercise of a challenge for cause.

Batson, 106 S. Ct. at 1723. Miller-El suggests that contrary to the above language in step two of the Batson evidentiary framework, the level of explanation required to rebut the prima facie case is governed by the rebuttal stage of the evidentiary formulation of Swain and is a "heavy burden." However, as we have noted, the Supreme Court has explicitly overruled the evidentiary formulation of Swain to the extent that it would contradict any principle, evidentiary or otherwise, announced in Batson. See id. at 1725. Thus, to the extent that the two burdens of rebuttal in Swain and Batson are inconsistent, the Supreme Court has mandated that the standard in Batson be applied. Here, Batson was decided during the pendency of Miller-El's direct appeal, and it is, thus, the applicable standard for analyzing his challenge to the use of peremptory juror strikes. See Griffith v. Kentucky, 107 S. Ct. 708 (1987) (holding that Batson governs claims by defendants whose appeals were pending and non-final at the time Batson was decided).

Miller-El contends that the state court's adjudication was an unreasonable application of Batson and that the court's findings were also unreasonable in light of his prima facie showing. His primary challenge is to the district court's alleged failure to give proper weight and credit to the evidence which he presented regarding the historical data evidencing exclusion of African-American jurors.

The state court findings in this case on the issue of discriminatory intent, despite Miller-El's protestations to the contrary, are entitled to great deference. See Hernandez v. New York, 111 S. Ct. 1859, 1868 (1991). As an appellate court reviewing a federal habeas petition, we are required by 2254(d)(2) to presume the state court findings correct unless we determine that the findings result in a decision which is unreasonable in light of the evidence presented. And the unreasonableness, if any, must be established by clear and convincing evidence. See 28 U.S.C. 2254(e)(1).

The detailed factual findings made by the state trial court establish that each of the challenged African-American jurors was stricken on race-neutral grounds. Miller-El has addressed the peremptory challenge of six of the ten Batson jurors in his request for a COA. We have now conducted an independent review of the findings of the state court and of the evidence presented by Miller-El in his application. Suffice it to say, and without commenting on each of the challenged jurors and the reasons proffered for their being excluded, we find that the state court's findings are not unreasonable and that Miller-El has failed to present clear and convincing evidence to the contrary. The findings of the state court that there was no disparate questioning of the Batson jurors and that the prosecution's reasons for striking the jurors was due to their reluctance to assess and/or their reservations concerning the death penalty are fully supported by the record.

Having determined that the state court's adjudication neither resulted in a decision that was unreasonable in light of the evidence presented nor resulted in a decision contrary to clearly established federal law as determined by the Supreme Court, we conclude that this issue would not be debatable among jurists of reason, that courts could not resolve the issues in a different manner, and that the issue does not deserve encouragement to proceed further. Miller-El has thus failed to make a substantial showing of the denial of a constitutional right. Accordingly, we deny Miller-El's request for a COA on this issue.


Miller-El's second issue consists of two parts that revolve around his claim that he was incompetent to stand trial. He first claims that the state trial court erred in failing to provide him with a sua sponte evidentiary hearing pursuant to Pate v. Robinson, 86 S. Ct. 836 (1966). Second, he challenges his conviction as infirm under Dusky v. United States, 80 S. Ct. 788 (1960), on the basis that he was incompetent, in fact, at the time of his trial. Before analyzing these claims, a brief review of some additional facts is necessary.

Miller-El was tried some eight weeks following his arrest. Incident to his arrest, Miller-El was wounded by a gunshot. During the months following his arrest, Miller-El underwent surgical treatment for his injuries, and he experienced complications such as weight loss. On three separate occasions during his trial, Miller-El was evaluated by a doctor at the direction of the trial court. First, during jury selection, he experienced chest pains, chills, and a fever. He was diagnosed with pneumonia and was treated and discharged the same day. Nine days later, still during jury selection, Miller-El complained of delays in receiving medication. The trial court ordered a second evaluation to determine if Miller-El needed more medication. The doctor determined that he did not. Two days before jury selection concluded, Miller-El was taken to the hospital for treatment of a chest abscess. During his trial, Miller-El complained of pain in his ribs and asked to see a doctor. And finally, on the evening of the day he was found guilty, the trial judge ordered a medical evaluation to determine if Miller-El would be able to sit through court after complaining of nausea and colostomy bag complications. He was kept overnight in the hospital and was released the next day when the punishment phase of his trial began.

Miller-El complains that he was denied a competency hearing at trial and that his due process rights were denied because whenever evidence raises a sufficient doubt about the mental capacity of the accused to stand trial, a hearing is required. See Drope v. Missouri, 95 S. Ct. 896, 908 (1975); Pate, 86 S. Ct. 836. Miller-El contends that the evidence raised a sufficient doubt as to his competency.

In Carter v. Johnson, 110 F.3d 1098 (5th Cir. 1997), we explained the procedural inquiries and burdens required for the two competency claims Miller-El asserts. Specifically, we summarized as follows:

The issue of competency may arise in two distinct contexts. See United States v. Williams, 819 F.2d 605, 607-09 (5th Cir. 1987); Lokos v. Capps, 625 F.2d 1258, 1261-62 (5th Cir. 1980). We must distinguish between them for purposes of the present case.

First, a habeas petitioner may allege that state procedures were inadequate to ensure that he was competent to stand trial. A trial court must conduct an inquiry into the defendant's mental capacity sua sponte if the evidence raises a bona fide doubt as to competency. Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815 (1966). If the trial court receives evidence, viewed objectively, that should raise a reasonable doubt as to competency, yet fails to make further inquiry, this constitutes a denial of a fair trial. See Lokos, 625 F.2d at 1261.

If a Pate violation is established, the federal habeas court must consider whether a meaningful hearing can be held nunc pro tunc to determine retrospectively the petitioner's competency as of the time of trial. Id. at 1262. If so, the petitioner bears the burden of proving his incompetence by a preponderance of the evidence; if not, the habeas writ must issue, subject to retrial at the state's discretion. Id. This Pate procedural guarantee is not before us, having been expressly abandoned by Carter on appeal.

Second, a habeas petitioner may collaterally attack his state conviction by directly alleging incompetence at the time of trial, thereby claiming a violation of the substantive right not to be tried and convicted while incompetent, rather than of the procedural guarantee of a competency hearing in the event that a bona fide doubt arises at trial as to competency:

It is always open for the defendant to later assert his actual incompetence at trial in a subsequent collateral proceeding, but the substantive claim should not be confused with a defendant's procedural rights under Pate to a hearing whenever a bona fide doubt as to competence surfaces at trial.

Carter v. Johnson, 131 F.3d 452, 458 n.10 (5th Cir. 1997).

First, with respect to whether Miller-El was entitled to a hearing, the relevant inquiry is whether the district court received information "which, if objectively considered, should reasonably have raised a doubt about the defendant's competency and alerted [it] to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense." Lokos, 625 F.2d at 1261. In this case, the trial court specifically found that Miller-El was competent to stand trial, both at the trial and again on state habeas review. Specifically the court found:

(1) petitioner was legally competent both on and off his pain medication; (2) he had the capacity to understand the nature and object of the proceedings against him, consult with his attorneys, and assist in the preparation of his defense; and (3) a competency hearing was not required because "there was no 'bona fide doubt' as to [petitioner's] competence to stand trial.

Our independent review of the record evidence convinces us that the district court's finding that Miller-El was not entitled to a hearing is not unreasonable, and Miller-El has failed to present clear and convincing evidence to the contrary.

With respect to whether Miller-El was, in fact, incompetent, we find that the district court's conclusion that he was not, is reasonable, and likewise, we find that the state court's decision does not represent an unreasonable application of federal law. Thus, we conclude that Miller-El has failed to make a substantial showing of the denial of a constitutional right, and we deny Miller-El's request for a COA on this issue.


In his third issue, Miller-El claims that he is entitled to a COA because the federal district court erred in refusing to conduct an evidentiary hearing nunc pro tunc to determine whether he was competent to stand trial in 1986. Having concluded above that Miller-El has failed to establish a bona fide doubt as to his competency at trial under Pate and that the state court's determination of competence was reasonable, we need not readdress this issue.

A state court's competency determination is a finding of fact entitled to a presumption of correctness under 2254(d)(2). And we have stated that "[b]efore the federal district court has a duty to investigate a habeas petitioner's claim of incompetency, the petitioner must show that there are sufficient facts to 'positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during trial.'" Moody v. Johnson, 139 F.3d 477, 481 (5th Cir. 1998) (quoting Washington v. Johnson, 90 F.3d 945, 950 (5th Cir. 1996)). Under Section 2254(e)(1), a habeas petitioner is entitled to a nunc pro tunc evidentiary hearing for the purpose of proving that he was incompetent at the time he stood trial only when he "makes a showing by clear and convincing evidence to raise a threshold doubt about his competency." Lokos, 625 F.2d at 1261. This threshold burden is "extremely heavy," Johnson v. Estelle, 704 F.2d 232, 238 (5th Cir. 1983), and requires that a petitioner present facts sufficient to "positively, unequivocally, and clearly generate a real, substantial and legitimate doubt" concerning his mental competence, id. at 238. See also Jackson v. Anderson, 112 F.3d 823 (5th Cir. 1997) (noting that 2254(e)(1) places a heavier burden on petitioners seeking to rebut state court fact findings).

Miller-El suggests that he was entitled to an evidentiary hearing in the federal district court because he was not given a live hearing in the state court. The state habeas court instead based its decisions upon the parties' supplemental briefing and expert affidavits, i.e, Miller-El received only a paper hearing. We find Miller-El's suggestion untenable, especially where, as here, the trial judge and the state habeas judge were the same. See Clark v. Johnson, 202 F.3d at 766 ("we have repeatedly found that a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues underlying the petitioner's claims, especially where . . . the trial court and the state habeas court were one in the same.").

We conclude that Miller-El has failed to make a substantial showing of the denial of a constitutional right on this issue in that he has failed to rebut the presumptive correctness of the state habeas and district court findings that he was competent to stand trial in 1986 and that he was not entitled to a nunc pro tunc hearing to determine competency. Accordingly, we deny Miller-El's request for a COA on this issue.


In his fourth and final issue, Miller-El argues that he is entitled to a COA on his claim that his First and Fourteenth Amendment rights were violated by the admission of evidence, during the punishment phase of his trial, relating to his affiliation with the Moorish Science Temple faith in violation of Dawson v. Delaware, 112 S. Ct. 1093 (1992). In Dawson, while the Supreme Court held that where religious affiliation unrelated to any issue in the case may be impermissible, there is no "per se" barrier to the admission of evidence which concerns a defendant's beliefs and associations at sentencing. Dawson, 112 S. Ct. at 1097. The Court noted that "[i]n many cases . . . associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society." Id. at 166. We have, likewise, held that if the evidence regarding a defendant's affiliations or personal beliefs is sufficiently related to the issues involved, there is no constitutional violation. See Boyle v. Johnson, 93 F.3d 180, 183-84 (5th Cir. 1996).

Here the state habeas court concluded that Miller-El's association with the Moorish Science Temple was inextricably intertwined with his conviction and sentence. Evidence was entered in the guilt phase regarding his membership as part of testimony regarding witnesses' ability to identify him through his participation in the Moorish Temple Feast at the murder scene the week before the robbery-murder. Thus, introduction of this evidence during the guilt phase was relevant to other matters.

The additional references to his membership during the punishment phase of his trial, as the state court found, were appropriate as they related to his involvement with other group members who were heavily armed and who assisted in the commission of Miller-El's offense of conviction. The government's characterization of Miller-El as belonging to a heavily armed paramilitary group was supported by the evidence and was probative as an indicator of future dangerousness.

Having conducted an independent review, we conclude simply that the state court's determination that Miller-El's due process rights were not violated by the prosecution's reference to his membership in the Moorish Science Temple faith was consistent with and was not contrary to the Supreme Court's applicable holding in Dawson. Furthermore, we conclude that the state court's adjudication of this claim was reasonable, and therefore, we deny Miller-El's request for a COA on this issue.


Having carefully reviewed the record, we conclude that Miller-El has failed to make a substantial showing of the denial of a constitutional right with respect to any of the issues raised in his request for COA, and accordingly, we DENY his request for COA on all issues raised therein.




Thomas Joe Miller-El



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