Citations:

Moody v. Quarterman, 476 F.3d 260 (5th Cir. 2007) (Habeas).

Final/Special Meal:

None.

Final Words:

"Yes sir, to Joseph's mom and son. I was unable to respond to you in the courtroom. I can only ask that you have the peace that I do. To my brother, you are a good brother. You're the best. And I love you. Can't beat ya. The beautiful lady standing next to you. Kathy you are next to my heart. Amber I love you. Warden, pull the trigger. I love you brother never forget it. Ronnie, Linda, Amber, Kathy. Chaplain Hart you're the best. Love you Thomas."

Texas Department of Criminal Justice

Stephen Lindsey Moody
Date of Birth: 7/16/57
DR#: 999076
Date Received: 10/22/93
Education: 10 years
Occupation: oilfield worker
Date of Offense: 10/19/91
County of Offense: Harris
Native County: Harris
Race: White
Gender: Male
Hair Color: Brown
Eye Color: Brown
Height: 6' 0"
Weight: 199

Summary of incident:

Convicted in the robbery and murder of 28 year old Joseph F. Hall in Houston. Moody and a co-defendant followed Hall to his home, forced their way inside, and demanded money and drugs. While Hall, who was crippled, begged for his life, Moody shot him at close range with a sawed off shotgun. Moody and his accomplice then fled with $1,200 in cash from the home. Moody later told his co-defendant that he shot Hall because he kept trying to get up from the ground.

Co-defendants:

Calvin Doby. Charges and disposition not known.

Prior Prison Record:

TDCJ #277559, rec. 3/7/78, 8 years, Burglary of Habit WICT, Harris Co., paroled 1/20/81. TDCJ #328588, rec. from parole with new conviction 12/15/81, 6 years Auto Theft, Harris Co., mandatory release to Harris Co. 11/9/84, TDCJ #394923 rec. 4/3/85, 14 years, Burg. of Vehicle WICT, Harris Co., paroled 12/23/88. TDCJ #623085, rec. 9/23/92, 40 years., robbery, Harris Co. Released on Bench Warrant ot Harris Co. 10/15/92, returned with Death sentence 10/22/93.

Texas Attorney General

Tuesday, September 10, 2009

Media Advisory: Stephen Moody scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Stephen Lindsey Moody, who is scheduled to be executed after 6 p.m. on Wednesday, September 16, 2009. A Harris County jury convicted Moody and sentenced him to death on March 19, 1993, for the robbery and murder of Joseph Franz Hall.

FACTS OF THE CRIME

On October 19, 1991, Moody and Calvin Doby went to Joseph Hall’s residence in Houston, where they demanded money from Hall and murdered him with a shotgun blast to the chest.

Following the murder, Moody and Doby went to the residence of Melvin Ellis and admitted to murdering Hall. Ellis testified that Doby confessed, “Man, we had some trouble over there, . . . we had to kill him.” Moody then responded, “Man, you know I didn’t — that I had to do it,”and told Ellis, “I shot him right in the heart.” Ellis also testified that, when Moody and Doby left, he noticed a shotgun in the vehicle on the side where Moody was sitting.

PRIOR CRIMINAL HISTORY

Evidence at the punishment phase of his trial indicated that Moody had twice been convicted of burglary of a habitation with intent to commit theft, and had been convicted of felony auto theft and felony burglary of a motor vehicle with intent to commit theft.

PROCEDURAL HISTORY

March 19, 1993. Moody was convicted and sentenced to death.
Jan. 17, 1996 The Texas Court of Criminal Appeals affirmed.
Nov. 3, 1999 The Texas Court of Criminal Appeals denied habeas corpus relief.
May 1, 2000 Moody filed a petition for writ of habeas corpus in U.S. district court.
Sept. 30, 2002 The federal district court denied relief on two of Moody’s claims and granted relief on a third. Both Moody and the State appealed.
Oct. 7, 2003 The United States Court of Appeals for the Fifth Circuit reversed the grant of relief by the federal district court.
Oct. 1, 2007 The U.S. Supreme Court denied Moody’s petition.

ProDeathPenalty.com

In late September of 1991, Stephen Moody and his co-defendant, Calvin Doby drove from Houston to Dayton, Texas while accompanied by Melvin Ellis and Lloyd Larrieu. As the prosecution’s star witness, Ellis testified that, while en route, Doby asked Larrieu from whom Larrieu was getting his drugs, because Doby wanted to rob the individual. In response, Larrieu provided Doby with the name and whereabouts of Hall. According to Ellis, Moody did not participate in the conversation.

On October 19, 1991, the day of the murder, Ellis, Doby, and Larrieu drove to Hall’s residence where Larrieu pointed out Hall’s house and answered Doby’s questions regarding the whereabouts of Hall’s drugs and money. Larrieu informed Doby that Hall lived with his girlfriend, Rene McKeage, kept his money in his pocket, and that Doby would know if Hall was home by the Camaro in the driveway. Doby immediately contacted Moody by telephone and the two of them met at Ellis’ residence an hour and half later. Moody and Doby then went to Hall’s residence and murdered him with a shotgun blast to the chest.

On the evening of the murder, Rene McKeage and Joseph Hall were returning home from dinner when McKeage noticed two unknown men walking on the street away from the front of their house. Upon entering their residence, Rene was sitting in the bathroom when she heard Hall talking on the phone and then “somebody come rush in the house.” She heard Hall yell out her name and then heard another man’s voice screaming “Where is the money?” Rene stayed in the bathroom. She initially thought that it was the police because of the drugs that were in the house. She heard Hall say, “You’re not the cops. Let me see your badges.” Rene then heard some scuffling, and Moody walked into the bathroom and said, “stay there. Don’t move.” Moody was pointing a sawed-off shotgun at Rene.

Moody left the bathroom and Rene heard him again ask Hall, “where is the money?” Hall said the money was in his pocket, and he asked Moody, “Please don’t shoot me.” Moody returned to the bathroom, and he again said to Rene, “Stay there, don’t move.” Rene said, “Okay, I won’t move,” and Moody shut the bathroom door. Rene then jumped out of the bathroom window, jumped the fence in the backyard, and ran to the next-door residence of Arthur Jesse Flores. During this time, she heard a gunshot come from inside the house. When Rene entered Mr. Flores’ residence, she said that someone had shot Hall, and she called 911. Ms. Juarez and Ms. Chavez also heard the gunshot and a scream, and saw two men walk out of the residence and back down the street.

Following the murder, Doby and Moody returned to Ellis’ residence forty-five minutes later and admitted to him that they murdered Hall. Ellis testified that Doby confessed, “Man, we had some trouble over there,...we had to kill him.” Moody then responded, “Man, you know I didn’t - that I had to do it,” to which Doby replied, “Man don’t worry. Shit happens.” Ellis asked Moody if the man was dead, and Moody said, “Yeah, I shot him right in the heart.” Ellis also testified that upon the departure of Moody and Doby, he noticed the stock of a shotgun in the vehicle on the passenger’s side where Moody was sitting. Moody was indicted on October 6, 1992 for capital murder. Following a jury trial, Moody was convicted and sentenced to death in March 1993.

Man executed for drug dealer’s slaying

Huntsville Item Online

September 17, 2009

— A Texas man convicted in the shooting death of a suspected drug dealer during a robbery 18 years ago was executed Wednesday at the Walls Unit in Huntsville, the 17th this year in the nation’s busiest death penalty state. Stephen Moody, 52, strapped to the Texas death chamber gurney in Huntsville, addressed his victim’s mother and son as they watched through a window.

“I was unable to respond to you in the courtroom,” he said. “I can only ask that you have the peace that I do.” Then after expressing love to his relatives and friends watching through an adjacent window, he said: “Warden, pull the trigger.” The lethal drugs began flowing into his arms at 6:20 p.m. CDT, and he was pronounced dead eight minutes later. Moody had asked that no last-minute appeals be filed to try to block his execution.

Moody accepted responsibility for killing Joseph Hall, 28, with a blast from a sawed-off shotgun at Hall’s Houston home in October 1991. Hall was described at Moody’s trial as a drug dealer known to carry a lot of cash, a characterization Hall’s son disputed in a statement released following the execution. “My father wasn’t a drug dealer, and drugs had nothing to do with his death,” Joseph Hall wrote. “He was robbed for money he received from an accident which left him crippled.” Hall’s brother, mother and niece added in a handwritten postscript: “Justice was served.”

The U.S. Supreme Court refused to review Moody’s case last year after a federal appeals court rejected questions raised about jury selection procedures at his 1993 trial. “I’m satisfied,” he told The Associated Press in an interview a few weeks ago. “I’m ready, man. I ain’t quitting. I went all the way. ... That’s how I look at it.” “We have to kind of sit on our hands,” Moody’s lawyer, Philip Hilder, said last week. “We wouldn’t be normally doing that, but it is his wishes.”

Moody and an accomplice had confronted Hall, who put up a struggle when he was ordered to surrender his money. “He started fighting,” Moody said. “He wouldn’t listen to me. He wouldn’t lay down.” Moody said he took about $2,000 from Hall’s pocket and fled.

Hall’s girlfriend, who saw him talking with two men, crawled through a bathroom window to run next door and call 911, heard a shot and returned to find Hall dead on the living room floor. At his trial, she identified Moody as the man with the sawed-off shotgun. The slaying went unsolved for nearly a year until a relative of the man accused of being Moody’s accomplice gave police a tip that led to their arrests. By then, Moody was in prison starting to serve a 40-year sentence for bank robbery. The accomplice in the shooting, Calvin Doby, received a life sentence. Moody got the death penalty.

“You do what you do,” Moody said. “You pay for what you do. ... I had plenty of chances in my life.” Besides the bank robbery conviction, the former oil field worker from Houston served prison time for auto theft and two terms for burglary. Harris County authorities were looking at Doby’s case again after Moody recently said another man, not Doby, was his partner at the Hall shooting. Moody signed a sworn affidavit earlier this month saying Doby was innocent. Moody was questioned by prosecutors a few days ago.

Moody was the first of four Texas prisoners set to die over the next two weeks and among at least 10 scheduled for execution in the next several months. Christopher Coleman, 37, is scheduled for lethal injection Tuesday for a December 1995 shooting spree that left three people dead in Houston. Two days later, Kenneth Mosley, 51, is set to die for fatally shooting a police officer, Michael Moore, during a bank robbery in the Dallas suburb of Garland in 1997.

Texas man executed for Houston drug dealer's slaying

By Allan Turner - The Houston Chronicle

Sept. 16, 2009

HUNTSVILLE — Stephen Moody, a one-time oil field worker sentenced to die for the 1991 shotgun murder of a Houston drug dealer, went to his death Wednesday with expressions of love for his family but no apologies for his crime. “Warden, pull the trigger,” Moody commanded from the death house gurney. The lethal drugs began to flow at 6:20 p.m. He was declared dead eight minutes later.

Moody was condemned for the Oct. 19, 1991, robbery-murder of Joseph Hall. He had directed his attorneys not to pursue an appeal to the Texas Board of Pardons and Paroles. Last spring he petitioned his judge to set his execution date as soon as possible. Life on death row, he said, was “cruel and unusual punishment.”

In his last statement Wednesday, Moody addressed his victim's mother and son, telling them, “I can only ask that you have the peace that I do.” As the drugs began to flow, the victim's mother placed her arm around her son. They were tearful, but not openly weeping. The son, Joseph J. Hall, later issued a statement denying his father was a drug dealer. “Drugs,” he wrote, “had nothing to do with his death. He was robbed of money he received from an accident which left him crippled.” The elder Hall was disabled, but was able to walk.

Moody's long criminal career included convictions for burglaries and auto theft. After the Hall killing, but before his arrest, Moody also robbed a Houston bank. In a death row interview with The Associated Press shortly before his execution, Moody accepted the consequences of the murder.

“I don't blame my situation on anybody but myself,” he said. In a self-described act of conscience days before he was executed, Moody asserted in a sworn statement that his presumed accomplice in the murder, Calvin Doby, is innocent. Doby, 47, has served 17 years of a life sentence for his role in the crime. A new appeal based on Moody's statement has been filed in his case.

Court records indicate that Moody and Doby burst into their victim's house intent on robbery. As the man pleaded for his life, Moody fired a shotgun blast into his chest. Moody later said he shot Hall because he offered resistance. Hall's girlfriend, Rene Psenka, who was in the bathroom at the time of the robbery, was not hurt. She later identified Moody in a photographic lineup.

When Texas death row inmates were relocated to Livingston's Polunksy Unit in 2000, Moody said he experienced a religious conversion. “A feeling of joy filled my heart that I find hard to describe,” he wrote in letter posted on an anti-death penalty Web site. “A weight was lifted off my soul and a feeling of compassion for all the struggling and suffering of the world was upon me that made me want to weep. “I couldn't believe this was happening to me and I knew within my heart how special it was. It changed my life ...This experience caused me to reread all that Jesus said in the Bible.”

Moody was the 17th Texas killer and the third from Harris County to be executed this year.

Stephen Lindsey Moody

476 F.3d 260

Stephen Lindsey MOODY, Petitioner-Appellee,
v.
Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent-Appellant.

No. 02-21245.

United States Court of Appeals, Fifth Circuit.

In a renewed motion for summary judgment, the State argued that the state trial court's decision denying Moody's request for a Batson hearing should be affirmed because (1) the erroneous ruling did not prevent Moody from fully developing his Batson claim in the state trial court; (2) Moody did not establish a prima facie case of discrimination; and (3) Moody did not meet his burden of establishing discriminatory intent. In response to the State's arguments the district court concluded that:

[w]ell after the Supreme Court had ruled on the issue [of the irrelevance of a prospective juror's race when a defendant raises a Batson claim,] the trial court committed the error denounced by Powers. The trial court abdicated its duty to make an inquiry into alleged racial discrimination by failing to recognize Petitioner's standing to contest the issue. [The State] now argues that, the trial court's erroneous ruling notwithstanding, Petitioner should have proceeded to a Batson inquiry by attempting to prove intentional discrimination. [The State] trivializes the practical effect of the trial court's ruling that Petitioner lacked standing to raise a Batson issue. As a practical matter, any attempt to analyze the merits of a Batson claim in that forum would have been pointless; the trial court had already erroneously prevented Petitioner from developing the issue. Any attempt to make an extensive record or persist in his claim would have been a waste of judicial resources.

As part of the Batson analysis, a "trial court . . . will have the duty to determine if the defendant has established purposeful discrimination." Batson, 476 U.S. at 98, 106 S.Ct. 1712. In ignoring its obligation through an inaccurate standing ruling, the trial court disabled Petitioner's efforts to comply with his burden. [The State] now asks this Court, on the basis of a cold record alone, to consider the Batson framework and the petition. [However,] [t]he trial court prevented Petitioner from making a case under Batson; [furthermore,] the record is silent as to the prosecutor's true intent, demeanor, or credibility. [Therefore,] [t]he Court of Criminal Appeals' failure to apply fully Powers to this case was both contrary to and an unreasonable application of Supreme Court precedent.

Moody v. Dretke, H-00-CV-1450, at 2 (S.D.Tex. Sep. 30, 2002) (supplemental memorandum opinion and order). Based on these findings, the district court provisionally granted habeas relief on the equal protection claim.

In the same supplemental memorandum opinion and order, the district court addressed the issue of the correct remedy needed to rectify the state trial court's violation of Moody's equal protection rights. The court stated:

In its earlier order, this Court instructed the parties to address what relief is available in this case. [The State] only argues that a federal evidentiary hearing is unavailable. Petitioner contends that this Court should order a new trial. In support of his argument, Petitioner submits an affidavit by the trial prosecutor. . . . There, the prosecutor states that any hearing would be unproductive as he has no recollection of his motive in peremptorily striking [Mr. Hightower] eight years ago. As it appears that a hearing at this late date would not be feasible, the State of Texas must retry Petitioner.

Id. at 3. Faced with the futility of ordering a remand to reconstruct the Batson hearing, the district court ordered the State to either retry Moody within 180 days from its ruling, or release him from custody. In December of 2002, that order was stayed by the district court pending the outcome of this appeal.

The State now urges us to reverse the district court's final judgment provisionally granting Moody's petition for habeas corpus. The State's sole basis for reversal is that Moody failed to rebut the race-neutral explanation voluntarily proffered by the prosecutor. Moody, on the other hand, vigorously contends that the decision of the district court should be affirmed.

II. DISCUSSION

A. Standard of Review

In reviewing a grant of the writ of habeas corpus, this court reviews a district court's findings of fact for clear error and reviews de novo the district court's disposition of pure issues of law and mixed issues of law and fact. Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.2001). Because Moody's petition was filed after the effective date of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, our review is governed by a more heightened standard of review. Accordingly, a federal writ of habeas corpus may not issue to a petitioner seeking relief under AEDPA, unless the state adjudication of his 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 proceeding.

28 U.S.C. § 2254(d); see also Ogan v. Cockrell, 297 F.3d 349, 355 (5th Cir.2002). Moreover, a writ of habeas corpus pursuant to § 2254 should not issue solely on the basis that the state court committed error. Rather, the writ should be granted only if the state court "arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Absent a direct conflict with Supreme Court authority, habeas relief is available only if the state court decision is factually or legally unreasonable in light of the evidence present in the state court proceeding. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000). Notwithstanding, an unreasonable application of federal law is not the equivalent of an incorrect application of federal law. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, a federal writ may not issue merely because the state court incorrectly applied federal law; the application must also be unreasonable. Id. at 411, 120 S.Ct. 1495. An unreasonable application occurs "if the state court identifies the correct governing legal principles from [the Supreme Court's] decision, but unreasonably applies that principle to the facts of the [petitioner] prisoner's case." Id.

In the instant case, our focus is on the third step of the Batson inquiry, the court's determination as to whether the defendant carried his burden of proving purposeful discrimination. This determination is a question of fact. United States v. Kelley, 140 F.3d 596, 606 (5th Cir.1998) ("The district court's determination that a party has used peremptory strikes in a discriminatory manner is a finding of fact and thus cannot be overturned by this Court absent clear error."). Accordingly, Moody is only entitled to relief if the state court's determination constituted "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

B. Equal Protection Under Batson

The Supreme Court has long since made clear that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from striking prospective jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); accord United States v. Webster, 162 F.3d 308, 349 (5th Cir.1998) (recognizing that the Fifth Amendment prohibits use of peremptory strike of prospective jurors solely on the basis of race). In Batson, the Court delineated a three-step analysis for evaluation of a defendant's claim that a prosecutor used a peremptory strike in a racially discriminatory manner: (1) a defendant must make a prima facie showing that the prosecutor exercised his peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate a race-neutral reason for striking the juror in question; and (3) the trial court must determine whether the defendant carried his burden of proving purposeful discrimination. See Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (citing Batson, 476 U.S. at 96-98, 106 S.Ct. 1712). The ultimate burden of persuasion lies at all times with the defendant. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); see also Miller-El v. Dretke, 361 F.3d 849, 853 (5th Cir.2004), rev'd on other grounds, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

For the second step of the analysis, a prosecutor is not allowed to merely deny that he did not have a discriminatory motive; he must provide a specific explanation that is clear and reasonable. Elem, 514 U.S. at 768, 115 S.Ct. 1769. Although the prosecutor's explanation must be clear and reasonable, the explanation is not required to be persuasive or even plausible. Id. at 767-68, 115 S.Ct. 1769; see also United States v. Huey, 76 F.3d 638, 640-41 n. 12 (5th Cir. 1996). The question is the "facial validity" of the explanation. Elem, 514 U.S. at 768, 115 S.Ct. 1769. Therefore, "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered [by the prosecutor] will be deemed race neutral." Id. at 768, 115 S.Ct. 1769.

Whether a defendant has carried his burden under Batson's third step to prove purposeful discrimination is based on the persuasiveness and credibility of the prosecutor's justification for his exercise of the peremptory strike. Id. This step of the analysis is extremely fact intensive. Because of the importance of demeanor and credibility evidence in making such determinations, this step of the analysis should lie solely in the province of the trial judge. Id. Indeed, it is at this stage that the persuasiveness of a prosecutor's explanation becomes relevant. Accordingly, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Id.

1. Texas Trial Court

As stated, "[u]nder the AEDPA deference scheme, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), and questions of facts are reviewed under § 2254(d)(2)." Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.1999). Accordingly, Moody is not entitled to habeas relief unless the state court's decision is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). Further, a state court's factual findings are presumed to be correct unless contravened by clear and convincing evidence. § 2254(e)(1). With this standard of deference in mind, we consider Moody's equal protection claim.

From our review of the record, it is patently clear that the state trial court's ruling was contrary to clearly established Supreme Court law. The trial court did not even consider Moody's request for a Batson hearing because it incorrectly concluded that Moody had no standing to challenge the prosecution's exclusion of Hightower. As noted above, the Supreme Court has held that defendants have standing to raise a prospective juror's equal protection claim by way of a Batson challenge, even if the prospective juror is of a different race. Powers, 499 U.S. at 415, 111 S.Ct. 1364. Because of the trial court's erroneous ruling in contravention of Powers, it did not broach the three-step analysis required to evaluate a defendant's Batson challenge. Given the Supreme Court's holding in Powers, we find that the state trial court's ruling was an unreasonable application of clearly-established Supreme Court law. As to AEDPA's requirement that this court defer to the state trial court's findings of fact, this directive is not applicable as to this state trial court because it failed to make any findings of fact relative to the heart of Moody's claim.

2. Texas Court of Criminal Appeals

Essentially acknowledging that the state trial court's decision is not entitled to deference under AEDPA, the State contends alternatively that the district court should have denied relief based on the Texas Court of Criminal Appeals' holding regarding Moody's Batson claim. It contends that the Texas Court of Criminal Appeals' rejection of Moody's Batson claim was proper because the prosecutor's reason for striking Hightower was a valid race-neutral explanation. The State argues that because of AEDPA's deferential standard requiring that reviewing federal courts defer to the factual findings of state courts, the district court committed error when it failed to accede to the Texas Court of Criminal Appeals' factual findings that the prosecutor's race-neutral explanation was sufficient and that Moody failed to prove discriminatory intent. We agree.

The Supreme Court has held that "the presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata, 455 U.S. 591, 592-93, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); see also Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir.2006) (applying presumption of correctness to appellate court's findings of fact where petition was filed after the effective date of AEDPA); Norton v. Spencer, 351 F.3d 1, 6 (1st Cir.2003) (same); Bugh v. Mitchell, 329 F.3d 496, 501 (6th Cir.2003) (same). In the instant case, we have already determined that the state trial court did not conduct the three-step Batson test. Nevertheless, the Texas Court of Criminal Appeals on direct appeal did so in its stead. First, the Texas Court of Criminal Appeals presumed that Moody made the requisite showing necessary to establish a prima facie case to challenge the prosecutor's peremptory strike of Hightower. The Texas Court of Criminal Appeals next concluded that the State had volunteered a valid race-neutral explanation sufficient to meet its burden under step two of the analysis. Based upon its review of the record, the court concluded that Moody failed to prove that the prosecutor was motivated by discriminatory intent and thus failed to satisfy his burden under step three of the Batson analysis.

In considering Moody's petition for federal habeas relief, instead of determining whether the record supported the Texas Court of Criminal Appeals' finding that the prosecutor was not motivated by discriminatory intent, the district court essentially concluded that the Texas Court of Criminal Appeals erred by not remanding the case to the state trial court to conduct a proper Batson hearing. Recognizing the futility of ordering a remand to reconstruct the Batson hearing, the district court ordered a new trial.

On federal habeas review, the district court, applying the deferential standard required under § 2254(d), affirmed the state appeals court, holding that based on the record "the Missouri courts' determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness." Id. at 767, 115 S.Ct. 1769. On review to the Eighth Circuit Court of Appeals, the panel reversed the district court's decision and remanded the case with instructions that the district court grant Elem's petition for writ of habeas corpus. Id. The Eighth Circuit essentially concluded that the prosecution's explanation for striking prospective juror 22 was pretextual. Id.

The Supreme Court granted certiorari and reversed the Eighth Circuit, concluding that the panel had conflated steps two and three of the Batson analysis. Id. 768, 115 S.Ct. 1769. The Court stated that the panel erred by "requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive." Id. The Court admonished the panel stating, "[i]t is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Id. (citing Batson, 476 U.S. at 98, 106 S.Ct. 1712). The Court stated that the prosecutor's explanation for striking prospective juror 22, i.e., that "he had long, unkempt hair, a mustache, and a beard," was a sufficient race-neutral basis to satisfy the prosecution's burden under step-two of the analysis. Id. at 769, 106 S.Ct. 1712. The Court then concluded that from the prosecutor's race-neutral explanation, "the inquiry properly proceeded to step three, where the state court found that the prosecutor was not motivated by discriminatory intent." Id.

On remand, the Eighth Circuit followed the Supreme Court's instructions "to reevaluate, under the proper § 2254(d) standard, [the Missouri Court of Appeal's] `finding of no racial motive.'" Elem v. Purkett, 64 F.3d 1195, 1200 (8th Cir.1995) (quoting Purkett v. Elem, 514 U.S. at 769, 115 S.Ct. 1769). The court's review of the record revealed the following:

When petitioner's counsel objected to the prosecutor's use of peremptory strikes to eliminate jurors 22 and 24, the trial judge noted, and then the prosecutor argued, that there was no evidence that jurors 22 and 24 were in fact African American. The prosecutor nonetheless stated that he struck jurors 22 and 24 because of their mustaches and beards, which "look[ed] suspicious," and because of their hair, which the prosecutor "[didn't] like." Responding to the trial court's comment and the prosecutor's responsive argument, the defense attorney requested that the court either allow him to ask the two jurors if they were black or take judicial notice of the fact that they were black, in order to establish a record of the jurors' race. The trial court responded, "I am not going to do that, no, sir."

Elem, 64 F.3d at 1199 (alterations in original) (citations omitted). The Eighth Circuit explained that "after the prosecution offered its reasons for striking jurors 22 and 24, petitioner made no attempt to persuade the trial court that the prosecutor's reasons for striking juror 22 were merely a pretext for purposeful discrimination." Id. at 1201. Indeed, defense counsel's response to the trial court's refusal of his request was: "Okay. Nothing further." Id. at 1200 n. 7. Accordingly, the Eighth Circuit held that

because the prosecutor proffered reasons for striking juror 22 that were facially race-neutral, and petitioner made no attempt to persuade the state trial court that the prosecutor's reasons for striking juror 22 were merely a pretext for purposeful discrimination, the trial court's finding of no racial motive is fairly supported by the record, and petitioner is not entitled to habeas relief on his Batson claim.

Id. at 1201.

On appeal to the Texas Court of Criminal Appeals, defense counsel did not even attempt to argue that the prosecution's reasons for striking Hightower were pretextual. Instead, counsel argued only that "[t]he State failed to articulate a racially neutral reason, or any other reason, for exercising a peremptory strike on Mr. Hightower." But, as we noted above, the prosecutor's stated reason for striking Hightower was that he had two brothers-in-law that had been imprisoned and who he believed could be rehabilitated. It is understandable that defense counsel did not attempt to respond to the prosecutor's stated reasons following the trial judge's ruling that Moody lacked standing; nevertheless, we hold that Moody's failure to do so before the Texas Court of Criminal Appeals precludes a finding that the Texas Court of Criminal Appeals' determination was unreasonable.

Our conclusion is bolstered by defense counsel's objection to the prosecution's strike of a second juror on Batson grounds. In an effort to preempt a second erroneous ruling that Batson did not apply, defense counsel established a prima facie case that the prosecutor exercised a peremptory strike on the basis of race. The prosecutor then articulated several reasons for the strike including the juror's memory loss and her statement that she could not follow the evidence. Defense counsel responded by arguing that the prosecutor's explanation was not supported by the witness's testimony. The trial judge then made a finding that the juror was not struck because of her race. In his brief to the Texas Court of Criminal Appeals, Moody contended that there was nothing in the record to support the prosecutor's stated reasons for striking Lathon; however, he did not point to any evidence, or lack thereof, with regard to the prosecutor's stated reasons for striking Hightower. The Texas Court of Criminal Appeals found that the prosecutor's stated reasons for striking Hightower are supported by the record and that Hightower was struck for those reasons and not because of his race. Moody has not rebutted these findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

The district court's opinion and Moody's argument that the third stage of the Batson test necessarily requires a trial judge, not a reviewing appellate court, to scrutinize the demeanor, and thereby, the credibility of a prosecutor's offering are quite forceful and are indeed supported by the Supreme Court's own admonition. See Batson, 476 U.S. at 98, 106 S.Ct. 1712; Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) ("In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge."). Further, we are mindful that the Supreme Court has observed that "[t]here might be instances, however, in which the presumption [of correctness] would not apply to appellate factfinding . . . . For example, the question . . . . might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record." Cabana v. Bullock, 474 U.S. 376, 388 n. 5, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), overruled in part on other grounds, Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987); see also Buxton v. Lynaugh, 879 F.2d 140, 146 (5th Cir.1989). But Moody did not argue that the prosecutor's demeanor demonstrated that his reasons for striking Mr. Hightower were pretextual; indeed, Moody has made no argument that the prosecutor's reasons were pretextual. Consequently, we cannot conclude that the state court's determination that the prosecutor did not strike Hightower because of his race was unreasonable in light of this record.

Accordingly, although we might disagree with the Texas Court of Criminal Appeals' failure to remand the case to the trial court, the Texas Court of Criminal Appeals' finding that the prosecutor's striking of prospective juror Hightower was not a violation of Moody's equal protection rights was not unreasonable and is therefore not grounds for habeas relief. The district court's determination to the contrary is VACATED.

III. CONCLUSION

For the foregoing reasons, the order of the district court granting Moody's petition for habeas relief is VACATED. This case is REMANDED for further proceedings consistent with this opinion.

VACATED AND REMANDED.

Following the district court's denial of relief on his ineffective assistance claim, Moody sought a COA before this court solely on that issue. We denied Moody's application as to each of the arguments in support of that claim and dismissed his petition as to that claimSee Moody v. Dretke, 77 Fed.Appx. 7222 (5th Cir.2003) (unpublished).

2

Indeed we agree that the better practice would have been for the Texas Court of Criminal Appeals to remand the case to the trial court to conduct aBatson hearing. In Wardlow v. State, 6 S.W.3d 786 (Tex.App.1999), the trial court overruled the defendant's Batson violation, acknowledging that it was irrelevant but noting that the defendant was white and concluding based on the trial judge's experience with the prosecutors that they were not striking the jurors based on race. The appellate court noted the Supreme Court's decision in Powers and reversed and remanded the case to the trial court, holding that the prosecution's peremptory strike of the only remaining black venire-member established a prima facie case of a Batson violation. Id. at 787-88.

The colloquy transpired as follows:

MR. GUERINOT: We would like the record to reflect that this juror is a black male, and we would ask the State to specifically state in the record, after your voir dire and mine, the racially impartial reason that they are exercising a strike.

THE COURT: That will be denied, being the fact that the Defendant in this case is white. He is not part of any racial minority.

MR. GUERINOT: Thank you. Note our exception.

THE COURT: Give the gentleman an excuse and tell him he is free to go.

MR. MORRIS: In addition to that, if it be needed—probably doesn't need to—our point would be, of course, the records of the two brother-in-laws [sic], one robber and one dope pusher, and he says they can be rehabilitated, even though they have been up twice before.

THE COURT: Tell him he's free to go and thank him for being with us.

*****

DENNIS, Circuit Judge, dissenting:

When Moody's state trial counsel made a Batson objection to the state prosecutor's peremptory challenge of a black juror, the state trial court cut him off at the knees, ruling sua sponte that Moody did not have standing to object because Moody is white. Undisputedly, the state trial court's no-standing decision was contrary to the rule of federal law clearly established by the Supreme Court in Powers v. Ohio. 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that under the Equal Protection Clause, a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race).

The state trial court's ruling foreclosed any opportunity for: (1) Moody to make a prima facie showing of discrimination; (2) the State to make a valid proffer of a race-neutral basis for the challenge; or (3) Moody to show that the State's proffer would have been pretextual and that the challenge was race-based. Thus, the state trial court's immediate, sua sponte ruling also precluded the making of a record from which an appellate court could reasonably make a factual finding of racial discrimination vel non or a determination that the legal errors and omissions were harmless.

All this is evident from the unbroken train of events that rapidly followed Moody's objection to the peremptory challenge: (1) the trial court immediately ruled sua sponte that Moody did not have standing to object; (2) defense counsel noted his exception to the court's ruling; (3) the trial court excused the black juror from further jury service; (4) the prosecutor agreed with and accepted the benefit of the trial court's no-standing ruling, but interjected a reference to his reasons for the strike, stating that "[i]n addition to that, if it be needed—probably doesn't need to— . . . the records of the two brother-in-laws [of the juror], one robber and one dope pusher, and he says they can be rehabilitated, even though they have been up twice before . . .;" and (5) the trial court signified his insistence on his no-standing ruling and sustained the prosecutor's peremptory challenge by directing that the black juror be told that he was "free to go" and thereby released from further jury duty.

The district court correctly determined that a writ of habeas corpus must be granted because (1) the state trial court unquestionably violated the clear, firm rule of Powers by holding that Moody lacked standing to object to the race-based exclusion of a black juror through peremptory challenge because Moody "is white . . . [and] not part of any racial minority"; (2) the state trial court compounded its Powers error by also violating the clearly established rules of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it failed to conduct any of the three steps required by Batson after Moody objected that the state prosecutor had used a race-based peremptory challenge to exclude a black juror; (3) the Texas Court of Criminal Appeals ("CCA"), despite its recognition that the state trial court's decision was contrary to Powers, acted contrary to or unreasonably applied Batson by purporting to find as a fact that the prosecution's peremptory challenge had not been based on racial discrimination, although the record before it was completely devoid of any semblance of the state trial court's compliance with any of the three clearly established steps and procedures required by Batson.

The majority scouts for a way to say that the CCA's decision, although flatly contrary to Batson, was not unreasonable. But each theory it advances is itself contrary to or an unreasonable application of those clearly established Supreme Court holdings. First, the majority vaguely suggests that the collection of decisions related to Purkett v. Elem is a reasonable basis to think that a state appellate court might decide a Batson challenge originally and ab initio despite the trial court's failure to undertake any of the three steps. See Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Elem v. Purkett, 64 F.3d 1195 (8th Cir.1995); State v. Elem, 747 S.W.2d 772 (Mo.Ct.App.1988). But the Elem gestalt is diametrically different and inapposite at every juncture: there, after the trial court accepted the defendant's prima facie showing and the prosecution's making of a valid race-neutral proffer, the defendant failed to prove that the proffered reason was a pretext for racial discrimination. Elem affirms and follows Batson. Here, contrary to the Elem decisions, as the majority repeatedly admits, Moody was not allowed to broach any of the Batson phases; and the prosecutor's interjection, coming after he agreed that Moody lacked standing to complain about the State's racially based peremptories, was tacitly but clearly rejected by the trial court as an invalid and unnecessary proffer. Second, the majority's notion that in the state appellate court Moody somehow waived his right to object to race based peremptories that he was denied the standing to assert in the trial court is also incorrect. Neither the CCA opinion nor the State's briefs there or here even hint at a waiver, as the majority in effect holds, in the sense of an express or implicit failure to avail oneself of a known right or to assert a claim, and the majority's opinion presents no reasonable basis for supposing that Moody somehow declined to assert his Batson claim in the CCA while at the same time complaining vigorously that he had been denied standing to assert it below.