FILED in the UNITED STATES COURT of APPEALS July 17, 2003

United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS July 17, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-41084 MARVIN LEE WILSON, Petitioner-Appellant, versus JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. -------------------- Appeal from the United States District Court for the Eastern District of Texas (6:01-CV-186) -------------------- Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Petitioner-Appellant Marvin Lee Wilson, a Texas death row inmate, is before us seeking a certificate of appealability (COA) to contest the district court’s grant of summary judgment dismissing his federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We deny COA. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I FACTS AND PROCEEDINGS Wilson was convicted and sentenced to death for the murder of Jerry Williams during the course of a kidnaping. See Wilson v. State, 938 S.W.2d 57, 58 (Tex. Crim. App. 1996). On direct appeal, the Texas Court of Criminal Appeals (CCA) reversed because of improper jury arguments by the prosecutor and remanded for a new trial. Id. at 58-62. Following remand, Wilson was retried and was again convicted and sentenced to death. Wilson v. State, 7 S.W.3d 136, 139 (Tex. Crim. App. 1999). The discrete facts of Wilson’s crime as reflected by the evidence were summarized by the state appellate court on direct appeal. Id. at 139-41. Wilson’s conviction and sentence were affirmed on direct appeal, id. at 141-48, and he filed a state habeas application, which the CCA denied on the basis of the trial court’s findings. After exhausting his state remedies, Wilson filed the instant § 2254 petition in which he argued that (1) the trial court erred in failing to instruct the jury that if he were sentenced to life in prison, he would not be eligible for parole until he had served 35 years; (2) the statutory definition of kidnaping contained in the Texas capital murder statute is unconstitutional and overly broad; (3) the prosecutor exercised peremptory strikes in a racially discriminatory manner (“Batson claim”); (4) the State 2 violated his right to be free from an unreasonable search and seizure by introducing evidence seized pursuant to an invalid search warrant; and (5) counsel provided ineffective assistance at both the trial and appellate level (“ineffective assistance claim”). The state filed a motion for summary judgment, arguing that Wilson’s claims were procedurally barred or were otherwise without merit. The district court concluded that all of Wilson’s claims were without merit, granted the state’s motion for summary judgment, and dismissed Wilson’s § 2254 petition. Wilson timely filed notices of appeal and a request for COA, which the district court denied. II ANALYSIS A. AEDPA Review To obtain a COA, Wilson must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When, as here, the district court’s dismissal is on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Determination whether to issue a COA does not involve full consideration of the merits of the habeas claims; instead, it “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 123 S. 3 Ct. 1029, 1039 (2003). A petitioner must prove “something more than the absence of frivolity or the existence of mere good faith,” but he is not required to show that he would succeed on appeal. Id. at 1040 (quotation marks and citation omitted). We review the district court’s application of the AEDPA to the petitioner’s constitutional claims and ask whether the district court’s resolution of those claims was debatable among jurists of reason. Id. at 1039. The AEDPA provides a scheme of deference to be used in reviewing claims in a state prisoner’s habeas corpus petition that were adjudicated on the merits in state-court proceedings. See 28 U.S.C. § 2254(d); see also Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). The AEDPA’s scheme of deference for claims thus adjudicated requires a federal court to defer to the state court’s resolution of both pure questions of law and mixed questions of law and fact unless the state court’s determination was “contrary to” or an “unreasonable application” of clearly established federal law as determined by the Supreme Court. See Hill, 210 F.3d at 485 (internal quotation marks omitted); see also § 2254(d)(1). A state court’s decision is contrary to clearly established federal law if it “applies a rule that contradicts the governing law set forth” in Supreme Court cases or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 4 (2000). A state court’s decision involves an unreasonable application of clearly established federal law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08. Factual findings by the state court are presumed to be correct in the absence of clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). Here, the district court found that the state habeas court’s findings and conclusions were not entitled to deference under the AEDPA because the judge who presided over Wilson’s habeas proceeding had not presided over his trial. Nevertheless, in addressing Wilson’s Batson claim, the court did defer to the trial court’s findings. In cases governed by pre-AEDPA law, we have held that factual findings following a paper hearing by a judge other than the one who presided at trial are not entitled to the presumption of correctness. See Salazar v. Johnson, 96 F.3d 789, 792 (5th Cir. 1996)(because the state habeas judge was not the judge at the state trial, the paper hearing was not an adequate and fair hearing); Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996) (same, but noting that a “paper hearing” conducted in a habeas proceeding by a judge other than the trial judge was not automatically prevented from receiving the presumption of correctness); Nethery v. Collins, 993 F.2d 1154, 1157 n.8 (5th Cir. 1993). We have not, however, addressed in a precedential post-AEDPA opinion, the treatment to be 5 afforded a state court’s factual findings when, as here, they were based on a paper record with conflicting affidavits and different judges.1 We need not do so here because the resolution of that issue is not determinative of the outcome in this case: The state habeas court’s factual findings are supported by the remainder of the record and Wilson cannot rebut them. Even if we were to review Wilson’s claims de novo, we would not conclude that he has made a substantial showing of the denial of a constitutional right in connection with any of the claims we consider today. In seeking a COA from us, Wilson has briefed only two of the claims he made in the district court, viz., the Batson claim, and the ineffective assistance claim. In so doing, Wilson has abandoned all other claims previously advanced. To be preserved, arguments must be briefed, Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993), and claims not adequately argued in the body of the brief are deemed abandoned on appeal. Id. at 224-25. Wilson is deemed to have abandoned all claims not briefed on appeal, preserving only his Batson claim and his ineffective assistance claim. B. Batson Claim Wilson argues that the prosecutor exercised peremptory strikes in a racially discriminatory manner. The Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on 1 We granted a COA on this issue in Bass v. Cockrell, No. 02- 20289. The case is now in the briefing stages. 6 account of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the Supreme Court outlined a three-step process for evaluating defense claims that a prosecutor used peremptory challenges in a manner violative of the Equal Protection Clause: (1) A defendant must make a prima facie showing that the prosecutor has exercised his peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate race-neutral reasons for striking the veniremen in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59 (1991), citing Batson, 476 U.S. at 96-98. A defendant may establish a prima facie case of discrimination solely on the basis of evidence concerning the prosecutor's exercise of peremptory challenges. Batson, 476 U.S. at 96. To do so, the defendant must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to veniremen of that group. The defendant must also demonstrate that “these facts and any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude” the veniremen on account of race.

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