No.
`
`IN THE SUPREME COURT OF THE UNITED STATES
`
`OCTOBER TERM, 2015
`
`CHRISTOPHER FLOYD,
`
`Petitioner,
`
`v.
`
`STATE OF ALABAMA,
`
`Respondent.
`
`ON PETITION FOR WRIT OF CERTIORARI TO
`
`THE ALABAMA SUPREME COURT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`RANDALL S. SUSSKIND
`
`Counsel ofRecord
`CARLA C. CROWDER
`
`122 Commerce Street
`
`Montgomery, Alabama 3 6104
`rsusskind@eji.org
`(334) 269-1803
`
`Counsel for Petitioner
`
`December 18, 2015
`
`CAPITAL CASE
`
`

`
`QUESTIONS PRESENTED
`
`Christopher Floyd was tried by an all—whitejury in Houston County, Alabama, where
`African Americans comprise twenty-seven percent ofthe population. The prosecutor,
`who has a documented history of racial discrimination in jury selection, marked
`African American venire members with a “B” on his strike list, then struck ten of
`
`eleven qualified African American prospective jurors. One of the African American
`jurors this prosecutor struck, Inez Culver, provided answers to all ofthe prosecution’s
`questions during voir dire, yet when asked to explain his peremptory strike of her the
`prosecutor asserted that he could not come up with a race—neutral explanation because
`she failed to respond to any questions and he did not know anything about her. Even
`though this was not true and was merely an explanation for not having a race-neutral
`reason, the Alabama courts refused to find an Equal Protection violation.
`
`Did the Alabama courts’ failure to find racial and gender discrimination
`in the selection ofMr. Floyd’s jury conflict with this Cou1“t’s precedent
`in Batson v. Kentucky and J.E.B v. Alabama?
`
`Should this Court hold this case in abeyance pending its resolution of Foster
`V. Chatman, 136 S. Ct 290 (2015) (No. 14-8349)?
`
`

`
`TABLE or CONTENTS
`
`QUESTION PRESENTED .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`_
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`1
`
`. ii
`
`TABLE OF CONTENTS .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`iv
`
`TABLE OF CITED AUTHORITIES .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`1
`
`OPINIONS BELOW .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 3
`
`JURISDICTION .
`
`.
`
`.
`
`CONSTITUTIONAL PROVISIONS INVOLVED .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 3
`
`. 2
`
`STATEMENT OF THE CASE .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`REASONS FOR GRANTING THE WRIT .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 12
`
`I.
`
`I
`
`THE EVIDENCE ESTABLISHES THAT THE PROSECUTION
`REMOVED PROSPECTIVE JURORS BASED ON RACE.
`.
`.
`
`.
`
`.
`
`. 15
`
`A.
`
`The Lower Court’s Determination
`
`that
`
`the
`
`Prosecution Provided A Race Neutral Reason For
`the Strike of Inez Culver Is Contradicted By the
`Record and Conflicts With Precedent From This
`
`.
`
`.
`
`.
`
`. 16
`
`Court.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`The Lower Court’ s Failure to Consider the Fact That
`
`the Prosecutor Made Notations About Race
`
`Conflicts With United States Supreme Court
`Precedent.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. .. 19
`
`The Lower Court’s Failure to Find Disparate
`Treatment of White Jurors Conflicts With Miller-E1
`
`.
`
`.
`
`.
`
`.
`
`. 20
`
`V. Dretke.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`Additional
`
`Strikes
`
`of African American
`
`Jurors
`
`Demonstrate Racial Bias in Jury Selection.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 22
`
`

`
`II.
`
`EVIDENCE OF
`SIMILARITIES BETWEEN THE
`DISCRIMINATION IN THIS CASE AND IN FOSTER V.
`CHATMAN WARRANT THIS COURT’S INTERVENTION.
`
`CONCLUSION .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 25
`
`. 28
`
`APPENDIX A
`
`Alabama Court of Criminal Appeals order remanding for Batson
`hearing and opinion on return to remand. Floyd V. State, No. CR-
`05—0935, 2007 WL 2811968 (Ala. Crim. App. Aug. 29, 2008)
`(opinion on return to remand).
`
`APPENDIX B
`
`Alabama Supreme Court order remanding to trial court. Ex parte
`Floyd, No. 1080107, 2012 WL 4465562, (Ala. Sept. 28, 2012).
`
`APPENDIX C
`
`Alabama Court of Criminal Appeals order denying relief. Floyd
`V. State, CR-05-0935, 2013 WL 5966917 (Ala. Crim. App. Nov.
`8, 2013).
`
`APPENDIX D
`
`Alabama Supreme Court order affirming denial of relief. Ex parte
`Floyd, No. 1130527, 2015 WL 3448098 (Ala. Aug. 21,
`2015)(modified on denial of reh’g).
`
`

`
`TABLE OF CITED AUTHORITIES
`
`CASES
`
`Andrews V. State, 624 So. 2d 1095 (Ala. Crim. App. 1993)
`
`Ashley V. State, 651 So. 2d 1096 (Ala. Crim. App. 1994)
`
`Batson V. Kentucky, 476 US. 79 (1986) .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 26
`
`. 26
`
`. passim
`
`.
`
`.
`
`.
`
`.
`
`. 26
`
`Bush V. State, 615 So. 2d 137 (Ala. Crim. App. 1992) .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`Ex parte Floyd, No. 1080107, 2012 WL 4465562 (Ala. Sept. 28, 2012) .
`
`.
`
`.
`
`. passim
`
`Ex parte Floyd, No. 1130527, 2015 WL 3448098 (Ala. Aug. 21, 2015) 2, 3, 11. 15
`
`Floyd V. State,_No. CR-05-0935, 2013 WL 5966917 (Ala. Crim. App. Nov. 8, 2013)
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. 2, 3
`
`Floyd V. State, No. CR-05-0935, 2007 WL 281 1968 (Ala. Crim. App. Aug. 29, 2008)
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. passim
`
`J.E.B. V. Alabama, 511 U.S. 127 (1994) .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 2, 5
`
`. 19, 23
`
`Johnson V. California, 545 U.S. 162 (2005) .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`McCray V. State, 738 So. 2d 911 (Ala. Crim. App. 1998)
`
`.
`
`.
`
`Miller-E1 V Cockrell, 537 U.S. 322 (2003) .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 26
`
`. passim
`
`.
`
`. 15, 19,20, 21
`
`Miller-E1 V. Dretke, 545 U.S. 231 (2005) .
`
`.
`
`.
`
`.
`
`Roger V. State, 593 So. 2d 141 (Ala. Crim. App. 1991) .
`
`Snyder V. Louisiana, 552 U.S. 472 (2008)
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`Williams V. State, 620 So. 2d 82 (Ala. Crim. App. 1992)
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 26
`
`. 15, 21
`
`.
`
`.
`
`.
`
`.
`
`. 26
`
`

`
`STATUTES
`
`28 U.S.C.§ 1257(a) .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. 3
`
`OTHER AUTHORITIES
`
`Foster V. Chatman, No. 14-8349, 2015 WL 4550211 (Brief of Petitioner) (July 24,
`
`

`
`No.
`
`IN THE SUPREME COURT OF THE UNITED STATES
`
`OCTOBER TERM, 2015
`
`
`
`CHRISTOPHER FLOYD,
`
`Petitioner,
`
`v.
`
`STATE OF ALABAMA,
`
`Respondent.
`
`
`
`ON PETITION FOR WRIT OF CERTIORARI TO
`THE ALABAMA SUPREME COURT
`
`
`
`PETITION FOR WRIT OF CERTIORARI
`
`
`
`Petitioner Christopher Floyd respectfully petitions for a writ of certiorari to
`
`review the judgment of the Alabama Supreme Court in this case.
`
`OPINIONS BELOW
`
`On November 17, 2005, a jury in Houston County, Alabama convicted
`
`Christopher Floyd of capital murder during the course of a robbeiy, in connection
`
`with the death of Waylon Crawford. (C. 12, R. 1140.) The trial judge accepted the
`
`jury’s 1 1-1 recommendation and sentenced Mr. Floyd to death on February 15,2006.
`
`

`
`On September 28, 2007, the Alabama Court ofCriminal Appeals found a prima
`
`facie case of discrimination under Batson V. Kentucky, 476 U.S. 79 (1986) and
`
`v. Alabama, 51 1 U.S. 127 (1994), and remanded the case for a 1_£3_a‘ts_or_1 hearing. Egyg
`
`V. State, No. CR—05—0935, 2007 WL 281 1968, at *3 (Ala. Crim. App. Sept. 28, 2007).
`
`In its order following the hearing, the trial court found no Batson or J .E.B. violation.
`
`(C.R. 19.) The Court of Criminal Appeals upheld the trial court’s decision on the
`
`Bami and
`
`claims and affirmed Mr. Floyd’s conviction. Floyd V. State, No.
`
`CR-05-0935, 2007 WL 2811968, at*3 (Ala. Crim. App. Aug. 29, 2008) (opinion on
`
`return to remand) (Attached as Appendix A). The Alabama Supreme Court granted
`
`certiorari on January 19, 201 1, and on September 28, 2012 remanded the case to the
`
`trial court for specific findings of fact. Ex parte Floyd, No. 1080107, 2012 WL
`
`4465562, at *5 (Ala. Sept. 28, 2012). (Attached as Appendix B.)
`
`At the second remand, on February 8, 2013, the trial court again denied Mr.
`
`F1oyd’s mtg and
`
`claims. The Alabama Court of Criminal Appeals affirmed.
`
`Floyd v State, CR—05—0935, 2013 WL 5966917, at *6 (Ala. Crim. App. Nov. 8, 2013)
`
`(Attached as Appendix C). Rehearing was denied on February 7, 2014. The Alabama
`
`Supreme Court granted certiorari and affirmed the Court of Criminal Appeals’
`
`decision denying relief. Ex parte Floyd, No. 1130527, 2015 WL 3448098 (Ala. May
`
`29, 2015). The Court modified its opinion and denied rehearing on August 21, 2015.
`
`(Attached as Appendix D.)
`
`

`
`JURISDICTION
`
`The date on which the Alabama Supreme Court denied Mr. Floyd’s appeal was
`
`May 29, 2015. Ex parte Floyd, No. 1130527, 2015 WL 3448098 (Ala. May 29,
`
`2015). His application for rehearing was overruled on August 21, 2015. Ex parte
`
`Floyd, No. 1130527, 2015 WL 3448098 (Ala. Aug. 21, 20l5)(modif1ed on denial of
`
`reh’ g). On November 12, 2015, Justice Thomas extended the time to file this petition
`
`for a writ of certiorari until December 18, 2015. Floyd v. Alabama, No. ISA493
`
`(U.S. Nov. 12, 2015). Thejurisdiction ofthis Court is invoked pursuant to 28 U.S.C.
`
`§ l257(a).
`
`CONSTITUTIONAL PROVISIONS INVOLVED
`
`The Fifth Amendment to the United States Constitution provides, in pertinent
`
`No person shall be held to answer for a capital, or
`otherwise infamous crime,
`.
`.
`. nor be deprived of life,
`liberty, or property, without due process of law[.]
`
`The Fourteenth Amendment to the United States Constitution provides,
`
`in pertinent part:
`
`No State shall make or enforce any law which shall abridge
`the privileges or immunities of citizens of the United
`States; nor shall any State deprive any person of life,
`liberty, or property, without due process of law; nor deny
`to any person within its jurisdiction the equal protection of
`the laws.
`
`

`
`STATEMENT OF THE CASE
`
`Waylon Crawford was shot and killed at his grocery store in Houston County,
`
`Alabama on February 15, 1992. For over twelve years, the death went unsolved.
`
`There were no witnesses, and there was no probative physical evidence collected at
`
`the crime scene.
`
`(R. 618, 624-26.)‘! Law enforcement suspected Christopher Floyd
`
`was involved in the shooting after the police obtained an inculpatory statement from
`
`him on September 27, 2004. (R. 735-47.)
`
`Investigators took five additional
`
`statements from Mr. Floyd, all ofwhich contained conflicting details and inconsistent
`
`accounts of this crime.
`
`Mr. Floyd’s capital murder trial commenced in Houston County November 1 5,
`
`2005. In a county where African Americans constitute twenty-seven percent of the
`
`population, he was tried by an all-white jury after the Houston County District
`
`Attorney removed ten of eleven qualified African American veniremembers from the
`
`jury. The prosecutor also used twelve of his first fourteen strikes to remove women.
`
`At trial, a statement obtained by law enforcement officers from Mr. Floyd
`
`provided the primary evidence against him, as the District Attorney repeatedly told
`
`1References to the reporter’s transcript at trial are cited herein as “R._.” and
`references to the clerk’s record of trial are cited as “C._.” The clerk’s record of the
`hearing on return to remand is cited as “C.R._.” and the transcript of the hearing on
`return to remand is cited as “R.R_.” The supplemental record is cited as “S.R._.”
`Finally, the clerk’s record on the second return to remand is “C.R.2_.”
`
`4
`
`

`
`thejury. (R. 525-27, 536-37, 1030.) The defense’s theory was that Mr. Floyd falsely
`
`confessed after being threatened by his cousin, Paul Wayne Johnson, the initial
`
`suspect in the crime, while the two were incarcerated together. (_S_ee_e,g_., R. 889, 895,
`
`903.)
`
`On November 17, 2005, Mr. Floyd was convicted ofcapital murder during the
`
`course of a robbery.
`
`(C. 12, R. 1140.) Mr. Floyd moved for a new trial based on
`
`newly discovered evidence of innocence after a previously unknown witness came
`
`forward with information implicating Paul Wayne Johnson in the killing.
`
`(C. 360—
`
`66.) The trial court denied the motion. (C. 386-88.) The trial judge accepted the
`
`jury’s 1 1-1 recommendation and sentenced Mr. Floyd to death on February 15, 2006.
`
`On September 28, 2007, the Alabama Court ofCriminal Appeals found that the
`
`prosecution’ s exclusion of91 percent ofAfrican Americans qualified forjury service
`
`and the use of twelve of its first fourteen peremptory strikes against women
`
`constituted a prima facie case ofdiscrimination under both Batson V. Kentucky, 476
`
`U.S. 79 (1986) and J.E.B. v. Alabama, 511 U.S. 127 (1994), and remanded the case
`
`for a hearing. Floyd v. State, No. CR—05-0935, 2007 WL 2811968, at *3 (Ala. Crim.
`
`App. Sept. 28,2007).
`
`A remand hearing was held on November 13, 2007. At the beginning of the
`
`

`
`hearing, the trial court expressed deep frustration2 with having to conduct the hearing
`
`based on the appellate court’s findings, (R.R. 8 (“[l]t would appear that now instead
`
`of the Court being neutral, detached, and impartial, that the Court must now take
`
`sides if the defendant doesn’t make ai challenge, then the Court has to make
`
`it for them.”) He also stated his belief, before the State actually offered any reasons
`
`for its strikes, that the State did not engage in race—based jury strikes: “We don’t get
`
`into situations where the State might strike an individual for racial reasons because
`
`the State knows that I am going to make them give their reasons, so you don’t have
`
`that situation.” (R.R. 7.)
`
`At that hearing, the State attempted to justify its strikes of 10 of 1 1 African
`
`Americans from the Venire. The prosecutor began by explaining that his system for
`
`evaluating jurors is partially based on “gut reaction,” which he acknowledged
`
`includes the labeling African-American Veniremembers by placing a “B” for black
`
`beside their names. (R.R. 57-58.) After asserting that five African Americans were
`
`struck because of misdemeanors, felony convictions, or traffic tickets, the prosecutor
`
`gave the following reasons for its strikes of the remaining African-American
`
`2 The trial court’s hostility about being required to make findings about the
`state’s strikes of African Americans and women continued throughout the hearing;
`at one point, for example, he sarcastically interjected: “Should you also give your
`reasons for striking white males — but that’s okay isn’t it? lt’s proper to do that. I
`forgot.” (RR. 51.)
`
`

`
`veniremernbers that he removed:
`
`Doris Barber: She was not paying attention to the prosecutor or the Court and
`had no eye contact, but was nodding at the defense. (RR. 73.)
`
`Inez Culver: She was not on the background check list compiled by the
`State containing criminal records and prior jury service information on
`all veniremembers, and “she failed to respond to any question.” (R.R. 67-
`
`as.)
`
`Martha Culver: She was opposed to the death penalty but reluctantly
`indicated she could follow the law. (R.R. 69.)
`
`Lillie Curry: She knew the defense attorneys, the district attorneys, and a
`State witness; too familiar with everyone on the case. She had an ex—husband
`who was in law enforcement. (R.R. 69-70.) Later he added that she had
`religious beliefs against sitting in judgment of another. (R.R. 71-72.)
`
`Ramona Cleveland: She was 77-years—old and was struck because of her age
`and the complexity of the case. (R.R. 66-67.)
`
`As to the strike of Teena Allen, a 48-year-old white woman, the prosecutor said
`
`that he “struck her basically on the age part.” (RR. 74.) The trial court later noted
`
`that the prosecutor’s reliance on age was “all over the map.” (R.R. 82.)
`
`In its order following the hearing, the trial court found that the State had
`
`provided race- or gender-neutral reasons for all of these strikes with the exception of
`
`the strikes of Inez Culver, an African-American female, and Teena Allen. (C.R. 18.)
`
`However, the judge nevertheless determined that there was no lfiggn or
`
`violation. Reasoning that “not remembering is not tantamount to discrimination," the
`
`trial court stated that it would be “inconsistent that the State would give a reason for
`
`

`
`its strikes of other African-Americans and females and yet strike these two based on
`
`race or gender.” (C.R. 18.) The Court determined “that the State gave race and
`
`gender neutral reasons for its strikes.” (C.R. 19.)
`
`In its opinion, the Alabama Court of Criminal Appeals conducted its own
`
`review ofthe record in order to find race-neutral reasons for the strike ofMs. Culver,
`
`and gender-neutral reasons for the strike ofMs. Allen. The appeals court determined
`
`that the prosecution had stated that Ms. Culver was struck because she did not
`
`respond to any questions during voir dire. Additionally, the court determined that the
`
`prosecutor stated that he struck Ms. Allen because of her age and because his initial
`
`impression of her was that she would not make a favorable juror for the State. The
`
`Court of Criminal Appeals upheld the trial court’s decision on the Batson and J .E.B.
`
`claims and affirmed Mr. Floyd’s conviction. Floyd v. State, No. CR-05-0935, 2007
`
`WL 2811968 (Ala. Crim. App. Aug. 29, 2008) (opinion on return to remand). One
`
`judge dissented, finding that there was no race-neutral reason for the strike of
`
`Ms. Culver. Floyd, 2007 WL 2811968, at *3 (opinion on return to remand)
`
`(Welch, J., dissenting) (“I believe that the record provides clear evidence of
`
`disparate treatment ofwhite venire members and treatment ofJuror No. 58 [Ms.
`
`Culver] and that the State improperly struck Juror No. 58 based solely upon her
`
`race.”).
`
`

`
`On September 28, 2012, the Alabama Supreme Court reversed and held that
`
`“the trial court did not enter specific findings concerning the reasons the State offered
`
`as to why it struck the African—American and/or female jurors it struck.” Ex parte
`
`Floyd, No. 1080107, 2012 WL 4465562, at *5 (Ala. September 28, 2012). The case
`
`was remanded with instructions for the trial court to make those findings. LCL
`
`At the second remand, the prosecution provided no new reasons for its strikes.
`
`In its order on second return to remand, the trial court changed his finding with
`
`respect to the most critical issue in the case. Instead of finding that the prosecution
`
`did not provide any reasons for the strikes ofMs. Culver and Ms. Allen, as he did at
`
`the first remand (C.R. 18 (“the State has presented race and gender neutral reasons
`
`for its strikes with the exception of juror Inez Culver, a black female, and juror
`
`Teena Allen, a white female .
`
`. .”), the judge this time found that the prosecution did
`
`give reasons for its strikes of Ms. Culver and Ms. Allen. (C.R. 2 31-33.))
`
`In this second order,
`
`the trial court found the State had satisfied the
`
`requirements of Batson with respect to its strike Ms. Culver: “[T]he State could not
`
`remember much about her. .
`
`.
`
`. she was struck because she did not respond to any
`
`questions and she did not appear on the State’s list.” (CR. 2 32.). According to the
`
`trial court, this was adequate to rebut the inference of discrimination.
`
`Contrary to this finding, the record in this case shows that Ms. Culver did, in
`
`

`
`fact, give responses to many voir dire questions. When the prosecutor asked the
`
`venire ifanyone had seen someone get shot on television, Ms. Culver responded that
`
`she had, as the prosecutor noted that everybody responded that they had. (R316)
`
`(“Everybody seen that during their lifetirne?...Everybody? Anybody who has not?”).
`
`In addition, during group voir the prosecutor asked veniremembers to raise their
`
`hands if they knew the defense attorneys, (R.317), if he had ever prosecuted their
`
`relatives, (R. 333), and if they had ever seen anyone get shot. (R. 315.) Ms. Culver,
`
`like many other jurors, responded to these questions by not raising her hand.
`
`Ms. Culver also responded in the negative by not raising her hand to the
`
`following questions asked of her during voir dire: Would you consider that someone
`
`was only 21—years—old before imposing the death penalty? (R. 307-08); Do you think
`
`the burden of proof in a death penalty case should be 100 percent? (R. 310); Have
`
`you ever testified in a criminal case? (R. 314); Did any ofthe defense attorneys ever
`
`represent you? (R. 317); Would you spare someone’s life for sympathy because of
`
`your religion? (R. 319); Does anyone think you should automatically give up your
`
`wallet during a robbery? (R. 322); Does anyone believe the district attorney’s office
`
`selectively prosecutes based on race, color, or creed? (1_cL) At one point, the
`
`prosecutor emphatically stated his insistence that everyone on the venire respond by
`
`letting him know whether they understood reasonable doubt, stating, “Come on
`
`people. I’m looking at you. If you don’t, I need to know. It’s very important.” (R.
`
`10
`
`

`
`31 1.) Again, by not raising her hand like many other jurors, Ms. Culver responded
`
`that she understood. (I_d.)
`
`Following these questions and answers, the prosecution did not address any
`
`followup questions to Ms. Culver.
`
`As to the strike of Ms. Allen, the trial court in its order on second return to
`
`remand found that the State struck her because of age, (C.R. 2 32), and that this was
`
`a gender-neutral reason. Neither the prosecutor, nor the trial court, explained how her
`
`age was related to the case. Ms. Allen was 48 years old at the time ofthe trial, fifteen
`
`years older than Mr. Floyd. The State left on the jury a 38-year-old male, Kelly
`
`Colbert, (R.R. 84-85), and a 54-year-old male, Robert Earl Davis. (R.R. 23, 27.)
`
`Additionally, the prosecutor used age as a justification to strike a 77-year-old, (R.R.
`
`67), a 36-year-old (R.R. 83), and a 28-year-old. (RR. 105.)
`
`As the trial court noted at the initial remand hearing, the prosecutor’s reliance
`
`on age was “all over the map.” (RR. 82.)
`
`On February 8, 2013, the trial court issued its order on second return to remand
`
`denying Mr. Floyd’s Eisgm and
`
`claims. The Alabama Court of Criminal
`
`Appeals affirmed. On May 29, 2015, the Alabama Supreme Court Court affirmed
`
`the Court of Criminal Appeals’ decision denying relief. Ex parte Floyd, No.
`
`1 130527, 2015 WL 3448098 (Ala. May 29, 2015) (modified on denial ofreh’g, Aug.
`
`21,2015).
`
`

`
`REASONS FOR GRANTING THE WRIT
`
`In Christopher Floyd’s trial, the Houston County District Attorney excluded
`
`ten of eleven, or 91 percent, ofthe qualified African-American veniremembers from
`
`jury and used seven of his first eight peremptory strikes against African
`
`the
`
`Americans.‘ As a result, Mr. Floyd was tried before an all-white jury in a county that
`
`is twenty-seven percent African American.
`
`The trial court determined that the prosecutor did not illegally discriminate
`
`based on race and gender, in part because ofa legally impermissible presumption that
`
`this Alabama prosecutor simply would not do so. (See R.R. 7 (“We don’t get into
`
`situations where the State might strike an individual for racial reasons because the
`
`State knows thatl am going to make them give their reasons, so you don’t have that
`
`situation”); CR. 19 (“It is unlikely that the State would make a preemption (sic)
`
`strike on the basis of illegal race or gender grounds.”)).
`
`To the contrary, the record at the Batson hearing evinces the prosecution’s
`
`clear reliance on race in selecting this jury, as demonstrated by his use of the letter
`
`“B” to label black veniremembers and subsequent reliance on those “B” labels as part
`
` ._:{..:_
`
`1 After strikes for cause there were 48 jurors on the venire. Thirty-seven were
`white, 11 were African American, 23 were men, and 25 were women. Defense
`counsel used 1 8 peremptory strikes to remove 17 whitejurors, one African American,
`1 1 men and 7 women. The District Attorney used peremptory strikes to remove 8
`whitejurors, 10 African Americans, 6 men, and 12 women. Thejury consisted of 12
`white jurors, no African American jurors, 6 men, and 6 women. (C. 301-03.)
`
`12
`
`

`
`of his “initial gut-reaction rating system.” (RR. 58.) The prosecutor explained his
`
`system as follows:
`
`In a capital murder case where voir dire is extensive, and
`ordinarily the process lasts a day or longer, I try to rate
`each and every juror initially on gut reaction. If you will
`look at State’s Exhibit No. 1 there, in black outside of a lot
`ofjuror’s names, I will write “Okay.” I will write a dash for
`a minus.
`I might write a plus, being — minuses are a bad
`gut reaction, pluses are a good gut reaction. Okay is just
`okay. All right. Also, in doing so — I do that when the
`clerk is calling the names of the jurors and asking them to
`stand. Now, also, as is the Court’s practice — when I say
`the Court, the list that we have, I will but a “B” outside the
`names of those who are black.
`
`(R. 58.)
`
`After which, the following exchange occurred:
`
`Court:
`
`You put a what?
`
`Mr. Maxwell:
`
`“B.”
`
`Court:
`
`“B,” as in black?
`
`Mr. Maxwell:
`
`Yes, sir. All right. I have done this same procedure, the
`initial gut—reaction rating system, for over thirty years. It’ s
`proven to be pretty accurate, I think.
`
`Based on this system, the prosecutor placed a “B” beside the names of all
`
`African-American jurors who were eventually struck, and a “minus” beside seven of
`
`these ten. (R.R. 22-23.) As this Court has found, marking the race of prospective
`
`jurors supports “[t]he supposition that race was a factor.” Miller—El v Cockrell, 537
`
`13
`
`

`
`U.S. 322, 347 (2003).
`
`In addition to this demonstration of race—consciousness, the prosecutor failed
`
`to provide legitimate, race-neutral reasons for its strikes of African-American
`
`prospectivejurors. After two Batson remands in this case, the prosecution failed to
`
`provide any race—neutral reason for why it struck Inez Culver, a 57-year-old African-
`
`American woman. In response, the trial court changed his mind concerning whether
`
`the prosecutor had provided a race-neutral reason for its strike of Ms. Culver, first
`
`finding that he had not, then at the second remand finding that the prosecution did
`
`give race-neutral reasons for this strike even though no new justifications were
`
`offered (CR. 2 31-33), thus ruling the defense had not met its burden of proving
`
`purposeful discrimination. The trial court additionally changed his finding regarding
`
`the State’s strike of Teena Allen. First, the trial court found the State had not
`
`provided a reason for this strike (CR. 18), then in its second order finding that the
`
`state struck Ms. Allen “because of age,” (CR. 2 32). The trial court denied the
`
`J .E.B. challenge.
`
`defendant's right to equal protection because it denies him the protection that atrial
`
`by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). The
`
`Constitution forbids striking a single prospectivejuror for a discriminatory purpose.
`
`

`
`Snyder V. Louisiana, 552 U.S. 472, 478 (2008).
`
`The Alabama Supreme Court upheld the trial court’s decision. Floyd V. State,
`
`No. 1130527, 2015 WL 3448098, at *8 (Ala. May 29, 2015), as modified on denial
`
`of reh'g (Aug. 21, 2015). In denying Mr. Floyd’s Batson claim, the Alabama courts
`
`overlooked numerous examples of explicit reliance on race by the prosecution, and
`
`failed to consider “all relevant circumstances” when reviewing Mr. Floyd’s claim.
`
`“[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for
`
`striking the juror, and it requires the judge to assess the plausibility of that reason in
`
`~ light of all evidence with a bearing on it.” Miller—E1 v. Dretke, 545 US. 231, 252
`
`(2005).
`
`Given this Court’s consideration of similar facts and claims in Foster V.
`
`Chatman, these circumstances warrant this Court’s intervention in Mr. Floyd’s
`
`unlawful capital murder conviction and death sentence.
`
`I.
`
`THE EVIDENCE ESTABLISHES THAT THE PROSECUTION
`REMOVED PROSPECTIVE JURORS BASED ON RACE.
`
`Despite the prosecutor’s failure to provide any reason for his strike of Juror
`
`5 8, Inez Culver, an African-American woman with no criminal record, no objections
`
`to the death penalty, and who responded to every question asked ofher, the trialjudge
`
`and the Alabama Supreme Court found that there was no Batson violation in this case.
`
`This decision conflicts with this Court’s precedent.
`
`15
`
`

`
`A.
`
`The Lower Court’s Determination that the Prosecution Provided A
`Race Neutral Reason For the Strike of Inez Culver Is Contradicted
`By the Record and Conflicts with Precedent From This Court.
`
`The Houston County District Attorney has never given a reason for his strike
`
`of Inez Culver. There were no reasons given at trial, where she was the State’s
`
`sixteenth strike. On the first remand, the trial judge found that the prosecutor could
`
`not remember the reason for this strike, but reasoned that “not remembering is not
`
`tantamount
`
`to discrimination.” (C.R. 18.) The Alabama Supreme Court
`
`then
`
`remanded again to give the trial court an opportunity to determine whether the district
`
`attorney could provide reasons for this strike. Ex parte Floyd, No. 1080107, 2012 WL
`
`4465562, at *5 (Ala. Sept. 28, 2012).
`
`On remand, again, no new reasons were
`
`offered. This time the trial court simply excused the failure of the prosecutor to give
`
`a race-neutraljustification by crediting the prosecutor’s assertion that there was a lack
`
`of information about this juror in the record. (CR. 2 32-33.) But this was merely an
`
`explanation for not having a legitimate reason; it is not a reason itself. That is, not
`
`knowing enough about a juror to provide a race neutral reason is not among this
`
`Court’s numerous, recognized race neutral reasons for a strike.
`
`The district attorney stated the following regarding his peremptory strike of
`
`Ms. Culver: “I guess she was inadvertently left off our list? We knew nothing about
`
`2 The list, identified in the record as “STATE’S LIST W/B’DAYS, RACE,” '
`(C.R. 20)(emphasis added), is compiled by the Houston County District Attorney
`
`16
`
`

`
`her from that. Also, she was nonresponsive to any question that we had.” (RR. 75.)
`
`Based on this assertion from the district attorney, the trial court initially found
`
`that no reason was given for removing Ms. Culver. But on remand from the Alabama
`
`Supreme Court, the trial judge altered his finding and found — without receiving any
`
`new proffer from the District Attorney - that the explanation that Ms. Culver “was
`
`struck because she did respond to any questions and she did not appear on the State’s
`
`list” was adequate to rebut the inference ofdiscrimination. (C.R.2 32.) The Alabama
`
`Supreme Court agreed, “[i]n light of the prosecutor’s explanation of the process he
`
`used for striking a jury, the prosecutor’s candor that he knew nothing about [Ms.
`
`Culver], his stated reluctance to seat ajuror he did not believe was good for the State,
`
`[and] the fact that the [remand hearing] was not held immediately following the jury
`
`selection.” Ex Parte Floyd, 2015 WL 3448098, at *9.
`
`As an initial matter, the record makes clear that the District Attorney’s
`
`assertion that he knew nothing about Ms. Culver ignores that fact that she answered
`
`every question asked of her during voir dire, providing him with all of the
`
`information he requested. For example, during group voir dire the prosecutor asked
`
`veniremembers to raise their hands if they knew the defense attorneys, (R. 3 17), ifhe
`
`based on information provided by the Dothan Police Department and the Houston
`County Sheriffs Department, and includes the date of birth, gender, race, outcome
`of prior jury service, and criminal records of prospective jurors. (C.R. 24-34.)
`
`l7
`
`

`
`had ever prosecuted their relatives, (R. 333), and if they had ever seen anyone get
`
`shot. (R. 3l5.)3 Like many jurors, Ms. Culver responded to those questions by not
`
`raising her hand. At one point, the prosecutor emphatically stated his insistence that
`
`EVE
`
`ryone on the venire respond by letting him know whether they understoo