Thomas Miller-El

[Charlene]

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-10784

THOMAS JOE MILLER-EL,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

The Supreme Court has reversed the decision of this Court entered on August 7, 2001, and published at 261 F.3d 445, and has remanded this case to our Court for further proceedings consistent with the Supreme Court's opinion, decided February 25, 2003 in No. 01-7662.

For the reasons stated by the Supreme Court in its opinion, we now issue a Certificate of Appealability on Petitioner's jury selection claim premised on Batson. Accordingly, as suggested by the Supreme Court, the issue now before our Court is whether Petitioner has demonstrated that the state trial court's findings of the absence of purposeful discrimination was incorrect by clear and convincing evidence, and that the corresponding factual determination was A>objectively unreasonable in light of the record before the court, when viewed in the light of (1) Petitioner's historical evidence of racial discrimination by the district attorney's office, (2) the substantial evidence Petitioner put forth in support of his prima facia case, (3) the decisions of both the prosecution and the defense to call for a jury shuffle and (4) the evidence proffered by the defense as to disparate questioning of prospective jurors by the prosecution. We direct the parties to submit supplemental briefs focusing specifically on these issues with full and complete record citations as to relevant evidence and testimony. We instruct the clerk of this court to set a briefing schedule so that briefing will be complete within 45 days.

Case History:
In 1985, Thomas 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 sentenced Miller to death. UPDATE: The U.S. Supreme Court on Wednesday stayed the execution of Texas death row inmate Thomas Miller-El, who was scheduled to die Thursday. Miller-El, 50, who is black, was condemned for the 1985 robbery-slaying of Douglas Walker, a desk clerk at the Holiday Inn-South in Irving. Miller-El contends that prosecutors kept blacks off his jury. Justice Antonin Scalia granted the stay for Miller-El, whose case could be used by the Supreme Court to clarify rules for claiming racial discrimination in the selection of a jury. The high court said Friday it would hear Miller-El's appeal but did not stay the execution. It was up to the state to stay the execution on its own, or for Miller-El's lawyers to ask the Supreme Court to do so separately. His lawyers filed such a request Tuesday. "It always bothers me when someone . . . at the 11th hour just before the execution raises something that in our opinion has nothing to do with the facts or the law in this case," said Lori Ordaway, chief of the Dallas County District Attorney's office appellate division. As for the jurors who were struck, Ordaway said prosecutors had good reasons that had nothing to do with race. She said those reasons were explained to the trial judge, who rejected Miller-El 's first appeal, and upheld by the Texas Court of Criminal Appeals, a federal district court and the U.S. District Court of Appeals. "This has been reviewed and reviewed again by four separate courts," she said. In an earlier appeal, Miller-El conceded prosecutors properly challenged four of the 10 black jurors they struck from the pool, Ordaway said. The jury that sent Miller-El to death row was not all white; it included a black, an Asian and a Hispanic, she said.