Sorto v. Herbert, No. 05-0728 (2d Cir. 2007)
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05-0728-pr Sorto v. Herbert 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2005 (Argued: June 20, 2006 Decided: March 9, 2007) (Amended: August 10, 2007) Docket No. 05-0728-pr - - - - - - - - - - - - - - - - - - - -x VALENTIN SORTO,* Petitioner-Appellant, - v. VICTOR HERBERT, Superintendent of the Attica Correctional Facility, Respondent-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, POOLER, WESLEY, Circuit Judges. Appeal from a judgment of the United States District 34 Court for the Eastern District of New York (Korman, Ch.J.), 35 denying the petition for habeas corpus. 36 convicted petitioner of murder, assault, and criminal 1 2 * A state court jury The official caption misspells petitioner s name. The caption is hereby corrected. 1 possession of a weapon; petitioner claims that jury 2 selection was conducted in violation of the rule in Batson 3 v. Kentucky, 476 U.S. 79, 97-98 (1986), and its progeny. 4 The district court denied the petition, and we affirm. 5 Judge Pooler dissents in a separate opinion. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MONICA A. JACOBSON, New York, NY, for Petitioner-Appellant . DENISE PALVIDES, Assistant District Attorney for Nassau County (Kathleen M. Rice, District Attorney for Nassau County, Peter A. Weinstein, Assistant District Attorney for Nassau County, of counsel), Mineola, NY, for RespondentAppellee. DENNIS JACOBS, Chief Judge: Petitioner Valentin Sorto, convicted of murder and 25 related offenses in New York state court, petitions for a 26 federal writ of habeas corpus on the ground that the state 27 courts unreasonably misapplied Batson v. Kentucky, 476 U.S. 28 79, 97-98 (1986), and its progeny. 29 Sorto twice asserted that the prosecution was discriminating 30 against minority jurors in its exercise of peremptory 31 strikes; both challenges were denied for failure to 2 During jury selection, 1 establish a prima facie case of discrimination. 2 of the Batson issue in this case requires more information 3 about the possible jurors than the record discloses. 4 limited portions of jury selection were recorded: 5 Court has not been presented with a full transcript of the 6 voir dire, or with data describing the composition of the 7 potential juror pool. 8 demonstrating an unreasonable application of federal law, 9 the insufficiency of the record defeats his petition, and we 10 Resolution Only This Because Sorto bears the burden of therefore affirm. 11 12 BACKGROUND 13 Valentin Sorto was arrested for the April 27, 1997 14 murder of Jose Alvarez and the severe beating of Lazaro 15 Cruz. 16 retaliated for an attack on their fellow gang member by 17 stabbing Alvarez in the neck and chest, leaving him to bleed 18 to death in a stairwell; and Sorto punched Cruz and slashed 19 his hands with a broken glass bottle. 20 accomplice were indicted for murder in the second degree, 21 assault in the second degree, and criminal possession of a 22 weapon in the third degree. According to the prosecution, Sorto and another man Sorto and his The accomplice pled guilty; 3 1 2 Sorto went to trial and was convicted. At Sorto s trial, jury selection proceeded according 3 to the jury box system, in which groups of fourteen 4 prospective jurors are randomly called from the venire, 5 interviewed, and then challenged by the attorneys. 6 Following decision on the challenges for cause, the lawyers 7 are afforded the opportunity to exercise one or more of 8 their twenty peremptory challenges. 9 jurors is then invited into the jury box, and the process A new set of potential 10 repeated until a jury is empaneled. See generally People v. 11 Webb, 722 N.Y.S.2d 349, 350-51 (N.Y. Sup. Ct. 2001). 12 13 Round One 14 In the first round of jury selection, the prosecution 15 challenged potential juror Vidal Martinez for cause, citing 16 Martinez s expressed sympathy for gang members, and his 17 concession that he would have trouble deferring to the 18 interpreter in the translations from Spanish. 19 contested the challenge for cause, but allowed that the 20 prosecution would be free to us[e] one of his peremptories 21 to strike Martinez. 22 challenge for cause. 23 dismissed for cause, all upon objection by the prosecutor. Sorto The trial judge agreed and rejected the Five more first-round jurors were 4 1 Next, the prosecution exercised peremptory strikes 2 against three jurors: [i] Martinez; [ii] Carlos Rivera, who 3 is of Salvadoran descent; and [iii] and John Harper, an 4 African American. 5 two Batson objections. 6 a peace officer who likely would be welcomed by the 7 prosecution but for a discriminatory motive; that Rivera had 8 filled out an unobjectionable jury questionnaire and that 9 there was no basis for striking him other than his Defendant then raised the first of his Defendant argued: that Martinez was 10 nationality, which was the same as the defendant s; and that 11 the use of three prosecutorial strikes against three 12 minority potential jurors established (under the 13 circumstances) a pattern of discrimination.1 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The prosecution disputed the existence of a prima facie 1 In the state court, the parties vigorously debated whether different minority groups should be aggregated-particularly African American and Latino groups--towards evaluating a Batson prima facie case. This Court has since held that a defendant raising a Batson claim of purposeful racial discrimination does not have to demonstrate that all venirepersons who were peremptorily excused belong to the same cognizable racial group. Green v. Travis, 414 F.3d 288, 297 (2d Cir. 2005) (internal citations omitted). The state court (not yet guided by our decision in Green) expressed reluctance to aggregate in discussing the second Batson challenge, but implied no view on the issue in denying the first Batson challenge. However, because the petitioner has not sufficiently established the factual circumstances giving rise to the second Batson challenge, the state court s erroneous view on aggregation is not implicated here. 5 1 case of discrimination, and accordingly offered no further 2 explanation for its strikes. 3 withdrew its objection to Martinez, thereby empaneling one 4 of the two challenged Latino jurors.2 5 prosecution s about-face as a telling implicit admission; 6 the court construed it as a token of the good faith. 7 However, the prosecution Defendant casts the The state court denied the Batson challenge for lack of 8 a prima facie case, but agreed to remain seized of the 9 issue, especially as related to the strike of Rivera: 10 Court will keep it in mind as we proceed. 11 should keep both the questionnaire and the card of 12 [Rivera]. the So certainly we Trial Tr. at 132. 13 14 Round Two 15 Only two jurors were successfully empaneled after round 16 one; a second set of potential jurors were called to the 17 jury box for voir dire. 18 prosecution challenged Hazel Mays (an African American) for 19 cause on the ground that Mays had hesitated before agreeing 20 to be fair and impartial, and because she supposedly 1 2 3 4 5 On this second round, the 2 At trial, the parties disputed whether the withdrawal of a challenge has any impact for Batson purposes. For purposes of this appeal we will assume, arguendo, that the withdrawn strike still factors into a prima facie analysis. 6 1 admitted that she identifie[d] with the defendant because 2 he is a member of a minority group. 3 cause was denied, the prosecution exercised a peremptory 4 challenge to excuse her. 5 Mays, the defendant interposed a second Batson challenge, 6 claiming discrimination in regards to the prosecution s 7 elimination of Mrs. Mays. (emphasis added). 8 does not clearly show what evidence was submitted to support 9 the prima facie case at this juncture. When the challenge for After the peremptory strike of The record Defendant did not 10 reprise the first-round eliminations of Harper and Rivera as 11 evidence to support a prima facie case on this later motion, 12 but the judge may have made that assumption, because he 13 asked, with regard to this second Batson challenge, whether 14 defendant placed Hispanic and black in the same group. 15 In response to the second Batson challenge, the 16 prosecution spontaneously explained its strike of juror 17 Harper--the African American dismissed in round one--even 18 though Harper was not mentioned as the subject or basis of 19 the second motion. 20 the ground of Harper s sympathy for his imprisoned nephew, 21 and Harper s prior hostile run-ins with the police. 22 prosecution did not attempt to explain its round-one strike 23 of Rivera, nor was that strike ever mentioned by either The prosecutor defended that strike on 7 The 1 2 party during round two. Next, the prosecution explained that it challenged Mays 3 because of her announced self-identification with the 4 defendant. 5 explanation was needed because no prima facie case had been 6 stated. 7 In any event, the prosecution asserted that no The state court dismissed the second Batson challenge 8 on the grounds that the defendant hadn t reached the 9 threshold with respect to the particular juror, 3 and in the 10 alternative ( in case another Court were to find 11 differently ), that the prosecution had successfully offered 12 non-pretextual, race-neutral explanations for the dismissals 13 of jurors Harper and Mays. 14 Sorto s state appeal argued (inter alia) that the trial 15 court (1) erroneously ruled that a prima facie case had not 16 been established after the first round objections, (2) 17 erroneously ruled that a prima facie case had not been 18 established after the second round objection, and (3) 1 2 3 4 5 6 7 8 3 Use of the singular ( juror ) is suggestive: Even if the trial judge assumed at the onset that the second Batson challenge was supported by the Rivera and Martinez strikes, and even if the trial judge operated under this assumption while denying the challenge, reference to a particular juror indicates that the state court believed that only the Mays strike (and not the previous round s strike of Rivera) had been challenged. 8 1 erroneously found the prosecution s proffered explanations 2 for the Harper and Mays strikes were non-pretextual. 3 Appellate Division treated defendant s [Batson] contentions 4 [as] either unpreserved for appellate review or without 5 merit. 6 Div. 2000). 7 case, the parties agree that because the government offered 8 no procedural default argument, the Appellate Division 9 affirmance constitutes a ruling on the merits for purposes The People v. Sorto, 274 A.D.2d 487, 487 (N.Y. App. As to the existence of a Batson prima facie 10 of the Antiterrorism and Effective Death Penalty Act of 1996 11 ( AEDPA ). 12 appeal. 13 The New York Court of Appeals denied leave to 95 N.Y.2d 893. Sorto next petitioned for federal habeas relief, 14 challenging (inter alia) the Batson rulings. The district 15 court denied the petition, but granted a certificate of 16 appealability as to the Batson claims. 17 DISCUSSION 18 19 Because the Appellate Division rendered a decision on 20 the merits, our review of the prima facie rulings is 21 governed by AEDPA. 22 Cir. 2003). 23 corpus claiming a state court error of law shall not be Torres v. Berbary, 340 F.3d 63, 68 (2d Under AEDPA, a petition for a writ of habeas 9 1 granted . . . unless the adjudication of the claim resulted 2 in a decision that was contrary to, or involved an 3 unreasonable application of, clearly established Federal 4 law, as determined by the Supreme Court of the United 5 States. 6 Taylor, 529 U.S. 362, 365 (2000). 7 application of clearly established Supreme Court precedent 8 occurs when a state court identifies the correct governing 9 legal principle from the Supreme Court's decisions but 10 unreasonably applies that principle to the facts of the 11 prisoner's case. 12 citations omitted). 13 distinguishing objectively unreasonable decisions from 14 merely erroneous ones is somewhat unclear, it is 15 well-established in this Circuit that the objectively 16 unreasonable standard of § 2254(d)(1) means that petitioner 17 must identify some increment of incorrectness beyond error 18 in order to obtain habeas relief. Id. (internal citations 19 omitted). 20 petition for a writ of habeas corpus de novo. 21 Kuhlman, 346 F.3d 330, 342 (2d Cir. 2003). 28 U.S.C. § 2254(d)(1). See also Williams v. [A]n unreasonable Torres, 340 F.3d at 69 (internal While [t]he precise method for This Court reviews a district court s denial of 22 23 10 Harris v. 1 Round One 2 The Supreme Court s decision in Batson v. Kentucky, 476 3 U.S. 79 (1986), and its progeny limit the traditionally 4 unfettered prerogative of exercising peremptory strikes by 5 forbidding certain discrimination in jury selection. 6 Supreme Court has generally granted individual courts the 7 leeway to adopt their own procedures to test for 8 discriminatory strikes. 9 24, 29 (2d Cir. 1993) ( [T]he decisions . . . recognize the 10 role that remains for lower courts to work out the mechanics 11 for implementing these requirements. ). 12 granted within a procedural framework: The See Howard v. Senkowski, 986 F.2d That leeway is The Batson Court . . . establish[ed] a three-step burden-shifting framework for the evidentiary inquiry into whether a peremptory challenge is race-based: First, the moving party--i.e., the party challenging the other party's attempted peremptory strike--must make a prima facie case that the nonmoving party's peremptory is based on race. Second, the nonmoving party must assert a race-neutral reason for the peremptory challenge. The nonmoving party's burden at step two is very low. . . . [A]lthough a race-neutral reason must be given, it need not be persuasive or even plausible. Finally, the court must determine whether the moving party carried the burden of showing by a preponderance of the evidence that the peremptory challenge at issue was based on race. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 McKinney v. Artuz, 326 F.3d 87, 97-98 (2d Cir. 2003) 32 (internal citations omitted). 11 The first step of the Batson analysis, requiring the 1 2 showing of a prima facie case, is not meant to be onerous. 3 Johnson v. California, 545 U.S. 162, 170 (2005). 4 this stage of the analysis still requires consideration of 5 all relevant circumstances. 6 Batson explained: However, Batson, 476 U.S. at 96. As [A] pattern of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative 7 8 9 10 11 12 13 14 15 16 Id. 17 traditional confidentiality of a lawyer s reason for 18 peremptory strikes unless good reason is adduced to invade 19 it: 20 certain strikes, courts must still be mindful of each 21 side s historical prerogative to make a peremptory strike or 22 challenge . . . without a reason stated if a prima 23 facie case of discrimination has not been established. 24 Miller-El v. Dretke, 125 S. Ct. 2317, 2324 (2005) (internal 25 citation omitted). 26 The prima facie inquiry is a hurdle that preserves the While litigants must now explain their motivations for To establish a prima facie case, a defendant must show 27 facts and circumstances that raise an inference that the 28 prosecutor used the peremptory challenge to exclude 12 1 potential jurors from the petit jury on account of their 2 race. 3 The discharge of this burden may entail a review of 4 prosecutorial strikes over the span of the selection 5 process: 6 state court does not act unreasonably where it denies a 7 Batson challenge early in the jury selection process. 8 at 279. Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002). Thus this Court has held, on habeas review, that a Id. 9 Where a litigant points to a pattern of strikes as 10 evidence of discrimination, statistical disparities are to 11 be examined as part of the Batson prima facie inquiry. 12 United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991). 13 The need to examine statistical disparities may commend a 14 wait-and-see approach. 15 Batson challenge was brought after seven of ten potential 16 African American jurors were dismissed through peremptory 17 challenges), an early Batson challenge limits the state 18 court s ability to properly assess a prima facie case: 19 20 21 22 23 24 25 26 27 28 As we held in Overton (where the the trial judge never confront[s], and the trial record does not reveal, what the statistics would [] show[] at the conclusion of jury selection. If those statistics sufficiently establish[] the inference that challenges [a]re based on race, the court could then [] implement[] the Batson process to ensure that impermissible challenges [are] not [] allowed. If, on the other hand, the statistics at the conclusion fail[] to support a sufficient inference, there would be no need to engage in the 13 process. 1 2 3 Overton, 295 F.3d at 279 (emphasis added). 4 concluded that the state trial judge acted reasonably in 5 refus[ing] to implement Batson's process for testing each 6 questioned challenge midway in the process. 7 (emphasis added). 8 9 Overton Id. at 280 Sorto raised his first Batson challenge after only three peremptory strikes. The state court acted reasonably 10 in denying this challenge as premature, while remaining open 11 to reevaluating these strikes as part of a later challenge. 12 Accordingly, the district court did not err in denying the 13 habeas petition challenging the denial of the first round 14 Batson challenge.4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 4 Alternatively, petitioner argues that the prosecution s withdrawal of its peremptory challenge to juror Martinez was so irregular as to evince a prima facie case of discrimination. The state court interpreted this withdrawal as a gesture of good faith by the prosecution. This was a reasonable interpretation of the prosecution s motive: The withdrawn challenge could reasonably be viewed as expressing a willingness to empanel one of two potential Hispanic jurors interviewed in round one. Though Sorto cannot understand why the prosecution would have withdrawn a peremptory from a juror previously challenged for cause, Sorto himself provides a possible answer: As part of his Batson challenge, Sorto reminded the prosecution that Martinez worked as a peace officer and would therefore likely be a favorable witness for the prosecution. Accordingly, the state court did not act unreasonably in ruling that the withdrawn challenge did not support a prima facie case. 14 1 2 Round Two 3 The existence of a prima facie Batson case is a mixed 4 question of law and fact. Overton, 295 F.3d at 276-77. On 5 habeas review, then, we will disturb the state court ruling 6 only if it was contrary to, or involved an unreasonable 7 application of, clearly established Federal law. 8 277 (quoting 28 U.S.C. § 2254(d)(1)). 9 argument that the state court identified the wrong legal Id. at Sorto raises no 10 standard; he therefore must show an unreasonable 11 application. 12 [A] state court decision fails the unreasonable 13 application prong of AEDPA analysis, if the state court 14 identifies the correct governing legal principle from [the 15 Supreme Court's] decisions but unreasonably applies that 16 principle to the facts of the prisoner s case. 17 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). 18 challenge the application of law to fact, a petitioner must 19 demonstrate the existence of a particular set of facts to 20 which a legal rule was applied: 21 properly identified rule of law was wrongly applied unless 22 we know the set of facts to which the rule was applied. 23 See generally Escalera v. Coombe, 826 F.2d 185, 193 (2d Cir. 15 Id. To We cannot say whether a 1 1987) (mixed questions of law and fact create subsidiary 2 questions of historical fact ). 3 hopes to rely must be established by (at least) a 4 preponderance of the evidence in the habeas court. 5 v. Keane, 252 F.3d 630, 637 n.5 (2d Cir. 2001). Facts on which a petitioner Galarza 6 When, as here, a Batson prima facie case depends on a 7 pattern of strikes, a petitioner cannot establish that the 8 state court unreasonably concluded that the pattern was not 9 sufficiently suspicious unless the petitioner can adduce a 10 record of the baseline factual circumstances attending the 11 Batson challenge. 12 evidence such as the composition of the venire,5 the 13 adversary s use of peremptory challenges, the race of the 14 potential jurors stricken, and a clear indication as to 15 which strikes were challenged when and on what ground, and 16 which strikes were cited to the trial court as evidence of a 17 discriminatory intent. 18 knowledge in the courtroom based on the shared perceptions 1 2 3 4 5 6 7 8 9 A sufficient record would likely include That information may be common 5 Here, venire refers to the jurors who were called to the jury box and subject to evaluation and strike. The term may also be used to reference the entire group of jurors eligible to be called into the jury box. Information regarding jurors who were eligible but not called may form part of a sufficient record insofar as that information assists a reviewing court in evaluating the pattern of strikes at issue or the strategy and motive of the lawyer exercising the strikes. 16 1 of the lawyers and the trial judge; but an appellate court 2 does not have the benefit of what can be observed by those 3 in the trial courtroom. 4 extent that information regarding the jury and the voir dire 5 process bears upon establishing a prima facie case, a 6 sufficient appellate record may depend on a recitation of 7 relevant information on the record in the trial court. 8 Therefore, to the (appreciable) For example, in United States v. Alvarado we stated: [T]he prosecution s challenge rate against minorities was 50 percent (three of six) in the selection of the jury of 12, and 57 percent (four of seven) in the selection of the jury of 12 plus alternates. Whether this rate creates a statistical disparity would require knowing the minority percentage of the venire; for example, if the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities. 9 10 11 12 13 14 15 16 17 18 19 20 21 923 F.2d 253, 255 (2d Cir. 1991) (emphasis added). 22 analysis is thus driven by information regarding the 23 prosecution s strikes so that the federal court can usefully 24 consider a prosecutorial strike pattern in the essential 25 contexts. 26 The The Alvarado Court met this need by taking judicial 27 notice of the counties that compose the Eastern District of 28 New York and the minority percentage of the populations of 29 those counties, and then accepting that percentage as a 17 1 surrogate for the minority population of the venire. Id. 2 at 256. 3 court, a panel may, in a suitable case, supplement the 4 record in such a manner (though that is a thin basis for 5 assigning discriminatory motive to an officer of the court). 6 But it is one thing to say that a panel may exercise that 7 discretion on direct appeal in a suitable case, and quite 8 another to hold on collateral review that it is contrary to 9 or an unreasonable application of Batson for a state court 10 to fail to take judicial notice of such surrogate facts 11 and data, particularly where no such request appears to have 12 been made, cf. N.Y. C.P.L.R. 4511, and where, for all we 13 know, surrogate data in lieu of record facts may not have 14 been at hand in the state court. 15 this case decline to exercise our discretion to take 16 judicial notice of the counties from which Sorto s venire 17 was drawn in order to determine the minority percentages of 18 those counties, or to assume that those percentages would 19 reflect the ethnic or racial makeup of the venire in Sorto s 20 trial. On direct appeal from a conviction in district In any event, we would in 21 The record before us contains insufficient data as to 22 the prosecution s strike pattern to support a finding that 23 the state court unreasonably applied Batson. 18 For example, 1 between the strikes of Rivera and Mays, the prosecution 2 exercised peremptory challenges against potential jurors 3 Mink and Burdonis. 4 not a minority; however, we have no particulars about 5 Burdonis or about the prospective and empaneled jurors who 6 were not challenged by the prosecution. 7 lacks any resource in the record to resolve in his favor 8 conflicting reports as to the composition of the venire. 9 oral argument, petitioner suggested--without evidence--that 10 the strikes of Rivera and Martinez removed all the Hispanic 11 potential jurors from the venire. 12 acknowledges (at least) one additional Hispanic potential 13 juror on the venire (potential juror Zate). 14 at 7. 15 Hispanic and minority potential jurors remained on the 16 venire after all of the challenged strikes. 17 information, we cannot say that the state court acted 18 unreasonably: 19 of minority jurors, rendering any individual peremptory 20 strike of a minority juror less suspicious.6 1 2 3 4 5 Petitioner s brief states that Mink was Moreover, Sorto At But petitioner s brief Appellant s Br. Beyond this, we have no information as to how many Absent this The venire may have overwhelmingly consisted 6 Our analysis is naturally influenced by the context of this case: [i] a state court s denial [ii] of a Batson motion that is premised on an allegedly pernicious pattern of strikes. Given our deferential habeas review, we cannot disturb a state court judgment as unreasonable unless we 19 1 The dissent illustrates what happens when insufficient 2 care is taken to build a record of Batson discrimination: 3 the case is made to depend on a labored piecing together of 4 transcript fragments in an effort to intuit the race and 5 ethnicity of jurors and to reconstruct and imagine what 6 might have happened. 7 A well-crafted record in the state trial court is 8 needed also to fix (1) the scope of a given Batson challenge 9 and (2) the evidence adduced to support the motion. Sorto 10 argues that the state court s failure to require a reason 11 for the challenge to Rivera was an unreasonable disregard of 12 its duty under Batson. 13 record is far too sketchy to support a conclusion that the 14 state court acted unreasonably in refusing to demand an 15 explanation for the Rivera strike. 16 round Batson challenge, we are unable to identify (1) 17 precisely which strikes were challenged, and (2) on what 18 basis any challenge was made. Petitioner s Br. at 34. But the In reviewing the second- 19 Seemingly, the round two challenge was limited to the 1 2 3 4 5 6 can consider the factual background that gave rise to a state court ruling. Background data as to the venire would seem less necessary when a Batson challenge is premised on evidence other than pattern, such as comments made during voir dire or during the exercise of challenges. See generally Batson, 476 U.S. at 96. 20 1 strike of Mays: Sorto described the second round challenge 2 as regard[ing] the prosecution s elimination of Mrs. Mays. 3 Trial Tr. at 208 (emphasis added). 4 question posed by the trial judge (whether the second round 5 challenge grouped together strikes to African Americans and 6 Hispanics) indicated that the trial court understood that 7 the scope of the renewed Batson challenge included all four 8 challenged minority jurors. 7 9 may or may not have been the trial court s thinking. Petitioner argues that a Appellant s Br. at 33. This But 10 habeas may not be granted based on speculation as to the 11 trial court s thought process; the record limits the set of 12 challenges under review. 13 challenge to the strike of Mays; the record therefore does 14 not command the conclusion that the strikes to Rivera and 15 Harper were even in play in the second round;8 and 16 consequently we cannot rule that the state court acted 1 7 1 2 3 4 5 6 7 8 9 10 11 12 Petitioner explicitly limited the 8 See our discussion at supra note 3. Sorto did not waive his ability to petition for habeas relief by his failure to restate his challenges to Rivera and Harper. It is true that a Batson objection is waived if not restated in the federal district court; but on a habeas petition challenging a state judgment, waiver is a matter of state procedure. DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005). The issue of restated challenges is not implicated here; our ruling is premised on the substantive insufficiency of the habeas claim. For example, we would be no more likely to find a Batson violation in Round Two even if petitioner had not challenged the Rivera and Harper strikes in Round One. 21 1 unreasonably in refusing to demand an explanation for the 2 strike to Rivera. 3 given the trial judge certain clues as to the intended scope 4 and basis of the round-two Batson challenge, we need a clear 5 record. 6 While unrecorded impressions may have The inadequacy of the record is one reason that the 7 trial court s rejection of Sorto s second Batson challenge 8 was not unreasonable; another independent reason is the 9 preliminary stage at which the challenge was lodged. As 10 discussed above, Sorto raised his first challenge after only 11 three peremptory strikes, and accordingly the state court s 12 denial of that challenge was reasonable. 13 applies to Sorto s second challenge, which came only after 14 the prosecutor s sixth peremptory challenge, four fewer than 15 the number in Overton, 295 F.3d at 274. 16 first and second Batson challenge, the prosecutor struck 17 potential jurors Mink and Burdonis; neither of them, on the 18 record before us, appears to have been black or Hispanic. 19 It was the prosecutor s sixth peremptory strike (of Mays) 20 that precipitated Sorto s second Batson challenge, at which 21 point the prosecutor had used four of six peremptory strikes 22 to remove black or Hispanic potential jurors. 23 that this stage of the voir dire was materially less 22 The same logic Between Sorto s We cannot say 1 preliminary than the stage at which Sorto made his first 2 challenge. 3 court to conclude that a problematic pattern of strikes had 4 not yet developed. 5 later rounds of voir dire, and so we cannot say whether such 6 a pattern ever developed. 7 Accordingly, it was reasonable for the state Sorto did not renew his objection in See id. at 279-80. It is here that the dissent parts ways. Despite its 8 agreement that the state court acted reasonably in denying 9 the first Batson challenge as premature, the dissent 10 concludes, leaning heavily on Green v. Travis, 414 F.3d 288 11 (2d Cir. 2005), that the state court unreasonably applied 12 Batson when it denied Sorto s second challenge. Dissent Op. 13 at [28:11] Between the first (premature) challenge and the 14 second challenge, the government [i] withdrew its strike 15 against a Hispanic juror (Martinez), [ii] struck a juror who 16 was neither African American nor Hispanic (Mink), [iii] 17 struck a juror who was African American (Mays), and [iv] 18 struck a juror who was neither African American nor Hispanic 19 (Burdonis). 20 support for a finding of discrimination beyond the showing 21 that (we all agree) was insufficient and premature. 22 23 These intervening events furnish no appreciable In any event, the dissent s reliance on Green is misplaced. In Green, the Appellate Division [had] not 23 1 address[ed] whether the pattern of the prosecution s 2 peremptory strikes established a prima facie case of 3 discrimination. 4 court determination on that issue to which the Green Court 5 could give AEDPA deference: 6 that a pattern of strikes is prima facie evidence of 7 discrimination; it is a very different thing to hold that 8 the contrary conclusion would be an unreasonable application 9 of Batson. 414 F.3d at 299. So there was no state it is one thing to conclude 10 Accordingly, we hold that the record is insufficient to 11 disturb the state court s ruling on the existence of a prima 12 facie case in support of the Batson challenge to the Mays 13 strike. 14 treatment of the Rivera strike, as the record does not even 15 clearly indicate that that strike was at issue.9 We similarly refuse to disturb the second round 16 * 17 18 19 1 2 3 4 5 6 7 8 * * We have considered petitioner s remaining arguments and find each of them to be without merit. 9 For the foregoing Petitioner argues that the state court mooted the prima facie issue in addressing--for the sake of appellate review--the credibility of the prosecution s proffered explanations. Though that approach was taken in Hernandez v. New York, 500 U.S. 352, 359 (1991), a habeas court remains free to affirm based on the prima facie rulings. See, e.g., United States v. Diaz, 176 F.3d 52, 77-78 (2d Cir. 1999). 24 1 reasons, the judgment of the district court is affirmed. 2 3 4 5 6 7 8 9 10 25 1 POOLER, Circuit Judge, dissenting: 2 I respectfully dissent, because I disagree with the 3 majority that [r]esolution of the Batson issue in this case 4 requires more information about the possible jurors than the 5 record discloses. 6 majority overlooks the fact that the record discloses a 7 great deal about the possible jurors in this case, it 8 imposes a substantial and unnecessary evidentiary burden on 9 Sorto. 10 Majority Op. [2:29-3:2]. Because the Before I turn to the majority s long disquisition on 11 the amount of evidence required to judge a Batson claim, I 12 highlight two statements made by the prosecutor during jury 13 selection: If [defense counsel] accepts our withdrawal of [the Martinez] peremptory challenge, we would have accepted fifty percent of Hispanic potential jurors that are before us. 14 15 16 17 18 19 20 21 22 23 24 The first statement shows that there were two Hispanic 25 jurors in the box during Round One of jury selection. 26 second statement, made during Round Two, establishes that 27 only two African-American jurors were present during the 28 first two rounds of jury selection. [Defense counsel] has made no threshold offer of any pattern of discriminating on the People s part because we peremptorily challenged the only two African American potential jurors we had. 26 The Thus, the record demonstrates the following. 1 Prior to 2 the first Batson challenge, the prosecutor attempted to use 3 peremptory strikes against three potential jurors: Vidal 4 Martinez, Carlos Rivera, and John Harper. 5 Rivera are Hispanic, while Harper is African-American. 6 Majority Op. [5]. 7 challenge, these were the only Hispanic or African-American 8 individuals seated in the jury box. 9 Batson challenge, the prosecutor exercised additional Martinez and At the time of the first Batson Prior to the second 10 peremptory strikes against Round One potential juror Steven 11 Mink, and Round Two potential jurors MaryAnn Burdonis and 12 Hazel Mays. 13 [6] 14 Burdonis is not African-American, and it is a fair inference 15 that she is not Hispanic.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Id. at [18]. Mays is African-American. Id. at Mink is neither African-American nor Hispanic. An additional Hispanic potential 1 Neither Mink nor Burdonis can be African-American, because the prosecutor made his comment regarding AfricanAmerican potential jurors after he struck both Mink and Burdonis. The fact that Mink was not Hispanic can be deduced from the fact that he was a Round One juror, and therefore would have been seated in the box, along with Rivera, when the prosecutor described Martinez as fifty percent of the Hispanic potential jurors. While there is less evidence with respect to Round Two potential juror Burdonis, the record suggests that she was not Hispanic. When defendant raised his second Batson challenge, he referred to the prosecutor s use of peremptories against Hispanic and African-American individuals during Round One (i.e., against Martinez, Rivera, and Harper), and the use of a peremptory 27 1 juror, Selina Zate, was seated in the jury box at the 2 beginning of Round Two, but removed for cause before the 3 parties exercised their Round Two peremptories. 4 The record therefore shows that at the time of the 5 first Batson challenge, the prosecutor had attempted to 6 exercise one hundred percent of his peremptory challenges 7 against minorities, and had challenged one hundred percent 8 of the minorities not already struck for cause. 9 of the second Batson challenge, the prosecutor had attempted At the time 10 to exercise sixty-six percent of his strikes against 11 minorities, had stricken one hundred percent of the African- 12 American potential jurors not already struck for cause, and- 13 -assuming Burdonis is not Hispanic--had attempted to strike 14 one hundred percent of the Hispanic jurors not already 15 struck for cause. 16 require a labored piecing together of transcript fragments 17 or intuit[ing] the race and ethnicity of jurors. 18 Majority Op. [19]. 19 straightforward reading of the record in this case. 20 Majority Op. [19]. 1 2 3 4 5 Reaching such a conclusion does not See Rather, it simply requires a Cf. Thus, the majority s conclusion that we against Mays in Round Two, but did not mention the prosecutor s decision to strike Burdonis. Because the Burdonis strike preceded the Mays strike, if Burdonis had been Hispanic, counsel presumably would have mentioned this fact when raising the second Batson challenge. 28 1 lack sufficient evidence to reach the Batson challenge, and 2 its suggestion that the jury pool may have overwhelmingly 3 consisted of minority jurors, rendering any individual 4 peremptory strike of a minority juror less suspicious, does 5 not stand up to scrutiny. See Majority Op. [19] 6 I agree with the majority that the state court acted 7 reasonably in denying the first Batson challenge as 8 premature. 9 find that the state court unreasonably applied Batson when However, as to the second challenge, I would 10 it refused to consider whether African-American and Hispanic 11 jurors could constitute a cognizable group.2 12 We recently considered a similar Batson claim in Green 13 v. Travis, 414 F.3d 288 (2d Cir. 2005). 14 was a habeas petitioner who challenged the government s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 2 Like Sorto, Green With respect to prospective jurors Harper and Mays, Sorto argues that the race neutral reasons given by the prosecutor for these strikes were pretextual. Because it is not clear whether the state court adjudicated this issue on the merits, it is questionable whether AEDPA would apply to review of this claim. See DeBarry v. Portuondo, 403 F.3d 57, 67 (2d Cir. 2005). However, even under the more lenient pre-AEDPA standard, I would find that Sorto s claim with respect to these jurors fails, because there were several differences between the jurors who were struck and those who remained. We have found that such differences, in light of the deference we owe a trial court s credibility determinations, support a state court s rejection of a Batson claim. See Messiah v. Duncan, 435 F.3d 186, 200-01 (2d Cir. 2006). Sorto makes no claim of pretext with respect to Rivera, because the prosecutor never attempted to articulate a race neutral reason for striking Rivera. 29 1 pattern of strikes against minority prospective jurors. See 2 id. at 291, 299. 3 precise data about the composition of the venire, because 4 [t]he number of persons in the venire and the racial and 5 ethnic composition of the venire were not preserved in the 6 record. 7 that at the time of the Batson challenge, the prosecutor 8 had used one hundred percent of her peremptory strikes to 9 remove Black and Hispanic jurors, and had stricken all of In Green, as in this case, we lacked Id. at 291. Based on the record, however, we knew 10 the Black members of the jury pool not already struck for 11 cause. 12 that the pattern of the prosecution s peremptory strikes 13 established a prima facie case of discrimination under 14 Batson. Id. 15 time of the second Batson challenge, the prosecutor had 16 attempted to use sixty-six percent of his peremptory strikes 17 to remove African-American and Hispanic jurors, had stricken 18 all of the African-American members of the jury pool not 19 already struck for cause, and had attempted to strike all 20 Hispanic jurors not already struck for cause. 21 type of evidence available in this case is comparable to the 22 evidence available in Green, where we found that the record 23 provided a sufficient basis to evaluate the Batson Id. at 299. We were therefore able to conclude In this case, the record shows that at the 30 Thus, the 1 challenge. 2 To reach the opposite conclusion, the majority relies 3 on United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991). 4 In Alvarado, we explained that statistical disparities are 5 to be examined as part of the Batson prima facie inquiry. 6 Id. at 255. 7 prosecution s peremptory strikes were exercised against 8 minority jurors (the challenge rate ), but we did not know 9 the minority percentage of the venire. In that case, we knew what percentage of the Id. at 255-56. As 10 we explained, if, for example . . . the minority percentage 11 of the venire was 50, it could be expected that a 12 prosecutor, acting without discriminatory intent, would use 13 50 percent of his challenges against minorities. 14 255. 15 statistical information, we had no context in which to 16 analyze disparity. 17 unnecessary evidentiary obstacle for the defendant in that 18 case, we employed the relevant population data as a 19 surrogate figure for the minority percentage of the venire. 20 Id. at 256. 21 Id. at In other words, because we had only one category of However, rather than create an The majority s reliance on Alvarado overlooks the fact 22 that in this case we have sufficient information to assess 23 statistical disparity. We know both the prosecution s 31 1 challenge rate with respect to minority potential jurors and 2 what percentage of minority potential jurors the prosecution 3 attempted to strike. 4 that provide the basis for an analysis of disparity. 5 Moreover, while we do not know the precise minority 6 percentage of the venire, because we know that at the time 7 of the second Batson challenge, the prosecutor had attempted 8 to strike all minority potential jurors not already struck 9 for cause, we know that during the first two rounds the Thus, we have two categories of data 10 venire included only four qualified minority jurors. 11 would therefore find, as we did in Green, that the record in 12 this case provides sufficient evidence for a reasoned 13 analysis of Sorto s Batson claim. 14 I The majority also contends that the trial court s 15 rejection of Sorto s second Batson challenge was not 16 unreasonable because, like the first challenge, the second 17 was lodged at a preliminary stage, when it was too early 18 to tell whether a problematic pattern of strikes had 19 developed. 20 peremptory strikes at the time of the challenge in this 21 case, and compares that to the ten strikes that were found 22 to be insufficient in Overton v. Newton, 295 F.3d 270, 274 23 (2d Cir. 2002). The majority notes that there were only six Overton is distinguishable, as in that 32 1 case, several minority jurors had actually been seated at 2 the time of the Batson challenge. 3 other hand, in Green, where the statistical evidence was 4 similar to this case, we found that a prima facie showing of 5 discrimination under Batson had been established after the 6 prosecutor exercised only five peremptory strikes. 7 Green, 414 F.3d at 291, 299. 8 second Batson challenge, it was apparent that what might 9 have initially appeared to be a statistical fluke had in See id. at 274. On the See Moreover, by the time of the 10 fact emerged as a consistent pattern: the prosecutor struck 11 or attempted to strike each and every Hispanic and African- 12 American juror not excused for cause. 13 I disagree with the majority s assessment of the 14 evidence in this case and its conclusion as to what evidence 15 is necessary to make out a successful statistical Batson 16 claim. 17 state court s erroneous view on aggregation is implicated. 18 Cf. Majority Op. [5 n.1]. 19 made out a prima facie case with respect to the strike of 20 Rivera, both the state courts and the district court assumed 21 that strikes against members of different minority groups 22 could not be considered together to show a pattern of 23 discriminatory strikes. And therefore, unlike the majority, I believe the In evaluating whether Sorto had This is a view we rejected in 33 1 Green, where we concluded, applying the AEDPA standard, that 2 a state court decision that Black and Hispanic 3 venirepersons do not constitute a cognizable racial group 4 was an unreasonable application of Batson. 5 at 293, 298. 6 in this case the state court s conclusion that African- 7 American and Hispanic potential jurors should not be 8 aggregated for the purposes of evaluating whether Sorto had 9 established a prima facie case of discrimination based on a 10 suspicious pattern of peremptory strikes was an unreasonable 11 application of Batson. 12 Green, 414 F.3d I would therefore follow Green and find that The Supreme Court has recently cautioned that 13 establishing a prima facie case of discrimination is not 14 intended to be a high bar, in part because [t]he Batson 15 framework is designed to produce actual answers to 16 suspicions and inference that discrimination may have 17 infected the jury selection process. Johnson v. 18 California, 545 U.S. 162, 172 (2005). Moreover, as the 19 Court noted in Powers v. Ohio, 499 U.S. 400 (1991), Batson 20 protects the rights of both individual defendants and the 21 community at large: 22 23 24 25 Batson was designed to serve multiple ends, only one of which was to protect individual defendants from discrimination in the selection of jurors. Batson recognized that a prosecutor's 34 discriminatory use of peremptory challenges harms the excluded jurors and the community at large. The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system. 1 2 3 4 5 6 7 8 Id. at 406 (internal quotation marks and citations omitted). 9 Thus, we do both defendants and ordinary citizens a 10 disservice when we create unnecessary obstacles to the 11 vindication of such rights. 12 I therefore respectfully dissent. 13 14 15 35
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