Brown v. Alexander, No. 07-1780 (2d Cir. 2008)

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The court issued a subsequent related opinion or order on October 14, 2008.

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07-1780-pr Brown v. Alexander 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: April 16, 2008 Decided: September 22, 2008) 5 Docket No. 07-1780-pr 6 ------------------------------------- 7 TARKISHA BROWN, 8 Petitioner-Appellant, 9 - v - 10 11 GEORGE B. ALEXANDER, Chairman, New York State Division of Parole, ANDREW CUOMO, Attorney General of the State of New York, 12 Respondents-Appellees.* 13 ------------------------------------- 14 15 Before: 16 WINTER and SACK, Circuit Judges, and MURTHA, District Judge.** Appeal from a judgment of the United States District 17 Court for the Southern District of New York (Jed S. Rakoff, 18 Judge) denying Tarkisha Brown's petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254. 20 the New York state courts unreasonably applied Batson v. 21 Kentucky, 476 U.S. 79 (1986), in concluding that she had not The petitioner asserts that * Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Chairman George B. Alexander and Attorney General Andrew Cuomo are automatically substituted for former Chairman Brion D. Travis and former Attorney General Eliot Spitzer, respectively, as respondents in this case. ** The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation. 1 presented a prima facie case of race discrimination with respect 2 to jury selection at her criminal trial in state court. 3 Affirmed. 4 5 6 JEFFREY J. RESETARITS, Shearman & Sterling LLP (Seth M. Kean, of counsel), New York, NY, for Petitioner-Appellant. 7 8 9 10 11 12 RAFAEL A. CURBELO, Assistant District Attorney (Robert T. Johnson, Bronx County District Attorney, Joseph N. Ferdenzi, Nancy D. Killian, Assistant District Attorneys, of counsel), Bronx, NY, for Respondents-Appellees. 13 14 SACK, Circuit Judge: Petitioner-Appellant Tarkisha Brown appeals from a 15 judgment entered on March 30, 2007, in the United States District 16 Court for the Southern District of New York (Jed S. Rakoff, 17 Judge) denying her petition for a writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. 19 unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), when 20 it ruled that she had not made out a prima facie case of race 21 discrimination in jury selection during her state criminal-trial, 22 and that the Appellate Division, First Department, People v. 23 Brown, 276 A.D.2d 429, 715 N.Y.S.2d 18 (1st Dep't 2000), and the 24 New York Court of Appeals, People v. Brown, 97 N.Y.2d 500, 507, 25 769 N.E.2d 1266, 1271, 743 N.Y.S.2d 374, 379 (2002), unreasonably 26 applied Batson when they affirmed the trial court's decision. 27 conclude that because the New York courts reasonably determined 28 that Brown had not made out a prima facie case, her 29 post-conviction detention was not unlawful. She asserts that the state trial court 2 We BACKGROUND 1 2 In November 1997, a grand jury in Bronx County, New 3 York, returned a three-count indictment against the petitioner. 4 It included one count of criminal sale of a controlled substance 5 in or near school grounds in violation of N.Y. Penal Law 6 § 220.44(2). 7 Bronx County, before Justice Robert H. Straus, on January 6 and 8 7, 1999. 9 Voir dire of the jury took place in Supreme Court, Jury selection was conducted using the "jury box 10 system" provided by N.Y. C.P.L.R. § 270.15. 11 that Justice Straus employed, a group of sixteen prospective 12 jurors is randomly selected from the venire and interviewed. 13 After the court has struck jurors for cause, the parties are 14 permitted to examine the first twelve prospective jurors (i.e., a 15 sufficient number to complete the jury). 16 defendant, are allowed to exercise challenges for cause. 17 Following the court's ruling on those challenges, the parties are 18 afforded the opportunity to exercise one or more of the 19 peremptory challenges allotted to them.1 20 from the original group of twelve are seated. 21 then permitted to consider as many remaining jurors from the 22 group of sixteen as would be necessary to fill the jury (e.g., if 23 ten jurors are seated after consideration of the first twelve 1 Under the version The State, and then the The remaining jurors The parties are Each party was permitted fifteen peremptory challenges, based on the charges brought against Brown. N.Y. C.P.L.R. § 270.25(2)(b). 3 1 jurors, two more are taken under consideration). If a full jury 2 is not seated from the first group of sixteen, a new group of 3 sixteen prospective jurors is selected and the process is 4 repeated until a sufficient number of jurors and alternates is 5 seated. 6 722 N.Y.S.2d 349, 350-51 (Sup. Ct. Kings County 2001). See generally People v. Webb, 187 Misc. 2d 451, 452-54, 7 During the first round of voir dire for the 8 petitioner's trial, the court selected a group of sixteen 9 prospective jurors at random, and discharged one of them for 10 cause. The court then permitted the parties to consider the 11 first twelve of the fifteen remaining prospective jurors. 12 Neither the State nor the petitioner exercised any challenges for 13 cause. 14 four of them against prospective jurors who were black. 15 petitioner exercised two peremptory challenges against 16 prospective jurors whose race is not identified in the record. 17 The five remaining persons were accepted to serve on the jury. 18 The court then considered the next three prospective The State exercised five peremptory challenges, however, 19 jurors. 20 after objection by the petitioner, the court denied the 21 challenge. 22 strike this same prospective juror, who was black. 23 petitioner did not exercise any peremptory or for-cause 24 challenges against the remaining two prospective jurors. 25 were then accepted to serve. The The State sought to challenge one of them for cause, but In response, the State used a peremptory challenge to 4 The They 1 A second group of sixteen prospective jurors was then 2 selected at random. 3 of them for cause and selected four additional prospective jurors 4 as replacements. 5 one was discharged by the court for cause, again leaving fifteen 6 prospective jurors in the box. 7 five of them. 8 any of them for cause. 9 challenges, however, both against prospective jurors who were 10 After questioning of the replacement jurors, The court considered the first Neither the State nor the petitioner challenged The State exercised two peremptory black. 11 12 After questioning, the court discharged four The petitioner then, for the first and only time, asserted a Batson challenge: 13 14 15 16 Judge, I'm going to raise a Batson challenge against the prosecutor. I mean he never even asked Mr. Harley [one of the two black potential jurors just challenged] a question. 17 18 19 20 I'm just looking here, he's exercised nine challenges, eight of them have been for African Americans if I'm not wrong. I might be wrong but I don't think I'm wrong.[2] 21 22 23 We had some jurors yesterday he never spoke to; no jury experience, nothing against police officers and they were gone too. 24 25 26 27 28 29 I can't help but discern a pattern here. Maybe I'm wrong. I would need some further information before I could be dissuaded from the fact that they're being eliminated here by use of peremptory challenge because of their color. 2 Counsel was mistaken. At the point that she raised her Batson claim, the State had exercised eight peremptory challenges, seven of them against black members of the venire. 5 1 Transcript of Proceedings at 252, People v. Brown, No. 6815/97 2 (Sup. Ct. Bronx County Jan. 7, 1999). 3 The court responded: 4 5 6 7 8 9 [B]y my figures in the first group in the jury box there were nine people that appeared to me to be of African American descent and in this group there are six more, that's 15 and by my count he challenged 7 out of the 15. That's the count I have. 10 11 12 13 14 15 But beyond that the law requires for the Court to consider the challenge that there must be a rather specific objection with the utilization of facts and other relevant circumstances to create an inference of exclusion of a cognizable group. 16 17 18 19 Certainly African Americans are a cognizable group and certainly under certain circumstances a percentage of strikes can cause a court to find a pattern. 20 Id. at 252-53. 21 The petitioner's counsel interjected a lengthy 22 explanation as to why four of the stricken jurors could have been 23 fair. 24 just a minute. 25 four African American jurors peremptorily challenged[?]" 26 255. 27 referred to further details about the stricken jurors. The trial court, apparently surprised, responded: "Wait In the first group you're really concerned with Counsel responded in the affirmative. Id. at Counsel then 28 After counsel had finished, the trial court responded, 29 30 31 32 33 34 35 Well, based on what you've said up to this point and what you have pointed out up to this point I'm not going to require the People to offer an explanation for their peremptory challenges. You can renew the application later [and] we'll see where the challenges go from this point on . . . . 6 1 Id. at 256-57. 2 "jury selection [wa]s not fair." 3 responded, "I understand that, but based on right up to this 4 point I do not find a pattern of purposeful exclusion that's 5 sufficient to raise an inference of discrimination based on the 6 numbers." 7 Counsel for the petitioner again stated that the Id. at 257. The judge Id. The State then sought to make clear on the record that 8 of the seven jurors chosen, three were black women. 9 acknowledged the statistic, but said, "It doesn't matter how many 10 sworn jurors [there are.] 11 not dispositive. . . . 12 to one juror but I don't find the pattern." 13 The court [I]t's not determinative[.] [I]t's [A] Batson challenge can be made even as Id. at 258. The remainder of voir dire moved along briskly. The 14 State exercised one additional peremptory challenge, that to an 15 alternate juror; the petitioner exercised four. 16 challenged any jurors for cause. 17 jury were selected, as were three alternates. 18 or ethnicity of these jurors is not reflected in the record. 19 The petitioner never renewed her Batson challenge. 20 The jury ultimately found the petitioner guilty of Neither party The final five members of the The race, color, 21 criminal sale of a controlled substance in or near school grounds 22 under N.Y. Penal Law § 220.44(2). 23 trial court rendered judgment on February 4, 1999, and sentenced 24 the petitioner to an indeterminate prison term of two to six 25 years. Based on that verdict, the The petitioner appealed her conviction on evidentiary 7 1 grounds,3 and also challenged the trial court's denial of her 2 Batson claim. 3 On October 26, 2000, the Appellate Division, First 4 Department, unanimously affirmed the petitioner's judgment of 5 conviction. 6 (1st Dep't 2000). 7 for leave to appeal the Appellate Division's decision to the New 8 York Court of Appeals. 9 96 N.Y.2d 826, 754 N.E.2d 206, 729 N.Y.S.2d 446 (2001) (Kaye, 10 People v. Brown, 276 A.D.2d 429, 715 N.Y.S.2d 18 The defendant -- the petitioner here -- moved The motion was granted. People v. Brown, C.J.). 11 On March 19, 2002, the New York Court of Appeals 12 affirmed the order of the Appellate Division. 13 97 N.Y.2d 500, 507, 769 N.E.2d 1266, 1271, 743 N.Y.S.2d 374, 379 14 (2002). 15 "[D]efendant's reliance on the People's removal of seven 16 African-Americans through the exercise of eight peremptory 17 challenges was inadequate, without more, to require the trial 18 court to find a prima facie showing of discrimination." 19 508, 769 N.E.2d at 1271, 743 N.Y.S.2d at 379. 20 People v. Brown, As to the Batson issue, the Court of Appeals concluded, Id. at The petitioner then applied for a writ of habeas corpus 21 pursuant to 28 U.S.C. § 2254 in the United States District Court 22 for the Southern District of New York. 23 state trial court had unreasonably applied Batson when it ruled 3 She claimed that the The evidentiary question, which was considered by the Appellate Division, and later the Court of Appeals, is not before us. 8 1 that she had not made out a prima facie case, and that the 2 Appellate Division and Court of Appeals unreasonably applied 3 Batson in affirming the trial court's decision. 4 In a report and recommendation dated January 12, 2007, 5 United States Magistrate Judge Michael H. Dolinger concluded that 6 the state courts had not unreasonably applied Batson in finding 7 that the petitioner had failed to make out a prima facie case. 8 Judge Dolinger therefore recommended that Brown's petition for a 9 writ of habeas corpus be denied. In an Order dated March 28, 10 2007, the district court (Jed S. Rakoff, Judge) adopted the 11 recommendation to dismiss the petition but grant a certificate of 12 appealability under 28 U.S.C. § 2253(c)(1). 13 The petitioner, now on parole, appeals. DISCUSSION 14 15 I. Standard of Review 16 "We review a district court's ruling on a petition for 17 a writ of habeas corpus de novo." 18 270, 275 (2d Cir. 2002). 19 Overton v. Newton, 295 F.3d Pursuant to 28 U.S.C. § 2254(d), as amended by the 20 Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 21 No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), a writ of habeas 22 corpus may not issue for any claim adjudicated on the merits by a 23 state court unless the state-court decision was "contrary to, or 24 involved an unreasonable application of, clearly established 25 Federal law, as determined by the Supreme Court of the United 26 States," id. § 2254(d)(1), or was "based on an unreasonable 9 1 determination of the facts in light of the evidence presented" in 2 state court, id. § 2254(d)(2). 3 Under section 2254(d)(1), the statutory phrase "clearly 4 established Federal law, as determined by the Supreme Court of 5 the United States," 28 U.S.C. § 2254(d)(1), refers to "the 6 holdings, as opposed to the dicta, of [the Supreme] Court's 7 decisions as of the time of the relevant state-court decision." 8 Williams v. Taylor, 529 U.S. 362, 412 (2000); Overton, 295 F.3d 9 at 275-76 (quoting Williams). A state-court decision is 10 "contrary to" clearly established federal law as determined by 11 the Supreme Court if the state court's conclusion on a question 12 of law is "opposite" to that of the Supreme Court or if the state 13 court decides a case differently than the Supreme Court's 14 decision "on a set of materially indistinguishable facts." 15 Williams, 529 U.S. at 413 (2000); Overton, 295 F.3d at 275 16 (quoting Williams). 17 unreasonable application of" clearly established federal law as 18 determined by the Supreme Court if it "identifies the correct 19 governing legal principle from [the Supreme Court's] decisions 20 but unreasonably applies that principle to the particular facts 21 of [a] prisoner's case." 22 F.3d at 275 (quoting Williams). 23 federal law is different from an incorrect or erroneous 24 application of federal law." 25 295 F.3d at 277 (quoting Williams). 26 by extension section 2254(d)(1), we have observed that the A state-court decision "involves an Williams, 529 U.S. at 413; Overton, 295 "An unreasonable application of Williams, 529 U.S. at 412; Overton, 10 Interpreting Williams, and 1 "unreasonable application" standard "falls somewhere between 2 merely erroneous and unreasonable to all reasonable jurists." 3 Id. at 277 (internal quotation marks and citation omitted). 4 Although "[s]ome increment of incorrectness beyond error is 5 required, . . . the increment need not be great; otherwise habeas 6 relief would be limited to state court decisions so far off the 7 mark as to suggest judicial incompetence." 8 quotation marks and citation omitted). 9 Id. (internal Finally, under section 2254(d)(2), a state court's 10 findings of fact are "presumed to be correct." The habeas 11 petitioner bears the burden of "rebutting the presumption of 12 correctness by clear and convincing evidence." 13 § 2254(e); see Overton, 295 F.3d at 275 (quoting section 14 2254(e)). 28 U.S.C. 15 16 II. Clearly Established Federal Law: Batson and Its Progeny 17 Batson v. Kentucky, 476 U.S. 79 (1986), established a 18 three-step burden-shifting mechanism for evaluating allegations 19 of race discrimination during jury selection at a criminal trial. 20 At the first stage of the inquiry, the defendant must establish a 21 "prima facie" case "by showing that the totality of the relevant 22 facts gives rise to an inference of discriminatory purpose." 23 at 93-94. 24 case, the burden shifts to the State to provide a race-neutral 25 explanation for its peremptory strikes. 26 trial court must determine whether the defendant has established Id. Once the defendant has made out such a prima facie 11 Id. at 97. Finally, the 1 purposeful discrimination, id., in which case the selection 2 process was a violation of the Equal Protection Clause of the 3 Fourteenth Amendment. 4 The Supreme Court did not establish a bright-line rule 5 for what constitutes such a prima facie case. 6 instructed trial judges to consider whether "all relevant 7 circumstances" and facts before them give rise to an inference of 8 discrimination. 9 pattern of strikes against African-American jurors may give rise Id. at 96-97. Instead, the Court Batson did indicate that a 10 to such an inference, and that the prosecutor's questions and 11 statements might also support or refute such an inference. 12 at 97. 13 the hands of the trial court, expressing "confidence that trial 14 judges, experienced in supervising voir dire, w[ould] be able to 15 decide if the circumstances concerning the prosecutor's use of 16 peremptory challenges create[d] a prima facie case of 17 discrimination against black jurors." Id. Ultimately, though, Batson left substantial discretion in 18 Id. The Supreme Court recently reiterated that it "did not 19 intend the first step [in the Batson inquiry] to be . . . 20 onerous." 21 prima facie case of discrimination can be made out by offering a 22 wide variety of evidence, so long as the sum of the proffered 23 facts gives 'rise to an inference of discriminatory purpose.'" 24 Id. at 169 (quoting Batson, 476 U.S. at 94) (footnote omitted). 25 The Court also restated the principle that a defendant is not Johnson v. California, 545 U.S. 162, 170 (2005). 12 "[A] 1 "require[d]" to "prove[] discrimination" at the prima facie 2 stage. 3 Id. at 169-70. This court has put a further gloss on what constitutes 4 a prima facie case under Batson, and what constitutes an 5 unreasonable application of Batson and its progeny. 6 noted that "under Batson and its progeny, striking even a single 7 juror for a discriminatory purpose is unconstitutional." 8 v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005). 9 that we have "no doubt that statistics, alone and without more, We have Walker And we have said 10 can, in appropriate circumstances, be sufficient to establish the 11 requisite prima facie showing." 12 Cir. 2002); see also Tankleff v. Senkowski, 135 F.3d 235, 249 (2d 13 Cir. 1998) ("[T]he fact that the government tried to strike the 14 only three blacks who were on the panel constitutes a 15 sufficiently dramatic pattern of actions to make out a prima 16 facie case."). 17 of minority challenges significantly higher than the minority 18 percentage of the venire would support a statistical inference of 19 discrimination." 20 (2d Cir. 1991) (finding that "a challenge rate nearly twice the 21 likely minority percentage of the venire strongly supports a 22 prima facie case under Batson"). 23 statistical arguments be based on a well-developed factual 24 record. 25 26 27 Overton, 295 F.3d at 278-79 (2d We have made clear, however, that "[o]nly a rate United States v. Alvarado, 923 F.2d 253, 255-56 We have also required that Such a record would likely include evidence such as the composition of the venire, the adversary's use of peremptory challenges, the race of the 13 1 2 3 4 5 6 potential jurors stricken, and a clear indication as to which strikes were challenged when and on what ground, and which strikes were cited to the trial court as evidence of a discriminatory intent. Sorto v. Herbert, 497 F.3d 163, 171-72 (2d Cir. 2007). 7 Although we have embraced the use of statistics, we 8 have also indicated that, in every case, "an assessment of the 9 sufficiency of a prima facie showing in the Batson analysis 10 should take into consideration 'all relevant circumstances' 11 including, but not restricted to, the 'pattern' of strikes." 12 Harris v. Kuhlmann, 346 F.3d 330, 345 (2d Cir. 2003). 13 comports with our understanding that "Batson must be read as not 14 only prohibiting certain specific actions, but also as creating a 15 broad standard or principle that the courts must, in reason, 16 follow." 17 This Overton, 295 F.3d at 278. "The discrimination condemned by Batson need not be as 18 extensive as numerically possible." 19 "A prosecutor may not avoid the Batson obligation to provide 20 race-neutral explanations for what appears to be a statistically 21 significant pattern of racial peremptory challenges simply by 22 forgoing the opportunity to use all of his challenges against 23 minorities." 24 jurors "might tend to rebut an inference [drawn by the trial 25 court in connection with the defendant's attempt to establish a 26 prima facie case] that the prosecutor used his peremptory strikes 27 in a discriminatory manner, . . . this fact alone [i]s [not] Id. Alvarado, 923 F.2d at 256. Thus, while the presence of one or more black 14 1 sufficient to refute an otherwise-appropriate inference [of 2 discrimination]." Harris, 346 F.3d at 346. 3 III. The New York State Court Decisions. 4 Based on principles established by Batson and its 5 progeny, and by AEDPA and the case law interpreting it, we agree 6 with the conclusion of the district court that a writ of habeas 7 corpus was not warranted here. 8 not "contrary to, [and did not] involve[] an unreasonable 9 application of[] clearly established Federal law, as determined The state-court decisions were 10 by the Supreme Court of the United States," id. § 2254(d)(1), nor 11 were they "based on an unreasonable determination of the facts in 12 light of the evidence presented" in the trial court, id. 13 § 2254(d)(2). 14 According to the trial court, at the time the 15 petitioner raised her Batson claim, the totality of the relevant 16 facts did not give rise to an inference of discrimination. 17 court "d[id] not [at that time] find a pattern of purposeful 18 exclusion . . . sufficient to raise an inference of 19 discrimination based on the numbers." 20 at 257, People v. Brown, No. 6815/97 (Sup. Ct. Bronx County Jan. 21 7, 1999). 22 primarily on the fact that the Batson challenge was lodged 23 relatively early in the jury selection process. 24 stated: 25 26 27 The Transcript of Proceedings The trial court's conclusion in this regard hinged The court [B]ased on what [the defendant] said up to this point and what you have pointed out up to this point I'm not going to require the 15 1 2 3 4 People to offer an explanation for their peremptory challenges. You can renew the application later [and] we'll see where the challenges go from this point on. 5 Id. 6 act unreasonably where it denies a Batson challenge early in the 7 jury selection process." 8 ordinarily unreasonable for a state court to conclude that a 9 petitioner has not made out a prima facie case when she raises a 10 Batson challenge "before jury selection [i]s completed and before 11 the . . . facts [a]re even fully established on the record." 12 Overton, 295 F.3d at 279. 13 disparities may commend a wait-and-see approach," Sorto, 497 F.3d 14 at 170, and the trial court's "wait-and-see approach" here was 15 not unreasonable. 16 We have "held, on habeas review, that a state court does not Sorto, 497 F.3d at 170. It is not "The need to examine statistical The Appellate Division affirmed the trial court's 17 Batson ruling principally on the grounds that the "[d]efendant's 18 statistical claim regarding the prosecutor's allegedly 19 disproportionate use of peremptory strikes was insufficient to 20 support a prima facie showing of purposeful discrimination, 21 particularly in light of the racial makeup of the panel of 22 prospective jurors." 23 715 N.Y.S.2d 18, 19 (1st Dep't 2000). 24 for the Appellate Division to conclude that at the time 25 petitioner moved under Batson for the State to articulate a race- 26 neutral explanation for its peremptory challenges, the "rate of 27 minority challenges [was not] significantly higher than the People v. Brown, 276 A.D.2d 429, 429-30, 16 It was not unreasonable 1 minority percentage of the venire [thereby] support[ing] a 2 statistical inference of discrimination." 3 255-56. 4 to conclude that the record before the trial court at the time of 5 the challenge did not contain sufficient "evidence of a 6 discriminatory intent" to justify the burden-shifting 7 contemplated by Batson. 8 9 Alvarado, 923 F.2d at And it was not unreasonable for the Appellate Division Sorto, 497 F.3d at 171-72. This is not to say that statistics alone can never establish a prima facie Batson claim prior to the completion of 10 jury selection. 11 numbers of minority members struck, seated, and on the venire 12 would justify Batson's burden-shifting long before the last juror 13 was seated. 14 could not have established a prima facie case on a complete 15 record in this case following a proper motion in the light of 16 that record. 17 number of ways, the burden of establishing such a case is not 18 onerous, and Batson left the trial court with substantial 19 discretion to determine whether such a case was made. 20 petitioner's Batson challenge was denied as premature, she failed 21 to renew the motion, and the status of jury selection at the time 22 of the challenge did not insure that the statistics would 23 establish a prima facie case irrespective of what happened during 24 the jury selection process thereafter. 25 26 There are likely circumstances in which the Nor do we mean to suggest that the petitioner here A defendant may establish a prima facie case in any But here, For the foregoing reasons, we conclude that the decision that a prima facie case had not been made out under 17 1 Batson at the time the Batson claim was asserted was not 2 "contrary to, [n]or [did it] involve[] an unreasonable 3 application of, clearly established Federal law, as determined by 4 the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), 5 nor was it "based on an unreasonable determination of the facts 6 in light of the evidence presented" in state court, id. 7 § 2254(d)(2). 8 The New York Court of Appeals affirmed. 9 foregoing reasons, under the circumstances presented, that 10 decision does not provide a basis for habeas relief in the 11 federal courts. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 For the We pause to note, nonetheless, that the Court of Appeals, in rejecting the petitioner's argument, commented: Defendant was explicitly invited by the trial court to articulate any facts and circumstances that would support a prima facie showing of discrimination. Instead of making a record comparing Caucasians accepted with similarly situated African-Americans challenged, or by establishing objective facts indicating that the prosecutor has challenged members of a particular racial group who might be expected to favor the prosecution because of their backgrounds, defense counsel responded that certain persons excused by prosecution peremptories had no prior jury service or had attended college and, thus, gave no indication that they could not be 'fair.' Based on the numbers and arguments presented, the trial court ruled that it did not find a discriminatory pattern. No further Batson objection was raised during the remainder of voir dire proceedings. Upon this record, we conclude that defendant's numerical argument was unsupported by factual assertions or comparisons that would serve as a basis for a 18 1 2 prima facie case of impermissible discrimination. 3 Brown, 97 N.Y.2d at 508, 769 N.E.2d at 1271-72, 743 N.Y.S.2d at 4 380 (emphasis added; citations and internal quotation marks 5 omitted). 6 We find the emphasized language in the court's opinion 7 somewhat puzzling. It seems, at least at first blush, to be at 8 odds with the Supreme Court's instruction that under Batson, "a 9 prima facie case of discrimination can be made out by offering a 10 wide variety of evidence, so long as the sum of the proffered 11 facts gives rise to an inference of discriminatory purpose," 12 Johnson, 545 U.S. at 170. 13 example, required that Batson challengers compare jurors struck 14 with jurors seated, nor has it required that they show that 15 jurors struck would have favored the prosecution. 16 The Supreme Court has not, for But upon closer examination, we read the paragraph in 17 question not to impose specific requirements on persons making 18 Batson challenges. 19 evidence that "would [have] serve[d] as a basis for a prima facie 20 case of impermissible discrimination" had it been offered. 21 Brown, 97 N.Y.2d at 508, 769 N.E.2d at 1272, 743 N.Y.S.2d at 380. 22 Thus understood, there is nothing in the statement that is 23 contrary to clearly established federal law. 24 Instead, we think, it provides examples of In any event, Supreme Court, Bronx County, the 25 Appellate Division, and the Court of Appeals, all reached the 26 conclusion that the petitioner had failed to make out a prima 19 1 facie case of race discrimination under Batson. 2 the district court that under the principles of both Batson and 3 AEDPA, that conclusion will not support the grant of a habeas 4 corpus petition. 5 district court denying the application for such a writ. We therefore affirm the judgment of the CONCLUSION 6 7 8 We agree with For the foregoing reasons, the judgment of the district court is affirmed. 20

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