                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 11-3300
                                  _____________

                            NATHANIEL RHODES, JR.,
                                             Appellant

                                         v.

                    DAVID A. VARANO, Superintendent/S.C.I.
                   Coal Township; THE DISTRICT ATTORNEY
                   OF THE COUNTY OF MONTGOMERY; THE
                   ATTORNEY GENERAL OF THE STATE OF
                               PENNSYLVANIA
                               ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Civil No. 2-08-cv-03236)
                   District Judge: Honorable Cynthia M. Rufe
                                  ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  July 10, 2012
                                 ____________

               Before: RENDELL, SMITH and BARRY, Circuit Judges

                           (Opinion Filed: July 25, 2012)
                                  ____________

                                     OPINION
                                   ____________

BARRY, Circuit Judge

      In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the
Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from using

a peremptory challenge to purposefully strike a prospective juror because of his or her

race. Nathaniel Rhodes, Jr., an African-American male, appeals the denial of his petition

for a writ of habeas corpus, arguing that the prosecutor discriminated against him when,

in violation of Batson, he exercised a peremptory challenge against Juror #41, a non-

African-American male. Rhodes sought a certificate of appealability only as to the

District Court’s rejection of that specific claim, a motion which was granted by the Court

as to the following issues: whether the Pennsylvania Superior Court’s “ruling” as to

Juror #41 “was an unreasonable determination of the facts in light of the evidence

presented,” and whether Rhodes was entitled to an evidentiary hearing. 1 App. 83. We

will affirm.

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

habeas relief cannot be granted unless the adjudication resulted in a decision that was

either “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” or “was based on

an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). If, of course, the state court did not reach the


1
 The only Batson challenge before the District Court and now before us is Rhodes’
challenge to non-African-American Juror #41. Rhodes did not renew the Batson
challenge he unsuccessfully made at the state court level to the prosecutor’s strike of
Juror #5, an African-American female, struck because, among other reasons, she had a
conviction for shoplifting and her husband worked with juvenile offenders at a placement
home.
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merits of a claim, these deferential standards do not apply. Holloway v. Horn, 355 F.3d

707, 718 (3d Cir. 2004).

       Rhodes argued to the District Court, and argues to us, that the “effect” of the

prosecutor exercising his last strike against “below the line” Juror #41 (a juror who had

no chance of being seated) was to assure that African-American Juror #33 would serve

only as an alternate and no African-American would make it to the final twelve. The

District Court, in an extraordinarily thorough opinion, discussed Rhodes’ Batson claim

and the treatment of that claim by the Pennsylvania state courts. Given that we write

only for the parties, who are fully familiar with this case, we need not reprise that

discussion here. Suffice it to say, the District Court concluded that because there was no

evidence of record that the “below the line” strike of Juror #41 gave rise to an inference

of a discriminatory purpose, the Superior Court’s conclusion that the prosecutor did not

exercise his strikes in a discriminatory manner “was not an unreasonable determination of

facts in light of the evidence presented.” App. 22.

       We agree. The facts of record here do not establish a pattern of behavior from

which any inference of discrimination can be drawn. The order of the District Court

denying the petition for a writ of habeas corpus will be affirmed.




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