                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0737n.06

                                              No. 11-2093                                 FILED
                                                                                      Aug 08, 2013
                            UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT

EDWARD GRAY,                                             )
                                                         )
       Petitioner-Appellant,                             )   ON APPEAL FROM THE
                                                         )   UNITED STATES DISTRICT
v.                                                       )   COURT FOR THE EASTERN
                                                         )   DISTRICT OF MICHIGAN
BLAINE LAFLER, Warden,                                   )
                                                         )
       Respondent-Appellee.                              )


Before:          KEITH, CLAY, and KETHLEDGE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Following affirmance of the denial of his Batson1

claim on direct review in state court, Petitioner now seeks federal habeas relief, alleging that the

prosecution unconstitutionally used peremptory challenges to exclude African Americans from the

jury in his state-court criminal trial. Because the Michigan Court of Appeals did not unreasonably

apply federal law when it affirmed the state trial court’s denial of Petitioner’s Batson claim, we deny

Petitioner’s application for habeas relief.

       In 2005, a Michigan jury convicted Petitioner of first-degree criminal sexual conduct,

kidnapping, and unlawfully driving away an automobile stemming from his attack on a woman in

1997. Medical workers collected DNA samples from the victim shortly after the 1997 attack. (R.

8-9, at 114). Criminal charges were brought against Petitioner after DNA evidence collected from




       1
           Batson v. Kentucky, 476 U.S. 79 (1986).
No. 11-2093
Edward Gray v. Blaine Lafler
Page 2

him several years later identified him as the assailant in the 1997 attack via the Combined DNA

Index System.

       In selecting a petit jury of fourteen, a total of twenty-three prospective jurors were dismissed

by the parties and the trial court. Petitioner identifies four potential jurors whom he asserts the

prosecution excluded on the basis of race: James Shelton, Floyd Simpkins, Juanita Kumaraswamy,

and Shantilly Derden. The following exchanges occurred during voir dire.

       Early in voir dire, the court indicated privately to the attorneys that defense counsel would

need to rehabilitate Juanita Kumaraswamy if she was going to be sworn into the final jury because

her answers to questions indicated that her experiences would affect her judgment. (R. 8-7 at

63–64). There was no subsequent questioning of Kumaraswamy throughout voir dire and the

prosecutor later used a peremptory challenge to excuse her. (R. 8-7, at 107).

       The prosecution asked Floyd Simpkins whether he does supervisory things at his job.

Simpkins replied yes. When the prosecution immediately asked Simpkins again whether he was a

supervisor, Simpkins replied no.

       Shantilly Derden stated that her brother had been the victim of a crime because he had been

in the wrong place at the wrong time. (R. 8-7, at 85). The prosecution later used a peremptory

challenge to excuse her.2 (R. 8-7, at 131).

       Exchanges between the trial judge, the trial attorneys, and James Shelton indicated that the

attorneys and court all had prior knowledge of Shelton’s business; however, it is unclear from the



       2
         Shantilly Derden is mistakenly identified as Ms. Verdun in the transcript when the
prosecution excused her.
No. 11-2093
Edward Gray v. Blaine Lafler
Page 3

record what his business is. When the trial court asked, “Do you have police come into your

establishment?,” Shelton responded by discussing his nickname as King James and that he catered

a lot of city-related events. (R. 8-7, at 159–60). The prosecution used a peremptory challenge to

excuse Shelton.

       Although Defendant raised his Batson challenge on the first day of trial, voir dire lasted the

entire first day and the parties agreed to conduct the Batson hearing the next day. At the hearing,

defense counsel alleged that the prosecution unconstitutionally dismissed Juanita Kumaraswamy,

Shantilly Derden,3 James Shelton, and Floyd Simpkins on the basis of race. In response, the

prosecutor offered race-neutral explanations for dismissing Shelton and Simpkins. The prosecutor

stated that Simpkins did not seem to understand the questions the prosecutor asked him and that the

prosecutor was concerned about how Simpkins completed the jury questionnaire. Additionally, the

prosecutor stated that Shelton did not seem to understand the questions that the court asked him and

that Shelton’s inability to listen carefully would limit his ability to evaluate and accept DNA

evidence to identify Petitioner as the perpetrator. (R. 8-8, at 4). The trial court began its ruling on

the Batson challenge before the prosecutor could offer his reasons for excusing Derden or

Kumaraswamy. In denying the Batson challenge, the trial court partially relied on the fact that three

African-American jurors were selected to be on Petitioner’s jury.

       In his direct criminal appeal before the Michigan Court of Appeals, Petitioner raised a single

claim: that the trial court erred by failing to apply proper Batson procedures to the prosecutor’s



       3
        Defense counsel mistakenly identified Shantilly Derden as “Shanita Barron” during the
Batson hearing.
No. 11-2093
Edward Gray v. Blaine Lafler
Page 4

peremptory challenges. The state appellate court found that the trial court had failed to rigorously

follow the Batson procedure, specifically that it had skipped the first step of the Batson analysis by

not ruling on whether Petitioner had established a prima facie case of discrimination. Ultimately, the

state appellate court held that Petitioner had failed to establish a prima facie case of discrimination

based on race in part because the prosecutor did not challenge three African Americans, who were

eventually sworn as jurors even though he had several peremptory challenges remaining. Petitioner

appealed, and the Michigan Supreme Court declined to review Petitioner’s case on the merits.

       Petitioner filed this habeas application under 28 U.S.C. § 2254(d). The district court ordered

an evidentiary hearing to further develop the record for Petitioner’s Batson claim. After the hearing,

the district court credited the prosecutor’s race-neutral explanations for the four peremptory

challenges and denied the habeas application. Petitioner timely appeals to this Court.

       In federal habeas proceedings, we review a district court’s legal conclusions and mixed

questions of fact and law de novo. Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013). Federal

habeas courts review the last state-court decision to reach the merits of the claims being considered.

Moreland v. Bradshaw, 699 F.3d 908, 931–32 (6th Cir. 2012).

       On appeal, Petitioner relies on Hernandez v. New York, 500 U.S. 352, 359 (1991), to argue

that the Michigan Court of Appeals unreasonably applied federal law when it held that he had failed

to establish a prima facie case of discrimination based on race. While the Michigan Court of

Appeals applied federal law incorrectly under Hernandez as to Shelton and Simpkins, it did not
No. 11-2093
Edward Gray v. Blaine Lafler
Page 5

apply federal law unreasonably as to any of the four peremptory challenges. Consequently, we

affirm.4

       Any party’s use of peremptory challenges to exclude jurors on the basis of race from serving

on a jury violates the Equal Protection Clause. Batson, 476 U.S. at 89. “In order to establish an

equal protection violation under Batson, the complaining party must first make a prima facie

showing that the peremptory challenge was based on race.” United States v. Cecil, 615 F.3d 678,

686 (6th Cir. 2010) (internal citation omitted). To establish a prima facie case, the opponent of the

strike must show that “the relevant circumstances raise an inference that the proponent of the strike

excluded prospective jurors from the petit jury because of their race.” United States v. Watford, 468

F.3d 891, 911–12 (6th Cir. 2006). If the complaining party makes out a prima facie case, in order

to overcome the Batson claim “the proponent of the strike . . . must proffer a facially valid, race-

neutral explanation for the challenge.” United States v. Kimbrel, 532 F.3d 461, 466 (6th Cir. 2008).

The reason for a strike need not be persuasive, nor even plausible. Purkett v. Elem, 514 U.S. 765,

767–68 (1995). At step three, the trial court must assess “whether the opponent of the strike has

proved purposeful discrimination.” United States v. Mahan, 190 F.3d 416, 424 (6th Cir. 1999). “To

do so, the [trial] court must ‘assess the proponent’s credibility under all of the pertinent



       4
          Petitioner also argues that the district court erred when it held an evidentiary hearing to
develop a record about the prosecutor’s reasons for striking the four relevant potential jurors.
Federal habeas review of claims that have been adjudicated on the merits in state court proceedings
is limited to the record that was before the state court. Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011). Consequently, our affirmance relies on only the state court record and does not rely on the
record generated by the district court’s evidentiary hearing. City Mgmt. Corp. v. U.S. Chem. Co.,
Inc., 43 F.3d 244, 251 (6th Cir. 1994) (holding that the Court of Appeals may affirm on any ground
supported by the record).
No. 11-2093
Edward Gray v. Blaine Lafler
Page 6

circumstances, and then weigh the asserted justification against the strength of the opponent’s prima

facie case under the totality of the circumstances.” Kimbrel, 532 F.3d at 466 (internal citations,

quotations, and punctuation omitted). “Throughout the Batson inquiry, the ultimate burden of

persuasion always rests with the party challenging the strike.” United States v. Jackson, 347 F.3d

598, 604 (6th Cir. 2003). Batson rulings turn largely on credibility. See T. Felkner v. Jackson, 131

S. Ct. 1305, 1307 (2011). A trial court’s determination in a Batson hearing is afforded great

deference and “must be sustained unless it is clearly erroneous.” Id. (internal citations and quotation

omitted).

        The previous paragraph outlines the Batson standard on direct review. The Antiterrorism and

Effective Death Penalty Act (AEDPA) “demands that state-court decisions be given the benefit of

the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). AEDPA requires that a petitioner show

that he is in custody due to a state court “decision that . . . involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254. That

application must be objectively unreasonable. Cavazos v. Smith, 132 S. Ct. 2, 3 (2011). Further, “an

unreasonable application of federal law is different from an incorrect application of federal law,”

and we may not grant habeas relief merely because we conclude that the state court decision applied

federal law incorrectly. Williams v. Taylor, 529 U.S. 362, 410—11 (2000) (emphasis in original).

        Shelton and Simpkins

        The Michigan Court of Appeals applied federal law incorrectly, but not unreasonably, when

it found that Petitioner had not established a prima facie showing of discrimination under Batson as

to James Shelton and Floyd Simpkins because the prosecutor had offered race-neutral reasons for
No. 11-2093
Edward Gray v. Blaine Lafler
Page 7

excusing them. “Once a prosecutor has offered a race-neutral explanation for the peremptory

challenges and the trial court has ruled on the ultimate question of intentional discrimination, the

preliminary issue of whether the defendant had made a prima facie showing becomes moot.”

Hernandez, 500 U.S. at 359. On day two of trial, the state trial court ruled on the ultimate issue that

there was no discrimination as to any of the four peremptory challenges to which Petitioner objected

after the prosecutor had offered race-neutral reasons for only two of the four relevant peremptory

challenges. The prosecutor offered race-neutral explanations for exercising peremptory challenges

as to Shelton and Simpkins.

       The prosecutor cited Shelton’s and Simpkins’s illogical responses to straightforward

questions as the reason he exercised peremptory challenges to excuse them. Here, it was not

unreasonable for the trial court to credit the prosecutor’s reason in a case that turned on the

identification of the perpetrator on the basis of DNA evidence seven years after the crime had been

committed. Petitioner did not offer any argument during trial to dispute the prosecutor’s proffered

reasons. Although the Michigan Court of Appeals affirmed the trial court’s Batson decision as to

Shelton and Simpkins for an incorrect reason, we defer to its holding because it did not involve an

objectively unreasonable application of federal law.

       Kumaraswamy and Derden

       Petitioner argues that the Michigan Court of Appeals’s holding that he failed to establish a

prima facie showing of discrimination as to Juanita Kumaraswamy and Shantilly Derden was an

unreasonable application of federal law. Petitioner argues that whether he established a prima facie

showing at step one was moot in the context of his direct appeal under the precedent of Hernandez
No. 11-2093
Edward Gray v. Blaine Lafler
Page 8

because the trial court had already ruled on the ultimate issue at step three—that there was no

discrimination. However, Hernandez requires both that the trial court ruled on the ultimate issue of

discrimination and that a prosecutor offered a race-neutral explanation for the peremptory challenge

to moot the issue of a prima facie showing. Id. at 359. The prosecutor offered no race-neutral

reasons for challenging Kumaraswamy and Derden. Therefore, Hernandez does not preclude the

Michigan Court of Appeals’s holding that Petitioner failed to establish a prima facie case of

discrimination as to Kumaraswamy and Derden.

       Petitioner fails to point to any facts beyond the race of the potential jurors that would give

rise to an inference of discrimination. Given that three African Americans were eventually

empaneled on the jury, it was not an unreasonable application of federal law for the Michigan Court

of Appeals to hold that the relevant circumstances did not give rise to an inference of discrimination

sufficient to establish a prima facie case.

       For the foregoing reasons, we DENY the petition for a writ of habeas corpus.
