                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 12-3098
                                    ____________

                              ALBERT C. HAIRSTON,
                                            Appellant

                                          v.

                   ROY L. HENDRICKS; ATTORNEY GENERAL
                        OF THE STATE OF NEW JERSEY

                                    ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                               (D. C. No. 2-99-cv-05225)
                    District Judge: Honorable Katharine S. Hayden
                                      ____________

                            Argued March 6, 2014
            Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.

                              (Filed: September 3, 2014)

Alison Brill, Esq. [Argued]
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

Richard Coughlin, Esq.
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
       Attorneys for Appellant
Sara B. Liebman, Esq.     [Argued]
Union County Office of Prosecutor
County Administration Building
32 Rahway Avenue
Elizabeth, NJ 07202
      Attorneys for Defendant-Appellees

                                      ____________

                                        OPINION
                                      ____________

HARDIMAN, Circuit Judge.

       Albert Hairston appeals the District Court’s order denying his petition for writ of

habeas corpus, in which he alleged a violation of Batson v. Kentucky, 476 U.S. 79 (1986).

The District Court, applying the deferential standard of review established in the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, held

that Hairston failed to show that the state court’s decision was contrary to, or involved an

unreasonable application of, Batson. We will affirm.

                                             I

       Unlike most habeas defendants, Hairston does not assert his innocence; he admits

to shooting two co-workers, one fatally, and claims intoxication as a defense. The New

Jersey state court provided a thorough and detailed account of the facts, see State v.

Hairston, No. A-4203-91T4 (N.J. Super. Ct. App. Div. Feb. 21, 1995) (slip op.), which

the District Court’s opinion recounted as follows:




                                             2
       Hairston worked at a bakery in Long Branch, New Jersey, along
with Susan Kerestes and Susan Modoski, the victims of the crimes for
which Hairston was tried and convicted. Kerestes and Modoski shared a
house together in Kenilworth, New Jersey. Over time, they developed a
friendship with Hairston and would occasionally drive him home or
socialize after work.

       On December 23, 1989, Hairston called Kerestes and told her his
holiday plans with his girlfriend had not worked out. He asked if he could
stay with Kerestes and Modoski for the Christmas weekend. After
conferring with Modoski, Kerestes told Hairston that he could stay with
them. The women picked him up at the bakery at about 4 p.m. and drove
him to their home. Hairston stayed on the living room couch for the next
two nights. On Christmas morning, Kerestes and Modoski woke early to
attend brunch at Kerestes’ parents’ house. Before they left, they told
Hairston what they had planned for the day, and that Modoski’s father had
invited him to Christmas dinner.

        Kerestes and Modoski left around 10:00 a.m. and returned home
around 1:30 p.m. As they entered through the back door, Modoski stopped
at the refrigerator for a drink while Kerestes continued walking towards the
dining room. She saw clothes scattered on the floor and assumed that
Hairston was in the shower. Then he appeared in the hallway and said,
“Oh, I meant to tell you ladies I’m not going.” According to the trial
testimony of Kerestes, who survived the events of the next minutes,
Hairston then shot Modoski, turned, and began firing at Kerestes. She was
hit by a number of shots and was propelled backwards until she fell to the
floor of the hallway.

       Hairston stopped firing, turned, and walked into the kitchen.
Kerestes heard him fire another shot, presumably at Modoski. When
Kerestes tried to stand, using a door handle for support, Hairston returned
to the hallway and shot at her again. She fell back to the floor and Hairston
stood over her. When he fired at her again, she turned her head and the
bullet struck the floor next to her. She later described Hairston as being
“very focused looking straight at her” when he fired that shot.

       Kerestes managed to get to her feet, reach a telephone, and call her
parents, yelling into the phone for them to call for help. Hairston left the


                                     3
      house. An alert went out, and a short time later, a patrolman in the
      neighboring town of Roselle Park observed and detained Hairston, who was
      walking across a dirt lot at a quick pace with blood stains on his pants and
      shoes. After other officers arrived, Hairston was subdued and placed under
      arrest. He carried $21.61 in change, a two-dollar bill, and a key in his front
      pants pockets and four twenty-dollar bills in his sock. He claimed that the
      money was his and that he had a habit of putting money in his socks. The
      subsequent police investigation indicated that Hairston had stolen this
      money from Kerestes and Modoski’s house: Hairston’s fingerprints were
      found on a jar in the house where the victims had kept money, including at
      the time four twenty-dollar bills, change, and a number of two-dollar bills.
      At trial Hairston testified that he received the money from an electrical job
      he had performed prior to the weekend in question.

             An officer searching the crime scene near the house found
      Hairston’s blood-stained denim jacket with a box of bullets and a
      photograph taken from the house in one of the pockets. Another officer
      found two pistols in nearby shrubbery. Kerestes confirmed that she and
      Modoski owned these pistols and that they were the guns that Hairston used
      to shoot them. Hairston’s fingerprints were found on one of the pistols.

             Modoski died as a result of the gunshot wounds. Kerestes survived
      and testified for the State at Hairston’s trial.

             Hairston gave the police conflicting accounts of what happened. At
      times he admitted that he might have shot the victims, while at other times
      he denied committing the crimes. When he testified in his defense, he said
      he had been drinking heavily the entire weekend, and that he was very
      drunk on Christmas day―so drunk that he was hallucinating and thought
      that the victims were three African-American men who were demanding
      money for drugs he had bought in New York. He claimed that all he
      remembered about the shooting was seeing Modoski lying on the floor
      while Kerestes was screaming at him to get out of the house.

Hairston v. Hendrick, No. Civ. A. 99-5225 (D.N.J. July 27, 2012) (internal citations

omitted).




                                            4
       Hairston was charged in state court with first-degree murder and the prosecution

sought the death penalty. Hairston pleaded not guilty and was tried before a jury in the

fall of 1991. In part because of the high stakes and racial dimension of the trial, voir dire

took several months and involved hundreds of potential jurors. Each prospective juror

completed a two-part, 19-page questionnaire. Part I contained five questions pertaining to

the juror’s background, education, and potential biases; Part II asked five questions about

the juror’s views on the death penalty. After administering the questionnaire, the trial

court and parties met with each juror individually, asking questions similar to those in the

questionnaire. It took 27 days to select the final pool of 52 eligible jurors.

       The state exercised ten of its twelve peremptory challenges; seven of the ten were

used to strike African-Americans. Hairston’s counsel moved for a mistrial pursuant to

Batson and State v. Gilmore, 511 A.2d 1150 (N.J. 1986),1 alleging racial discrimination.

After hearing the prosecution’s explanations for exercising its peremptory challenges, as

well as defense counsel’s rebuttal, the trial court denied the Batson motion.

       Soon thereafter, the jury, which included three African-Americans, was seated.

After a thirteen-day trial, the jury convicted Hairston on all counts but did not impose the




       1
         The New Jersey state counterpart to Batson, Gilmore enunciated a similar three-
step test to establish unconstitutional discrimination in the use of peremptory challenges.
Gilmore, 103 A.2d at 1157.




                                              5
death penalty. The trial court sentenced Hairston to life imprisonment with forty years’

parole ineligibility.

        Hairston appealed to the New Jersey Superior Court, Appellate Division, raising,

inter alia, the Batson claim. The Appellate Division affirmed, stating: “After hearing

argument by both sides, the trial judge denied defendant’s motion finding that the State

had put forth valid reasons for the exercise of its challenges . . . . We hold that the [trial]

judge’s findings were sufficiently grounded in the record.” A116-17; State v. Hairston,

A4203-91T4 (N.J. App. Div. Feb. 21, 1995) (Hairston II). Hairston appealed to the New

Jersey Supreme Court, which denied certification. 658 A.2d 728 (N.J. 1995) (Hairston

III).

        In 1997, Hairston petitioned the same New Jersey trial court for post-conviction

relief, again raising the Batson claim. A125-31 (Hairston IV). The trial court declared the

Batson issue moot because it was already resolved on the merits. A131; see N.J. Ct. R.

3:22-5 (barring a petitioner for post-conviction relief from presenting a claim that has

been previously adjudicated). Hairston appealed this decision to the New Jersey Superior

Court, Appellate Division, which affirmed the trial court’s denial of post-conviction

relief. State v. Hairston, No. A4659-96T4 (N.J. Super. Ct. App. Div. Aug. 31, 1998)

(Hairston V). The New Jersey Supreme Court again denied certification. State v.

Hairston, 731 A.2d 46 (N.J. 1999) (Hairston VI).




                                               6
        In November 1999, having exhausted his state remedies, Hairston filed a pro se

petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District

Court for the District of New Jersey. Again, he raised Batson claims along with three

other grounds for relief. In February 2000, the District Court dismissed the petition for

failure to file within AEDPA’s one-year limitation period. See 28 U.S.C. § 2244(d)(1).

Hairston moved to reinstate his petition, arguing that it was timely because the one-year

limitation period began to run on April 24, 1996, AEDPA’s effective date, and was tolled

while his petition was pending until April 30, 1999, the date the New Jersey Supreme

Court denied certification. Therefore, he argued, the one-year limitation period began

running on April 30, 1999, and his petition, filed November 9, 1999, was within the one-

year limitation period. The District Court agreed and reinstated his petition on March 7,

2000.

        Over the next twelve years, Hairston filed pro se motions and wrote letters to the

District Court requesting an answer to his petition for habeas relief. On June 17, 2002,

Hairston sent a letter to the court inquiring about the case and received a response from

Roy Hendrick, Attorney General of New Jersey. 2 On September 2, 2003, Hairston filed a

motion to compel the state to answer his habeas petition. The District Court granted the

motion to compel on December 1, 2003. The state’s answer to the petition is missing


        2
        This letter is missing from the record. Many of the state court files were purged
in 2009, and parts of the District Court record are also, for reasons unknown, unavailable.


                                              7
from the record. Over the next nine years, Hairston wrote eight more letters to the

District Court inquiring about the status of the case.

       On July 9, 2012, the District Court denied Hairston’s § 2254 petition and request

for a certificate of appealability relying on the record from the state courts; it did not hold

an evidentiary hearing. Hairston v. Hendricks, No. Civ. A. 99-5225 (D.N.J. July 27,

2012) (unpublished). Hairston timely appealed and we issued a certificate of appealability

for the Batson claim only. We appointed counsel for Hairston.

                                              II3

       Because the District Court “did not hold an evidentiary hearing and engage in

independent factfinding . . . our review of its final judgment is plenary.” Hardcastle v.

Horn, 368 F.3d 246, 254 (3d Cir. 2004) (internal citation and quotation marks omitted).

Therefore, we will apply “the same standard [of review] that the District Court was

required to apply.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (internal citation

omitted).

       AEDPA applies to Hairston’s petition, which was filed on November 8, 1999. 28

U.S.C. § 2254. Under AEDPA, we review the state court’s determinations on the merits

only to ascertain whether the court reached a decision that was “contrary to, or involved


       3
        The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. § 2253.




                                               8
an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court . . . [or] was based on an unreasonable determination of the facts.” 28

U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (internal

quotation marks omitted); Bond v. Beard, 539 F.3d 256, 263 (3d Cir. 2008). This is a

high bar, since a state court’s findings are “presumed to be correct,” 28 U.S.C. §

2254(e)(1), and we may grant habeas relief only if “the state court decision . . . resulted in

an outcome that cannot reasonably be justified under existing Supreme Court precedent.”

Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004).

       AEDPA deference is due only if the state court has adjudicated the issue on the

merits; if not, we exercise plenary review. See 28 U.S.C. § 2254(e)(1); Holloway v. Horn,

355 F.3d 707, 718 (3d Cir. 2004) (“We have interpreted § 2254’s ‘adjudication on the

merits’ language to mean that when . . . the state court has not reached the merits of a

claim thereafter presented to a federal habeas court, the deferential standards provided by

AEDPA . . . do not apply.”) (internal citations and quotation marks omitted).

       We review the “last reasoned state-court opinion,” Ylst v. Nunnemaker, 501 U.S.

797, 803-04 (1991), which in this case is Hairston II, the New Jersey Appellate

Division’s decision on direct appeal.4 Therefore, the applicable standard of review hinges


       4
        The Supreme Court “reconfirm[ed]” in Harrington v. Richter, 131 S. Ct. 770,
785 (2011), that “[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the


                                              9
on whether the Hairston II court properly adjudicated the Batson claim on the merits. 28

U.S.C. § 2254(d); Richter, 131 S. Ct. at 780.

                                             B

       Batson established “a three-step inquiry for determining the constitutionality of

challenged peremptory strikes.” Hardcastle, 368 F.3d at 255 (citing Riley v. Taylor, 277

F.3d 261, 275 (3d Cir. 2001)).

       First, the trial court must determine whether the defendant has made a
       prima facie showing that the prosecutor exercised a peremptory challenge
       on the basis of race. Second, if the showing is made, the burden shifts to the
       prosecutor to present a race-neutral explanation for striking the juror in
       question. Although the prosecutor must present a comprehensible reason,
       “[t]he second step of this process does not demand an explanation that is
       persuasive or even plausible”; so long as the reason is not inherently
       discriminatory, it suffices. Third, the court must then determine whether the
       defendant has carried his burden of proving purposeful discrimination. This
       final step involves evaluating “the persuasiveness of the justification”
       proffered by the prosecutor, but “the ultimate burden of persuasion rests
       with, and never shifts from, the opponent of the strike.”

Rice v. Collins, 546 U.S. 333, 338 (2006) (internal citations omitted).

       A Batson claim has been adjudicated on the merits when all three steps of the

analysis have been reached. Bond v. Beard, 539 F.3d 256, 264 (3d Cir. 2008) (“Failure to



contrary.” Id. at 784-85. However, the presumption “may be overcome when there is
reason to think another explanation for the state court’s decision is more likely”—such as
a dismissal of the claim on procedural grounds. Id. at 785, 787 (internal citations
omitted). In this appeal, the presumption of adjudication does not apply to the state court
decisions on post-conviction review (Hairston IV-V) because the Batson issue was
procedurally barred under New Jersey law.



                                            10
make a step-three finding . . . would render the state court’s decision either ‘contrary to’

or an ‘unreasonable application’ of Batson . . . and we would not apply AEDPA

deference.”) (citing Hardcastle, 368 F.3d at 259). Because the Hairston II court

“essentially incorporated” the trial court’s reasoning, see Bond, 539 F.3d at 269, we will

examine both courts’ adjudications of the Batson claim.

                                             III

       Jury selection in Hairston’s trial was a painstaking affair, taking several months

and involving hundreds of potential jurors. During this process, seven of the state’s ten

peremptory challenges were used to strike African-Americans. Defense counsel moved

for a mistrial pursuant to Batson and Gilmore, alleging that the prosecution exercised its

challenges on the basis of race. The trial court found that Hairston had succeeded in

making a prima facie case of discrimination. The prosecution then proceeded to explain

its decisions to strike each of the seven excused African-American jurors.

       The first excused juror “struggled with the idea of imposing the death penalty” and

believed that “alcohol and drugs make you do things that you wouldn’t do.” A66-67. This

led the prosecution to believe she would be amenable to Hairston’s intoxication defense.

       The second excused juror showed up on the wrong day and looked uninterested

and even “pained by the process.” A68-69. Noting the fact that the juror “went to the

Fashion Institute of Technology,” the prosecutor stated: “I know we sometimes make

generalizations, but it’s been some of my experience that people in that field tend to be


                                             11
more liberal people.” A68. The prosecutor also believed she lacked the “mental upkeep”

required to understand a complex trial. A68-69. The juror indicated that she was opposed

to the death penalty “unless the crime was against innocent children,” and “[only] if she

was convinced that there was no rehabilitation.” A69.

       The third excused juror said he would impose the death penalty only for a

premeditated murder, and seemed amenable to imposing a 30-year sentence in this case.

He also stated that “the more alcohol people drink, the more they are affected,” which led

the prosecution to believe he would be sympathetic to the intoxication defense. A71-72.

Finally, the prosecution noted that he had not disclosed a prior disorderly-person

conviction, which counsel believed rendered him untrustworthy.

       The fourth juror believed people could drink so much that they become unaware

of their own actions, and appeared to the prosecution as if “she absolutely [did] not want

to be [there].” A72. Regarding the death penalty, she stated that “there are always

extended [sic] circumstances,” suggesting that she would be prone to finding mitigating

factors at the penalty phase. A73.

       The fifth juror was excused because he had a graduate degree in behavioral

sciences and worked in the alcoholism field for 23 years, leading prosecutors to believe

he would be favorably disposed to the intoxication defense.

       The sixth juror spoke of “blackouts” from drinking, and, in response to the

prosecution’s hypothetical involving the perpetrator of a murder-robbery, stated “I’m not


                                            12
certain. The guy may be innocent.” A77-78. This led the prosecution to believe that she

would “never execute.” A77-78.

      The seventh juror’s husband was an alcoholic and attended Alcoholics

Anonymous meetings herself. She believed that her brother, who was incarcerated at the

time, had not been treated fairly by the criminal justice system. In addition, her nephew

had been recently charged with dealing drugs in a nearby town, a case that may have

been handled by the same prosecutor’s office. This led the prosecution to believe that she

might not be able to give their side a “fair hearing.” A78. She also expressed ambivalence

about imposing the death penalty.

      After the prosecutor articulated these explanations, the trial court turned to defense

counsel and asked if he had any other comments to make in response.

      THE COURT: Counsel, any response?

      [DEFENSE COUNSEL]: I’d like to have some time to prepare an adequate
      response, your Honor. We’ve talked about 7 jurors right now.

      THE COURT: What do you – by proper response you [sic] going to seek to argue
      that he was reasonable or unreasonable on each one of these?

      [DEFENSE COUNSEL]: Oh absolutely.

      THE COURT: Well, I don’t think that’s absolutely necessary, truthfully. He has to
      put forth an argument that he believes will justify his exercise of challenges; that
      doesn’t mean that you have a right to respond to each and every statement he
      made based upon what he says. You disagree with it so be it, but we’re not going
      to take the time for you to sit down and prepare a step by step rebuttal to this stuff.




                                            13
A81. Defense counsel responded that the State’s proffered explanations were “vague,

unexplainable reasons” and argued that the stricken jurors’ answers had not been very

different from those of the remaining, sitting jurors. A81-82. He pointed to one white

juror who was an alcoholic and had been through Alcoholics Anonymous three times, yet

was not excused. He argued that the prosecution had mischaracterized statements the

stricken jurors had made, and that many of the potential jurors excused for being averse

to the death penalty had actually expressed “average” support for the death penalty. At

various points during defense counsel’s rebuttal, the trial court attempted to cut him off,

stating: “[W]e’re not going to argue everybody who’s on this jury as against the people

that are off this jury, we will never finish the case that way.” A82. “I don’t want you to

go into every sitting juror here, comparing them to people who have been excused.

Confine your comments to those people who have been excused you think wrongfully

please.” A89.

       Defense counsel responded to the trial court by pointing out that Batson and

Gilmore actually require courts to consider comparable facts about sitting jurors in order

to determine whether the prosecution’s stated reasons were pretextual. Still, the trial

court insisted that defense counsel limit his discussion to those jurors who were




                                             14
dismissed.5 Accordingly, defense counsel confined his rebuttal to the following points:

(1) the first juror was presented as weak on the death penalty, but her support for the

death penalty was average for the pool of jurors, including the remaining jurors. (2) The

second juror, a college graduate, was presented as intellectually incapable of

understanding the law yet was more educated than several sitting jurors. (3) The third

juror was never asked about his disorderly-person conviction, so he did not fail to

disclose it. Moreover, he had expressed that if an alcoholic had an opportunity to get help

and did not, then he would readily give the death penalty. (4) The fourth juror’s views on

alcoholism would not have trumped his otherwise strongly pro-death penalty stance. (5)

The fifth juror was excused partially for her answer to the “reality question” of “could

you do it?” but a white male whose answer to the same question was more problematic

for the prosecution remained on the jury. (6) The sixth juror had clearly stated that

“drugs or alcohol are not an excuse” for criminal conduct. (7) Despite the seventh juror’s

experience with alcoholism, she stated that alcohol makes people do things they have

within them, and strongly supported the death penalty, expressing concern over the

expense of keeping such a perpetrator in prison.

       At the conclusion of defense counsel’s rebuttal, the trial judge stated:




       5
         Fourteen years later, the Supreme Court held that “side-by-side comparisons” of
stricken black jurors and sitting white jurors can be “powerful” evidence of
discrimination in a Batson determination. Miller–El v. Dretke, 545 U.S. 231, 241 (2005).


                                             15
       Each one of these people took an hour and a half to two hours to qualify
       when we did the voir dire. It . . . is possible . . . to pull out in that hour and a
       half anything . . . to support your view. . . . I find the State has put forth
       valid reasons for the exercise of these challenges. That the defense doesn’t
       concur is not surprising. Of course, each side has a very distinct point of
       view in this case, in all cases, but the defense does not have a right . . . to
       put . . . himself into [the] prosecutor’s shoes [to] determine what challenges
       in their view were valid.

       [The] Prosecutor set forth on the record reasons for excusing each one of
       these people relating to views about the death penalty, reasons about use of
       alcohol, reasons involving family members in crime, and those reasons I
       find to be valid and sufficient in the record. Therefore the defense request
       for a mistrial is denied.

A91-92 (emphasis added). After another comment from defense counsel, the trial court

repeated its position, stating: “All the State needs to do it’s done. It [has] set forth reasons

which I find to be valid for the exercise of his challenge.” A94.

       The Appellate Division (Hairston II) first found that Batson’s first two steps were

satisfied: Hairston had made a prima facie case of discrimination, and the prosecution had

presented race-neutral explanations for each of the peremptory challenges used to strike

African-American prospective jurors. A114-17. It then concluded:

       After hearing argument by both sides, the trial judge denied defendant’s
       motion finding that the State had put forth valid reasons for the exercise of
       its challenges . . . . We hold that the [trial] judge’s findings were
       sufficiently grounded in the record and that his denial of a mistrial
       constituted a reasonable exercise of his discretion. The State carried its
       burden by articulating clear and reasonably specific explanations of its
       legitimate reasons for exercising each of the peremptory challenges.

A116-17 (emphases added) (internal citations and quotation marks omitted).




                                               16
       The parties do not dispute that the first two steps of Batson were reached. At issue,

then, is whether the Appellate Division—which incorporated the reasoning of the trial

court—reached Batson’s third step to determine whether Hairston had carried his burden

of proving purposeful discrimination, i.e., “that it is more likely than not that the

prosecutor struck at least one juror because of race.” Bond, 539 F.3d at 264 (internal

citation omitted). “At step three, the trial judge must make a finding regarding the

[prosecutor’s] motivation.” Id. (internal citation and quotation marks omitted).

       Unfortunately, this is a case where “[t]he state courts repeatedly failed to identify

the three steps of the Batson analysis explicitly. This renders our task harder on review,

as we must attempt to discern what those courts did in fact perform at each step.” Bond,

539 F.3d at 268. The record here, as in Bond, “gives serious cause for concern that the

state courts did not reach the third step of the Batson analysis.” Id. In Bond, we were

troubled that the trial court had indicated that it

       believed that it could stop after the prosecutor satisfied the second step of
       the Batson analysis by stating a race-neutral explanation for a strike. The
       voir dire transcript never explicitly clarifies whether, in accepting
       explanations to be race-neutral, the trial court or the Pennsylvania Supreme
       Court believed that the prosecutor truly had acted in a race-neutral fashion
       (satisfying step three of the Batson analysis), or merely that the stated
       explanations were race-neutral (at step two).

Id. We were also concerned that the trial court had stated, as the trial court stated here,

that it was “not going to try and get into the [prosecutor’s] mind” and further suggested

that it only needed “some objective statement that’s racially neutral.” Id. (internal


                                               17
citations omitted). Nevertheless, after reviewing the state court record closely, we

concluded in Bond that the state court had, in fact, reached step three:

       The Pennsylvania Supreme Court essentially incorporated the reasoning of
       the trial court . . . . It described the trial court as accepting the prosecutor's
       explanations as “legitimate and race neutral,” and referred to the trial
       court's findings “as to the legitimacy of the race neutral responses offered in
       this case.” The emphasis on legitimacy demonstrates that the Supreme
       Court considered the third step of the Batson analysis. Had it stopped at the
       second step, it merely would have inquired into the existence of “race
       neutral” explanations or responses. But it also described the legitimacy of
       those “race neutral” explanations. It considered, in other words, whether the
       prosecutor had told the truth when he offered race-neutral explanations. It
       concluded that he had done so. This amounts to a determination on the
       merits at the third step of the Batson analysis.

Id. at 269.

       Here, as in Bond, we are concerned to the extent that the Appellate Division

implied that the Batson analysis was over once “[t]he State carried its burden by

articulating clear and reasonably specific explanations” of its peremptory challenges.

A117. Scrutiny of the trial court’s ruling from the bench and the Appellate Division’s

analysis of the claim, however, shows that neither the trial court nor the Appellate

Division stopped at step two. Although the Supreme Court had declined in Batson “to

formulate the particular procedures to be followed upon a defendant’s timely objections

to a prosecutor’s challenges,” it did instruct that it is the trial court’s “duty to determine if

the defendant has established purposeful discrimination.” 476 U.S. at 98, 99. And the

Supreme Court reiterated that “‘a finding of intentional discrimination is a finding of




                                               18
fact’ entitled to . . . great deference.” Id. at 98 & n.21 (quoting Anderson v. Bessemer

City, 470 U.S. 564, 573 (1985)). Consistent with this instruction, the trial judge heard

argument from both sides about the strikes. Defense counsel made arguments in rebuttal,

and then prompted the trial court to consider these arguments, stating:

       This is not a case of accepting that the prosecutor has a—valid reasons.
       You’ve heard the reasons. Now the court’s got to make a determination if
       they’re valid or not. The only way I think we can do that is to, to reflect
       that against the people who were not excused . . . .

A91 (emphasis added). The trial court then declared: “[The] Prosecutor set forth on the

record reasons for excusing each [stricken juror] . . . and those reasons I find to be valid

and sufficient in the record. A92 (emphasis added). In other words, the trial court made a

finding that the reasons proffered by the prosecutor, who had conducted voir dire before

the judge for 27 days, were credible.

       The Appellate Division recognized that the trial judge had proceeded to step three

in the Batson analysis. It noted that the trial court did not simply accept the prosecution’s

reasons as race-neutral without evaluating their credibility. Rather, the Appellate Division

pointed out that the trial court had heard argument from “both sides.” A116. In fact, the

record shows the trial court gave defense counsel multiple—though not unlimited—

opportunities to rebut the prosecution’s proffered race-neutral explanations. The

Appellate Division then concluded that the trial judge had made findings, and held that

“the [trial] judge’s findings were sufficiently grounded in the record.” A117 (emphasis




                                              19
added). The focus on the trial judge’s findings demonstrates that the state courts reached

the third step of the Batson analysis. Moreover, the phrase “sufficiently grounded in the

record” evidences a consideration of all of the facts and arguments presented. This is

sufficient to establish a step three finding. See Bond, 539 F.3d at 267 (finding that step

three was reached when the trial court stated: “Reviewing the totality of the

circumstances, there is no showing of intentional discrimination.”); see also Hardcastle,

368 F.3d at 259 (“[A] judge considering a Batson challenge is not required to comment

explicitly on every piece of evidence in the record. However, some engagement with the

evidence considered is necessary as part of step three of the Batson inquiry . . . .”).

       Obviously, an implicit step-three finding such as the one presented here requires

us to engage in analysis that would not be necessary had the trial court explicitly adverted

to each step. In Hairston’s case, however, the Batson motion was made during jury

selection—in “live combat,” as the District Court put it—and the trial court was able to

hear arguments from both sides and make credibility determinations. A17, 19

(“Deference must be paid to the trial judge, who had witnessed the jurors during voir dire

and was able from his own experience of the question-and-answer to gauge credibility

when the prosecutor gave his reasons.”). The dissent believes that the trial judge was not

equipped to make the necessary findings because it did not permit the defense to fully

present its case. We conclude that a trial judge who presided over 27 days of voir dire

conducted by the same counsel was well equipped to make a finding about whether he


                                              20
believed the reasons given by the prosecutor for exercising the state’s strike were a

pretext for discrimination. Moreover, by referencing both sides’ arguments and the full

record, the Appellate Division demonstrated that it had considered the validity of the

race-neutral explanations offered by the prosecution. This is a step-three finding, so we

apply the deferential AEDPA standard of review. Bond, 539 F.3d at 269 (citing Taylor v.

Horn, 504 F.3d 416, 433 (3d Cir. 2007) (explaining that AEDPA deference applies to

implicit as well as explicit factual findings)).6

                                               V

       As in so many habeas cases, the standard of review is outcome-determinative in

this appeal. AEDPA “reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error


       6
         Hairston also argues that the Batson claim was not adjudicated on the merits
because the state courts exclusively discussed the Gilmore standard and made only
passing reference to Batson. See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013)
(establishing a presumption of adjudication on the merits of the federal claim when the
state-law rule is “at least as protective as the federal standard”). The Batson and Gilmore
tests are nearly identical, except that the Gilmore standard sets a higher threshold at step
one, requiring a showing of a “substantial likelihood” of discrimination, see Johnson v.
California, 545 U.S. 162, 172 (2005), whereas Batson simply requires a statement of
facts that creates an “inference of discriminatory purpose” at step one. Batson, 476 U.S.
at 94; see also State v. Osorio, 973 A.2d 365, 376-77 (N.J. 2009) (confirming that step
one of Batson was less onerous than its Gilmore counterpart).

       Here, the state court found that Hairston cleared step one; only step three was at
issue. Therefore, on these facts, the Batson standard was not less protective than the state
standard, and the presumption of adjudication applies. Williams, 133 S. Ct. at 1096.



                                               21
correction through appeal.” Richter, 131 S.Ct. at 786 (quotation omitted). The Supreme

Court has stated that AEDPA “‘imposes a highly deferential standard for evaluating state-

court rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’”

Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (internal citation omitted).

       Applying AEDPA’s deferential standard of review, we “ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent with

the holding in a prior decision of [the Supreme] Court.” Id. Only if the petitioner

demonstrates that the state court decision “was so lacking in justification” as to present

error “beyond any possibility for fairminded disagreement” may we grant habeas relief.

Id. at 786-87.

       Hairston fails to meet this high threshold. The question here is not whether the

state court correctly decided the Batson issue but whether there is any reasonable

argument to be made that Hairston did not succeed in establishing purposeful

discrimination. We hold that there was. Although defense counsel’s rebuttal raised valid

questions, it fell short of compelling the conclusion that the prosecution harbored racially

discriminatory intent. Accordingly, we will defer to the Appellate Division’s finding that

the prosecution’s exercise of its peremptory challenges was constitutional and affirm the

order of the District Court.




                                             22
RENDELL, Circuit Judge, dissenting:

       While I recognize that AEDPA “‘imposes a highly deferential standard for

evaluating state-court rulings’ and ‘demands that state court decisions be given the

benefit of the doubt,’” Felkner v. Jackson, 131 S. Ct. 1305, 1308 (2011) (quoting Renico

v. Lett, 559 U.S. 766, 772 (2010)), I disagree with the majority’s conclusion that the state

court engaged in an objectively reasonable application of step three of the Batson inquiry

on direct appeal. The record of both the state trial and appellate court proceedings reveal

that both courts ended their analysis at step two. Thus, the Batson claim was never fully

adjudicated on the merits. Where this error occurs in the state courts, our precedent

dictates that we should conduct the step three analysis ourselves and determine from the

voir dire transcripts whether the strikes were pretextual. See, e.g., Hardcastle v. Horn,

368 F.3d 246, 262 (3d Cir. 2004). If that is not possible, habeas should be granted. See

Simmons v. Beyer, 44 F.3d 1160, 1168 (3d Cir. 1995). I do not vote to grant habeas relief

in this case lightly, but given our inability to reconstruct all that occurred in voir dire, 1

and given the questions raised by the portion of the record that we do have, I do not

hesitate to urge that habeas relief should be afforded to Mr. Hairston.

1
  Jury voir dire was conducted over several months. Prospective jurors filled out a two-
part, 19-page questionnaire. Some jurors were excused as early as July 1991 and the
remainder were interviewed individually by the trial court and counsel beginning in
September 1991. As the majority notes, it took approximately 27 days to select the final
pool of 52 eligible jurors. Of the 43 jurors who were seated in court on the day the
peremptory strikes were exercised, 10 were African American. Of the 10 peremptory
strikes the prosecutor used, 7 were against African Americans.
        Unfortunately, the vast majority of the records of voir dire have been destroyed.
(See App. 945-47.) We have the voir dire transcripts for only five impaneled jurors and
one of the seven stricken African American jurors (Andrew Bryant). The races of the
impaneled jurors whose voir dire testimony we have is not discernible from the record.
                                                1
                                               I.

                                              A.

       It is worth elaborating upon the analysis required in the Batson three-step inquiry

in order to parse out the difference between steps two and three. After a defendant

establishes a prima facie case of purposeful discrimination at step one, at step two, “the

burden shifts to the State to come forward with a neutral explanation for challenging

black jurors.” Batson v. Kentucky, 476 U.S. 79, 97 (1986). The Batson Court held that the

“neutral explanation” should be “related to the particular case to be tried” and should not

merely be an affirmation of the prosecutor’s good faith. Id. at 98. Only if the trial court

accepts the prosecutor’s explanation at step two to be “facially valid[],” will it proceed to

step three. Hernandez v. New York, 500 U.S. 352, 360 (1991).

       At step three, “the trial court . . . [has] the duty to determine if the defendant has

established purposeful discrimination.” Batson, 476 U.S. at 98. “In deciding if the

defendant has carried his burden of persuasion, a court must undertake ‘a sensitive

inquiry into such circumstantial and direct evidence of intent as may be available.’” Id. at

93 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.

252, 266 (1977)). Though the Supreme Court in Batson declined “to formulate particular

procedures to be followed,” id. at 99, in performing the inquiry at each step, it notably

drew upon Title VII jurisprudence to describe the burden shifting framework applicable

in a Batson challenge. The Court stated, “[o]ur decisions concerning ‘disparate treatment’

under Title VII of the Civil Rights Act of 1964 have explained the operation of prima

facie burden of proof rules. The party alleging that he has been the victim of intentional

                                               2
discrimination carries the ultimate burden of persuasion.” id. at 94 n.18 (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); United States Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711 (1983)).

       In McDonnell Douglas, the Supreme Court established the three-step burden

shifting framework applicable in an employment discrimination case under Title VII.

First, the employee must make out a prima facie case of discrimination. 411 U.S. at 802.

The burden then shifts to the employer to present a nondiscriminatory reason for the

adverse employment action the employee has suffered. Id. Finally, the employee must

demonstrate that the reason given by the employer is pretextual. Id. at 804. In Burdine,

the Court explained that an employee could meet his burden by “persuading the court that

a discriminatory reason more likely motivated the employer or . . . by showing that the

employer’s proffered explanation is unworthy of credence.” 450 U.S. at 256. The

McDonnell Douglas Court noted that particularly relevant at the third step would be

evidence that employees similarly situated to the plaintiff, but of a different race, did not

suffer adverse employment action. 411 U.S. at 804 (“Especially relevant to [] a showing

[of pretext] would be evidence that white employees involved in acts against [the

employer] of comparable seriousness . . . were nevertheless retained or rehired.”).

       Although the Batson Court did not explicitly elaborate upon the analysis required

at step three, by pointing to the McDonnell Douglas burden shifting framework, the

Court made clear that a Batson challenger has an analogous burden to show that opposing



                                              3
counsel’s justifications for the challenged peremptory strikes are pretextual.2 Once a

defendant is given “a full and fair opportunity to demonstrate that” the reasons offered by

the prosecutor for his use of peremptory strikes “were in fact a coverup for a racially

discriminatory decision,” McDonnell Douglas, 411 U.S. at 805, the trial court “must

decide which party’s explanation of the [prosecutor’s] motivation it believes.” Aikens,

460 U.S. at 716. In other words, the trial court must make a finding of fact as to the

prosecutor’s true intentions. Difficult as making such a finding may be, the Supreme

Court explained in Aikens, another Title VII case cited in Batson, “[t]he law often obliges

finders of fact to inquire into a person’s state of mind,” id. at 716, by comparing the

treatment of the plaintiff with the treatment of others.

                                              B.

       Similarly, at step three of Batson, it is the exercise of comparing that is key. Here,

it is abundantly clear that both the state trial and appellate courts failed to reach step

three. The majority relies primarily upon Bond v. Beard, 539 F.3d 256 (3d Cir. 2008), in

asserting that the state courts reached step three of Batson. In Bond, we found that the

trial court reached the necessary step three conclusion when it stated: “Reviewing the

totality of the circumstances, there is no showing of intentional discrimination by the

prosecutor in the jury selection process and defendants are not entitled to a new trial on

that basis.” 539 F.3d at 267 (citations omitted). We explained:

2
  Just as side by side comparisons between black and white employees are the most
powerful evidence in a Title VII case, side by side comparisons between black and white
jury venire panelists are the most powerful evidence in a Batson challenge. The Supreme
Court later reinforced the utility of side by side comparisons of stricken and impaneled
jurors at step three of the Batson inquiry in Miller-El v. Dretke, 545 U.S. 231, 241 (2005).
                                               4
       Here, the trial court does more than conclude that the prosecutor offered a
       race-neutral explanation for a strike; it concludes that Bond did not meet his
       burden of showing that purposeful racial discrimination, not the proffered
       explanation, motivated the prosecutor’s conduct. This step-three conclusion
       indicates that the trial court indeed did understand the steps of a Batson
       analysis.

Id. at 268-69.

       In Bond, it was clear that the trial court made a determination as to whether the

defendant had met his ultimate burden of showing intentional discrimination. Here, the

trial court made no such finding. Rather, instead, the trial judge robbed defense counsel

of the opportunity to carry his burden at step three, stating that he did not “have a right”

to put “himself into [the] prosecutor’s shoes,” (App. 92) and critique the prosecutor’s

treatment of other jurors. Furthermore, the court suggested that a step three determination

was impossible because, “[a]fter an hour and a half interview of anybody it is possible for

either side to conclude that a segment supports their position.” (App. 94.) As the majority

notes, it was exactly this kind of language in Bond that gave us serious pause. See Bond,

539 F.3d at 268 (noting that trial court’s statement that it was “not going to try and get

into [the prosecutor’s] mind” implied that court believed it could stop analysis after

prosecutor satisfied step two); Majority Op. at 17.

       By stating that “[a]ll the State needs to do it’s done” (App. 94) and that the

prosecutor’s reasons for his strikes were “valid and sufficient in the record,” (App. 92)

the trial judge merely performed the step two inquiry.3 At step two, the prosecutor carries


3
 The majority fails to note the context in which the trial court made the statement that the
prosecutor’s reasons were “valid and sufficient in the record.” (App 92.) Here, context is
key. Immediately before stating this conclusion, the trial court said:
                                              5
the burden to present justifications for the challenged strikes and the relevant question for

the trial judge is whether the given justifications are “facially valid.” Hernandez, 500

U.S. at 360. The issue at step three is whether the prosecutor’s reasons “relating to views

about the death penalty, reasons about use of alcohol, [and] reasons involving family

members in crime,” were pretextual. (App. 92.)

       Had the trial judge permitted defense counsel to make, and had the judge actually

considered, the necessary side by side comparisons between seated white and excused

black jurors that defense counsel urged he should be allowed to present, the judge would

have been at least equipped to determine if intentional discrimination was at play. For

example, while the prosecutor could meet his burden at step two by stating that he had

exercised a strike against a black juror because of the juror’s views on capital

punishment, the judge could have found this reason to be pretextual at step three if white

jurors with similar views on capital punishment were, nevertheless, seated. Instead,


       Each one of these people took an hour and a half to two hours to qualify
       when we did the voir dire. It is . . . possible really to pull out in that hour
       and a half anything . . . to support your view. Gilmore requires that if
       there’s a showing, that the State must come forward with reasons as to why
       it used its challenges. . . . I do find now the State has put forth valid reasons
       for the exercise of these challenges. That the defense doesn’t concur is not
       surprising. Of course each side has a distinct point of view of . . . this case,
       in all cases, but the defense does not have a right I don’t believe to put its
       own place – put himself into [the] prosecutor’s shoes [to] determine what
       challenges in their view were valid, invalid.

(App. 91-92.) The trial court thus indicated that it is impossible to uncover a prosecutor’s
true motivations for his strikes, even though this is precisely a trial judge’s task at step
three of Batson. I, therefore, cannot agree with the majority that the trial court’s finding
that the prosecutor’s reasons were “valid and sufficient in the record” had anything to do
with an evaluation of the credibility of the reasons given. See Majority Op. at 19.
                                               6
however, the trial judge here effectively ruled that defense counsel did not have the right

to challenge the credibility of the prosecutor’s proffered reasons by drawing comparisons

once the judge found them to be race neutral at step two. While defense counsel was able

to sneak some comparisons between seated and excused jurors into the record in spite of

the judge’s instructions, the judge made it clear that he was not interested in, and would

not consider, these comparisons.4

       Simply acknowledging that the prosecutor has satisfied his burden at step two

cannot constitute a determination as to whether the defendant has shown purposeful

discrimination; otherwise, step three would be superfluous. Here, the trial judge not only

failed to comment on the credibility of the explanations offered by the prosecutor but also

indicated that he believed it would be impossible to discern from the record whether or

not there had been intentional discrimination. Therefore, the trial judge omitted the third

step of the Batson inquiry.

       The Appellate Division committed the same error in failing to evaluate the

credibility of the prosecutor’s proffered explanations. The majority acknowledges that the

Appellate Division “essentially incorporated,” Majority Op. at 16 (quoting Bond, 539

F.3d at 269), the trial court’s reasoning in its Batson determination, yet the majority is

4
  Similarly, it is irrelevant that the Batson motion was made during jury selection – in
“live combat,” as the District Court and majority note. The fact that the trial judge
presided over 27 days of voir dire and may have been “equipped to make a finding about
whether he believed the reasons given by the prosecutor for exercising the state’s strike,”
does not mean that he actually made such a credibility determination. Here, we have no
reason to think that he did since he suggested that such a determination would be
impossible. Moreover, the length of the voir dire proceedings in this case actually
indicates that it was highly improbable that the trial judge was able to recall the true
responses of a prospective juror without reviewing the record and refreshing his memory.
                                              7
satisfied with the Appellate Division’s analysis because the Appellate Division concluded

that the trial court had only accepted the prosecutor’s proffered explanations as “valid”

and “legitimate,” “[a]fter hearing argument by both sides.” (App. 116-17); see Majority

Op. at 19. The Appellate Division further stated that the trial court’s finding of validity

was “sufficiently grounded in the record.” (App. 117.) The majority fails to note,

however, that the “finding” made by the trial court and affirmed by the Appellate

Division was only that the prosecutor had satisfied his burden at step two. Indeed, at the

end of its analysis of the peremptory strikes, the Appellate Division quoted directly from

Batson’s step two: “The State carried its burden by articulating ‘clear and reasonably

specific’ explanations of its ‘legitimate reasons’ for exercising each of the peremptory

challenges.” (App. 117 (quoting Batson, 476 U.S. at 98 n.20) (additional citations

omitted).) As previously explained, in Batson, the Supreme Court held that a prosecutor’s

“neutral explanation” should be “related to the particular case to be tried” and should not

merely be an affirmation of the prosecutor’s good faith. Id. at 98. The footnote in Batson

quoted by the Appellate Division was merely a clarification of the prosecutor’s burden at

step two.5 Indeed, the Supreme Court has since explained exactly what was meant by this

footnote:


5
    In full, the footnote reads:

         The Court of Appeals for the Second Circuit observed in McCray v.
         Abrams, that “[t]here are any number of bases” on which a prosecutor
         reasonably may believe that it is desirable to strike a juror who is not
         excusable for cause. As we explained in another context, however, the
         prosecutor must give a “clear and reasonably specific” explanation of his
         “legitimate reasons” for exercising the challenges.
                                              8
       This warning was meant to refute the notion that a prosecutor could satisfy
       his burden of production by merely denying that he had a discriminatory
       motive or by merely affirming his good faith. What it means by a
       ‘legitimate reason’ is not a reason that makes sense, but a reason that does
       not deny equal protection.

Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam). The Court explained that only at

the third step does the question of whether or not a reason “makes sense” come into play:

“It is not until the third step that the persuasiveness of the justification becomes relevant-

the step in which the trial court determines whether the opponent of the strike has carried

his burden of proving purposeful discrimination.” Id. at 768.

       Thus a court must find a prosecutor’s justification to be “legitimate,” “valid,” and

“sufficiently grounded in the record” before it may even proceed to step three. Only “then

will [the trial court] have the duty to determine if the defendant has established

purposeful discrimination.” Batson, 476 U.S. at 98. Here, the statement by the Appellate

Division that the prosecutor had provided “legitimate reasons” for his challenges only

meant that he had provided race neutral reasons actually “related to the particular case to

be tried,” id., not that those reasons were truthful or genuine.6




Batson, 476 U.S. at 98 n.20 (citations omitted).
6
  I note that in Bond, we concluded that the use of the word “legitimate” conveyed a step
three determination. But there, the state appellate court reasoned as follows: “[b]ased
upon our review of the record we find no reason to disturb the findings of the trial court
as to the legitimacy of the race neutral responses.” 539 F.3d at 268 (internal quotation
marks omitted). We held that, “[t]he emphasis on legitimacy demonstrates that the
[Pennsylvania] Supreme Court considered the third step of the Batson analysis. Had it
stopped at the second step, it merely would have inquired into the existence of ‘race
neutral’ explanations or responses.” Id. at 269.
                                              9
       Where state courts have omitted step three, we have not hesitated to conduct de

novo review. In Hardcastle v. Horn, 368 F.3d 246 (3d Cir. 2004), the Pennsylvania

Supreme Court reviewed Hardcastle’s challenge to the prosecutor’s use of peremptory

strikes on direct appeal in light of the intervening change in law announced in Batson.

The court independently combed through the records of voir dire to determine if there

were possible race-neutral bases for the challenged peremptory strikes. Id. at 252. After

coming up with potential justifications for each strike, the court “concluded that

Hardcastle failed to establish a prima facie case of improper use of peremptory

challenges under Batson.” Id. at 253. On appeal of the district court’s grant of

Hardcastle’s habeas petition and under AEDPA, we agreed with the district court that the

state court had failed to properly engage in step one but held that the court’s decision to

proceed with step two “moot[ed] the issue of whether Hardcastle made a sufficient

showing at step one.” Id. at 256. Thus we proceeded to review the state court’s findings




        The use of the word “legitimate” in Bond, however, is distinguishable in three
ways. First, it is clear that in Bond, the word “legitimate” referred to the truthfulness of
the prosecutor’s reasons rather than whether or not the proffered reasons were actually
race neutral because the appellate court commented on the “legitimacy of the race neutral
responses,” (emphasis added) rather than on whether the prosecutor had offered
“legitimate reasons.” Second, as previously noted, in Hairston II, the appellate court was
actually quoting directly from a footnote in Batson describing the prosecutor’s burden at
step two. Finally, in Bond, it was possible for the appellate court to say that the trial court
had actually made findings as to the credibility of the prosecutor’s explanations because
the trial court had stated that, “[r]eviewing the totality of the circumstances, there is no
showing of intentional discrimination by the prosecutor in the jury selection process.”
539 F.3d at 267 (citations omitted). In other words, the trial court had actually made a
step three determination to which the appellate court could defer. Here, the trial court did
no such thing.

                                              10
at the remaining steps and determined that the state court had completely omitted step

three. We explained:

       “[A] judge considering a Batson challenge is not required to comment
       explicitly on every piece of evidence in the record.” However, “some
       engagement with the evidence considered is necessary as part of step three
       of the Batson inquiry,” and this requires “something more than a terse,
       abrupt comment that the prosecutor has satisfied Batson.”

Id. at 259 (quoting Riley v. Taylor, 277 F.3d 261, 290-91 (3d Cir. 2001)). Then, quoting

the district court, we stated that the state court’s decision “does not indicate that the court

engaged in any analysis or consideration of the credibility of the potential justifications it

had proffered. Rather, the court’s decision reads as if the court accepted the justifications

at face value.” Id. We therefore held that there was no step three determination to which

we could defer and remanded the case to the district court for an evidentiary hearing and

de novo review of Hardcastle’s Batson claim. Id. We are now faced with a substantially

similar situation in which the trial and appellate courts made no effort to evaluate “the

credibility of the potential justifications” proffered. Id. Indeed, here, the trial court

blocked defense counsel’s efforts to mount a credibility challenge. This is the crux of step

three. In the absence of any analysis of the credibility of the prosecutor’s proffered

justifications for his strikes, there is no step three determination to which we can defer.

As such, AEDPA deference does not apply to the Appellate Division’s decision and,

ideally, step three analysis of Hairston’s Batson claim should be conducted de novo.



                                               II.



                                               11
         Here, however, it is not possible to conduct a step three analysis based on the

available trial records. Without all of the voir dire transcripts, we cannot determine

whether or not the prosecutor’s justifications were pretextual. For example, even though

we have the full voir dire transcript of Mr. Bryant, it is impossible to determine whether

the prosecutor’s proffered justification for striking Mr. Bryant was pretextual because

defense counsel was improperly cut off by the trial judge when he attempted to make the

side by side comparisons between Mr. Bryant and impaneled jurors that are the hallmark

of step three. Although defense counsel was still able to draw some comparisons on the

record that could indicate pretext on the part of the prosecutor, we are missing relevant

voir dire testimony of potential jurors and are left with defense counsel’s

characterizations of what was said. These characterizations alone should give us serious

pause.

         Specifically, the prosecutor asserted that he had exercised a peremptory strike

against Mr. Bryant because Mr. Bryant had worked to rehabilitate drug users and

alcoholics, and therefore would be sympathetic to Mr. Hairston. Defense counsel noted,

however, that the prosecutor had failed to use a strike against Denise Jones, who was

married to an alcoholic, and against Michael Pidgeon, who had enrolled in Alcoholics

Anonymous three times. If defense counsel’s descriptions of Ms. Jones’s and Mr.

Pidgeon’s personal histories are true, this raises questions as to whether the prosecutor

acted for the race-neutral reasons stated.

         These questions are compounded by the prosecutor’s misrepresentation of the

record in offering justifications for his strike. The prosecutor told the trial judge that Mr.

                                              12
Bryant had said that he had a graduate degree in sociology and had written a dissertation

on “the relationship between people.” (App. 74.) The prosecutor stated that when he

asked for clarification regarding Mr. Bryant’s dissertation, he received no response. From

the voir dire transcripts, however, it is clear that the prosecutor never asked Mr. Bryant to

explain the subject of his thesis, but that Mr. Bryant did so anyway when questioned by

defense counsel. The prosecution’s claim that it was confused as to what Mr. Bryant

wrote his dissertation on is, therefore, belied by the record. In Miller-El v. Dretke, the

Supreme Court indicated that failing to inquire during voir dire on an issue of alleged

importance suggests pretext for discrimination. 545 U.S. at 241. Here, there is some

evidence that the prosecutor’s justifications for striking Mr. Bryant were pretextual, but

without further evidence corroborating defense counsel’s assertions regarding Ms. Jones

and Mr. Pidgeon, we cannot conclusively determine whether the prosecutor purposefully

discriminated against African Americans in striking Mr. Bryant from the jury panel.



                                             III.

       We have held that where reconstruction of the record is not possible, “the

prejudice stemming from our inability to review [a Batson] claim is not fairly borne by

[the defendant].” Simmons, 44 F.3d at 1168. The appropriate remedy, therefore, is to

grant Hairston’s habeas petition, give the state an opportunity to retry him, and specify

the time period within which the state must retry or release him. See id. at 1171. I, thus,

respectfully dissent from the majority’s opinion affirming the District Court’s denial of

Hairston’s habeas petition.

                                              13
