                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                       APRIL 21, 2008
                                                    THOMAS K. KAHN
                              No. 07-14902
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                    D. C. Docket No. 06-02075-CV-LSC-S

MARCUS PRESLEY,


                                                   Petitioner-Appellant,

                                   versus

RICHARD ALLEN,
Commissioner, Alabama Department of Corrections,

                                                   Respondent-Appellee.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                              (April 21, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:

      Marcus Presley appeals the district court’s denial of his petition for writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254 and arguing that the state

violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),

and J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89

(1994), during jury selection. For the reasons discussed below, we affirm.



                                          I.

      According to the record, Presley is a black male who was charged with

murder by an Alabama state court when he was 16 years old and pled not guilty.

During jury selection, 5, or 8%, of the 57 venire members were black (after

challenges for cause). Of its 23 peremptory challenges, the state used 4, or 17% of

its challenges, to strike blacks. In comparison, Presley used all 23 of his

peremptory challenges to strike whites. After these strikes, 1, or 8%, of the jurors

were black. Also, 59, or 67%, of the 87 venire members were female (before

challenges for cause). Of its 23 peremptory challenges, the state used 18, or 78%

of its challenges, to strike females. In comparison, Presley used 15, or 68%, of his

peremptory challenges to strike males. After these strikes, 9, or 75% of the jurors

were female.



                                           2
      Approximately halfway through exercising these peremptory challenges, the

state indicated that it wished to preserve a “reverse Batson motion,” on the grounds

that Presley had used most of his peremptory challenges to strike white males.

Presley also indicated that he wished to preserve a Batson motion, on the grounds

that the state had used most of its peremptory challenges to strike females. At the

conclusion of jury selection, the state made a formal reverse Batson motion.

Presley also made a formal Batson motion, arguing that the state had used its

peremptory challenges to exclude blacks and females from the jury. In response to

Presley’s motion, the state explained:

      [T]he purpose of the State putting on the record the indication that the
      defendant was in – was violating Batson at that point is because the
      State is being forced into striking females because the defendant was
      excusing all the white males. If the State had excused any white
      males there would be no white males on this jury. . . . If we had struck
      even two strikes against white males there would be none on the jury,
      virtually none.

The state then asked the trial court judge if it should explain its choices. The trial

court judge did not respond, but rather asked if the parties had further evidence

supporting their motions. When they responded in the negative, the trial court

judge denied both motions.

      After a trial, the selected jury found Presley guilty of murder. He was




                                           3
sentenced to life in prison without the possibility of parole.1

       On direct appeal to an Alabama appellate court, Presley argued that the

pattern of the state’s challenges established a prima facie case of discriminatory

striking. The Alabama appellate court affirmed his convictions and sentences. On

appeal to the Alabama Supreme Court, Presley again raised this argument and

added that the prosecutor’s comments demonstrated an inappropriate concern with

the jury’s gender and race makeup. The Alabama Supreme Court also affirmed his

convictions and sentences.

       In its affirmance, the Alabama Supreme Court reasoned that “[s]tanding

alone, given the factual circumstances of this case, the fact that the State struck

four of [five blacks] from the venire and used some of its peremptory strikes to

remove females from the venire [was] insufficient [to raise an inference of

discriminatory striking].” The Alabama Supreme Court also reasoned that the

prosecutor’s comment that he had to strike females or else there would be no white

males on the jury was not an explanation of the state’s reasons and did not clearly

indicate that gender was a factor in the state’s choices. Rather, the comment

simply may have been an explanation that the state only had females from which to



       1
         Presley originally was sentenced to death, but an Alabama circuit court later vacated the
death sentence pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1
(2005), because Presley was only 16 years old at the time of the crime.

                                                4
choose for challenges.

      Presley then filed the instant § 2254 petition, again raising his Batson and

J.E.B. argument. The district court adopted and approved a magistrate judge’s

recommendation to deny the petition. The magistrate had found that the Alabama

Supreme Court’s conclusion that Presley failed to establish a prima facie case of

discrimination neither was contrary to, nor involved an unreasonable application

of, clearly established federal law. The magistrate had reasoned that no Supreme

Court case held that a certain pattern of striking is sufficient to raise an inference of

discrimination. The magistrate also had reasoned that the prosecutor’s ambiguous

statement indeed could be interpreted simply as an explanation that, with each of

Presley’s strikes of males, the venire became increasingly female and the state’s

choice of venire members to strike became more weighed toward females.

      On Presley’s motion for a certificate of appealability (“COA”), the district

court granted a COA on the limited issue of

      Whether the determination by the Alabama Supreme Court in January
      2000 that petitioner failed to establish a prima facie showing of racial
      and or gender discrimination under [Batson] and [J.E.B.] was contrary
      to or an unreasonable application of clearly established federal law as
      determined by the United States Supreme Court, within the meaning
      of 28 U.S.C. § 2254(d).

      Before us on appeal, Presley argues that, because the prosecutor explained

the reasoning behind his peremptory challenges by way of his remarks, the

                                            5
question of whether Presley established a prima facie case of discriminatory

striking was moot. Presley also argues that, because these comments demonstrated

a discriminatory motive, they, along with the pattern of the state’s strikes,

established a violation of Batson and J.E.B.. Presley further argues that, even if the

comments and statistics did not establish a violation, they were sufficient to raise

an inference of discrimination and, therefore, shifted the burden to the state to

provide neutral reasons for the challenges.

                                          II.

      Pursuant to § 2254,

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim–

             (1) resulted in a decision that was contrary to, or involved
             an unreasonable application of, clearly established
             Federal law, as determined by the Supreme Court of the
             United States; or

             (2) resulted in a decision that 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)(1) and (2). Also pursuant to § 2254, the state court’s

determination of any “factual issue. . . shall be presumed to be correct,” and the

petitioner “shall have the burden of rebutting the presumption of correctness by



                                           6
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

      Under this standard, a state court decision is “contrary to” clearly established

federal law “if either (1) the state court applied a rule that contradicts the governing

law set forth by Supreme Court case law, or (2) when faced with materially

indistinguishable facts, the state court arrived at a result different from that reached

in a Supreme Court case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).

      A state court conducts an “unreasonable application” of clearly established

federal law “if it identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case” or if it

“unreasonably extends, or unreasonably declines to extend, a legal principle from

Supreme Court case law to a new context.” Id. We have cautioned that “an

‘unreasonable application’ is an ‘objectively unreasonable’ application.” Id.

Indeed, the Supreme Court has instructed that the question is not whether the state

“correctly” decided the issue, but whether its determination was “reasonable,” even

if incorrect. See Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152

L.Ed.2d 914 (2002).

      As it applies to the § 2254 standard, “clearly established federal law” “refers

to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of

the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362,



                                            7
412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). When no Supreme Court

precedent is on point, a state court’s conclusion cannot be “contrary to clearly

established Federal law as determined by the U.S. Supreme Court.” Washington v.

Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003).

      In Batson, the Supreme Court held that a defendant may challenge the state’s

use of its peremptory challenges when the state’s strikes reveal a pattern of

purposeful racial discrimination in the selection of the jury. 476 U.S. at 96, 106

S.Ct. at 1723. In J.E.B., the Supreme Court extended this rule to purposeful

discrimination on the basis of gender. 511 U.S. at 146, 114 S.Ct. at 1430. The

Supreme Court explained that “[a] person’s race [or gender] simply is unrelated to

his fitness as a juror.” See Batson, 476 U.S. at 87, 106 S.Ct. at 1718.

      To prevail on a claim of race or gender discrimination, the defendant first

must make a prima facie showing that the state has stricken venire members on the

basis of race or gender. Batson, 476 U.S. at 96, 106 S.Ct. at 1723; J.E.B., 511 U.S.

at 144-45, 114 S.Ct. at 1429-30. If the defendant makes such a prima facie

showing, the burden shifts to the state to come forward with a neutral explanation

for its choices. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. If a race-neutral

explanation is tendered, the trial court then must decide whether the defendant has

proved purposeful racial discrimination. Id. The Supreme Court has held that if a



                                          8
prosecutor offers a race-neutral explanation for the peremptory challenges and the

trial court rules on the ultimate question of intentional discrimination, the

preliminary issue of whether the defendant has made a prima facie showing is

moot. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114

L.Ed.2d 395 (1991).

      To establish a prima facie case of discriminatory striking, the defendant only

must produce evidence sufficient to “give rise to an inference of discriminatory

purpose.” Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162

L.Ed.2d 129 (2005). The Supreme Court explained that,

      [i]n deciding whether the defendant has made the requisite showing,
      the trial court should consider all relevant circumstances. For
      example, a “pattern” of strikes against black jurors included in the
      particular venire might give rise to an inference of discrimination.
      Similarly, the prosecutor’s questions and statements during voir dire
      examination and in exercising his challenges may support or refute an
      inference of discriminatory purpose. These examples are merely
      illustrative.

Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.

                                          III.

      As an initial matter, the prosecutor’s comment was not a means of offering

race- and gender-neutral reasons for his challenges. Thus the Alabama Supreme

Court was correct in requiring Presley to establish a prima facie case of

discriminatory striking. See Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866.

                                           9
Immediately after making the comment, the state asked the trial court judge if it

should explain its choices. The state would not have asked this of the trial court

judge had it intended the comment as an explanation of its choices.

      The question before us, then, is whether the Alabama Supreme Court’s

decision that Presley had not raised an inference of discrimination was contrary to,

or based on an unreasonable application of, Supreme Court law as it existed in

January 2000. See Williams, 529 U.S. at 412, 120 S.Ct. at 1523; 28 U.S.C.

§ 2254(d)(1). Two pieces of evidence shape this inquiry. The first is the state’s

pattern of strikes. The second is the prosecutor’s comment at the summation of

jury selection.

      The Alabama Supreme Court’s decision was not based on the wrong rule of

law and did not differ from a Supreme Court holding based on similar facts. See

Putman, 268 F.3d at 1241. Presley has not presented, and independent research

does not reveal, a case in which the Supreme Court was faced with similar statistics

or a similar comment from the challenging party as those presented here. Thus,

because there is no Supreme Court precedent on point, an Alabama Supreme

Court’s conclusion that the state’s pattern of strikes and the prosecutor’s comment

were insufficient is not contrary to clearly established federal law within the




                                          10
meaning of § 2254. See Washington, 324 F.3d at 1265.2

       The Alabama Supreme Court also did not unreasonably apply Batson. See

Putman, 268 F.3d at 1241. Although the statistics presented are suggestive of

discrimination, in that the state struck all but one of the black members of the

venire and used 78% of its strikes against females, the Alabama Supreme Court’s

determination that the statistics were not enough given the facts of this case was

not objectively unreasonable. See id.

       Also, although the prosecutor’s comment is perhaps more troubling, in that

the prosecutor arguably admitted that race and gender were concerns of his in

choosing whom to challenge, the Alabama Supreme Court’s decision that the

comment was not an admission of bias was not objectively unreasonable. See id.

Before he made the comment, the prosecutor had preserved a reverse Batson

motion. Although he made the comment in question after Presley raised his own

Batson motion, the prosecutor referred back to his reverse Batson motion and

explained that he wished to make such a motion because Presley was excluding

white males from the jury. Although the state went on to discuss the potential


       2
         Presley also argues on appeal that the Alabama State court effectively held that the
pattern of the state’s strikes could never alone raise an inference of discriminatory striking.
Presley contends that the Alabama Supreme Court therefore contradicted the Supreme Court’s
suggestion in Batson to consider the statistics. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.
However, the Alabama Supreme Court clearly stated that it found that the statistics alone were
insufficient “given the factual circumstances of this case.”

                                                11
absence of white males on the jury, the Alabama Supreme Court’s interpretation

that this portion of the prosecutor’s comment was merely an extension of his

explanation for making a reverse Batson motion was not unreasonable.

      While we may have reached a different result when faced with similar

statistics and commentary, the “correctness” of the Alabama Supreme Court’s

decision is not at issue. See Bell, 535 U.S. at 694, 122 S.Ct. at 1850.

      Therefore, because the Alabama Supreme Court’s decision was not contrary

to, or an unreasonable application of, Supreme Court precedent, it did not err in

finding that Presley failed to establish a prima facie case of discriminatory striking.

See 28 U.S.C. § 2254(d)(1) and (2). Accordingly, we affirm the district court’s

denial of Presley’s § 2254 petition.

      AFFIRMED.




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