                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 16-2082
                                    _____________

                                    DAVID MINOR,
                                                      Appellant
                                          v.

BEVERLY HASTINGS; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
                        ______________

                     Appeal from the United States District Court
                            for the District of New Jersey
                        (District Court No. 1-13-cv-00558)
                      District Judge: Hon. Jerome B. Simandle
                                   ______________

                                        Argued
                                     April 25, 2017
                                    ______________

        Before: SMITH, Chief Judge, McKEE, and RENDELL, Circuit Judges

                          (Opinion filed: August 22, 2017)

Steven G. Sanders, Esq. [ARGUED]
Anne M. Collart, Esq.
Gibbons P.C.
One Gateway Center
Newark, NJ 07102

      Attorneys for Appellant

Frank J. Ducoat, Esq. [ARGUED]
Maria I. Guerrero, Esq.
Barbara A. Rosenkrans, Esq.
Essex County Office of Prosecutor
50 West Market Street
Essex County Veterans Courthouse
Newark, NJ 07102

       Attorneys for Appellees
                                 _______________________

                                        OPINION*
                                 ______________________


McKEE, Circuit Judge.

       Appellant David Minor appeals the District Court’s order dismissing his habeas

petition. For the reasons that follow, we will affirm the judgment of the District Court.1

                                              I.

       Minor appealed his conviction to the Appellate Division of the New Jersey

Superior Court, arguing that the trial court had violated his constitutional rights when it

concluded that he had not made out a prima facie showing of race discrimination in jury

selection. He also argued that the prosecutor deprived him of his right to a fair trial by

misstating the burden of proof in summation and effectively directing a guilty verdict.

The court rejected the first claim, holding that Minor “did not make a prima facie

showing that the jury was not drawn from a representative cross-section of the

community.”2 The court also rejected Minor’s second claim based largely on the trial

court’s curative instructions.




*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253.
2
  App. at 294.
                                              2
       The New Jersey Supreme Court denied Minor’s petition for discretionary review.

Minor then filed a pro se application for habeas relief. The District Court denied Minor’s

application. Minor filed his notice of appeal and a pro se motion for a Certificate of

Appealability, which we granted as to both of the aforementioned issues.

                                              I.

       We apply the same standard of review as the District Court pursuant to the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).3 Under AEDPA, an

application for habeas relief shall not be granted for any claim adjudicated on the merits

in state court unless the state court’s adjudication “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law . . . or

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.”4

       “[A] federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must

also be [objectively] unreasonable.”5

                                             II.




3
  Pub. L. No. 104-132, 110 Stat. 1214 (1996).
4
  28 U.S.C. § 2254(d)(1)-(2).
5
  Williams v. Taylor, 529 U.S. 362, 411 (2000).

                                              3
       Minor argues that (1) the state court unreasonably applied Darden v. Wainwright6

when it did not find that the weakness of the State’s evidence combined with the

prosecution’s improper summation concerning the standard of beyond a reasonable doubt

deprived Minor of a fair trial; and (2) the state court unreasonably applied Johnson v.

California7 when it did not proceed to step two under a Batson analysis. We do not find

the state court’s determinations to be unreasonable, and thus, we must affirm the District

Court’s decision.

                                A. Prosecution’s Summation

       A petitioner is deprived of a fair trial where “the prosecutor’s comments so

infected the trial with unfairness as to make the resulting conviction a denial of due

process.”8 In making this determination, the reviewing court “must examine the

prosecutor’s offensive actions in context and in light of the entire trial, assessing the

severity of the conduct, the effect of the curative instructions, and the quantum of

evidence against the defendant.”9 “[T]he proper inquiry is not whether the instruction

‘could have’ been applied in an unconstitutional manner, but whether there is a

reasonable likelihood that the jury did so apply it.”10




6
  477 U.S. 168 (1986).
7
  545 U.S. 162 (2005).
8
  Darden, 477 U.S. at 181 (internal quotation marks omitted); see also Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (same).
9
  Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
10
   Victor v. Nebraska, 511 U.S. 1, 6 (1994).

                                              4
       A petitioner is not prejudiced where prosecutor’s comments are “invited by” 11 or

are a “fair reply to defense counsel’s” comments.12 Further, curative instructions may

correct an improper remark where “the judge direct[s] the jury’s attention to the remark

particularly challenged [], declare[s] it to be unsupported, and admonishe[s] the jury to

ignore it.”13

       Here, although the prosecution’s summation was troublesome, it did not so infect

the trial with unfairness as to make the resulting conviction a denial of due process under

our standard of deferential review. First, the prosecution’s comments did not manipulate

or misstate the evidence. Second, the comments were in response to defense counsel’s

arguments. Third, the trial court provided the jurors with curative instructions, including

the correct explanation of the standard of proof beyond a reasonable doubt and instructed

the jury to ignore any statement made by counsel regarding the law. In light of this, we

cannot say that the state court’s decision denying Minor’s claim for relief because of the

prosecution’s summation “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

                                     B. Batson claim




11
   Darden, 477 U.S. at 182.
12
   United States v. Pungitore, 910 F.2d 1084, 1128 (3d Cir. 1990).
13
   Donnelly, 416 U.S. at 644; see also Pungitore, 910 F.2d at 1128 (“[A]s appellants did
not object to the curative instruction or request additional instructions, they apparently
were satisfied with the district court’s response and cannot now complain that comments
gave rise to reversible error.”).

                                             5
       Minor also argues that the state court did not comply with Johnson v. California

when it held that Minor had not raised an inference of discrimination in jury selection.

This claim is more troubling.

       To establish a Batson challenge, the defendant must first “make a prima facie

showing that the prosecutor has exercised peremptory challenges on the basis of race.”14

If the defendant makes this showing, the burden then shifts to the prosecutor to present a

race-neutral explanation for striking the jurors in question.15 The trial court must then

determine whether the defendant has met his burden of proving purposeful

discrimination.16 In Johnson, the Supreme Court clarified that the first step under Batson

is not intended to “be so onerous that a defendant would have to persuade the judge-on

the basis of all the facts, some of which are impossible for the defendant to know with

certainty-that the challenge was more likely than not the product of purposeful

discrimination.”17

       In determining whether a 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.”18 This Court has identified the following five factors that are relevant



14
   Hernandez v. New York, 500 U.S. 352, 358 (1991) (citing Batson v. Kentucky, 476 U.S.
79, 96-97 (1986)).
15
   Id. at 359.
16
   Id.
17
   545 U.S. at 163.
18
   Batson, 476 U.S. at 97.

                                             6
when assessing whether a prima facie showing of discrimination has been made: “1) the

number of racial group members in the panel; 2) the nature of the crime; 3) the race of the

defendant; 4) a pattern of strikes against racial group members; and 5) the questions and

statement[s] during the voir dire.”19 Once the defendant makes a prima facie showing,

the prosecution bears the burden of providing “a neutral explanation for challenging

black jurors.”20 “[T]he trial court’s decision on the ultimate question of discriminatory

intent represents a finding of fact of the sort accorded great deference on appeal and will

not be overturned unless clearly erroneous.”21

       We agree that this record is worrisome insofar as Minor’s Batson claim is

concerned. Yet, the trial court required the prosecutor to justify her challenges, and she

did so. However, the prosecutor then complained that the State “now has run out of its

challenges” and asked the court to excuse the jury and begin anew because “the majority




19
   Holloway v. Horn, 355 F.3d 707, 722 (3d Cir. 2004) (internal quotation marks
omitted).
20
   Batson, 476 U.S. at 97.
21
   Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citation and internal quotation marks
omitted). The Appellate Division and the District Court also seem to have erred in their
application of Miller-El to this case. The Supreme Court’s requirement for deference to a
trial court’s Batson finding is limited to the discriminatory intent prong of Batson, and
not to the initial prima facie showing. See Id. at 339 (“[T]he court’s finding of the
absence of discriminatory intent is . . . accorded significant deference.”). The District
Court was incorrect in relying on Miller-El for the proposition that a trial court may
consider the ultimate composition in the first step of Batson, as Miller-El addressed the
denial of a COA after petitioner’s Batson claim was denied at step three. The State in
Batson had conceded that petitioner had satisfied Step One; the only issue was whether
Step Three had been satisfied. Id. at 338.

                                             7
of the individuals on the jury are African American.”22 The trial court denied the State’s

motion. Ultimately, the majority of jurors in Minor’s trial were African American.23

       Nevertheless, the prosecutor did offer race-neutral reasons for the strikes removing

African American jurors, the record supports those nonracial reasons, and the trial court

found that the prosecutor’s reasons were credible. Therefore, although the prosecution’s

comments on the second day of voir dire are worrisome, given the ultimate composition

of the jury, the credited race-neutral explanations for the challenged strikes, and the

significant deference we afford to the trial court’s finding, we cannot say that the state

court’s denial of Minor’s Batson claim “was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” Although we

may well have reached a different result if we were reviewing this record de novo, given

the limitations of our appellate review under AEDPA, we must affirm the District Court’s

decision.

                                             IV.

       For the aforementioned reasons, we affirm the judgment of the District Court.




22
  App. at 812.
23
  The Appellate Division incorrectly focused on the ultimate composition of the jury at
Step One. At that stage, all that matters is whether any juror was being removed because
of race. Being required to defeat the ultimate composition of the jury at Step One would
impose too high of a burden at that stage. See Batson, 476 U.S. at 95 (“A single
invidiously discriminatory governmental act is not immunized by the absence of such
discrimination in the making of other comparable decisions.”); see also Madison v.
Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333, 1338 (state court reached a decision
“contrary to clearly established federal law . . . because the court increased [petitioner’s]
prima facie burden beyond what Batson requires.”).
                                              8
