                             In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-1945
AKEEM AKI-KHUAM,
f/k/a EDWARD EARL WILLIAMS,
                                             Petitioner-Appellee,
                                v.

CECIL DAVIS, Superintendent,
                                         Respondent-Appellant.
                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, South Bend Division.
                No. 00 C 386—Allen Sharp, Judge.
                         ____________
     ARGUED DECEMBER 17, 2002—DECIDED MAY 8, 2003
                    ____________


 Before BAUER, ROVNER, and DIANE P. WOOD, Circuit
Judges.
  BAUER, Circuit Judge. After the Supreme Court of
Indiana affirmed the murder conviction and death sentence
of Petitioner-Appellee, Akeem Aki-Khuam,1 the United
States District Court for the Northern District of Indiana
granted his petition for writ of habeas corpus, finding



1
  We refer to Petitioner by his legal name, Akeem Aki-Khuam,
noting that the district and state court opinions use his former
name, Edward Earl Williams.
2                                              No. 02-1945

that the state trial court violated his constitutional equal
protection and due process rights during jury selection.
The district court vacated Petitioner’s conviction and
sentence and ordered him released unless retried. On be-
half of Respondent-Appellant, Superintendent Cecil Davis,
the State of Indiana appeals the district court’s order
granting habeas relief. For the reasons set forth below,
we affirm the decision of the district court.


                    BACKGROUND
  We presume the facts underlying Petitioner’s conviction
are stated correctly in the record of the state court pro-
ceedings. The Indiana Supreme Court recited those facts
as follows:
    In the early morning hours of June 19, 1992, [Peti-
    tioner], armed with a handgun, Jemelle Joshua, armed
    with a shotgun, and three others set out to steal audio
    and video equipment from the basement of school
    teacher Michael Richardson. [Petitioner] and Joshua
    were admitted to Richardson’s home and their three
    accomplices followed them in. Besides Richardson, they
    encountered a number of children and adults, including
    Richardson’s sister, Debra Rice, and Robert Hollins.
    While [Petitioner] held his gun to Richardson’s head
    and Joshua held Rice, their accomplices headed for
    the basement. Hollins intercepted them and began to
    wrestle with one of them in the kitchen. [Petitioner]
    responded by shooting Hollins in the back.
    The electronic equipment proved too difficult to re-
    move and [Petitioner] ordered the occupants of the
    house to lie down. Rice attempted to escape and Joshua
    shot her in the chest. As the invaders left the home,
    [Petitioner] shot each of Hollins, Rice and Richardson
    once in the head despite Richardson’s plea, “Please
    don’t kill me.” A few hours later, [Petitioner] would
No. 02-1945                                                   3

      tell his sister that he shot the victims so there wouldn’t
      be any witnesses.
Williams v. State, 669 N.E.2d 1372, 1375-76 (Ind. 1996).
  Petitioner, who is African-American, was charged with
three counts of murder and felony murder in Lake County,
Indiana. IND. CODE §§ 35-42-1-1(1) & (2). The prosecu-
tion further alleged two aggravating factors for which it
sought the death penalty: (i) intentional killing during
the course of a robbery, IND. CODE §§ 35-50-2-9(b)(1)(F);
and (ii) commission of multiple murders, IND. CODE §§ 35-
50-2-9(b)(8).
  During a pretrial hearing on January 12, 1993, Judge
James Letsinger outlined procedures for jury selection,
including peremptory challenges, intended to ensure
compliance with the due process and equal protection
requirements of Batson v. Kentucky, 476 U.S. 79 (1986),
and its progeny. The following exchange took place between
Judge Letsinger and trial counsel for Petitioner:
      Trial Court: From the first peremptory strike, each
      side is going to have to have some reason for striking
      that person. I mean there’s almost no, no person on
      a jury that isn’t protected now. I mean they’ve ex-
      tended it to everything.
      Defense Counsel: So what I’m hearing from the court
      is the peremptory challenges have now all been con-
      verted to challenges for cause?
      Trial Court: Almost. Almost. In the words of Splunge,2
      you’ve got to have some plausible reason supported
      by the record, supported by the record, plausible rea-
      son that is nonracial, non-gender, nonreligious, non-
      body language. They won’t even let—they won’t even


2
    Splunge v. Clark, 960 F.2d 705 (7th Cir. 1992).
4                                                No. 02-1945

    allow body language. Splunge struck a black juror
    because she said—she didn’t understand the burden
    of proof in a criminal case, when actually her an-
    swers were the same as everybody else’s answers. It
    had to be supported by the record.
  During voir dire on January 25, 1993, the trial court
sua sponte instructed counsel for each party to present
its peremptory challenges along with a “neutral reason”
for each. The trial court excused two individuals after
accepting the prosecution’s stated reasons for challeng-
ing them, and another two after accepting Petitioner’s
stated reasons for challenging. However, the trial court
rejected Petitioner’s stated reasons for five of his seven
total challenges, even though the prosecution raised no
objection to Petitioner’s challenges. With respect to four
of those five, Petitioner argued on direct appeal to the
Indiana Supreme Court that the trial court improp-
erly rejected his reasons for peremptorily challenging
them. In its opinion affirming Petitioner’s conviction and
death sentence, Indiana Supreme Court synopsized the
trial court’s rejection of those four challenges as follows:
    1. The defense indicated that it sought to strike
    prospective juror Sosnawski, a white male, because in
    defense counsel’s “discussions with him, [defense
    counsel] didn’t get the impression that he really under-
    stood what was going on.” Finding “impressions” to
    be a “terrible” reason and a “euphemism” (presumably
    for a racially motivated strike), the trial court found
    the explanation “not race neutral” and refused to ex-
    cuse Sosnawski.
    2. The defense indicated that it sought to strike
    prospective juror Wilson, a white male, because defense
    counsel’s “general impression” was, “number one, that
    he was not being honest; two, that his responses . . . left
    [defense counsel] with the impression that this gen-
No. 02-1945                                                5

   tleman was maybe not being entirely honest with”
   [the trial court]. Because counsel was not “able to point
   to a question and answer in the record that gives [ ]
   a good reason for striking [Wilson] from the jury,”
   the trial court refused to excuse Wilson.
   3. The defense indicated that it sought to strike
   prospective juror Bobalik, a white female, because
   she failed to understand the presumption of inno-
   cence. During voir dire, defense counsel had asked
   all the members of the panel who believed that the
   defendant was not guilty at that point to raise their
   hands. Bobalik was apparently the only juror who
   did not raise his or her hand. The trial court re-
   jected this reason, commenting that counsel has
   asked “a trick question,” the kind “that gets students
   flunked out of law school.” Because counsel did “not
   have a record showing that Bobalik [could] not give
   the defendant the presumption of innocence,” the trial
   court refused to excuse Bobalik.
   4. The defense indicated that it sought to strike
   prospective juror Brandys, a white female, because
   she didn’t “understand [ ] that the defendant has
   the absolute right not to testify” and that “[s]he clearly
   indicated . . . in two points, one that she wanted the
   defendant to testify; two, that she thinks defense
   attorneys are slicksters.” The state argued that
   Brandys did properly understand the presumption
   of innocence. Concluding that most people want the
   defendant to testify and don’t understand that they
   have a constitutional right not to unless it is explained
   to them and that defense counsel had introduced
   the word “slickster,” not Brandys, the trial court re-
   fused to excuse Brandys.
Williams, 669 N.E.2d at 1380-81.
6                                                 No. 02-1945

  At the trial’s conclusion, the jury found Petitioner guilty
on all counts; but, deadlocked as to his punishment, it was
unable to return a sentencing verdict. Instead, the trial
court sentenced Petitioner to death on March 2, 1993. On
direct appeal of the conviction and sentence before the
Indiana Supreme Court, Petitioner challenged, inter alia,
the trial court’s denial of his peremptory challenges. After
the Indiana Supreme Court affirmed his conviction and
sentence, Williams, 669 N.E.2d 1372, it denied Petition-
er’s request for rehearing, and the United States Su-
preme Court denied his petition for writ of certiorari.
Williams v. Indiana, 520 U.S. 1232 (1997). Petitioner
subsequently filed, and the Lake County Superior Court
denied, a petition for post-conviction relief raising var-
ious issues not directly relevant to our disposition of this
matter. The Indiana Supreme Court affirmed the denial
of post-conviction relief in Williams v. State, 724 N.E.2d
1070 (Ind. 2000), and declined to rehear the matter, and
once more the United States Supreme Court denied Peti-
tioner’s petition for writ of certiorari in Williams v. Indiana,
531 U.S. 1128 (2001).
   In December 2001, Petitioner filed a petition for writ
of habeas corpus in the United States District Court for
the Northern District of Indiana seeking federal collateral
review of his conviction and death sentence. Petitioner
claimed violations of his constitutional rights as a result
of (i) the trial court’s denial of his peremptory challenges
and the Indiana Supreme Court’s failure to apply Purkett
v. Elem, 514 U.S. 765 (1995), in reviewing that denial;
(ii) the ineffective assistance of his trial counsel; (iii)
prosecutorial misconduct at trial; (iv) the trial court’s use
of a psychological questionnaire at sentencing; and (v)
the trial court’s limitation of funds available to Petitioner
to develop mitigation evidence. In a Memorandum and
Order filed on March 25, 2002, the district court granted
the petition for writ of habeas corpus with respect to
No. 02-1945                                                      7

Petitioner’s peremptory challenge claim and denied relief
with respect to all remaining claims. Aki-Khuam v. Davis,
203 F. Supp 2d. 1001 (N.D. Ind. 2002). Specifically, the
district court “determined that the manner in which the
state court trial judge attempted to deal with the subject
of peremptory challenges is at odds with the constitu-
tional teaching of Batson and its progeny in the Supreme
Court of the United States.” Id. at 1020.3 This appeal
ensued.


                          ANALYSIS
  We review the district court’s legal determinations
de novo and—because Petitioner filed his habeas petition
subsequent to the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”),
codified at 28 U.S.C. § 2254—in accordance with the
provisions of 28 U.S.C. § 2254(d). See, e.g., Williams v.
Davis, 301 F.3d 625, 631 (7th Cir. 2002). That section
provides, in relevant part, as follows:
    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 . . .
    resulted in a decision that was contrary to, or involved
    an unreasonable application of, clearly established


3
  The district court further noted that it “can and does in this
proceeding take into account the decision of the Supreme Court
of the United Sates in Purkett [v. Elem, 514 U.S. 765 (1995)],
decided after the trial of this case, but before the appeal was
decided by the Supreme Court of Indiana, witnessed by the
reference to the case in the footnote at 669 N.E.2d at 1380, n. 6.”
Aki-Khuam, 203 F. Supp 2d. at 1020.
8                                                No. 02-1945

    Federal law, as determined by the Supreme Court
    of the United States.
Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254(d)(1) (2002). Implicit in the district court’s
finding that the trial court’s jury selection process was
“at odds” with federal law as articulated in Batson and
subsequent cases is that Petitioner’s resulting convic-
tion was both contrary to and an unreasonable applica-
tion of that law.
  In order to prevent the violation of defendants’ and jurors’
equal protection rights resulting from prosecutors’ use
of peremptory challenges to strike jurors of the same race
as a given defendant, the United States Supreme Court
formulated a prophylactic test to safeguard criminal
defendants against seemingly discriminatory peremptory
challenges. Batson, 476 U.S. at 86-87, 96-98. To raise a
successful objection to a prosecutor’s racially discriminatory
peremptory challenge, a defendant must first make a
prima facie showing of racial discrimination demonstrat-
ing the following: (i) the defendant is a member of a rec-
ognized minority group, (ii) the prosecution has perempto-
rily challenged a prospective juror belonging to the same
minority group, and (iii) any other facts supporting an
inference that race is the sole basis for that challenge. Id.
at 96. Once this prima facie case is made, the burden
then shifts to the prosecution to articulate a “clear and
reasonably specific” explanation of its legitimate, racially
neutral reasons for exercising the challenge. Id. at 98,
98 n.20 (citing Texas Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 258 (1981)). “The trial court will then have
the duty to determine if the defendant has established
purposeful discrimination.” Id. at 98. In subsequent deci-
sions, the Supreme Court extended application of the
Batson analysis to situations where (i) the prosecution
peremptorily challenges a minority venireman in the trial
of a white defendant, Powers v. Ohio, 499 U.S. 400 (1991);
No. 02-1945                                                9

(ii) any party to a civil action challenges a potential juror
based on his or her race, Edmonson v. Leesville Concrete
Co., 500 U.S. 614 (1991); and (iii) a criminal defendant
challenges a potential juror on the basis of race, Georgia
v. McCollum, 505 U.S. 42 (1992). These elaborations upon
Batson were founded, in part, upon the Court’s recogni-
tion of several principles: (i) jury selection implicates the
equal protection rights of jurors as well as defendants;
(ii) in making a peremptory challenge, a defendant as-
sumes the role of state actor for Equal Protection Clause
purposes, insofar as jury selection by its nature “fulfills
a unique and constitutionally compelled government
function,”; (iii) the state has standing to enforce the equal
protection rights of potential jurors (enabling the pros-
ecution to raise a Batson objection to defendant’s peremp-
tory challenge); and (iv) a criminal defendant’s rights to
effective assistance of counsel and an impartial jury do
not eliminate a would-be juror’s right to equal protection.
See, e.g., McCollum, 505 U.S. at 48-49, 52, 56, 57-58.
  Thus refined, the Batson analysis entails the following
three steps: (1) the party opposing a peremptory challenge
must make a prima facie showing of racial discrimina-
tion; (2) the party exercising the peremptory challenge
must provide a race-neutral explanation therefor; and (3)
the trial court must determine whether the parties have
satisfied their respective burdens of proving or rebutting
purposeful racial discrimination. See, e.g., Hernandez v.
New York, 500 U.S. 352, 358-59 (1991). More recently,
the Supreme Court commented that “[t]he second step of
this process does not demand an explanation that is
persuasive, or even plausible. ‘Unless a discriminatory
intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.’ ” Purkett
v. Elem, 514 U.S 765, 767-68 (1995) (per curium) (quot-
ing Hernandez, 500 U.S. at 360, 374 (plurality opinion)
10                                                 No. 02-1945

(O’CONNOR, J., concurring in judgment)).4 As the Purkett
Court further explained,
     [i]t 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 . . . . [T]o say that
     a trial judge may choose to disbelieve a silly or super-
     stitious reason at step three is quite different from
     saying that a trial judge must terminate the inquiry
     at step two when the race-neutral reason is silly or
     superstitious. The latter violates the principle that
     the ultimate burden of persuasion regarding racial
     motivation rests with, and never shifts from, the
     opponent of the strike.
Purkett, 514 U.S. at 768 (emphasis in original).
  Petitioner adduces various errors in the trial court’s
administration of the Batson test and the Indiana Supreme
Court’s direct review thereof, two of which especially
troubled the district court.
  First, at no time did the prosecution raise a Batson
challenge to Petitioner’s peremptory strikes, much less
establish a prima facie showing of purposeful discrimina-
tion. Rather, the trial judge replaced the first step of the
Batson analysis with the court’s presumption of purpose-
ful discrimination, thereby saddling Petitioner with the
burden of overcoming that presumption. As the district
court observed, the voir dire “process is still an adversarial
one and the case law, including Batson and the cases that


4
  While Purkett involved a defendant’s opposition to the prosecu-
tor’s peremptory challenge, McCullom instructs that Purkett’s
reference to the “prosecutor’s” explanation applies equally to
any party offering an explanation to rebut a prima facie showing
of a racially motivated strike per step two. McCullom, 505 U.S.
at 59.
No. 02-1945                                               11

followed it, make it clear that Batson issues must be raised.
Batson is not self-executing.” Aki-Khuam, 203 F. Supp 2d.
at 1019. The district court further noted that “[n]one of
the cases between Batson and Purkett suggest[s] that the
prima facie case was not required, and Hernandez,
which was relied upon by the trial court and the Indi-
ana Supreme Court, explicitly set out the test, including
the prima facie case requirement.” Id. at 1018. A presump-
tion of discriminatory intent during voir dire is thus
contrary to federal law as established in Batson and
subsequent related cases.
  Second, as recounted above in the excerpted portion of
the Indiana Supreme Court’s opinion, the trial court
rejected Petitioner’s race-neutral explanations not be-
cause they demonstrated a discriminatory motive, but
rather because the trial court found the reasons, “terrible,”
unsupported in the record, based on a prospective juror’s
response to a “trick question,” or due to defense counsel’s
introduction of the word “slickster.” Insofar as the trial
court rejected Petitioner’s reasons outright as unreason-
able or implausible (and not because they evinced some
inherent discriminatory intent) it applied precisely the
standard that Purkett rejects. 514 U.S. at 767-68 (“The
second step . . . does not demand an explanation that
is persuasive, or even plausible. ‘Unless a discriminatory
intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.’ ”) (internal
citations omitted). In the words of the Purkett Court,
the trial court below made the mistake of collapsing
“Batson’s second and third steps into one.” Id. at 768.
  Moreover, though Purkett was not decided until May
1995, more than two years after the conclusion of Peti-
tioner’s trial, the Indiana Supreme Court, by the time of
its decision in August 1996, had not only ample opportu-
nity, but also a mandate from the United States Su-
preme Court, to apply the law as articulated in Purkett
12                                                    No. 02-1945

in deciding Petitioner’s appeal. Griffith v. Kentucky, 479
U.S. 314, 322-23 (1987) (holding that “failure to apply
a newly declared constitutional rule to criminal cases
pending on direct review violates basic norms of constitu-
tional adjudication”). Instead, with one reproachful eye
fixed on the trial court’s error (as evinced in its prospec-
tive ban on the use of this procedure), it upheld Peti-
tioner’s conviction and sentence with a wink of the other.5
Thus did the district court properly determine that both
the trial court conviction and sentence, and the state
supreme court affirmance, rest on law that is inconsis-
tent with (and therefore contrary to) federal law as articu-
lated in Batson and Purkett.
  Respondent contends that the trial court’s jury selec-
tion procedure was constitutional under the Batson line
of cases, which, Respondent reasons, collectively establish
a minimum standard of constitutional protection from
peremptory challenges motivated by racial discrimination.


5
  The Indiana Supreme Court set forth the following “Rule for
Future Cases”:
        In exercise of our supervisory responsibilities, we adopt the
     following procedures for cases tried after the date this opinion
     is certified.
        We conclude that . . . absent extraordinary circumstances
     a trial court should not require each side to present a race-
     neutral justification for each of its peremptory challenges.
     Trial courts should wait for an objection by an opposing party
     before deciding whether a prima facie case of discrimination
     is made and demanding a race-neutral explanation. Interven-
     tion sua sponte is only authorized when a prima facie case is
     abundantly clear with respect to a particular juror. Obvi-
     ously, a judge who adopts a blanket policy of demanding
     explanations, as the court did here, would not have articu-
     lated a particularized showing and would commit error.
Williams, 669 N.E.2d at 1381-82.
No. 02-1945                                              13

Thus, argues Respondent, to the extent that it deviated
from the teachings of Batson, the trial court afforded
Petitioner and prospective jurors a greater degree of
constitutional protection than Batson and subsequent
relevant cases require. This argument implies that Peti-
tioner somehow benefitted from the trial court’s improv-
isation. We disagree, in part because we flatly reject the
notion that Batson and its progeny merely delineate a
constitutional baseline that a trial court might rightly
surpass. Respondent’s position is premised on the fiction
that Batson claims supercede all other constitutional
concerns or, alternatively, that Batson’s teachings exist
in a vacuum. Quite to the contrary, the right to select
or serve on a jury free from racial discrimination is rooted
in the same constitutional equal protection and due proc-
ess considerations as many other constitutional rights,
each of which coexists in delicate balance with the others.
As we now explain, the trial court’s failed attempt to
comport with Batson impermissibly upset that balance.
  Rather than furnish Petitioner with superconstitu-
tional protections, as Respondent would have us believe,
the trial court’s misapplication of Batson violated his
Fourteenth Amendment due process and equal protec-
tion rights. Indiana law permits a criminal defendant to
exercise twenty peremptory challenges in capital murder
prosecutions. IND. CODE §§ 35-37-1-3(a). Yet, as early as
the January 12, 1993, pretrial hearing, Petitioner’s trial
counsel identified the fatal flaw in the trial court’s ap-
proach to peremptory challenges: “So what I’m hearing
from the court is the peremptory challenges have now
all been converted to challenges for cause?” Although the
trial judge replied “Almost,” during the pretrial hearing,
the manner in which he conducted voir dire two weeks
later betrays a resounding “Yes.” Once the trial court
imposed upon Petitioner the burden of overcoming its sua
sponte presumption of purposeful discrimination, not only
14                                               No. 02-1945

did it forego any cogent Batson analysis, but it also de-
prived Petitioner of his statutory right to exercise peremp-
tory challenges. Batson, however, only imposes limita-
tions on the exercise of peremptory challenges; it does not
abolish them. Batson, 474 U.S. at 99 n.22. Petitioner had
a substantial and legitimate expectation that he would
be tried by a jury selected in accordance with Indiana
state law and federal constitutional law, including those
provisions guaranteeing his right to exercise peremptory
challenges. Instead, Petitioner was deprived of his liberty
by a jury whose very creation involved a denial of his
statutory and constitutional rights. Consequently, Peti-
tioner was denied due process and equal protection of
the law in violation of the Fourteenth Amendment. Cf.
Hicks v. Oklahoma, 447 U.S. 343 (1980) (holding that de-
nial of a criminal defendant’s right to be sentenced by a
jury in accordance with state law effected an arbitrary
deprivation of his liberty without due process of law). Owing
to this violation of Petitioner’s constitutional rights, it is
clear that the state trial court proceedings, and the state
supreme court review thereof, resulted in a decision
contrary to, and involving an unreasonable application of,
federal law as determined by the United States Supreme
Court in Batson and its progeny. The district court there-
fore properly granted the petition for writ of habeas corpus.


                      CONCLUSION
  Because the trial court and the Indiana Supreme Court
deviated significantly from the Batson line of cases with
respect to selection of the jury that convicted Petitioner,
and such deviation violated Petitioner’s due process and
equal protection rights under the Fourteenth Amendment,
the district court’s decision granting Petitioner habeas
relief pursuant to 28 U.S.C. § 2254 is AFFIRMED.
No. 02-1945                                        15

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—5-8-03
