     05-0728-pr
     Sorto v. Herbert

 1                          UNITED STATES COURT OF APPEALS
 2
 3                                FOR THE SECOND CIRCUIT
 4
 5                                   August Term 2005
 6
 7
 8       (Argued: June 20, 2006                    Decided: March 9, 2007)
 9
10                            (Amended: August 10, 2007)
11
12                                Docket No. 05-0728-pr
13
14       - - - - - - - - - - - - - - - - - - - -x
15
16       VALENTIN SORTO,*
17
18                  Petitioner-Appellant,
19
20                       - v. -
21
22       VICTOR HERBERT, Superintendent of the
23       Attica Correctional Facility,
24
25                  Respondent-Appellee.
26
27
28       - - - - - - - - - - - - - - - - - - - -x
29

30             Before:    JACOBS, Chief Judge, POOLER, WESLEY, Circuit
31                        Judges.
32
33             Appeal from a judgment of the United States District

34       Court for the Eastern District of New York (Korman, Ch.J.),

35       denying the petition for habeas corpus.           A state court jury

36       convicted petitioner of murder, assault, and criminal

               *
1               The official caption misspells petitioner’s name.
2        The caption is hereby corrected.
 1   possession of a weapon; petitioner claims that jury

 2   selection was conducted in violation of the rule in Batson

 3   v. Kentucky, 476 U.S. 79, 97-98 (1986), and its progeny.

 4   The district court denied the petition, and we affirm.

 5       Judge Pooler dissents in a separate opinion.

 6

 7                                 MONICA A. JACOBSON, New York,
 8                                 NY, for Petitioner-Appellant .
 9
10
11                                 DENISE PALVIDES, Assistant
12                                 District Attorney for Nassau
13                                 County (Kathleen M. Rice,
14                                 District Attorney for Nassau
15                                 County, Peter A. Weinstein,
16                                 Assistant District Attorney for
17                                 Nassau County, of counsel),
18                                 Mineola, NY, for Respondent-
19                                 Appellee.
20
21
22
23   DENNIS JACOBS, Chief Judge:

24       Petitioner Valentin Sorto, convicted of murder and

25   related offenses in New York state court, petitions for a

26   federal writ of habeas corpus on the ground that the state

27   courts unreasonably misapplied Batson v. Kentucky, 476 U.S.

28   79, 97-98 (1986), and its progeny.    During jury selection,

29   Sorto twice asserted that the prosecution was discriminating

30   against minority jurors in its exercise of peremptory

31   strikes; both challenges were denied for failure to

                                    2
1    establish a prima facie case of discrimination.     Resolution

2    of the Batson issue in this case requires more information

3    about the possible jurors than the record discloses.    Only

4    limited portions of jury selection were recorded:    This

5    Court has not been presented with a full transcript of the

6    voir dire, or with data describing the composition of the

7    potential juror pool.   Because Sorto bears the burden of

8    demonstrating an unreasonable application of federal law,

9    the insufficiency of the record defeats his petition, and we

10   therefore affirm.

11

12                             BACKGROUND

13       Valentin Sorto was arrested for the April 27, 1997

14   murder of Jose Alvarez and the severe beating of Lazaro

15   Cruz.   According to the prosecution, Sorto and another man

16   retaliated for an attack on their fellow gang member by

17   stabbing Alvarez in the neck and chest, leaving him to bleed

18   to death in a stairwell; and Sorto punched Cruz and slashed

19   his hands with a broken glass bottle.   Sorto and his

20   accomplice were indicted for murder in the second degree,

21   assault in the second degree, and criminal possession of a

22   weapon in the third degree.   The accomplice pled guilty;


                                   3
1    Sorto went to trial and was convicted.

2         At Sorto’s trial, jury selection proceeded according

3    to the “jury box” system, in which groups of fourteen

4    prospective jurors are randomly called from the venire,

5    interviewed, and then challenged by the attorneys.

6    Following decision on the challenges for cause, the lawyers

7    are afforded the opportunity to exercise one or more of

8    their twenty peremptory challenges.    A new set of potential

9    jurors is then invited into the jury box, and the process

10   repeated until a jury is empaneled.    See generally People v.

11   Webb, 722 N.Y.S.2d 349, 350-51 (N.Y. Sup. Ct. 2001).

12

13       Round One

14       In the first round of jury selection, the prosecution

15   challenged potential juror Vidal Martinez for cause, citing

16   Martinez’s expressed sympathy for gang members, and his

17   concession that he would have trouble deferring to the

18   interpreter in the translations from Spanish.    Sorto

19   contested the challenge for cause, but allowed that the

20   prosecution would be free to “us[e] one of his peremptories”

21   to strike Martinez.    The trial judge agreed and rejected the

22   challenge for cause.    Five more first-round jurors were

23   dismissed for cause, all upon objection by the prosecutor.

                                    4
 1       Next, the prosecution exercised peremptory strikes

 2   against three jurors: [i] Martinez; [ii] Carlos Rivera, who

 3   is of Salvadoran descent; and [iii] and John Harper, an

 4   African American.   Defendant then raised the first of his

 5   two Batson objections.   Defendant argued: that Martinez was

 6   a peace officer who likely would be welcomed by the

 7   prosecution but for a discriminatory motive; that Rivera had

 8   filled out an unobjectionable jury questionnaire and that

 9   there was no basis for striking him other than his

10   nationality, which was the same as the defendant’s; and that

11   the use of three prosecutorial strikes against three

12   minority potential jurors established (under the

13   circumstances) a pattern of discrimination.1

14       The prosecution disputed the existence of a prima facie

          1
 1          In the state court, the parties vigorously debated
 2   whether different minority groups should be aggregated--
 3   particularly African American and Latino groups--towards
 4   evaluating a Batson prima facie case. This Court has since
 5   held that “a defendant raising a Batson claim of purposeful
 6   racial discrimination does not have to demonstrate that all
 7   venirepersons who were peremptorily excused belong to the
 8   same ‘cognizable racial group.’” Green v. Travis, 414 F.3d
 9   288, 297 (2d Cir. 2005) (internal citations omitted). The
10   state court (not yet guided by our decision in Green)
11   expressed reluctance to aggregate in discussing the second
12   Batson challenge, but implied no view on the issue in
13   denying the first Batson challenge. However, because the
14   petitioner has not sufficiently established the factual
15   circumstances giving rise to the second Batson challenge,
16   the state court’s erroneous view on aggregation is not
17   implicated here.
                                   5
1    case of discrimination, and accordingly offered no further

2    explanation for its strikes.     However, the prosecution

3    withdrew its objection to Martinez, thereby empaneling one

4    of the two challenged Latino jurors.2    Defendant casts the

5    prosecution’s about-face as a telling implicit admission;

6    the court construed it as a token of the good faith.

7        The state court denied the Batson challenge for lack of

8    a prima facie case, but agreed to remain seized of the

9    issue, especially as related to the strike of Rivera:       “the

10   Court will keep it in mind as we proceed.     So certainly we

11   should keep both the questionnaire and the card of

12   [Rivera].”   Trial Tr. at 132.

13

14       Round Two

15       Only two jurors were successfully empaneled after round

16   one; a second set of potential jurors were called to the

17   jury box for voir dire.   On this second round, the

18   prosecution challenged Hazel Mays (an African American) for

19   cause on the ground that Mays had hesitated before agreeing

20   to be fair and impartial, and because she supposedly

         2
1          At trial, the parties disputed whether the
2    “withdrawal” of a challenge has any impact for Batson
3    purposes. For purposes of this appeal we will assume,
4    arguendo, that the withdrawn strike still factors into a
5    prima facie analysis.
                                      6
1    admitted that she “identifie[d] with the defendant because

2    he is a member of a minority group.”     When the challenge for

3    cause was denied, the prosecution exercised a peremptory

4    challenge to excuse her.   After the peremptory strike of

5    Mays, the defendant interposed a second Batson challenge,

6    claiming discrimination “in regards to the prosecution’s

7    elimination of Mrs. Mays.” (emphasis added).     The record

8    does not clearly show what evidence was submitted to support

9    the prima facie case at this juncture.     Defendant did not

10   reprise the first-round eliminations of Harper and Rivera as

11   evidence to support a prima facie case on this later motion,

12   but the judge may have made that assumption, because he

13   asked, with regard to this second Batson challenge, whether

14   defendant placed “Hispanic and black in the same group.”

15       In response to the second Batson challenge, the

16   prosecution spontaneously explained its strike of juror

17   Harper--the African American dismissed in round one--even

18   though Harper was not mentioned as the subject or basis of

19   the second motion.   The prosecutor defended that strike on

20   the ground of Harper’s “sympathy” for his imprisoned nephew,

21   and Harper’s prior hostile run-ins with the police.     The

22   prosecution did not attempt to explain its round-one strike

23   of Rivera, nor was that strike ever mentioned by either

                                   7
1    party during round two.

2        Next, the prosecution explained that it challenged Mays

3    because of her announced self-identification with the

4    defendant.   In any event, the prosecution asserted that no

5    explanation was needed because no prima facie case had been

6    stated.

7        The state court dismissed the second Batson challenge

8    on the grounds that the defendant “hadn’t reached the

9    threshold with respect to the particular juror,”3 and in the

10   alternative (“in case another Court were to find

11   differently”), that the prosecution had successfully offered

12   non-pretextual, race-neutral explanations for the dismissals

13   of jurors Harper and Mays.

14       Sorto’s state appeal argued (inter alia) that the trial

15   court (1) erroneously ruled that a prima facie case had not

16   been established after the first round objections, (2)

17   erroneously ruled that a prima facie case had not been

18   established after the second round objection, and (3)

          3
1           Use of the singular (“juror”) is suggestive: Even if
2    the trial judge assumed at the onset that the second Batson
3    challenge was supported by the Rivera and Martinez strikes,
4    and even if the trial judge operated under this assumption
5    while denying the challenge, reference to a “particular
6    juror” indicates that the state court believed that only the
7    Mays strike (and not the previous round’s strike of Rivera)
8    had been challenged.

                                   8
1    erroneously found the prosecution’s proffered explanations

2    for the Harper and Mays strikes were non-pretextual.     The

3    Appellate Division treated “defendant’s [Batson] contentions

4    [as] either unpreserved for appellate review or without

5    merit.”   People v. Sorto, 274 A.D.2d 487, 487 (N.Y. App.

6    Div. 2000).    As to the existence of a Batson prima facie

7    case, the parties agree that because the government offered

8    no procedural default argument, the Appellate Division

9    affirmance constitutes a ruling on the merits for purposes

10   of the Antiterrorism and Effective Death Penalty Act of 1996

11   (“AEDPA”).    The New York Court of Appeals denied leave to

12   appeal.   95 N.Y.2d 893.

13       Sorto next petitioned for federal habeas relief,

14   challenging (inter alia) the Batson rulings.    The district

15   court denied the petition, but granted a certificate of

16   appealability as to the Batson claims.

17

18                                DISCUSSION

19       Because the Appellate Division rendered a decision on

20   the merits, our review of the prima facie rulings is

21   governed by AEDPA.    Torres v. Berbary, 340 F.3d 63, 68 (2d

22   Cir. 2003).    Under AEDPA, a petition for a writ of habeas

23   corpus claiming a state court error of law “shall not be

                                    9
1    granted . . . unless the adjudication of the claim resulted

2    in a decision that was contrary to, or involved an

3    unreasonable application of, clearly established Federal

4    law, as determined by the Supreme Court of the United

5    States.”    28 U.S.C. § 2254(d)(1).   See also Williams v.

6    Taylor, 529 U.S. 362, 365 (2000).     “[A]n unreasonable

7    application of clearly established Supreme Court precedent

8    occurs when a state court identifies the correct governing

9    legal principle from the Supreme Court's decisions but

10   unreasonably applies that principle to the facts of the

11   prisoner's case.”    Torres, 340 F.3d at 69 (internal

12   citations omitted).    While “[t]he precise method for

13   distinguishing objectively unreasonable decisions from

14   merely erroneous ones” is somewhat unclear, “it is

15   well-established in this Circuit that the ‘objectively

16   unreasonable’ standard of § 2254(d)(1) means that petitioner

17   must identify some increment of incorrectness beyond error

18   in order to obtain habeas relief.” Id. (internal citations

19   omitted).   This Court reviews a district court’s denial of

20   petition for a writ of habeas corpus de novo.     Harris v.

21   Kuhlman, 346 F.3d 330, 342 (2d Cir. 2003).

22

23

                                    10
1        Round One

2        The Supreme Court’s decision in Batson v. Kentucky, 476

3    U.S. 79 (1986), and its progeny limit the traditionally

4    unfettered prerogative of exercising peremptory strikes by

5    forbidding certain discrimination in jury selection.   The

6    Supreme Court has generally granted individual courts the

7    leeway to adopt their own procedures to test for

8    discriminatory strikes.   See Howard v. Senkowski, 986 F.2d

9    24, 29 (2d Cir. 1993) (“[T]he decisions . . . recognize the

10   role that remains for lower courts to work out the mechanics

11   for implementing these requirements.”).   That leeway is

12   granted within a procedural framework:

13            The Batson Court . . . establish[ed] a three-step
14            burden-shifting framework for the evidentiary
15            inquiry into whether a peremptory challenge is
16            race-based: First, the moving party--i.e., the
17            party challenging the other party's attempted
18            peremptory strike--must make a prima facie case
19            that the nonmoving party's peremptory is based on
20            race. Second, the nonmoving party must assert a
21            race-neutral reason for the peremptory challenge.
22            The nonmoving party's burden at step two is very
23            low. . . . [A]lthough a race-neutral reason must
24            be given, it need not be persuasive or even
25            plausible. Finally, the court must determine
26            whether the moving party carried the burden of
27            showing by a preponderance of the evidence that
28            the peremptory challenge at issue was based on
29            race.
30
31   McKinney v. Artuz, 326 F.3d 87, 97-98 (2d Cir. 2003)

32   (internal citations omitted).

                                     11
1          The first step of the Batson analysis, requiring the

2    showing of a prima facie case, is not meant to be onerous.

3    Johnson v. California, 545 U.S. 162, 170 (2005).       However,

4    this stage of the analysis still requires consideration of

5    “all relevant circumstances.”        Batson, 476 U.S. at 96.   As

6    Batson explained:

 7             [A] ‘pattern’ of strikes against black jurors
 8             included in the particular venire might give rise
 9             to an inference of discrimination. Similarly, the
10             prosecutor's questions and statements during voir
11             dire examination and in exercising his challenges
12             may support or refute an inference of
13             discriminatory purpose. These examples are merely
14             illustrative
15
16   Id.   The prima facie inquiry is a hurdle that preserves the

17   traditional confidentiality of a lawyer’s reason for

18   peremptory strikes unless good reason is adduced to invade

19   it:   While litigants must now explain their motivations for

20   certain strikes, courts must still be mindful of “each

21   side’s historical prerogative to make a peremptory strike or

22   challenge . . . without a reason stated” if a prima

23   facie case of discrimination has not been established.

24   Miller-El v. Dretke, 125 S. Ct. 2317, 2324 (2005) (internal

25   citation omitted).

26         To establish a prima facie case, “a defendant must show

27   facts and circumstances that raise an inference that the

28   prosecutor used the peremptory challenge to exclude
                                     12
1    potential jurors from the petit jury on account of their

2    race.”    Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002).

3    The discharge of this burden may entail a review of

4    prosecutorial strikes over the span of the selection

5    process:   Thus this Court has held, on habeas review, that a

6    state court does not act unreasonably where it denies a

7    Batson challenge early in the jury selection process.    Id.

8    at 279.

9        Where a litigant points to a pattern of strikes as

10   evidence of discrimination, “statistical disparities are to

11   be examined” as part of the Batson prima facie inquiry.

12   United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991).

13   The need to examine statistical disparities may commend a

14   wait-and-see approach.   As we held in Overton (where the

15   Batson challenge was brought after seven of ten potential

16   African American jurors were dismissed through peremptory

17   challenges), an early Batson challenge limits the state

18   court’s ability to properly assess a prima facie case:

19              the trial judge never confront[s], and the trial
20              record does not reveal, what the statistics would
21              [] show[] at the conclusion of jury selection. If
22              those statistics sufficiently establish[] the
23              inference that challenges [a]re based on race, the
24              court could then [] implement[] the Batson process
25              to ensure that impermissible challenges [are] not
26              [] allowed. If, on the other hand, the statistics
27              at the conclusion fail[] to support a sufficient
28              inference, there would be no need to engage in the
                                    13
 1            process.
 2
 3   Overton, 295 F.3d at 279 (emphasis added).   Overton

 4   concluded that the state trial judge acted reasonably in

 5   “refus[ing] to implement Batson's process for testing each

 6   questioned challenge midway in the process.”   Id. at 280

 7   (emphasis added).

 8       Sorto raised his first Batson challenge after only

 9   three peremptory strikes.   The state court acted reasonably

10   in denying this challenge as premature, while remaining open

11   to reevaluating these strikes as part of a later challenge.

12   Accordingly, the district court did not err in denying the

13   habeas petition challenging the denial of the first round

14   Batson challenge.4

          4
 1          Alternatively, petitioner argues that the
 2   prosecution’s withdrawal of its peremptory challenge to
 3   juror Martinez was so irregular as to evince a prima facie
 4   case of discrimination. The state court interpreted this
 5   withdrawal as a gesture of good faith by the prosecution.
 6   This was a reasonable interpretation of the prosecution’s
 7   motive: The withdrawn challenge could reasonably be viewed
 8   as expressing a willingness to empanel one of two potential
 9   Hispanic jurors interviewed in round one. Though Sorto
10   cannot understand why the prosecution would have withdrawn a
11   peremptory from a juror previously challenged for cause,
12   Sorto himself provides a possible answer: As part of his
13   Batson challenge, Sorto reminded the prosecution that
14   Martinez worked as a peace officer and would therefore
15   likely be a favorable witness for the prosecution.
16   Accordingly, the state court did not act unreasonably in
17   ruling that the withdrawn challenge did not support a prima
18   facie case.

                                   14
1

2        Round Two

3        The existence of a prima facie Batson case is a mixed

4    question of law and fact.   Overton, 295 F.3d at 276-77.     On

5    habeas review, then, we will disturb the state court ruling

6    only if it “was contrary to, or involved an unreasonable

7    application of, clearly established Federal law.”   Id. at

8    277 (quoting 28 U.S.C. § 2254(d)(1)).   Sorto raises no

9    argument that the state court identified the wrong legal

10   standard; he therefore must show an unreasonable

11   application.

12       “[A] state court decision fails the ‘unreasonable

13   application’ prong of AEDPA analysis, ‘if the state court

14   identifies the correct governing legal principle from [the

15   Supreme Court's] decisions but unreasonably applies that

16   principle to the facts of the prisoner’s case.’”    Id.

17   (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).      To

18   challenge the application of law to fact, a petitioner must

19   demonstrate the existence of a particular set of facts to

20   which a legal rule was applied:    We cannot say whether a

21   properly identified rule of law was wrongly applied unless

22   we know the set of facts to which the rule was applied.

23   See generally Escalera v. Coombe, 826 F.2d 185, 193 (2d Cir.

                                   15
1    1987) (mixed questions of law and fact create “subsidiary

2    questions of historical fact”).    Facts on which a petitioner

3    hopes to rely must be established by (at least) a

4    preponderance of the evidence in the habeas court.     Galarza

5    v. Keane, 252 F.3d 630, 637 n.5 (2d Cir. 2001).

6        When, as here, a Batson prima facie case depends on a

7    pattern of strikes, a petitioner cannot establish that the

8    state court unreasonably concluded that the pattern was not

9    sufficiently suspicious unless the petitioner can adduce a

10   record of the baseline factual circumstances attending the

11   Batson challenge.   A sufficient record would likely include

12   evidence such as the composition of the venire,5 the

13   adversary’s use of peremptory challenges, the race of the

14   potential jurors stricken, and a clear indication as to

15   which strikes were challenged when and on what ground, and

16   which strikes were cited to the trial court as evidence of a

17   discriminatory intent.   That information may be common

18   knowledge in the courtroom based on the shared perceptions

          5
1           Here, “venire” refers to the jurors who were called
2    to the jury box and subject to evaluation and strike. The
3    term may also be used to reference the entire group of
4    jurors eligible to be called into the jury box. Information
5    regarding jurors who were eligible but not called may form
6    part of a sufficient record insofar as that information
7    assists a reviewing court in evaluating the pattern of
8    strikes at issue or the strategy and motive of the lawyer
9    exercising the strikes.
                                   16
1    of the lawyers and the trial judge; but an appellate court

2    does not have the benefit of what can be observed by those

3    in the trial courtroom.    Therefore, to the (appreciable)

4    extent that information regarding the jury and the voir dire

5    process bears upon establishing a prima facie case, a

6    sufficient appellate record may depend on a recitation of

7    relevant information on the record in the trial court.

8        For example, in United States v. Alvarado we stated:

 9               [T]he prosecution’s challenge rate against
10               minorities was 50 percent (three of six) in the
11               selection of the jury of 12, and 57 percent (four
12               of seven) in the selection of the jury of 12 plus
13               alternates. Whether this rate creates a
14               statistical disparity would require knowing the
15               minority percentage of the venire; for example, if
16               the minority percentage of the venire was 50, it
17               could be expected that a prosecutor, acting
18               without discriminatory intent, would use 50
19               percent of his challenges against minorities.
20
21   923 F.2d 253, 255 (2d Cir. 1991) (emphasis added).    The

22   analysis is thus driven by information regarding the

23   prosecution’s strikes so that the federal court can usefully

24   consider a prosecutorial strike pattern in the essential

25   contexts.

26       The Alvarado Court met this need by taking judicial

27   notice of the counties that compose the Eastern District of

28   New York and the minority percentage of the populations of

29   those counties, and then accepting that percentage as a

                                    17
1    “surrogate” for the minority population of the venire.     Id.

2    at 256.   On direct appeal from a conviction in district

3    court, a panel may, in a suitable case, supplement the

4    record in such a manner (though that is a thin basis for

5    assigning discriminatory motive to an officer of the court).

6    But it is one thing to say that a panel may exercise that

7    discretion on direct appeal in a suitable case, and quite

8    another to hold on collateral review that it is contrary to

9    or an unreasonable application of Batson for a state court

10   to fail to take judicial notice of such “surrogate” facts

11   and data, particularly where no such request appears to have

12   been made, cf. N.Y. C.P.L.R. 4511, and where, for all we

13   know, “surrogate” data in lieu of record facts may not have

14   been at hand in the state court.   In any event, we would in

15   this case decline to exercise our discretion to take

16   judicial notice of the counties from which Sorto’s venire

17   was drawn in order to determine the minority percentages of

18   those counties, or to assume that those percentages would

19   reflect the ethnic or racial makeup of the venire in Sorto’s

20   trial.

21       The record before us contains insufficient data as to

22   the prosecution’s strike pattern to support a finding that

23   the state court unreasonably applied Batson.   For example,

                                   18
1    between the strikes of Rivera and Mays, the prosecution

2    exercised peremptory challenges against potential jurors

3    Mink and Burdonis.   Petitioner’s brief states that Mink was

4    not a minority; however, we have no particulars about

5    Burdonis or about the prospective and empaneled jurors who

6    were not challenged by the prosecution.   Moreover, Sorto

7    lacks any resource in the record to resolve in his favor

8    conflicting reports as to the composition of the venire.      At

9    oral argument, petitioner suggested--without evidence--that

10   the strikes of Rivera and Martinez removed all the Hispanic

11   potential jurors from the venire.   But petitioner’s brief

12   acknowledges (at least) one additional Hispanic potential

13   juror on the venire (potential juror Zate).    Appellant’s Br.

14   at 7.    Beyond this, we have no information as to how many

15   Hispanic and minority potential jurors remained on the

16   venire after all of the challenged strikes.    Absent this

17   information, we cannot say that the state court acted

18   unreasonably:   The venire may have overwhelmingly consisted

19   of minority jurors, rendering any individual peremptory

20   strike of a minority juror less suspicious.6

          6
1           Our analysis is naturally influenced by the context
2    of this case: [i] a state court’s denial [ii] of a Batson
3    motion that is premised on an allegedly pernicious pattern
4    of strikes. Given our deferential habeas review, we cannot
5    disturb a state court judgment as “unreasonable” unless we
                                    19
1        The dissent illustrates what happens when insufficient

2    care is taken to build a record of Batson discrimination:

3    the case is made to depend on a labored piecing together of

4    transcript fragments in an effort to intuit the race and

5    ethnicity of jurors and to reconstruct and imagine what

6    might have happened.

7        A well-crafted record in the state trial court is

8    needed also to fix (1) the scope of a given Batson challenge

9    and (2) the evidence adduced to support the motion.   Sorto

10   argues that the state “court’s failure to require a reason

11   for the challenge to Rivera was an unreasonable disregard of

12   its duty under Batson.”   Petitioner’s Br. at 34.   But the

13   record is far too sketchy to support a conclusion that the

14   state court acted unreasonably in refusing to demand an

15   explanation for the Rivera strike.   In reviewing the second-

16   round Batson challenge, we are unable to identify (1)

17   precisely which strikes were challenged, and (2) on what

18   basis any challenge was made.

19        Seemingly, the round two challenge was limited to the

1    can consider the factual background that gave rise to a
2    state court ruling. Background data as to the venire would
3    seem less necessary when a Batson challenge is premised on
4    evidence other than pattern, such as comments made during
5    voir dire or during the exercise of challenges. See
6    generally Batson, 476 U.S. at 96.

                                     20
 1   strike of Mays:    Sorto described the second round challenge

 2   as “regard[ing] the prosecution’s elimination of Mrs. Mays.”

 3   Trial Tr. at 208 (emphasis added).    Petitioner argues that a

 4   question posed by the trial judge (whether the second round

 5   challenge grouped together strikes to African Americans and

 6   Hispanics) indicated that “the trial court understood that

 7   the scope of the renewed Batson challenge included all four

 8   challenged minority jurors.”7    Appellant’s Br. at 33.   This

 9   may or may not have been the trial court’s thinking.      But

10   habeas may not be granted based on speculation as to the

11   trial court’s thought process; the record limits the set of

12   challenges under review.    Petitioner explicitly limited the

13   challenge to the strike of Mays; the record therefore does

14   not command the conclusion that the strikes to Rivera and

15   Harper were even in play in the second round;8 and

16   consequently we cannot rule that the state court acted

          7
1             See our discussion at supra note 3.
          8
 1          Sorto did not waive his ability to petition for
 2   habeas relief by his failure to restate his challenges to
 3   Rivera and Harper. It is true that a Batson objection is
 4   waived if not restated in the federal district court; but on
 5   a habeas petition challenging a state judgment, waiver is a
 6   matter of state procedure. DeBerry v. Portuondo, 403 F.3d
 7   57, 66 (2d Cir. 2005). The issue of restated challenges is
 8   not implicated here; our ruling is premised on the
 9   substantive insufficiency of the habeas claim. For example,
10   we would be no more likely to find a Batson violation in
11   Round Two even if petitioner had not challenged the Rivera
12   and Harper strikes in Round One.
                                     21
1    unreasonably in refusing to demand an explanation for the

2    strike to Rivera.   While unrecorded impressions may have

3    given the trial judge certain clues as to the intended scope

4    and basis of the round-two Batson challenge, we need a clear

5    record.

6        The inadequacy of the record is one reason that the

7    trial court’s rejection of Sorto’s second Batson challenge

8    was not unreasonable; another independent reason is the

9    preliminary stage at which the challenge was lodged.   As

10   discussed above, Sorto raised his first challenge after only

11   three peremptory strikes, and accordingly the state court’s

12   denial of that challenge was reasonable.   The same logic

13   applies to Sorto’s second challenge, which came only after

14   the prosecutor’s sixth peremptory challenge, four fewer than

15   the number in Overton, 295 F.3d at 274.    Between Sorto’s

16   first and second Batson challenge, the prosecutor struck

17   potential jurors Mink and Burdonis; neither of them, on the

18   record before us, appears to have been black or Hispanic.

19   It was the prosecutor’s sixth peremptory strike (of Mays)

20   that precipitated Sorto’s second Batson challenge, at which

21   point the prosecutor had used four of six peremptory strikes

22   to remove black or Hispanic potential jurors.   We cannot say

23   that this stage of the voir dire was materially less

                                   22
1    preliminary than the stage at which Sorto made his first

2    challenge.    Accordingly, it was reasonable for the state

3    court to conclude that a problematic pattern of strikes had

4    not yet developed.   Sorto did not renew his objection in

5    later rounds of voir dire, and so we cannot say whether such

6    a pattern ever developed.   See id. at 279-80.

7        It is here that the dissent parts ways.      Despite its

8    agreement that “the state court acted reasonably in denying

9    the first Batson challenge as premature,” the dissent

10   concludes, leaning heavily on Green v. Travis, 414 F.3d 288

11   (2d Cir. 2005), that the state court “unreasonably applied

12   Batson” when it denied Sorto’s second challenge. Dissent Op.

13   at [28:11] Between the first (premature) challenge and the

14   second challenge, the government [i] withdrew its strike

15   against a Hispanic juror (Martinez), [ii] struck a juror who

16   was neither African American nor Hispanic (Mink), [iii]

17   struck a juror who was African American (Mays), and [iv]

18   struck a juror who was neither African American nor Hispanic

19   (Burdonis).   These intervening events furnish no appreciable

20   support for a finding of discrimination beyond the showing

21   that (we all agree) was insufficient and premature.

22       In any event, the dissent’s reliance on Green is

23   misplaced.    In Green, the “Appellate Division [had] not

                                    23
1    address[ed] whether the pattern of the prosecution’s

2    peremptory strikes established a prima facie case of

3    discrimination.”   414 F.3d at 299.    So there was no state

4    court determination on that issue to which the Green Court

5    could give AEDPA deference:   it is one thing to conclude

6    that a pattern of strikes is prima facie evidence of

7    discrimination; it is a very different thing to hold that

8    the contrary conclusion would be an unreasonable application

9    of Batson.

10       Accordingly, we hold that the record is insufficient to

11   disturb the state court’s ruling on the existence of a prima

12   facie case in support of the Batson challenge to the Mays

13   strike.   We similarly refuse to disturb the second round

14   treatment of the Rivera strike, as the record does not even

15   clearly indicate that that strike was at issue.9

16

17                             *   *    *

18       We have considered petitioner’s remaining arguments and

19   find each of them to be without merit.    For the foregoing

          9
1           Petitioner argues that the state court mooted the
2    prima facie issue in addressing--for the sake of appellate
3    review--the credibility of the prosecution’s proffered
4    explanations. Though that approach was taken in Hernandez
5    v. New York, 500 U.S. 352, 359 (1991), a habeas court
6    remains free to affirm based on the prima facie rulings.
7    See, e.g., United States v. Diaz, 176 F.3d 52, 77-78 (2d
8    Cir. 1999).
                                   24
 1   reasons, the judgment of the district court is affirmed.

 2

 3

 4

 5

 6

 7

 8

 9

10




                                  25
1    POOLER, Circuit Judge, dissenting:

2        I respectfully dissent, because I disagree with the

3    majority that “[r]esolution of the Batson issue in this case

4    requires more information about the possible jurors than the

5    record discloses.”   Majority Op. [2:29-3:2].   Because the

6    majority overlooks the fact that the record discloses a

7    great deal about the possible jurors in this case, it

8    imposes a substantial and unnecessary evidentiary burden on

9    Sorto.

10       Before I turn to the majority’s long disquisition on

11   the amount of evidence required to judge a Batson claim, I

12   highlight two statements made by the prosecutor during jury

13   selection:

14       “If [defense counsel] accepts our withdrawal of
15       [the Martinez] peremptory challenge, we would have
16       accepted fifty percent of Hispanic potential
17       jurors that are before us.”
18
19       “[Defense counsel] has made no threshold offer of
20       any pattern of discriminating on the People’s part
21       because we peremptorily challenged the only two
22       African American potential jurors we had.”
23
24   The first statement shows that there were two Hispanic

25   jurors in the box during Round One of jury selection.    The

26   second statement, made during Round Two, establishes that

27   only two African-American jurors were present during the

28   first two rounds of jury selection.

                                   26
 1         Thus, the record demonstrates the following.    Prior to

 2   the first Batson challenge, the prosecutor attempted to use

 3   peremptory strikes against three potential jurors: Vidal

 4   Martinez, Carlos Rivera, and John Harper.   Martinez and

 5   Rivera are Hispanic, while Harper is African-American.

 6   Majority Op. [5].   At the time of the first Batson

 7   challenge, these were the only Hispanic or African-American

 8   individuals seated in the jury box.   Prior to the second

 9   Batson challenge, the prosecutor exercised additional

10   peremptory strikes against Round One potential juror Steven

11   Mink, and Round Two potential jurors MaryAnn Burdonis and

12   Hazel Mays.   Id. at [18].   Mays is African-American.   Id. at

13   [6]   Mink is neither African-American nor Hispanic.

14   Burdonis is not African-American, and it is a fair inference

15   that she is not Hispanic.1   An additional Hispanic potential

           1
 1          Neither Mink nor Burdonis can be African-American,
 2   because the prosecutor made his comment regarding African-
 3   American potential jurors after he struck both Mink and
 4   Burdonis.
 5        The fact that Mink was not Hispanic can be deduced from
 6   the fact that he was a Round One juror, and therefore would
 7   have been seated in the box, along with Rivera, when the
 8   prosecutor described Martinez as fifty percent of the
 9   Hispanic potential jurors. While there is less evidence
10   with respect to Round Two potential juror Burdonis, the
11   record suggests that she was not Hispanic. When defendant
12   raised his second Batson challenge, he referred to the
13   prosecutor’s use of peremptories against Hispanic and
14   African-American individuals during Round One (i.e., against
15   Martinez, Rivera, and Harper), and the use of a peremptory
                                    27
1    juror, Selina Zate, was seated in the jury box at the

2    beginning of Round Two, but removed for cause before the

3    parties exercised their Round Two peremptories.

4        The record therefore shows that at the time of the

5    first Batson challenge, the prosecutor had attempted to

6    exercise one hundred percent of his peremptory challenges

7    against minorities, and had challenged one hundred percent

8    of the minorities not already struck for cause.      At the time

9    of the second Batson challenge, the prosecutor had attempted

10   to exercise sixty-six percent of his strikes against

11   minorities, had stricken one hundred percent of the African-

12   American potential jurors not already struck for cause, and-

13   -assuming Burdonis is not Hispanic--had attempted to strike

14   one hundred percent of the Hispanic jurors not already

15   struck for cause.    Reaching such a conclusion does not

16   require a “labored piecing together of transcript fragments

17   or “intuit[ing] the race and ethnicity of jurors.”     See

18   Majority Op. [19].    Rather, it simply requires a

19   straightforward reading of the record in this case.     Cf.

20   Majority Op. [19].    Thus, the majority’s conclusion that we

1    against Mays in Round Two, but did not mention the
2    prosecutor’s decision to strike Burdonis. Because the
3    Burdonis strike preceded the Mays strike, if Burdonis had
4    been Hispanic, counsel presumably would have mentioned this
5    fact when raising the second Batson challenge.
                                    28
 1   lack sufficient evidence to reach the Batson challenge, and

 2   its suggestion that the jury pool “may have overwhelmingly

 3   consisted of minority jurors, rendering any individual

 4   peremptory strike of a minority juror less suspicious,” does

 5   not stand up to scrutiny. See Majority Op. [19]

 6       I agree with the majority that the state court acted

 7   reasonably in denying the first Batson challenge as

 8   premature.   However, as to the second challenge, I would

 9   find that the state court unreasonably applied Batson when

10   it refused to consider whether African-American and Hispanic

11   jurors could constitute a cognizable group.2

12       We recently considered a similar Batson claim in Green

13   v. Travis, 414 F.3d 288 (2d Cir. 2005).   Like Sorto, Green

14   was a habeas petitioner who challenged the government’s

          2
 1          With respect to prospective jurors Harper and Mays,
 2   Sorto argues that the race neutral reasons given by the
 3   prosecutor for these strikes were pretextual. Because it is
 4   not clear whether the state court adjudicated this issue on
 5   the merits, it is questionable whether AEDPA would apply to
 6   review of this claim. See DeBarry v. Portuondo, 403 F.3d
 7   57, 67 (2d Cir. 2005). However, even under the more lenient
 8   pre-AEDPA standard, I would find that Sorto’s claim with
 9   respect to these jurors fails, because there were several
10   differences between the jurors who were struck and those who
11   remained. We have found that such differences, in light of
12   the deference we owe a trial court’s credibility
13   determinations, support a state court’s rejection of a
14   Batson claim. See Messiah v. Duncan, 435 F.3d 186, 200-01
15   (2d Cir. 2006). Sorto makes no claim of pretext with
16   respect to Rivera, because the prosecutor never attempted to
17   articulate a race neutral reason for striking Rivera.

                                   29
1    pattern of strikes against minority prospective jurors.       See

2    id. at 291, 299.   In Green, as in this case, we lacked

3    precise data about the composition of the venire, because

4    “[t]he number of persons in the venire and the racial and

5    ethnic composition of the venire were not preserved in the

6    record.”   Id. at 291.    Based on the record, however, we knew

7    that at the time of the Batson challenge, “the prosecutor

8    had used one hundred percent of her peremptory strikes to

9    remove Black and Hispanic jurors,” and “had stricken all of

10   the Black members of the jury pool not already struck for

11   cause.”    Id. at 299.   We were therefore able to conclude

12   that the “pattern of the prosecution’s peremptory strikes

13   established a prima facie case of discrimination under

14   Batson.” Id.    In this case, the record shows that at the

15   time of the second Batson challenge, the prosecutor had

16   attempted to use sixty-six percent of his peremptory strikes

17   to remove African-American and Hispanic jurors, had stricken

18   all of the African-American members of the jury pool not

19   already struck for cause, and had attempted to strike all

20   Hispanic jurors not already struck for cause.    Thus, the

21   type of evidence available in this case is comparable to the

22   evidence available in Green, where we found that the record

23   provided a sufficient basis to evaluate the Batson

                                     30
1    challenge.

2           To reach the opposite conclusion, the majority relies

3    on United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991).

4    In Alvarado, we explained that “statistical disparities are

5    to be examined” as part of the Batson prima facie inquiry.

6    Id. at 255.    In that case, we knew what percentage of the

7    prosecution’s peremptory strikes were exercised against

8    minority jurors (the “challenge rate”), but we did not know

9    the minority percentage of the venire.    Id. at 255-56.   As

10   we explained, if, “for example . . . the minority percentage

11   of the venire was 50, it could be expected that a

12   prosecutor, acting without discriminatory intent, would use

13   50 percent of his challenges against minorities.”      Id. at

14   255.    In other words, because we had only one category of

15   statistical information, we had no context in which to

16   analyze disparity.    However, rather than create an

17   unnecessary evidentiary obstacle for the defendant in that

18   case, we employed the relevant population data as a

19   surrogate figure for the minority percentage of the venire.

20   Id. at 256.

21          The majority’s reliance on Alvarado overlooks the fact

22   that in this case we have sufficient information to assess

23   statistical disparity.    We know both the prosecution’s

                                    31
1    challenge rate with respect to minority potential jurors and

2    what percentage of minority potential jurors the prosecution

3    attempted to strike.   Thus, we have two categories of data

4    that provide the basis for an analysis of disparity.

5    Moreover, while we do not know the precise minority

6    percentage of the venire, because we know that at the time

7    of the second Batson challenge, the prosecutor had attempted

8    to strike all minority potential jurors not already struck

9    for cause, we know that during the first two rounds the

10   venire included only four qualified minority jurors.    I

11   would therefore find, as we did in Green, that the record in

12   this case provides sufficient evidence for a reasoned

13   analysis of Sorto’s Batson claim.

14       The majority also contends that the trial court’s

15   rejection of Sorto’s second Batson challenge was not

16   unreasonable because, like the first challenge, the second

17   was lodged at a “preliminary stage,” when it was too early

18   to tell whether a problematic pattern of strikes had

19   developed.   The majority notes that there were only six

20   peremptory strikes at the time of the challenge in this

21   case, and compares that to the ten strikes that were found

22   to be insufficient in Overton v. Newton, 295 F.3d 270, 274

23   (2d Cir. 2002).   Overton is distinguishable, as in that

                                   32
1    case, several minority jurors had actually been seated at

2    the time of the Batson challenge.   See id. at 274.   On the

3    other hand, in Green, where the statistical evidence was

4    similar to this case, we found that a prima facie showing of

5    discrimination under Batson had been established after the

6    prosecutor exercised only five peremptory strikes.    See

7    Green, 414 F.3d at 291, 299.   Moreover, by the time of the

8    second Batson challenge, it was apparent that what might

9    have initially appeared to be a statistical fluke had in

10   fact emerged as a consistent pattern: the prosecutor struck

11   or attempted to strike each and every Hispanic and African-

12   American juror not excused for cause.

13       I disagree with the majority’s assessment of the

14   evidence in this case and its conclusion as to what evidence

15   is necessary to make out a successful statistical Batson

16   claim.   And therefore, unlike the majority, I believe the

17   state court’s erroneous view on aggregation is implicated.

18   Cf. Majority Op. [5 n.1].   In evaluating whether Sorto had

19   made out a prima facie case with respect to the strike of

20   Rivera, both the state courts and the district court assumed

21   that strikes against members of different minority groups

22   could not be considered together to show a pattern of

23   discriminatory strikes.   This is a view we rejected in

                                    33
1    Green, where we concluded, applying the AEDPA standard, that

2    a state court decision that “Black and Hispanic

3    venirepersons do not constitute a ‘cognizable racial group’

4    was an unreasonable application of Batson.”   Green, 414 F.3d

5    at 293, 298.   I would therefore follow Green and find that

6    in this case the state court’s conclusion that African-

7    American and Hispanic potential jurors should not be

8    aggregated for the purposes of evaluating whether Sorto had

9    established a prima facie case of discrimination based on a

10   suspicious pattern of peremptory strikes was an unreasonable

11   application of Batson.

12       The Supreme Court has recently cautioned that

13   establishing a prima facie case of discrimination is not

14   intended to be a high bar, in part because “[t]he Batson

15   framework is designed to produce actual answers to

16   suspicions and inference that discrimination may have

17   infected the jury selection process.”   Johnson v.

18   California, 545 U.S. 162, 172 (2005).   Moreover, as the

19   Court noted in Powers v. Ohio, 499 U.S. 400 (1991), Batson

20   protects the rights of both individual defendants and the

21   community at large:

22       Batson was designed to serve multiple ends, only
23       one of which was to protect individual defendants
24       from discrimination in the selection of jurors.
25       Batson recognized that a prosecutor's
                                   34
1        discriminatory use of peremptory challenges harms
2        the excluded jurors and the community at large.
3             The opportunity for ordinary citizens to
4        participate in the administration of justice has
5        long been recognized as one of the principal
6        justifications for retaining the jury system.
7
8    Id. at 406 (internal quotation marks and citations omitted).

9    Thus, we do both defendants and ordinary citizens a

10   disservice when we create unnecessary obstacles to the

11   vindication of such rights.

12       I therefore respectfully dissent.

13

14

15




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