     07-1313-pr
     Jones v. West

 1                      UNITED STATES COURT OF APPEALS
 2                          FOR THE SECOND CIRCUIT
 3
 4                                  – – – – – –
 5
 6                              August Term, 2008
 7
 8      (Argued: December 1, 2008             Decided: February 4, 2009)
 9
10                          Docket No. 07-1313-pr
11    ________________________________________________________________
12
13                               WENDYLL JONES,
14
15                                          Petitioner-Appellant,
16
17                                     -v.-
18
19                                CALVIN WEST, ∗
20
21                                      Respondent-Appellee.
22    ________________________________________________________________
23
24   Before:   McLAUGHLIN, PARKER, Circuit Judges, and KOELTL, District
25             Judge. 1
26    ________________________________________________________________
27
28        Appeal from a judgment of the United States District Court

29   for the Western District of New York (Bianchini, Magistrate Judge)

30   denying Wendyll Jones’s petition for a writ of habeas corpus

31   pursuant to 28 U.S.C. § 2254.    The petitioner argues that the New

32   York state court unreasonably applied Batson v. Kentucky, 476 U.S.

33   79 (1986), in concluding that Jones had failed to establish a



          ∗
            We retain in the caption the name of the original custodian of
     Wendyll Jones, Calvin West, the Superintendent of the Elmira
     Correctional Facility. Should the parties desire that the caption
     reflect his current custodian, they may file a motion requesting such a
     change, supported by documentation identifying the current custodian.
          1
            The Honorable John G. Koeltl of the United States District Court
     for the Southern District of New York, sitting by designation.

                                        1
 1   prima facie case of discrimination with respect to the

 2   prosecutor’s strike of a black prospective juror.

 3        REVERSED AND REMANDED.

 4                        ANNETTE GIFFORD (J. NELSON THOMAS, on the
 5                             brief), Dolin, Thomas & Solomon LLP,
 6                             Rochester, New York, for Petitioner-
 7                             Appellant.
 8
 9                        KELLY WOLFORD, Of Counsel (WENDY LEHMANN, Of
10                             Counsel, on the brief), Monroe County
11                             District Attorney’s Office, Rochester,
12                             New York, for Respondent-Appellee.
13
14   KOELTL, District Judge:

15        The petitioner, Wendyll Jones (“Jones”), appeals from the

16   judgment of the United States District Court for the Western

17   District of New York (Bianchini, Magistrate Judge), entered

18   February 16, 2007, denying his petition for a writ of habeas

19   corpus.   Jones, who is black, was convicted in July 1998 on four

20   counts of robbery in the second degree after a jury trial in the

21   New York State Supreme Court, Monroe County, located in Rochester.

22   In 2003, after exhausting his state court remedies, Jones filed a

23   petition for habeas corpus against the respondent, Calvin West,

24   the Superintendent of the Elmira Correctional Facility where the

25   petitioner was incarcerated at that time.   The district court

26   denied the petition but granted a certificate of appealability on

27   the sole question of whether the state courts erred in concluding

28   that Jones had failed to establish a prima facie case of

29   discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), with



                                      2
 1   respect to the prosecutor’s peremptory strike of a black

 2   prospective juror.   We conclude that the state courts unreasonably

 3   applied Batson and that the petition for habeas corpus relief

 4   should be granted.

 5                                BACKGROUND

 6        The state court before which Jones was tried employed a

 7   modified jury box system for selecting the jury.   Under that

 8   system, a panel of twenty-one potential jurors was placed in the

 9   jury box, given questionnaires, and interviewed by the court.    The

10   parties were then given an opportunity to conduct fifteen minutes

11   of voir dire with the panel, after which the court considered

12   challenges for cause.   The parties then exercised their peremptory

13   strikes in a first round with the first twelve members of the

14   venire, followed by successive rounds with the number of

15   prospective jurors needed to complete a jury of twelve.    If a jury

16   was not selected from the first panel, a second panel of twenty-

17   one was placed in the box.   Each party had a total fifteen

18   peremptory challenges to exercise across all panels.

19        Because almost all of the peremptory challenges were

20   exercised off the record, the record in Jones’s case does not

21   reflect the race of many of the venire members who were struck by

22   each party.   However, the Batson challenges raised by defense

23   counsel were made on the record, and the facts relating to those

24   challenges are clear from the record.



                                      3
 1        The jury was selected after two panels.     In the first panel,

 2   three members of the panel were struck for cause, two of whom were

 3   black.   Of the remaining eighteen members of the venire, five were

 4   black.   These were Ms. Jefferson, Ms. Peters, Mr. Barry, Ms.

 5   Hannah, and Ms. Benbow.    The issue on this appeal is whether the

 6   state court unreasonably applied Batson when it found that Jones

 7   had not established a prima facie case of discrimination with

 8   respect to the prosecutor’s strike of Ms. Peters.

 9        During the first round of peremptories in the first panel,

10   defense counsel raised his first Batson challenge with respect to

11   Ms. Peters, who had been in seat number ten.   The court turned to

12   the prosecutor, who responded that Ms. Jefferson, a black woman,

13   had been seated as the foreperson of the jury.    The court appeared

14   to accept this explanation, noting: “It appears that we do have

15   one or more minority members on the jury, on the sworn jury.”

16        During the second round of strikes, the defense raised a

17   second Batson challenge:    “[The prosecutor’s] selections in

18   respect to removing, in particular, Mr. Barry, who is number 15,

19   and Ms. Hannah, who is number 18, I would point out to the Court

20   and ask the Court to revisit the earlier Batson decision that now,

21   but [for] Mrs. Jefferson, all the black potential jurors have been




                                       4
 1   removed from the panel, three of them by [the prosecutor] for

 2   peremptory challenges.” 2

 3        The court again turned to the prosecutor for a response.         The

 4   prosecutor pointed out for a second time that the foreperson of

 5   the jury, Ms. Jefferson, was black.      With respect to his strike

 6   against Mr. Barry, he explained:       “Mr. Barry is of the same

 7   general age as Mr. Jones, can relate as to that respect to Mr.

 8   Jones.   When questioning him, Mr. Barry did not appear to be

 9   looking -- or looking in other directions.”      He also explained

10   that he struck Ms. Hannah because she had both a son and a nephew

11   who had legal problems.

12        Defense counsel argued that the prosecutor’s proffered

13   reasons for the strikes against Mr. Barry and Ms. Hannah were

14   pretextual and that the prosecutor had offered no explanation for

15   the peremptory strike of Ms. Benbow.      Regarding Mr. Barry, defense

16   counsel argued:

17        Judge, if I may, the first issue regarding Mr. Barry is
18        pretextual, in my opinion. His age has nothing to do with his
19        ability to deliberate. We have members of variant age who
20        have children, they have indicated, of the same age as my
21        client. Mr. Barry did not respond frequently to any
22        individual questioning as based upon my observations of the

          2
            The prosecutor had actually exercised four peremptory challenges
     against black potential jurors, which included Ms. Peters, Mr. Barry,
     Ms. Hannah, and Ms. Benbow. Two black potential jurors had also been
     struck for cause, one by the prosecutor, and the other by defense
     counsel. It is not clear whether defense counsel was referring to the
     current round of strikes when he referred to three black potential
     jurors having been struck by the prosecutor, or whether he was mistaken.
     However, he later included Ms. Benbow and Ms. Peters in the same Batson
     challenge, indicating that he was aware of all four peremptory
     challenges and that he brought all four to the court’s attention.

                                        5
 1        jury. There were a number of individuals who, at some point,
 2        either became bored with my questions, with [the
 3        prosecutor’s] questions, and although they looked away, I’m
 4        sure they weren’t bored with the Court’s questions, so the
 5        mere manner, his physical appearance is not sufficient, in my
 6        opinion to support that contention. Mr. Barry is being
 7        removed, quite obviously, because he is of the same race as
 8        my client.
 9
10        Defense counsel then continued, objecting to the prosecutor’s

11   strikes of Ms. Hannah and Ms. Benbow.   Finally, defense counsel

12   requested the court to reconsider its earlier ruling with respect

13   to Ms. Peters.    Defense counsel elaborated:

14        I would indicate to the Court that Miss Peters has none of
15        these characteristics to which [the prosecutor] has related.
16        She is a retired employee of General Motors, she is involved,
17        and she, at my recollection, had -- no particular inquiry was
18        made of her regarding any circumstances. She has two
19        children whose ages were not indicated and there was no
20        inquiry of the circumstances regarding those children. And,
21        in point of fact, she distinguishes herself as a member of
22        the jury, quite frankly, and did so in all of her physical
23        demeanor in front of the Court, so I would ask the Court to,
24        first of all, grant my application regarding the current
25        Batson challenge and revisit the application regarding Miss
26        Peters.
27
28        The court responded:

29        The Court denies the application to revisit the challenge to
30        Ms. Peters. Regarding the three peremptory challenges
31        executed during this second round of challenges, peremptory
32        challenges, I’m going to disallow the challenge to Mr. Barry.
33        There has not been a satisfactory neutral explanation for
34        that challenge. I shall permit the peremptory challenges as
35        to the other two jurors, Ms. Benbow . . . [and Ms. Hannah].
36
37        Mr. Barry was the only juror to be sworn from the second

38   round of strikes, bringing the total number of jurors at that

39   point to eight.   A second panel of twenty-one potential jurors was

40   then placed in the jury box.   The prosecutor struck the first


                                       6
 1   black member of the second panel to come up for consideration, Ms.

 2   Thompson, and defense counsel raised a third Batson challenge.

 3   Defense counsel stated: “[M]y position is Mrs. Thompson is the

 4   next available black female that we get on the list and we have

 5   this recurrent issue arising every time we come to the next

 6   available black candidate.”   The prosecutor explained that he had

 7   struck Ms. Thompson because she had a brother who had been

 8   convicted in the last year, which the court accepted as a

 9   satisfactory race-neutral explanation.    The defense raised its

10   fourth and last Batson challenge when the next black member of the

11   venire, Ms. Seawright, came up for consideration and was then

12   struck by the prosecutor.    Defense counsel argued:   “And we are at

13   the next black potential juror and we now have this same issue,

14   Judge.   My application continues and if this is not a pattern,

15   nothing is.”   The court, however, accepted the prosecutor’s

16   explanation that Ms. Seawright’s nephew had been convicted of a

17   drug charge a year before.    The parties then completed jury

18   selection and chose two alternates.   Ms. Jefferson and Mr. Barry

19   were the only two members of the jury, including the two

20   alternates, who were black.

21        At the conclusion of the trial, the jury returned a verdict

22   finding the petitioner guilty of four counts of robbery in the

23   second degree.   On July 2, 1998, the petitioner was sentenced as a




                                       7
 1   second felony offender to concurrent terms of fifteen years in

 2   prison.   His earliest release date is February 28, 2010.

 3        The petitioner appealed his conviction to the New York State

 4   Supreme Court, Appellate Division, Fourth Department.    In a

 5   memorandum opinion, the Appellate Division affirmed the

 6   conviction, finding in relevant part that the trial court had

 7   properly determined that the defendant failed to meet his burden

 8   of presenting a prima facie case of discrimination.     People v.

 9   Jones, 738 N.Y.S.2d 260, 260 (App. Div. 2001).    On May 14, 2002,

10   the petitioner’s application for leave to appeal to the Court of

11   Appeals was denied.    People v. Jones, 772 N.E.2d 614, 614 (N.Y.

12   2002).    On March 11, 2003, the petitioner timely filed this

13   petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

14   The district court denied the petition, Jones v. West, 473 F.

15   Supp. 2d 390 (W.D.N.Y. 2007), and the petitioner timely appealed.

16   We now reverse.

17                                 DISCUSSION

18                                     I.

19        We review a district court’s denial of a petition for a writ

20   of habeas corpus de novo.    See Shabazz v. Artuz, 336 F.3d 154, 160

21   (2d Cir. 2003).   Under the Antiterrorism and Effective Death

22   Penalty Act of 1996, codified at 28 U.S.C. § 2254, a federal court

23   may grant a writ of habeas corpus for a claim that has previously




                                       8
 1   been adjudicated on the merits by a state court only if the

 2   adjudication of the claim:

 3        (1) resulted in a decision that was contrary to, or involved
 4        an unreasonable application of, clearly established Federal
 5        law, as determined by the Supreme Court of the United States;
 6        or
 7
 8        (2) resulted in a decision that was based on an unreasonable
 9        determination of the facts in light of the evidence presented
10        in the State court proceeding.
11
12   28 U.S.C. § 2254(d).

13        A state court decision involves an “unreasonable application”

14   of clearly established federal law as determined by the Supreme

15   Court when “the state court identifies the correct governing legal

16   principle from [the Supreme] Court’s decisions but unreasonably

17   applies that principle to the facts of the prisoner’s case.”

18   Williams v. Taylor, 529 U.S. 362, 413 (2000).    “While the precise

19   method for distinguishing objectively unreasonable decisions from

20   merely erroneous ones is somewhat unclear, it is well-established

21   in this Circuit that the objectively unreasonable standard of

22   § 2254(d)(1) means that petitioner must identify some increment of

23   incorrectness beyond error in order to obtain habeas relief.”

24   Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (internal

25   quotation marks and alteration omitted).    That increment, however,

26   “need not be great; otherwise habeas relief would be limited to

27   state court decisions so far off the mark as to suggest judicial

28   incompetence.”   Overton v. Newton, 295 F.3d 270, 277 (2d Cir.

29   2002) (internal quotation marks omitted).


                                      9
 1                                   II.

 2        In Batson, the Supreme Court held that racial discrimination

 3   in jury selection in state courts violates the Equal Protection

 4   Clause of the Fourteenth Amendment to the Constitution.    476 U.S.

 5   at 85-87.   Under Batson, a claim of racial discrimination in jury

 6   selection is evaluated using a three-step process:

 7        First, the defendant must make out a prima facie case by
 8        showing that the totality of the relevant facts gives rise to
 9        an inference of discriminatory purpose. Second, once the
10        defendant has made out a prima facie case, the burden shifts
11        to the State to explain adequately the racial exclusion by
12        offering permissible race-neutral justifications for the
13        strikes. Third, if a race-neutral explanation is tendered,
14        the trial court must then decide . . . whether the opponent
15        of the strike has proved purposeful racial discrimination.
16
17   Johnson v. California, 545 U.S. 162, 168 (2005) (internal

18   quotations, citations, and alteration omitted).    The parties do

19   not dispute that the state court never required the prosecutor to

20   provide a race-neutral explanation for striking Ms. Peters.    The

21   issue in this case, therefore, is whether Jones met the first step

22   of the Batson inquiry so that the trial court should have

23   proceeded to the second step of the Batson inquiry and required

24   the prosecutor to state a non-discriminatory reason for his strike

25   of Ms. Peters.

26        As we noted in Sorto, the Supreme Court has indicated that

27   “[t]he first step of the Batson analysis, requiring the showing of

28   a prima facie case, is not meant to be onerous.”     Sorto, 497 F.3d

29   at 170 (citing Johnson, 545 U.S. at 170).   A defendant need only



                                      10
 1   produce “evidence sufficient to permit the trial judge to draw an

 2   inference that discrimination has occurred.”    Johnson, 545 U.S. at

 3   170.   In deciding whether the defendant has demonstrated a prima

 4   facie case of discrimination, the trial court should take into

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

 6   Batson, the Supreme Court provided two examples of what

 7   “circumstances” might establish a prima face case of

 8   discrimination:   “[A] ‘pattern’ of strikes against black jurors

 9   included in the particular venire might give rise to an inference

10   of discrimination.   Similarly, the prosecutor’s questions and

11   statements during voir dire examination and in exercising his

12   challenges may support or refute an inference of discriminatory

13   purpose.”    Id. at 97.

14                                    III.

15          When Jones raised his first Batson challenge against the

16   prosecutor’s strike of Ms. Peters, he failed to make out a prima

17   facie case of discrimination.   At that point, the prosecution had

18   used a peremptory challenge against only one of the two black

19   members of the venire that had come up for consideration in the

20   first round, Ms. Jefferson and Ms. Peters, and neither the pattern

21   of strikes nor anything in the prosecutor’s recorded statements

22   provided any basis for a prima facie case of discrimination.       See

23   United States v. Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992).




                                       11
 1        However, the record before the trial court was very different

 2   when Jones raised his second Batson challenge to the prosecutor’s

 3   peremptory strike of Ms. Peters.    At that point, the prosecutor

 4   had struck four out of the only five black venire members in the

 5   first panel.   Of those four, Ms. Peters was the only subject of a

 6   peremptory strike for whom the prosecutor did not provide a race-

 7   neutral reason.   Most significantly, in response to the

 8   prosecutor’s stated reason for using a peremptory strike against

 9   Mr. Barry, the state court rejected that reason as pretextual.      At

10   that point, the trial court had concluded that the prosecutor was

11   not only capable of racial discrimination in the jury selection

12   process, but had also provided an unsatisfactory pretextual reason

13   for a peremptory strike.   Despite the significant pattern of

14   strikes and the finding that the prosecutor had provided a

15   pretextual reason for another peremptory challenge, the trial

16   court did not ask for any explanation of the prosecutor’s reason

17   for striking Ms. Peters.   In light of these facts, we conclude

18   that the Appellate Division’s finding that Jones had not made out

19   a prima facie case of discrimination at the time of his second

20   Batson challenge was an unreasonable application of Batson.

21        The respondent contends that it is impossible for this Court

22   to conclude that the state court unreasonably applied Batson

23   because the record is too poorly developed to determine whether

24   Jones had established a prima facie case of discrimination with



                                        12
 1   respect to Ms. Peters.   Without information about the racial make-

 2   up of the entire venire, the demographics of Monroe County, and

 3   the races of the other persons who were the subject of the

 4   prosecutor’s peremptory challenges, the respondent argues that it

 5   is impossible to perform the statistical analysis needed to

 6   support an inference of discrimination.   The respondent also

 7   argues that Jones’s second Batson challenge was premature, and

 8   that the state court did not act unreasonably by waiting to see if

 9   a more discernable pattern of discrimination would emerge later in

10   the jury selection process.   This is essentially an argument that

11   Jones had not adduced sufficient evidence at the time of the

12   second Batson challenge to raise an inference of discrimination.

13        The respondent’s arguments, however, conflate the variety of

14   patterns that can give rise to an inference of discrimination.

15   Discriminatory purpose may be inferred when a party exercises a

16   disproportionate share of its total peremptory strikes against

17   members of a cognizable racial group compared to the percentage of

18   that racial group in the venire.    See, e.g., Brown v. Alexander,

19   543 F.3d 94, 101 (2d Cir. 2008); Green v. Travis, 414 F.3d 288,

20   299 (2d Cir. 2005); Overton, 295 F.3d at 278 n.9; United States v.

21   Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991).   This rate is

22   sometimes referred to as the “challenge rate.”

23        However, an intent to exclude can also be inferred when a

24   party uses peremptory challenges to strike a disproportionate



                                        13
 1   number of members of a cognizable racial group from the venire.

 2   In such a case, the Batson challenge is based on the party’s

 3   “exclusion rate.”   The distinction between the two types of

 4   challenges is an important one.   Cases involving successful

 5   challenges to exclusion rates have typically included patterns in

 6   which members of the racial group are completely or almost

 7   completely excluded from participating on the jury.   See, e.g.,

 8   Johnson, 545 U.S. at 173 (prima facie case established where all

 9   three black prospective jurors removed from jury); Batson, 476

10   U.S. at 100 (prima facie case established where all four black

11   prospective jurors removed from the jury); Harris v. Kuhlmann, 346

12   F.3d 330, 345-46 (2d Cir. 2003) (prima facie case established

13   where prosecutor used peremptory strikes to exclude all five black

14   potential jurors in venire); Tankleff v. Senkowski, 135 F.3d 235,

15   249 (2d Cir. 1998) (“[T]he fact that the government tried to

16   strike the only three blacks who were on the panel constitutes a

17   sufficiently dramatic pattern of actions to make out a prima facie

18   case.”); United States v. Stewart, 65 F.3d 918, 925 (11th Cir.

19   1995) (in hate crime case, prima facie case established where

20   defendants struck three out of the four black venire members); see

21   also United States v. Battle, 836 F.2d 1084, 1085-86 (8th Cir.

22   1987) (prima facie case established where “[t]he government

23   exercised five of its six (83%) allowable peremptory challenges to

24   strike five of the seven (71%) blacks from the jury panel”).



                                       14
 1        When, on habeas review, a party argues that the state court

 2   unreasonably denied a Batson challenge based upon the challenge

 3   rate--that is, the percentage of a party’s total strikes used

 4   against a cognizable racial group--the record should include, at a

 5   minimum, the number of peremptory challenges used against the

 6   racial group at issue, the number of peremptory challenges used in

 7   total, and the percentage of the venire that belongs to that

 8   racial group.     Cf. Sorto, 497 F.3d at 171-72 (noting that when a

 9   Batson challenge depends on a pattern of strikes, a sufficient

10   record would likely include, inter alia, the composition of the

11   venire, the adversary’s use of peremptory challenges, and the race

12   of the potential jurors stricken).      When the record lacks one of

13   those facts, it is impossible for a reviewing court to conclude

14   that the state court should have drawn an inference of

15   discrimination.     See id. at 173 (absent information about the

16   composition of the venire, court on habeas review could not

17   conclude whether challenge rate established a prima facie case of

18   discrimination).

19        The district court computed the relevant challenge rate of

20   the prosecutor’s strikes against black potential jurors in Jones’s

21   case and found “a substantial statistical disparity” that would

22   have satisfied Jones’s burden of establishing a prima facie case




                                        15
 1   of discrimination. 3   Jones, 473 F. Supp. 2d at 408.    Nevertheless,

 2   the district court found that Jones’s failure to articulate the

 3   numerical basis for his challenge was fatal to his Batson claim.

 4   See id. at 409-10.

 5        However, Jones’s Batson challenge was not based upon a

 6   disproportionate challenge rate, but rather on a disproportionate

 7   exclusion rate.   Defense counsel argued to the trial court that

 8   the prosecutor had attempted to use peremptory challenges to

 9   exclude all but one of the black prospective jurors.

10        When the asserted prima facie case is based upon the use of

11   strikes to exclude all or nearly all of the members of a

12   particular racial group, the record need only include how many

13   members of that group were in the venire, and how many of those

14   were struck.   See Harris, 346 F.3d at 345 (“[W]here every black

15   juror was subject to a peremptory strike, a ‘pattern’ plainly

16   exists.”); Tankleff, 135 F.3d at 249 (finding prima facie case

17   based solely on the fact that the government tried to strike the

18   only three black potential jurors); see also Johnson, 545 U.S. at

19   173 (finding prima facie case of discrimination where prosecutor

20   had struck all three black prospective jurors without requiring

21   analysis of other data).    Information about the races of the
          3
            The district court calculated that the minority challenge rate,
     which was 40%, was nearly twice the percentage of minorities in the
     venire, 21.4%. Jones, 473 F. Supp. 2d at 408. This calculation was
     based on the fact that over the entire jury selection process, the
     prosecutor used six of his available fifteen peremptory challenges to
     strike black potential jurors.


                                        16
 1   remaining members of the venire, beyond knowing that they do not

 2   belong to the racial group that is allegedly being targeted, is

 3   not necessary, nor is information about how the challenged party

 4   used its other peremptory strikes.

 5           The respondent is therefore incorrect to argue that the

 6   record in Jones’s case is deficient because it does not include

 7   the races of every venire member, the racial make-up of Monroe

 8   County, 4 or how the prosecutor’s remaining peremptory strikes were

 9   used.       While the record did lack this information, Jones’s counsel

10   recited on the record which of the venire members were black, and

11   that the remaining members of the venire were white. 5     From this

12   information, it is clear that there were seven black potential

13   jurors in the first panel of the venire.      Two of these were struck

14   for cause.      The prosecutor then used his peremptory challenges to

15   attempt to strike four of the five remaining black members of the
             4
            The minority percentage of the population of the area from which
     the venire is drawn can be used as a surrogate for the minority
     percentage of the venire when the record on direct appeal lacks the
     information about the actual minority percentage of the venire. See
     Alvarado, 923 F.2d at 255-56. This information is used in calculating
     the prosecutor’s challenge rate. However, the use of this information
     is more dubious on a petition for habeas corpus where the issue is
     whether the state court unreasonably applied Batson, where it is unclear
     if the state court had this statistical information, and where the state
     court can determine the racial composition of the actual venire without
     turning to surrogate statistics. See Sorto, 497 F.3d at 172-73.
             5
            During voir dire of the first panel, defense counsel stated for
     the record: “Mr. Barry, Ms. Peters, Miss Hannah, Mr. Jefferson, Mrs.
     Dixon, Mrs. Hayward. You’re the black members of the proposed jury. At
     this point my client is black. The other representatives of the jury
     panel at this time are white.” Defense counsel did not mention Ms.
     Benbow’s name at that time, but he clearly identified Ms. Benbow as
     black when he raised his second Batson challenge. He stated: “Ms.
     Benbow is the other black female who was involved.”

                                          17
 1   voir dire panel.    It is beyond dispute that, where all members of

 2   a racial group are excluded from a jury, a pattern is obvious

 3   enough to draw an inference of discriminatory intent.     See, e.g.,

 4   Johnson, 545 U.S. at 173; Batson, 476 U.S. at 100; Harris, 346

 5   F.3d at 345-46; Tankleff, 135 F.3d at 249.     This Court has also

 6   stated that a party “may not avoid the Batson obligation to

 7   provide race-neutral explanations for what appears to be a

 8   statistically significant pattern of racial peremptory challenges

 9   simply by forgoing the opportunity to use all of his challenges

10   against minorities.”     Harris, 346 F.3d at 346 (quoting Alvarado,

11   923 F.2d at 256).    Where a party has used its strikes to exclude

12   all or nearly all of several members of a racial group from

13   serving on a jury, such a pattern may give rise to an inference of

14   discrimination.     See Batson, 476 U.S. at 93 (“[T]otal or seriously

15   disproportionate exclusion of Negroes from jury venires . . . is

16   itself such an unequal application of the law . . . as to show

17   intentional discrimination.” (quoting Washington v. Davis, 426

18   U.S. 229, 241, 242 (1976)) (internal quotation marks and citation

19   omitted)).

20        It is unnecessary to decide whether a pattern of striking

21   four out of five members of a single racial group would, on its

22   own, establish a prima facie case of discrimination.    In this

23   case, in addition to the prosecutor’s pattern of strikes, the

24   state trial court also had the significant circumstance before it



                                        18
 1   that it had concluded that the prosecutor’s statements concerning

 2   Mr. Barry were pretextual reasons for the peremptory strike.     In

 3   addition to a pattern of strikes, the other example of

 4   circumstantial evidence that the Batson Court indicated could give

 5   rise to an inference of discrimination is “the prosecutor’s

 6   questions and statements during voir dire examination and in

 7   exercising his challenges.”   Batson, 476 U.S. at 97.    These

 8   circumstances were plainly sufficient to establish a prima facie

 9   case that required an explanation for why the prosecutor exercised

10   a peremptory strike against Ms. Peters.

11        Here, defense counsel had argued that the prosecutor’s stated

12   reasons for striking Mr. Barry--that he was of the same age as the

13   defendant and had been looking in other directions during voir

14   dire--were pretexutal, and the state trial court agreed.    However,

15   a trial court is required under Batson to take into consideration

16   “all relevant circumstances,” and a pretextual statement made by a

17   prosecutor in the course of jury selection is a highly relevant

18   circumstance.   The state court nevertheless rejected defense

19   counsel’s application to reconsider the Batson challenge with

20   respect to Ms. Peters and did not require the prosecutor to give a

21   race-neutral explanation for having struck her.

22        The district court held that Jones missed his opportunity to

23   rely upon the disallowed challenge of Mr. Barry as circumstantial

24   evidence of the prosecutor’s improper motive in striking Ms.



                                      19
 1   Peters.   Jones, 473 F. Supp. 2d at 410.    The respondent also

 2   argues that defense counsel should have explicitly told the state

 3   trial court that it should have considered this circumstance in

 4   evaluating the peremptory challenge against Ms. Peters.    However,

 5   in this case, defense counsel adequately brought its Batson

 6   challenge to the attention of the trial court and explained the

 7   basis for a prima facie case of discrimination.    Defense counsel

 8   pointed to the statistics, and in the course of the second Batson

 9   challenge, asked the court to reconsider its rejection of the

10   Batson challenge to Ms. Peters and also argued that the reasons

11   given by the prosecutor for the additional peremptory challenges

12   were pretextual.   The finding that the trial court then made which

13   found that the prosecutor had provided a pretextual excuse for the

14   peremptory strike of Mr. Barry should have been taken into account

15   by the trial court in connection with the strike of Ms. Peters

16   which the trial court was being asked to reconsider in the very

17   same set of challenges.   It was not necessary for defense counsel

18   to ask for reconsideration yet again based on the circumstances

19   that were already before the trial court.

20        Taking into account both the prosecutor’s pretextual

21   justification for striking Mr. Barry and the prosecutor’s use of

22   strikes against four out of the five black members of the first

23   venire, we conclude that Jones had established a prima facie case

24   of discrimination at the time he raised his second Batson



                                      20
 1   challenge against the strike of Ms. Peters, and that the Appellate

 2   Division unreasonably applied Batson in finding that Jones had

 3   failed to do so.

 4        Overton and Sorto are not to the contrary.       Most importantly,

 5   these cases did not involve an explicit finding by the state court

 6   that the prosecutor had provided pretextual reasons for striking

 7   another juror in the same jury selection process.      Moreover, both

 8   Overton and Sorto are principally about deficiencies in the

 9   record.     In Overton, defense counsel raised a Batson challenge at

10   the end of the second round of peremptory strikes based on the

11   prosecutor’s challenge rate against black prospective jurors.       The

12   defense claimed that, by a “rough count,” the prosecutor had used

13   seven of nine peremptory challenges against black prospective

14   jurors. 6   Overton, 295 F.3d at 273.    The prosecutor responded by

15   pointing out that three of the eight jurors who had been seated at

16   that point were black; however, there was no contemporaneous

17   record made of the races of all of the prospective jurors.       The

18   state court denied the challenge.       At the end of the third round,

19   the state court identified on the record the racial backgrounds of

20   the prospective jurors, but the defense did not renew its Batson

21   challenge at any point after the record was made.      This Court’s

22   holding in Overton, therefore, was that when the defendant raised


          6
            The prosecutor had actually exercised seven of ten of his
     peremptory challenges against black prospective jurors by the end of the
     second round. Overton, 295 F.3d at 273 n.4.

                                        21
 1   his Batson challenge, the facts that would have been necessary to

 2   raise an inference of discrimination had not yet been fully

 3   established.     Id. at 279-80.

 4        In Sorto, the defense made two Batson challenges.       The first

 5   was raised after the prosecution used its first round challenges

 6   to strike three minority venire members, although one challenge

 7   was subsequently withdrawn.       The second was raised after the

 8   prosecution used a second round strike against another minority

 9   venire member.    The state court denied both challenges for lack of

10   a prima facie case, and also gave the alternative explanation for

11   its denial of the defendant’s second challenge that the prosecutor

12   had supplied, on its own volition, a non-pretextual and race-

13   neutral justification for the strike.      At neither the time of the

14   first strike nor the time of the second strike did the defense

15   establish on the record the racial composition of the venire.        On

16   habeas review, this Court held that the state court did not act

17   unreasonably when it denied the first Batson challenge as

18   premature.     Sorto, 497 F.3d at 171.    This Court denied habeas

19   relief with respect to the second Batson challenge on the ground

20   that the record did not contain “the baseline factual

21   circumstances” necessary to find that the state court acted

22   unreasonably.     Id. at 171-72.    The record did not contain clear

23   information about the races of other venire members struck by the

24   prosecution, or information about how many minority persons



                                          22
 1   remained on the venire after the challenged strikes, and this

 2   Court declined to conclude that the state court acted unreasonably

 3   on such an incomplete record.    Id. at 172-74.

 4        The record in this case does not suffer from the deficiencies

 5   of those in Overton and Sorto.   Although the record does not

 6   disclose the specific races of the remaining persons on the first

 7   panel, it shows that they were not black.   Therefore, when Jones

 8   raised his second Batson challenge, the record established that

 9   four of the five qualified black venire members had been struck by

10   the prosecutor.   Moreover, the trial court was presented with a

11   record that the prosecutor was providing a pretextual excuse for

12   striking another black potential juror, and the trial court agreed

13   that the prosecutor had indeed provided a pretextual reason.

14   There was thus more than a sufficient record for the trial court

15   to conclude that defense counsel had established a prima facie

16   case that required an explanation for the prosecutor’s peremptory

17   strike of Ms. Peters.

18                                    IV.

19        When a federal habeas court has concluded that the state

20   court unreasonably applied Batson, there are several remedial

21   options:   1) require the district court to “hold a reconstruction

22   hearing and take evidence regarding the circumstances surrounding

23   the prosecutor’s use of the peremptory challenges . . . ; 2)

24   return the case to the state trial court on a conditional writ of



                                       23
 1   habeas corpus so that the state court could conduct the inquiry on

 2   its own; or 3) order a new trial.”      Harris, 346 F.3d at 347

 3   (internal quotations and citations omitted).

 4        Over ten years have elapsed since Jones’s trial, and he will

 5   be eligible for release in a little over a year.     Jones argues

 6   that he should be granted a new trial because an accurate

 7   reconstruction of the prosecutor’s reasons would now be

 8   impossible.    However, the respondent has requested a

 9   reconstruction hearing and represented at oral argument that the

10   court and the lawyers involved in the case are available.        This

11   Court has noted that “there are cases where the passage of time

12   may impair a trial court’s ability to make a reasoned

13   determination of the prosecutor’s state of mind when the jury was

14   selected,” in which a new trial must be held.      Brown v. Kelly, 973

15   F.2d 116, 121 (2d Cir. 1992).    Nevertheless, this Court has also

16   recognized that the prosecutor should be allowed an opportunity to

17   present its reasons for exercising the challenged strikes at a

18   reconstruction hearing “if appropriate findings may conveniently

19   be made.”     Id. (quoting Alvarado, 923 F.2d at 256).

20        We are concerned about the significant amount of time that

21   has passed since Jones’s trial, as well as the fact that he has

22   already served almost the entirety of his sentence.      These

23   concerns can be satisfied with a prompt remand to the state court




                                        24
 1   with instructions to hold a reconstruction hearing within ninety

 2   days or grant Jones a new trial also within ninety days.

 3                                CONCLUSION

 4        For the reasons explained above, we REVERSE the judgment of

 5   the district court and REMAND with instructions to conditionally

 6   grant the writ and order the respondent to release Jones unless

 7   the state court holds a reconstruction hearing within ninety days

 8   or, if it determines that such a hearing would not be possible,

 9   grant Jones a new trial within ninety days of the date of this

10   decision.   The mandate shall issue forthwith.




                                      25
