     07-1780-pr
     Brown v. Alexander

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                               August Term, 2007

4    (Argued: April 16, 2008             Decided: September 22, 2008
5                                        Errata Filed: October 10, 2008)
6                             Docket No. 07-1780-pr

7                    -------------------------------------

8                                TARKISHA BROWN,

9                             Petitioner-Appellant,

10                                    - v -

11   GEORGE B. ALEXANDER, Chairman, New York State Division of Parole,
12       ANDREW CUOMO, Attorney General of the State of New York,

13                           Respondents-Appellees.*

14                   -------------------------------------

15   Before:     WINTER and SACK, Circuit Judges, and MURTHA, District
16               Judge.**

17               Appeal from a judgment of the United States District

18   Court for the Southern District of New York (Jed S. Rakoff,

19   Judge) denying Tarkisha Brown's petition for a writ of habeas

20   corpus pursuant to 28 U.S.C. § 2254.     The petitioner asserts that

21   the New York state courts unreasonably applied Batson v.

22   Kentucky, 476 U.S. 79 (1986), in concluding that she had not


           *
             Pursuant to Rule 43(c)(2) of the Federal Rules of
     Appellate Procedure, Chairman George B. Alexander and Attorney
     General Andrew Cuomo are automatically substituted for former
     Chairman Brion D. Travis and former Attorney General Eliot
     Spitzer, respectively, as respondents in this case.
           **
             The Honorable J. Garvan Murtha, of the United States
     District Court for the District of Vermont, sitting by
     designation.
1    presented a prima facie case of race discrimination with respect

2    to jury selection at her criminal trial in state court.

3              Affirmed.

4                              JEFFREY J. RESETARITS, Shearman &
5                              Sterling LLP (Seth M. Kean, of counsel),
6                              New York, NY, for Petitioner-Appellant.

 7                             RAFAEL A. CURBELO, Assistant District
 8                             Attorney (Robert T. Johnson, Bronx
 9                             County District Attorney, Joseph N.
10                             Ferdenzi, Nancy D. Killian, Assistant
11                             District Attorneys, of counsel), Bronx,
12                             NY, for Respondents-Appellees.

13   SACK, Circuit Judge:

14             Petitioner-Appellant Tarkisha Brown appeals from a

15   judgment entered on March 30, 2007, in the United States District

16   Court for the Southern District of New York (Jed S. Rakoff,

17   Judge) denying her petition for a writ of habeas corpus pursuant

18   to 28 U.S.C. § 2254.   She asserts that the state trial court

19   unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), when

20   it ruled that she had not made out a prima facie case of race

21   discrimination in jury selection during her state criminal-trial,

22   and that the Appellate Division, First Department, People v.

23   Brown, 276 A.D.2d 429, 715 N.Y.S.2d 18 (1st Dep't 2000), and the

24   New York Court of Appeals, People v. Brown, 97 N.Y.2d 500, 507,

25   769 N.E.2d 1266, 1271, 743 N.Y.S.2d 374, 379 (2002), unreasonably

26   applied Batson when they affirmed the trial court's decision.   We

27   conclude that because the New York courts reasonably determined

28   that Brown had not made out a prima facie case, her

29   post-conviction detention was not unlawful.


                                      2
1                                BACKGROUND

2               In November 1997, a grand jury in Bronx County, New

3    York, returned a three-count indictment against the petitioner.

4    It included one count of criminal sale of a controlled substance

5    in or near school grounds in violation of N.Y. Penal Law

6    § 220.44(2).   Voir dire of the jury took place in Supreme Court,

7    Bronx County, before Justice Robert H. Straus, on January 6 and

8    7, 1999.

9               Jury selection was conducted using the "jury box

10   system" provided by N.Y. C.P.L.R. § 270.15.   Under the version

11   that Justice Straus employed, a group of sixteen prospective

12   jurors is randomly selected from the venire and interviewed.

13   After the court has struck jurors for cause, the parties are

14   permitted to examine the first twelve prospective jurors (i.e., a

15   sufficient number to complete the jury).   The State, and then the

16   defendant, are allowed to exercise challenges for cause.

17   Following the court's ruling on those challenges, the parties are

18   afforded the opportunity to exercise one or more of the

19   peremptory challenges allotted to them.1   The remaining jurors

20   from the original group of twelve are seated.   The parties are

21   then permitted to consider as many remaining jurors from the

22   group of sixteen as would be necessary to fill the jury (e.g., if

23   ten jurors are seated after consideration of the first twelve



          1
             Each party was permitted fifteen peremptory challenges,
     based on the charges brought against Brown. N.Y. C.P.L.R.
     § 270.25(2)(b).

                                      3
1    jurors, two more are taken under consideration).    If a full jury

2    is not seated from the first group of sixteen, a new group of

3    sixteen prospective jurors is selected and the process is

4    repeated until a sufficient number of jurors and alternates is

5    seated.    See generally People v. Webb, 187 Misc. 2d 451, 452-54,

6    722 N.Y.S.2d 349, 350-51 (Sup. Ct. Kings County 2001).

7                During the first round of voir dire for the

8    petitioner's trial, the court selected a group of sixteen

9    prospective jurors at random, and discharged one of them for

10   cause.    The court then permitted the parties to consider the

11   first twelve of the fifteen remaining prospective jurors.

12   Neither the State nor the petitioner exercised any challenges for

13   cause.    The State exercised five peremptory challenges, however,

14   four of them against prospective jurors who were black.     The

15   petitioner exercised two peremptory challenges against

16   prospective jurors whose race is not identified in the record.

17   The five remaining persons were accepted to serve on the jury.

18               The court then considered the next three prospective

19   jurors.    The State sought to challenge one of them for cause, but

20   after objection by the petitioner, the court denied the

21   challenge.    In response, the State used a peremptory challenge to

22   strike this same prospective juror, who was black.    The

23   petitioner did not exercise any peremptory or for-cause

24   challenges against the remaining two prospective jurors.     They

25   were then accepted to serve.



                                       4
1              A second group of sixteen prospective jurors was then

2    selected at random.   After questioning, the court discharged four

3    of them for cause and selected four additional prospective jurors

4    as replacements.   After questioning of the replacement jurors,

5    one was discharged by the court for cause, again leaving fifteen

6    prospective jurors in the box.   The court considered the first

7    five of them.   Neither the State nor the petitioner challenged

8    any of them for cause.   The State exercised two peremptory

9    challenges, however, both against prospective jurors who were

10   black.

11             The petitioner then, for the first and only time,

12   asserted a Batson challenge:

13             Judge, I'm going to raise a Batson challenge
14             against the prosecutor. I mean he never even
15             asked Mr. Harley [one of the two black
16             potential jurors just challenged] a question.
17             I'm just looking here, he's exercised nine
18             challenges, eight of them have been for
19             African Americans if I'm not wrong. I might
20             be wrong but I don't think I'm wrong.[2]
21             We had some jurors yesterday he never spoke
22             to; no jury experience, nothing against
23             police officers and they were gone too.
24             I can't help but discern a pattern here.
25             Maybe I'm wrong. I would need some further
26             information before I could be dissuaded from
27             the fact that they're being eliminated here
28             by use of peremptory challenge because of
29             their color.




          2
             Counsel was mistaken. At the point that she raised her
     Batson claim, the State had exercised eight peremptory
     challenges, seven of them against black members of the venire.

                                      5
1    Transcript of Proceedings at 252, People v. Brown, No. 6815/97

2    (Sup. Ct. Bronx County Jan. 7, 1999).

3                The court responded:

4                [B]y my figures in the first group in the
5                jury box there were nine people that appeared
6                to me to be of African American descent and
7                in this group there are six more, that's 15
8                and by my count he challenged 7 out of the
9                15. That's the count I have.
10               But beyond that the law requires for the
11               Court to consider the challenge that there
12               must be a rather specific objection with the
13               utilization of facts and other relevant
14               circumstances to create an inference of
15               exclusion of a cognizable group.
16               Certainly African Americans are a cognizable
17               group and certainly under certain
18               circumstances a percentage of strikes can
19               cause a court to find a pattern.

20   Id. at 252-53.

21               The petitioner's counsel interjected a lengthy

22   explanation as to why four of the stricken jurors could have been

23   fair.    The trial court, apparently surprised, responded:     "Wait

24   just a minute.    In the first group you're really concerned with

25   four African American jurors peremptorily challenged[?]"       Id. at

26   255.    Counsel responded in the affirmative.   Counsel then

27   referred to further details about the stricken jurors.

28               After counsel had finished, the trial court responded,

29               Well, based on what you've said up to this
30               point and what you have pointed out up to
31               this point I'm not going to require the
32               People to offer an explanation for their
33               peremptory challenges. You can renew the
34               application later [and] we'll see where the
35               challenges go from this point on . . . .



                                        6
1    Id. at 256-57.     Counsel for the petitioner again stated that the

2    "jury selection [wa]s not fair."       Id. at 257.   The judge

3    responded, "I understand that, but based on right up to this

4    point I do not find a pattern of purposeful exclusion that's

5    sufficient to raise an inference of discrimination based on the

6    numbers."    Id.

7                The State then sought to make clear on the record that

8    of the seven jurors chosen, three were black women.        The court

9    acknowledged the statistic, but said, "It doesn't matter how many

10   sworn jurors [there are.]    [I]t's not determinative[.]      [I]t's

11   not dispositive. . . .    [A] Batson challenge can be made even as

12   to one juror but I don't find the pattern."       Id. at 258.

13               The remainder of voir dire moved along briskly.      The

14   State exercised one additional peremptory challenge, that to an

15   alternate juror; the petitioner exercised four.        Neither party

16   challenged any jurors for cause.       The final five members of the

17   jury were selected, as were three alternates.        The race, color,

18   or ethnicity of these jurors is not reflected in the record.

19               The petitioner never renewed her Batson challenge.

20               The jury ultimately found the petitioner guilty of

21   criminal sale of a controlled substance in or near school grounds

22   under N.Y. Penal Law § 220.44(2).       Based on that verdict, the

23   trial court rendered judgment on February 4, 1999, and sentenced

24   the petitioner to an indeterminate prison term of two to six

25   years.   The petitioner appealed her conviction on evidentiary



                                        7
1    grounds,3 and also challenged the trial court's denial of her

2    Batson claim.

3              On October 26, 2000, the Appellate Division, First

4    Department, unanimously affirmed the petitioner's judgment of

5    conviction.   People v. Brown, 276 A.D.2d 429, 715 N.Y.S.2d 18

6    (1st Dep't 2000).   The defendant -- the petitioner here -- moved

7    for leave to appeal the Appellate Division's decision to the New

8    York Court of Appeals.   The motion was granted.   People v. Brown,

9    96 N.Y.2d 826, 754 N.E.2d 206, 729 N.Y.S.2d 446 (2001) (Kaye,

10   C.J.).

11             On March 19, 2002, the New York Court of Appeals

12   affirmed the order of the Appellate Division.   People v. Brown,

13   97 N.Y.2d 500, 507, 769 N.E.2d 1266, 1271, 743 N.Y.S.2d 374, 379

14   (2002).   As to the Batson issue, the Court of Appeals concluded,

15   "[D]efendant's reliance on the People's removal of seven

16   African-Americans through the exercise of eight peremptory

17   challenges was inadequate, without more, to require the trial

18   court to find a prima facie showing of discrimination."    Id. at

19   508, 769 N.E.2d at 1271, 743 N.Y.S.2d at 379.

20             The petitioner then applied for a writ of habeas corpus

21   pursuant to 28 U.S.C. § 2254 in the United States District Court

22   for the Southern District of New York.   She claimed that the

23   state trial court had unreasonably applied Batson when it ruled



          3
             The evidentiary question, which was considered by the
     Appellate Division, and later the Court of Appeals, is not before
     us.

                                      8
1    that she had not made out a prima facie case, and that the

2    Appellate Division and Court of Appeals unreasonably applied

3    Batson in affirming the trial court's decision.

4              In a report and recommendation dated January 12, 2007,

5    United States Magistrate Judge Michael H. Dolinger concluded that

6    the state courts had not unreasonably applied Batson in finding

7    that the petitioner had failed to make out a prima facie case.

8    Judge Dolinger therefore recommended that Brown's petition for a

9    writ of habeas corpus be denied.       In an Order dated March 28,

10   2007, the district court (Jed S. Rakoff, Judge) adopted the

11   recommendation to dismiss the petition but grant a certificate of

12   appealability under 28 U.S.C. § 2253(c)(1).

13             The petitioner, now on parole, appeals.

14                              DISCUSSION

15             I. Standard of Review

16             "We review a district court's ruling on a petition for

17   a writ of habeas corpus de novo."       Overton v. Newton, 295 F.3d

18   270, 275 (2d Cir. 2002).

19             Pursuant to 28 U.S.C. § 2254(d), as amended by the

20   Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L.

21   No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), a writ of habeas

22   corpus may not issue for any claim adjudicated on the merits by a

23   state court unless the state-court decision was "contrary to, or

24   involved an unreasonable application of, clearly established

25   Federal law, as determined by the Supreme Court of the United

26   States," id. § 2254(d)(1), or was "based on an unreasonable

                                        9
1    determination of the facts in light of the evidence presented" in

2    state court, id. § 2254(d)(2).

3              Under section 2254(d)(1), the statutory phrase "clearly

4    established Federal law, as determined by the Supreme Court of

5    the United States," 28 U.S.C. § 2254(d)(1), refers to "the

6    holdings, as opposed to the dicta, of [the Supreme] Court's

7    decisions as of the time of the relevant state-court decision."

8    Williams v. Taylor, 529 U.S. 362, 412 (2000); Overton, 295 F.3d

9    at 275-76 (quoting Williams).    A state-court decision is

10   "contrary to" clearly established federal law as determined by

11   the Supreme Court if the state court's conclusion on a question

12   of law is "opposite" to that of the Supreme Court or if the state

13   court decides a case differently than the Supreme Court's

14   decision "on a set of materially indistinguishable facts."

15   Williams, 529 U.S. at 413 (2000); Overton, 295 F.3d at 275

16   (quoting Williams).   A state-court decision "involves an

17   unreasonable application of" clearly established federal law as

18   determined by the Supreme Court if it "identifies the correct

19   governing legal principle from [the Supreme Court's] decisions

20   but unreasonably applies that principle to the particular facts

21   of [a] prisoner's case."   Williams, 529 U.S. at 413; Overton, 295

22   F.3d at 275 (quoting Williams).    "An unreasonable application of

23   federal law is different from an incorrect or erroneous

24   application of federal law."    Williams, 529 U.S. at 412; Overton,

25   295 F.3d at 277 (quoting Williams).    Interpreting Williams, and

26   by extension section 2254(d)(1), we have observed that the

                                       10
1    "unreasonable application" standard "falls somewhere between

2    merely erroneous and unreasonable to all reasonable jurists."

3    Id. at 277 (internal quotation marks and citation omitted).

4    Although "[s]ome increment of incorrectness beyond error is

5    required, . . . the increment need not be great; otherwise habeas

6    relief would be limited to state court decisions so far off the

7    mark as to suggest judicial incompetence."    Id. (internal

8    quotation marks and citation omitted).

9                Finally, under section 2254(d)(2), a state court's

10   findings of fact are "presumed to be correct."     The habeas

11   petitioner bears the burden of "rebutting the presumption of

12   correctness by clear and convincing evidence."     28 U.S.C.

13   § 2254(e); see Overton, 295 F.3d at 275 (quoting section

14   2254(e)).

15               II. Clearly Established Federal Law:
16                   Batson and Its Progeny

17               Batson v. Kentucky, 476 U.S. 79 (1986), established a

18   three-step burden-shifting mechanism for evaluating allegations

19   of race discrimination during jury selection at a criminal trial.

20   At the first stage of the inquiry, the defendant must establish a

21   "prima facie" case "by showing that the totality of the relevant

22   facts gives rise to an inference of discriminatory purpose."      Id.

23   at 93-94.    Once the defendant has made out such a prima facie

24   case, the burden shifts to the State to provide a race-neutral

25   explanation for its peremptory strikes.    Id. at 97.   Finally, the

26   trial court must determine whether the defendant has established


                                      11
1    purposeful discrimination, id., in which case the selection

2    process was a violation of the Equal Protection Clause of the

3    Fourteenth Amendment.

4                The Supreme Court did not establish a bright-line rule

5    for determining what constitutes such a prima facie case.

6    Instead, the Court instructed trial judges to consider whether

7    "all relevant circumstances" and facts before them give rise to

8    an inference of discrimination.    Id. at 96-97.   Batson did

9    indicate that a pattern of strikes against African-American

10   jurors may give rise to such an inference, and that the

11   prosecutor's questions and statements might also support or

12   refute such an inference.   Id. at 97.   Ultimately, though, Batson

13   left substantial discretion in the hands of the trial court,

14   expressing "confidence that trial judges, experienced in

15   supervising voir dire, w[ould] be able to decide if the

16   circumstances concerning the prosecutor's use of peremptory

17   challenges create[d] a prima facie case of discrimination against

18   black jurors."   Id.

19               The Supreme Court recently reiterated that it "did not

20   intend the first step [in the Batson inquiry] to be . . .

21   onerous."   Johnson v. California, 545 U.S. 162, 170 (2005).    "[A]

22   prima facie case of discrimination can be made out by offering a

23   wide variety of evidence, so long as the sum of the proffered

24   facts gives 'rise to an inference of discriminatory purpose.'"

25   Id. at 169 (quoting Batson, 476 U.S. at 94) (footnote omitted).

26   The Court also restated the principle that a defendant is not

                                       12
1    "require[d]" to "prove[] discrimination" at the prima facie

2    stage.    Id. at 169-70.

3                This court has put a further gloss on what constitutes

4    a prima facie case under Batson, and what constitutes an

5    unreasonable application of Batson and its progeny.       We have

6    noted that "under Batson and its progeny, striking even a single

7    juror for a discriminatory purpose is unconstitutional."       Walker

8    v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005).       And we have said

9    that we have "no doubt that statistics, alone and without more,

10   can, in appropriate circumstances, be sufficient to establish the

11   requisite prima facie showing."    Overton, 295 F.3d at 278-79 (2d

12   Cir. 2002); see also Tankleff v. Senkowski, 135 F.3d 235, 249 (2d

13   Cir. 1998) ("[T]he fact that the government tried to strike the

14   only three blacks who were on the panel constitutes a

15   sufficiently dramatic pattern of actions to make out a prima

16   facie case.").    We have made clear, however, that "[o]nly a rate

17   of minority challenges significantly higher than the minority

18   percentage of the venire would support a statistical inference of

19   discrimination."    United States v. Alvarado, 923 F.2d 253, 255-56

20   (2d Cir. 1991) (finding that "a challenge rate nearly twice the

21   likely minority percentage of the venire strongly supports a

22   prima facie case under Batson").       We have also required that

23   statistical arguments be based on a well-developed factual

24   record.    Such a record

25               would likely include evidence such as the
26               composition of the venire, the adversary's
27               use of peremptory challenges, the race of the

                                       13
1               potential jurors stricken, and a clear
2               indication as to which strikes were
3               challenged when and on what ground, and which
4               strikes were cited to the trial court as
5               evidence of a discriminatory intent.

6    Sorto v. Herbert, 497 F.3d 163, 171-72 (2d Cir. 2007).

7               Although we have embraced the use of statistics, we

8    have also indicated that, in every case, "an assessment of the

9    sufficiency of a prima facie showing in the Batson analysis

10   should take into consideration 'all relevant circumstances'

11   including, but not restricted to, the 'pattern' of strikes."

12   Harris v. Kuhlmann, 346 F.3d 330, 345 (2d Cir. 2003).    This

13   comports with our understanding that "Batson must be read as not

14   only prohibiting certain specific actions, but also as creating a

15   broad standard or principle that the courts must, in reason,

16   follow."   Overton, 295 F.3d at 278.

17              "The discrimination condemned by Batson need not be as

18   extensive as numerically possible."    Alvarado, 923 F.2d at 256.

19   "A prosecutor may not avoid the Batson obligation to provide

20   race-neutral explanations for what appears to be a statistically

21   significant pattern of racial peremptory challenges simply by

22   forgoing the opportunity to use all of his challenges against

23   minorities."   Id.   Thus, while the presence of one or more black

24   jurors "might tend to rebut an inference [drawn by the trial

25   court in connection with the defendant's attempt to establish a

26   prima facie case] that the prosecutor used his peremptory strikes

27   in a discriminatory manner, . . . this fact alone [i]s [not]



                                      14
1    sufficient to refute an otherwise-appropriate inference [of

2    discrimination]."    Harris, 346 F.3d at 346.

3                III. The New York State Court Decisions.

4                Based on principles established by Batson and its

5    progeny, and by AEDPA and the case law interpreting it, we agree

6    with the conclusion of the district court that a writ of habeas

7    corpus was not warranted here.    The state-court decisions were

8    not "contrary to, [and did not] involve[] an unreasonable

9    application of[] clearly established Federal law, as determined

10   by the Supreme Court of the United States," id. § 2254(d)(1), nor

11   were they "based on an unreasonable determination of the facts in

12   light of the evidence presented" in the trial court, id.

13   § 2254(d)(2).

14               According to the trial court, at the time the

15   petitioner raised her Batson claim, the totality of the relevant

16   facts did not give rise to an inference of discrimination.      The

17   court "d[id] not [at that time] find a pattern of purposeful

18   exclusion . . . sufficient to raise an inference of

19   discrimination based on the numbers."    Transcript of Proceedings

20   at 257, People v. Brown, No. 6815/97 (Sup. Ct. Bronx County Jan.

21   7, 1999).    The trial court's conclusion in this regard hinged

22   primarily on the fact that the Batson challenge was lodged

23   relatively early in the jury selection process.    The court

24   stated:

25               [B]ased on what [the defendant] said up to
26               this point and what you have pointed out up
27               to this point I'm not going to require the

                                      15
1               People to offer an explanation for their
2               peremptory challenges. You can renew the
3               application later [and] we'll see where the
4               challenges go from this point on.

5    Id.   We have "held, on habeas review, that a state court does not

6    act unreasonably where it denies a Batson challenge early in the

7    jury selection process."    Sorto, 497 F.3d at 170.   It is not

8    ordinarily unreasonable for a state court to conclude that a

9    petitioner has not made out a prima facie case when she raises a

10   Batson challenge "before jury selection [i]s completed and before

11   the . . . facts [a]re even fully established on the record."

12   Overton, 295 F.3d at 279.    "The need to examine statistical

13   disparities may commend a wait-and-see approach," Sorto, 497 F.3d

14   at 170, and the trial court's "wait-and-see approach" here was

15   not unreasonable.

16              The Appellate Division affirmed the trial court's

17   Batson ruling principally on the grounds that the "[d]efendant's

18   statistical claim regarding the prosecutor's allegedly

19   disproportionate use of peremptory strikes was insufficient to

20   support a prima facie showing of purposeful discrimination,

21   particularly in light of the racial makeup of the panel of

22   prospective jurors."   People v. Brown, 276 A.D.2d 429, 429-30,

23   715 N.Y.S.2d 18, 19 (1st Dep't 2000).    It was not unreasonable

24   for the Appellate Division to conclude that at the time

25   petitioner moved under Batson for the State to articulate a race-

26   neutral explanation for its peremptory challenges, the "rate of

27   minority challenges [was not] significantly higher than the


                                      16
1    minority percentage of the venire [thereby] support[ing] a

2    statistical inference of discrimination."   Alvarado, 923 F.2d at

3    255-56.   And it was not unreasonable for the Appellate Division

4    to conclude that the record before the trial court at the time of

5    the challenge did not contain sufficient "evidence of a

6    discriminatory intent" to justify the burden-shifting

7    contemplated by Batson.   Sorto, 497 F.3d at 171-72.

8               This is not to say that statistics alone can never

9    establish a prima facie Batson claim prior to the completion of

10   jury selection.   There are likely circumstances in which the

11   numbers of minority members struck, seated, and on the venire

12   would justify Batson's burden-shifting long before the last juror

13   was seated.    Nor do we mean to suggest that the petitioner here

14   could not have established a prima facie case on a complete

15   record in this case following a proper motion in the light of

16   that record.   A defendant may establish a prima facie case in any

17   number of ways, the burden of establishing such a case is not

18   onerous, and Batson left the trial court with substantial

19   discretion to determine whether such a case was made.   But here,

20   petitioner's Batson challenge was denied as premature, she failed

21   to renew the motion, and the status of jury selection at the time

22   of the challenge did not insure that the statistics would

23   establish a prima facie case irrespective of what happened during

24   the jury selection process thereafter.

25              For the foregoing reasons, we conclude that the

26   decision that a prima facie case had not been made out under

                                      17
1    Batson at the time the Batson claim was asserted was not

2    "contrary to, [n]or [did it] involve[] an unreasonable

3    application of, clearly established Federal law, as determined by

4    the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1),

5    nor was it "based on an unreasonable determination of the facts

6    in light of the evidence presented" in state court, id.

7    § 2254(d)(2).

8              The New York Court of Appeals affirmed.   For the

9    foregoing reasons, under the circumstances presented, that

10   decision does not provide a basis for habeas relief in the

11   federal courts.

12             We pause to note, nonetheless, that the Court of

13   Appeals, in rejecting the petitioner's argument, commented:

14             Defendant was explicitly invited by the trial
15             court to articulate any facts and
16             circumstances that would support a prima
17             facie showing of discrimination. Instead of
18             making a record comparing Caucasians accepted
19             with similarly situated African-Americans
20             challenged, or by establishing objective
21             facts indicating that the prosecutor has
22             challenged members of a particular racial
23             group who might be expected to favor the
24             prosecution because of their backgrounds,
25             defense counsel responded that certain
26             persons excused by prosecution peremptories
27             had no prior jury service or had attended
28             college and, thus, gave no indication that
29             they could not be 'fair.' Based on the
30             numbers and arguments presented, the trial
31             court ruled that it did not find a
32             discriminatory pattern. No further Batson
33             objection was raised during the remainder of
34             voir dire proceedings. Upon this record, we
35             conclude that defendant's numerical argument
36             was unsupported by factual assertions or
37             comparisons that would serve as a basis for a


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1                prima facie case of impermissible
2                discrimination.
3    Brown, 97 N.Y.2d at 508, 769 N.E.2d at 1271-72, 743 N.Y.S.2d at

4    380 (emphasis added; citations and internal quotation marks

5    omitted).

6                We find the emphasized language in the court's opinion

7    somewhat puzzling.    It seems, at least at first blush, to be at

8    odds with the Supreme Court's instruction that under Batson, "a

9    prima facie case of discrimination can be made out by offering a

10   wide variety of evidence, so long as the sum of the proffered

11   facts gives rise to an inference of discriminatory purpose."

12   Johnson, 545 U.S. at 170.    The Supreme Court has not, for

13   example, required that Batson challengers compare jurors struck

14   with jurors seated, nor has it required that they show that

15   jurors struck would have favored the prosecution.

16               But upon closer examination, we read the paragraph in

17   question not to impose specific requirements on persons making

18   Batson challenges.    Instead, we think, it provides examples of

19   evidence that "would [have] serve[d] as a basis for a prima facie

20   case of impermissible discrimination" had it been offered.

21   Brown, 97 N.Y.2d at 508, 769 N.E.2d at 1272, 743 N.Y.S.2d at 380.

22   Thus understood, there is nothing in the statement that is

23   contrary to clearly established federal law.

24               In any event, Supreme Court, Bronx County, the

25   Appellate Division, and the Court of Appeals, all reached the

26   conclusion that the petitioner had failed to make out a prima



                                      19
1   facie case of race discrimination under Batson.   We agree with

2   the district court that under the principles of both Batson and

3   AEDPA, that conclusion will not support the grant of a habeas

4   corpus petition.   We therefore affirm the judgment of the

5   district court denying the application for such a writ.

6                               CONCLUSION

7             For the foregoing reasons, the judgment of the district

8   court is affirmed.




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