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

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

CECIL DAVIS, Superintendent,
                                          Respondent-Appellant.
                          ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, South Bend Division.
                 No. 00 C 386—Allen Sharp, Judge.
                          ____________
    ARGUED DECEMBER 17, 2002—DECIDED AUGUST 5, 2003*
                          ____________


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


*
   This Court issued an opinion in this case on May 8, 2003. That
opinion has been vacated and the present opinion is issued in its
place.
1
  We refer to Petitioner by his legal name, Akeem Aki-Khuam,
noting that the district and state court opinions use his former
name, Edward Earl Williams.
2                                                No. 02-1945

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


                     BACKGROUND
  We presume the facts underlying Petitioner’s conviction
are stated correctly in the record of the state court proceed-
ings. The Indiana Supreme Court recited those facts as
follows:
    In the early morning hours of June 19, 1992, [Peti-
    tioner], armed with a handgun, Jemelle Joshua, armed
    with a shotgun, and three others set out to steal audio
    and video equipment from the basement of school
    teacher Michael Richardson. [Petitioner] and Joshua
    were admitted to Richardson’s home and their three
    accomplices followed them in. Besides Richardson, they
    encountered a number of children and adults, including
    Richardson’s sister, Debra Rice, and Robert Hollins.
    While [Petitioner] held his gun to Richardson’s head
    and Joshua held Rice, their accomplices headed for the
    basement. Hollins intercepted them and began to
    wrestle with one of them in the kitchen. [Petitioner]
    responded by shooting Hollins in the back.
    The electronic equipment proved too difficult to remove
    and [Petitioner] ordered the occupants of the house
    to lie down. Rice attempted to escape and Joshua shot
    her in the chest. As the invaders left the home, [Peti-
No. 02-1945                                                   3

      tioner] shot each of Hollins, Rice and Richardson once
      in the head despite Richardson’s plea, “Please don’t kill
      me.” A few hours later, [Petitioner] would tell his sister
      that he shot the victims so there wouldn’t be any wit-
      nesses.
Williams v. State, 669 N.E.2d 1372, 1375-76 (Ind. 1996).
  Petitioner, who is African-American, was charged with
three counts of murder and felony murder in Lake County,
Indiana. IND. CODE §§ 35-42-1-1(1) & (2). The prosecution
further alleged two aggravating factors for which it sought
the death penalty: (i) intentional killing during the course
of a robbery, IND. CODE §§ 35-50-2-9(b)(1)(F); and (ii) com-
mission of multiple murders, IND. CODE §§ 35-50-2-9(b)(8).
  During a pretrial hearing on January 12, 1993, Judge
James Letsinger outlined procedures for jury selection,
including peremptory challenges, intended to ensure com-
pliance with the due process and equal protection require-
ments of Batson v. Kentucky, 476 U.S. 79 (1986), and its
progeny. The following exchange took place between Judge
Letsinger and trial counsel for Petitioner:
      Trial Court: From the first peremptory strike, each side
      is going to have to have some reason for striking that
      person. I mean there’s almost no, no person on a jury
      that isn’t protected now. I mean they’ve extended it to
      everything.
      Defense Counsel: So what I’m hearing from the court is
      the peremptory challenges have now all been converted
      to challenges for cause?
      Trial Court: Almost. Almost. In the words of Splunge,2
      you’ve got to have some plausible reason supported by
      the record, supported by the record, plausible reason


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

    that is nonracial, non-gender, nonreligious, non-body
    language. They won’t even let—they won’t even allow
    body language. Splunge struck a black juror because
    she said—she didn’t understand the burden of proof in
    a criminal case, when actually her answers were the
    same as everybody else’s answers. It had to be sup-
    ported by the record.
  During voir dire on January 25, 1993, the trial court sua
sponte instructed counsel for each party to present its per-
emptory challenges along with a “neutral reason” for each.
The trial court excused two individuals after accepting the
prosecution’s stated reasons for challenging them, and
another two after accepting Petitioner’s stated reasons for
challenging. However, the trial court rejected Petitioner’s
stated reasons for five of his seven total challenges, even
though the prosecution raised no objection to Petitioner’s
challenges. With respect to four of those five, Petitioner
argued on direct appeal to the Indiana Supreme Court that
the trial court improperly rejected his reasons for perempto-
rily challenging them. In its opinion affirming Petitioner’s
conviction and death sentence, Indiana Supreme Court syn-
opsized the trial court’s rejection of those four challenges as
follows:
    1. The defense indicated that it sought to strike pro-
    spective juror Sosnawski, a white male, because in de-
    fense counsel’s “discussions with him, [defense counsel]
    didn’t get the impression that he really understood
    what was going on.” Finding “impressions” to be a
    “terrible” reason and a “euphemism” (presumably for a
    racially motivated strike), the trial court found the
    explanation “not race neutral” and refused to excuse
    Sosnawski.
    2. The defense indicated that it sought to strike pro-
    spective juror Wilson, a white male, because defense
    counsel’s “general impression” was, “number one, that
No. 02-1945                                                 5

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

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

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


                          ANALYSIS
  We review the district court’s legal determinations de
novo and—because Petitioner filed his habeas petition sub-
sequent to the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), codified at
28 U.S.C. § 2254—in accordance with the provisions of 28
U.S.C. § 2254(d). See, e.g., Williams v. Davis, 301 F.3d 625,
631 (7th Cir. 2002). That section provides, in relevant part,
as follows:
    An application for a writ of habeas corpus on behalf of a
    person in custody pursuant to the judgment of a State
    court shall not be granted with respect to any claim
    that was adjudicated on the merits in State court pro-
    ceedings unless the adjudication of the claim . . .
    resulted in a decision that was contrary to, or involved
    an unreasonable application of, clearly established Fed-


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

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

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

(plurality opinion) (O’CONNOR, J., concurring in judgment)).4
As the Purkett Court further explained,
     [i]t is not until the third step that the persuasiveness of
     the justification becomes relevant—the step in which
     the trial court determines whether the opponent of the
     strike has carried his burden . . . . [T]o say that a trial
     judge may choose to disbelieve a silly or superstitious
     reason at step three is quite different from saying that
     a trial judge must terminate the inquiry at step two
     when the race-neutral reason is silly or superstitious.
     The latter violates the principle that the ultimate
     burden of persuasion regarding racial motivation rests
     with, and never shifts from, the opponent of the strike.
Purkett, 514 U.S. at 768 (emphasis in original).
  Petitioner adduces various errors in the trial court’s
administration of the Batson test and the Indiana Supreme
Court’s direct review thereof, two of which especially trou-
bled the district court.
  First, at no time did the prosecution raise a Batson
challenge to Petitioner’s peremptory strikes, much less
establish a prima facie showing of purposeful discrimina-
tion. Rather, the trial judge replaced the first step of the
Batson analysis with the court’s presumption of purposeful
discrimination, thereby saddling Petitioner with the burden
of overcoming that presumption. As the district court
observed, the voir dire “process is still an adversarial one
and the case law, including Batson and the cases that
followed it, make it clear that Batson issues must be raised.
Batson is not self-executing.” Aki-Khuam, 203 F. Supp. 2d


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

at 1019. The district court further noted that “[n]one of the
cases between Batson and Purkett suggest[s] that the prima
facie case was not required, and Hernandez, which was
relied upon by the trial court and the Indiana Supreme
Court, explicitly set out the test, including the prima facie
case requirement.” Id. at 1018. A presumption of discrimi-
natory intent during voir dire is thus contrary to federal
law as established in Batson and subsequent related cases.
  Second, as recounted above in the excerpted portion of the
Indiana Supreme Court’s opinion, the trial court rejected
Petitioner’s race-neutral explanations not because they
demonstrated a discriminatory motive, but rather because
the trial court found the reasons, “terrible,” unsupported in
the record, based on a prospective juror’s response to a
“trick question,” or due to defense counsel’s introduction of
the word “slickster.” Insofar as the trial court rejected
Petitioner’s reasons outright as unreasonable or implausi-
ble (and not because they evinced some inherent discrimi-
natory intent) it applied precisely the standard that Purkett
rejects. 514 U.S. at 767-68 (“The second step . . . does not
demand an explanation that is persuasive, or even plausi-
ble. ‘Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed
race neutral.’ ”) (internal citations omitted). In the words of
the Purkett Court, the trial court below made the mistake
of collapsing “Batson’s second and third steps into one.” Id.
at 768.
  Moreover, though Purkett was not decided until May
1995, more than two years after the conclusion of Peti-
tioner’s trial, the Indiana Supreme Court, by the time of its
decision in August 1996, had not only ample opportunity,
but also a mandate from the United States Supreme Court,
to apply the law as articulated in Purkett in deciding
Petitioner’s appeal. Griffith v. Kentucky, 479 U.S. 314, 322-
23 (1987) (holding that “failure to apply a newly declared
12                                                    No. 02-1945

constitutional rule to criminal cases pending on direct
review violates basic norms of constitutional adjudication”).
Instead, with one reproachful eye fixed on the trial court’s
error (as evinced in its prospective ban on the use of this
procedure), it upheld Petitioner’s conviction and sentence
with a wink of the other.5 Thus did the district court
properly determine that both the trial court conviction and
sentence, and the state supreme court affirmance, rest on
law that is inconsistent with (and therefore contrary to) fed-
eral law as articulated in Batson and Purkett.
  Respondent contends that the trial court’s jury selection
procedure was constitutional under the Batson line of cases,
which, Respondent reasons, collectively establish a mini-
mum standard of constitutional protection from peremptory
challenges motivated by racial discrimination. Thus, argues
Respondent, to the extent that it deviated from the teach-
ings of Batson, the trial court afforded Petitioner and pro-
spective jurors a greater degree of constitutional protection



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

than Batson and subsequent relevant cases require. This
argument implies that Petitioner somehow benefitted from
the trial court’s improvisation. We disagree, in part because
we flatly reject the notion that Batson and its progeny
merely delineate a constitutional baseline that a trial court
might rightly surpass. Respondent’s position is premised on
the fiction that Batson claims supercede all other constitu-
tional concerns or, alternatively, that Batson’s teachings
exist in a vacuum. Quite to the contrary, the right to select
or serve on a jury free from racial discrimination is rooted
in the same constitutional equal protection and due process
considerations as many other constitutional rights, each of
which coexists in delicate balance with the others. As we
now explain, the trial court’s failed attempt to comport with
Batson impermissibly upset that balance.
  Rather than furnish Petitioner with superconstitutional
protections, as Respondent would have us believe, the trial
court’s misapplication of Batson violated his Fourteenth
Amendment due process and equal protection rights. Indi-
ana law permits a criminal defendant to exercise twenty
peremptory challenges in capital murder prosecutions. IND.
CODE §§ 35-37-1-3(a). Yet, as early as the January 12, 1993,
pretrial hearing, Petitioner’s trial counsel identified the
fatal flaw in the trial court’s approach to peremptory chal-
lenges: “So what I’m hearing from the court is the peremp-
tory challenges have now all been converted to challenges
for cause?” Although the trial judge replied “Almost,”
during the pretrial hearing, the manner in which he
conducted voir dire two weeks later betrays a resounding
“Yes.” Once the trial court imposed upon Petitioner the bur-
den of overcoming its sua sponte presumption of purposeful
discrimination, not only did it forego any cogent Batson
analysis, but it also deprived Petitioner of his statutory
right to exercise peremptory challenges. Batson, however,
only imposes limitations on the exercise of peremptory
challenges; it does not abolish them. Batson, 474 U.S. at 99
14                                                   No. 02-1945

n. 22. Petitioner had a substantial and legitimate expecta-
tion that he would be tried by a jury selected in accordance
with Indiana state law and federal constitutional law, in-
cluding those provisions guaranteeing his right to exercise
peremptory challenges. Instead, Petitioner was deprived of
his liberty by a jury whose very creation involved a denial
of his statutory and constitutional rights. Consequently,
Petitioner was denied due process and equal protection of
the law in violation of the Fourteenth Amendment. Cf.
Hicks v. Oklahoma, 447 U.S. 343 (1980) (holding that denial
of a criminal defendant’s right to be sentenced by a jury
in accordance with state law effected an arbitrary dep-
rivation of his liberty without due process of law).6 Owing
to this violation of Petitioner’s constitutional rights, it is
clear that the state trial court proceedings, and the state
supreme court review thereof, resulted in a decision
contrary to, and involving an unreasonable application of,
federal law as determined by the United States Supreme


6
   We are careful to note that today’s decision is strictly limited
to the issues raised on appeal by the parties, and should not be
read to hold that (i) the Constitution provides a per se right to
peremptory challenges, (ii) the Constitution per se requires states
to adhere to their own rules of trial procedure, or (iii) the harm-
less-error doctrine is inapplicable. Here, the elimination of Peti-
tioner’s state-constitutionally guaranteed right to peremptory
challenges resulted in their conversion to challenges for cause,
which the trial judge then denied not explicitly because they
appeared to be racially motivated, but rather because he was gen-
erally dissatisfied with Petitioner’s stated reasons for challenging
(such as the lack of a record showing that a potential juror could
not give Petitioner a presumption of innocence, or the absence
from the record of a “good reason” for striking a potential juror).
The resulting denial of Petitioner’s equal protection and due
process rights was not harmless (despite the Indiana Supreme
Court’s adoption of a prospective prohibition of the trial court’s
procedure, which seems to imply otherwise, see Williams, supra
note 5).
No. 02-1945                                                 15

Court in Batson and its progeny. The district court there-
fore properly granted the petition for writ of habeas corpus.


                      CONCLUSION
  Because the trial court and the Indiana Supreme Court
deviated significantly from the Batson line of cases with
respect to selection of the jury that convicted Petitioner,
and such deviation violated Petitioner’s due process and
equal protection rights under the Fourteenth Amendment,
the district court’s decision granting Petitioner habeas relief
pursuant to 28 U.S.C. § 2254 is AFFIRMED.

A true Copy:
       Teste:

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




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