                              In the

United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-4163

M ICHAEL F RANKLIN ,
                                                Petitioner-Appellant,
                                  v.

G REGORY S IMS, Warden,
                                                Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 06 C 5780—Milton I. Shadur, Judge.
                          ____________

       A RGUED JULY 9, 2008—D ECIDED A UGUST 14, 2008
                          ____________



  Before P OSNER, S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. Michael Franklin, who is African-
American, is serving a 23-year sentence in Illinois for
armed robbery. He petitioned for a writ of habeas
corpus, 28 U.S.C. § 2254, claiming that the prosecution
violated his right to equal protection by exercising peremp-
tory strikes against two of three African-American mem-
bers of the first six-person panel of the jury venire. See
Batson v. Kentucky, 476 U.S. 79 (1986). The district court
denied his petition. We affirm.
2                                               No. 06-4163

                      I. Background
  In 2001 two men, both armed and masked, entered the
King Food and Liquor Store in Chicago and stole $500-
$600. Franklin was charged with the robbery and tried
before a jury.
  During jury selection, the State exercised peremptory
strikes against jurors Margaret Cooley and Lance
Tyson—two of the three African-American members of
the first six-person panel of prospective jurors. Previous
questioning had revealed that Cooley is a housekeeper
who had never been accused of a crime nor been the
victim of a crime. She did, however, disclose that she had
relatives who had been raped and that her domestic
partner had spent time in prison. Tyson is an attorney
and has several friends who are civil-court judges. He
disclosed that he had received a speeding ticket, but when
the prosecutor confronted him with his court records,
Tyson admitted that the ticket was for driving under the
influence (DUI).
  The State struck Cooley and Tyson and accepted the
remaining four jurors in the six-person panel. Franklin
then made a Batson motion. The judge denied the motion,
finding that Franklin failed to make out a prima facie
case of discrimination. The following is the entire argu-
ment on the motion:
    Def: Okay. All right, Judge.
    Initially what I do is state for the record my client is
    African-American and Miss Cooley and Mr. Tyson are
    African-American and we could state that there
No. 06-4163                                                3

    don’t appear to be any race neutral reasons for bump-
    ing those individuals. We request the State give rea-
    sons for bumping both of them.
    Ct.: Well, that’s not the standard.
    Def.: Well, Judge, I’m establishing my prima facie case.
    Ct.: How are you doing that?
    Def.: There’s nothing I’ve heard that gives any reason
    why these people would be bumped and [they’re]
    African-American and my client is African-American.
    Ct.: But again my understanding is there’s got to be a
    showing of systematic exclusion of—well, I guess you are
    alleging African-Americans.
    Def.: I’ve also got to make a record, Judge. If we get to
    the end of this three hours from now and I want to
    start referring to earlier people that were bumped.
    Ct.: What I’m saying is these are [peremptory] chal-
    lenges. You don’t give reasons for [peremptory]
    challenges.
    If your argument is that the State has systematically
    excluded African-Americans because of your client’s
    race, you have to show me how that’s done.
    Isn’t Ms. Minefe African-American? 1
    St.: She is.




1
  Minefe was the third African-American member of the first
panel.
4                                               No. 06-4163

    Def.: Again, Judge, they should indicate that for the
    [record]. What I’m saying is they bumped two people.
    The first two that are gone are African-American
    people. I’m stating that for the record.
    Ct.: Okay. And you are making a Batson motion?
    Def.: Okay.
    Ct.: They don’t give reasons until I say that you have
    made a prima facie case of systematic exclusion.
    So the panel that they have tendered to you contains
    one African-American. The complaining witness in
    this case, what race is he?
    St.: He is African-American as well as the witnesses.
    Ct.: And all the witnesses?
    St.: Well, the other witness is Arab-American.
    Ct.: I’m going to deny your motion. Here is your panel.
(Emphasis added.) Franklin did not renew his objection at
the conclusion of jury selection and did not object to the
State’s exercise of any other peremptory strikes. Ulti-
mately, two members of the jury were African-American.
Franklin was convicted and sentenced to 23 years’ impris-
onment.
  Franklin appealed, and the Illinois Appellate Court
affirmed his conviction over a dissent. The court first
rejected Franklin’s contention that the trial judge had
denied his Batson motion pursuant to the standard articu-
lated in Swain v. Alabama, 380 U.S. 202 (1965), which Batson
had overruled. Swain required a defendant to “show the
No. 06-4163                                                5

prosecutor’s systematic use of peremptory challenges [on
the basis of race] over a period of time” to make out an
equal protection violation. 380 U.S. at 227. The Illinois
Appellate Court concluded that the voir dire transcript,
read in its entirety, demonstrated that the judge was
familiar with and applied the Batson standard.
  The Illinois Appellate Court also rejected Franklin’s
attack on the trial judge’s determination that he had not
made out a prima facie case of discriminatory strikes under
Batson’s first step. The court explained Batson’s three-
step process: the defendant must first establish a prima
facie case that the strikes were racially motivated; the
burden then shifts to the prosecutor to come forward with
a race-neutral reason for the strikes; and finally, the trial
judge assesses the credibility of the explanation and
determines whether purposeful discrimination has been
established. The court next applied a six-factor test from
a 1996 state case, People v. Williams, 670 N.E.2d 638 (Ill.
1996), to conclude that Franklin had not made an adequate
prima facie showing at step one. Specifically, the court
noted that the victim and two of the three witnesses
were also African-American (the third was Arab-Ameri-
can). This, the court said, undermined any inference of
discrimination. The court then explained that the venire
comprised thirty-six potential jurors, four of whom were
African-American, and that the State’s five other peremp-
tory strikes had not been used against African-Americans.
In the court’s view, striking two of four African-American
potential jurors did not amount to a pattern of discrimina-
tory strikes, and using two of seven peremptory strikes
against African-Americans was not a disproportionate
use of strikes against African-Americans.
6                                                 No. 06-4163

  Next, the Illinois Appellate Court reasoned that the
ultimate composition of the jury—16.7% African-American
(two out of twelve)—did not raise an inference of discrimi-
nation because African-Americans had constituted only
11.2% of the venire. And finally, the court noted that both
Cooley and Tyson had “raised some questions concerning
their ability to serve on a jury.” Specifically, the court
observed that some of Cooley’s family members had been
crime victims and that Tyson was evasive about his DUI
conviction.
  Franklin then filed a pro se petition under 28 U.S.C.
§ 2254 renewing his Batson claim. The district court denied
the petition, and this court granted a certificate of
appealability.


                       II. Discussion
  This case turns largely on the highly deferential standard
precribed by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), for evaluating state-
court decisions. To prevail, Franklin must show that the
adjudication of his claim by the Illinois courts resulted in
a decision that was contrary to or involved an unreason-
able application of clearly established federal law. 28 U.S.C.
§ 2254(d)(1); see Rice v. Collins, 546 U.S. 333, 338 (2006). In
other words, he must establish either that the Illinois court
applied the wrong legal standard or that it applied the
proper Supreme Court precedent in an “objectively
unreasonable manner,” Brown v. Payton, 544 U.S. 133, 141
(2005), issuing a decision that fell “well outside the bound-
aries of permissible differences of opinion.” See Hardaway
No. 06-4163                                                 7

v. Young, 302 F.3d 757, 762 (7th Cir. 2002). We assess the
decision of the last state court to rule on the merits of
a prisoner’s claim. Charlton v. Davis, 439 F.3d 369, 374
(7th Cir. 2006). Thus, Franklin cannot prevail unless the
Illinois Appellate Court unreasonably applied precedent
from the United States Supreme Court in upholding the
trial judge’s denial of Franklin’s Batson motion.
  Franklin’s first argument is not his strongest. He argues
that the Illinois Appellate Court’s decision is contrary to
clearly established law because it upheld the trial judge’s
use of the overruled Swain standard. Franklin contends
that the trial judge’s repeated references to Franklin’s
need to show “systematic exclusion” demonstrates that
the trial judge erroneously used the standard in Swain.
  Batson expressly overruled Swain’s requirement that a
defendant must prove a “repeated striking of African-
Americans over a number of cases,” clarifying that a
defendant may make the prima facie showing “by relying
solely on the facts concerning selection in his case.” Batson,
476 U.S. at 92-98. In McCain v. Gramley, 96 F.3d 288, 293-94
(7th Cir. 1996), we rejected an argument similar to Frank-
lin’s—namely, that the judge’s reference to “systematic
exclusion” meant that he had necessarily used the Swain
standard—when a full reading of the transcript demon-
strated otherwise.
  Franklin reads too much into the judge’s references to
“systematic exclusion.” The transcript demonstrates that
the judge used that phrase simply to mean a pattern of
strikes against African-Americans in Franklin’s case—which
although not a necessary showing if other indicia of
8                                              No. 06-4163

discrimination are present, is relevant to step one of the
Batson inquiry. See Batson, 476 U.S. at 97; United States
v. Stephens, 421 F.3d 503, 512 (7th Cir. 2005); Holloway v.
Horn, 355 F.3d 707, 722 (3d Cir. 2004). As the Illinois
Appellate Court pointed out, all the questions the judge
posed to defense counsel focused solely on the facts of
Franklin’s case. For example, the judge asked if there
were any African-American jurors who had not been
stricken and inquired about the races of the victim and the
witnesses. Nothing in this exchange indicates that the
judge was concerned with the State’s use of peremptory
challenges in other cases.
  Franklin attempts to distinguish McCain by arguing
that the trial judge in Franklin’s case said nothing that
demonstrated his familiarity with Batson whereas the
judge in McCain cited Batson. See McCain, 96 F.3d at 293-
94. Franklin is incorrect; the trial judge in Franklin’s
case also referred to Batson by name. The judge further
demonstrated his familiarity with Batson’s burden-shifting
formula when he explained to defense counsel that the
prosecution need not provide an explanation for its
strikes until the court determined that Franklin had made
a prima facie showing of discriminatory use of
peremptories.
  Franklin’s second argument presents a closer question.
He argues that even if the trial judge applied Batson and
not Swain, the appellate court’s decision was unreasonable
because the court erroneously concluded that the trial
judge applied Batson properly. Franklin contends that in
evaluating his prima facie showing at step one, both the
No. 06-4163                                                 9

trial judge and the appellate court improperly considered
whether he had proved discrimination—not whether he
had raised an inference of discrimination as Batson’s first
step requires—and thereby compressed the three-part
test into one, absolving the State of its duty to provide a
race-neutral explanation for its strikes. In particular,
Franklin points to the appellate court’s discussion about
potential reasons for the strikes, such as the fact that
Cooley had family members who were crime victims
and Tyson had been initially unwilling to disclose his
DUI conviction. This aspect of the appellate court’s opin-
ion does give us pause.
  About three months before the Illinois Appellate Court
affirmed Franklin’s conviction, the Supreme Court issued
Johnson v. California, 545 U.S. 162 (2005), in which it empha-
sized that a defendant’s burden at Batson’s first step is
light; the defendant need merely present “evidence
sufficient to permit the trial judge to draw an inference that
discrimination has occurred.” Id. at 170. As we have
explained, Johnson clarified that “the burden at the prima
facie stage is low, requiring only circumstances raising
a suspicion that discrimination occurred, even when
those circumstances are insufficient to indicate that it is
more likely than not that the challenges were used to
discriminate.” Stephens, 421 F.3d at 512; see United States v.
Abdush-Shakur, 465 F.3d 458, 469 (10th Cir. 2006) (same).
  In addition, Johnson limited the ability of appellate courts
to consider, at the prima facie stage, the apparent reasons
for the challenges discernible from the record. We have
explained that after Johnson, “an inquiry into apparent
10                                              No. 06-4163

reasons [at the prima facie stage] is relevant only insofar
as the strikes are so clearly attributable to that apparent,
non-discriminatory reason that there is no longer any
suspicion, or inference, of discrimination in those strikes.”
Stephens, 421 F.3d at 516; accord Williams v. Runnels,
432 F.3d 1102, 1108-09 (9th Cir. 2006) (likewise in light of
Johnson limiting the inquiry into so-called “apparent”
reasons for strikes at the prima facie stage); see, e.g.,
Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th Cir. 1998)
(hypothesizing as an example that all the stricken panelists
were lawyers). Thus, for example, we concluded in
Stephens that the defendant had made out his prima facie
case without reference to the government’s post hoc
reasons, which consisted of a combination of the stricken
jurors’ encounters with law enforcement officials, their
criminal histories, and their litigation histories. See
Stephens, 421 F.3d at 517-18.
  Here, the State argues that the apparent reasons con-
sidered by the appellate court for striking Cooley and
Tyson were fair game for consideration at the prima facie
stage even after Johnson. But those potential reasons are
of the same type as those at issue in Stephens, which this
court refused to consider in light of Johnson; the Illinois
Appellate Court should not have considered them in
Franklin’s case. Doing so risked collapsing all three of
Batson’s steps into the prima facie inquiry.
  But this was a small part of the appellate court’s
analysis, and there is no evidence from the voir dire
transcript that the trial judge himself improperly collapsed
Batson’s three steps. In affirming the trial judge’s deci-
No. 06-4163                                                11

sion, the Illinois Appellate Court primarily relied on the
fact that the State struck only two out of four African-
American jurors of the thirty-six-person venire; that it used
only two of its seven peremptory strikes against African-
Americans; that at 16%, African-Americans were over-
represented on the jury given that they comprised 11% of
the venire; and that the victim and two of the witnesses
were also African-American. Factors such as these are
widely recognized as appropriate and important con-
siderations at Batson’s first step, even after Johnson, for
determining whether an inference of discrimination has
been raised. See Batson, 476 U.S. at 97; Stephens, 421 F.3d
at 512-15; see also Boyd v. Newland, 467 F.3d 1139, 1147 (9th
Cir. 2006); United States v. Ochoa-Vasquez, 428 F.3d 1015,
1044-45 (11th Cir. 2005); Holloway, 355 F.3d at 723. And
while the burden of raising an inference of discrimination
at the prima facie step is low, the court’s reference to these
factors cannot be deemed unreasonable—as required by
AEDPA. Cf. Johnson, 545 U.S. at 164 (prima facie case made
where State used three of twelve peremptory strikes to
remove 100% of African-American venire members);
Williams, 432 F.3d at 1107-08 (prima facie showing made
where State used three of first four challenges against
African-Americans and there were only four African-
Americans in forty-nine-person venire); Stephens, 421
F.3d at 513-15 (on direct appeal, prima facie case made
where prosecutor used six of seven peremptory strikes
against minorities); Holloway, 355 F.3d at 722 (prima
facie showing made where State used eleven of twelve
strikes against African-Americans).
  Franklin argues that the Illinois Appellate Court should
have focused on the fact that the State struck two of the
12                                                No. 06-4163

three African-American panelists on the first six-person
panel because it was at that point that the trial judge
denied Franklin’s Batson motion. Franklin’s point is well-
taken, but we cannot conclude it was unreasonable for
the court to examine the entirety of the jury-selection
process. Franklin does not point to any case that parses out
the inquiry as he suggests, and both Johnson and Stephens
countenance the methodology used by the Illinois Appel-
late Court.2 Cf. Johnson, 545 U.S. at 164; Williams, 432 F.3d
at 1107-08; Stephens, 421 F.3d at 513-15; Holloway, 355 F.3d
at 722.
    For the foregoing reasons, the judgment is A FFIRMED.




2
  In addition, had Franklin renewed his Batson motion posttrial
as he was in fact required to, see People v. Enoch, 522 N.E.2d
1124 (Ill. 1988), the trial judge could have—and presumably
would have—analyzed these same figures. The appellate court
agreed to review the claim despite what was technically a
waiver on Franklin’s part only because the claim was of
“constitutional dimension.”



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