Sorto v. Herbert

* The official caption misspells petitioner’s name. 1
The caption is hereby corrected. 2
05-0728-pr
Sorto v. Herbert
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term 2005 5
6
7
(Argued: June 20, 2006 Decided: March 9, 2007) 8
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(Amended: August 10, 2007) 10
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Docket No. 05-0728-pr 12
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VALENTIN SORTO ,*
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Petitioner-Appellant, 18
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- v. - 20
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VICTOR HERBERT, Superintendent of the 22
Attica Correctional Facility , 23
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Respondent-Appellee. 25
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Before: JACOBS, Chief Judge, POOLER, WESLEY, Circuit 30
Judges. 31
32
Appeal from a judgment of the United States District 33
Court for the Eastern District of New York (Korman, Ch.J.), 34
denying the petition for habeas corpus. A state court jury 35
convicted petitioner of murder, assault, and criminal 36

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2
possession of a weapon; petitioner claims that jury 1
selection was conducted in violation of the rule in Batson 2
v. Kentucky, 476 U.S. 79, 97-98 (1986), and its progeny. 3
The district court denied the petition, and we affirm. 4
Judge Pooler dissents in a separate opinion. 5
6
MONICA A. JACOBSON, New York, 7
NY, for Petitioner-Appellant. 8
9
10
DENISE PALVIDES, Assistant 11
District Attorney for Nassau 12
County (Kathleen M. Rice, 13
District Attorney for Nassau 14
County, Peter A. Weinstein, 15
Assistant District Attorney for 16
Nassau County, of counsel), 17
Mineola, NY, for Respondent- 18
Appellee. 19
20
21
22
DENNIS JACOBS, Chief Judge: 23
Petitioner Valentin Sorto, convicted of murder and 24
related offenses in New York state court, petitions for a 25
federal writ of habeas corpus on the ground that the state 26
courts unreasonably misapplied Batson v. Kentucky, 476 U.S. 27
79, 97-98 (1986), and its progeny. During jury selection, 28
Sorto twice asserted that the prosecution was discriminating 29
against minority jurors in its exercise of peremptory 30
strikes; both challenges were denied for failure to 31

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3
establish a prima facie case of discrimination. Resolution 1
of the Batson issue in this case requires more information 2
about the possible jurors than the record discloses. Only 3
limited portions of jury selection were recorded: This 4
Court has not been presented with a full transcript of the 5
voir dire, or with data describing the composition of the 6
potential juror pool. Because Sorto bears the burden of 7
demonstrating an unreasonable application of federal law, 8
the insufficiency of the record defeats his petition, and we 9
therefore affirm. 10
11
BACKGROUND 12
Valentin Sorto was arrested for the April 27, 1997 13
murder of Jose Alvarez and the severe beating of Lazaro 14
Cruz. According to the prosecution, Sorto and another man 15
retaliated for an attack on their fellow gang member by 16
stabbing Alvarez in the neck and chest, leaving him to bleed 17
to death in a stairwell; and Sorto punched Cruz and slashed 18
his hands with a broken glass bottle. Sorto and his 19
accomplice were indicted for murder in the second degree, 20
assault in the second degree, and criminal possession of a 21
weapon in the third degree. The accomplice pled guilty; 22

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4
Sorto went to trial and was convicted. 1
At Sorto’s trial, jury selection proceeded according 2
to the “jury box” system, in which groups of fourteen 3
prospective jurors are randomly called from the venire, 4
interviewed, and then challenged by the attorneys. 5
Following decision on the challenges for cause, the lawyers 6
are afforded the opportunity to exercise one or more of 7
their twenty peremptory challenges. A new set of potential 8
jurors is then invited into the jury box, and the process 9
repeated until a jury is empaneled. See generally People v. 10
Webb, 722 N.Y.S.2d 349, 350-51 (N.Y. Sup. Ct. 2001). 11
12
Round One 13
In the first round of jury selection, the prosecution 14
challenged potential juror Vidal Martinez for cause, citing 15
Martinez’s expressed sympathy for gang members, and his 16
concession that he would have trouble deferring to the 17
interpreter in the translations from Spanish. Sorto 18
contested the challenge for cause, but allowed that the 19
prosecution would be free to “us[e] one of his peremptories” 20
to strike Martinez. The trial judge agreed and rejected the 21
challenge for cause. Five more first-round jurors were 22
dismissed for cause, all upon objection by the prosecutor. 23

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1 In the state court, the parties vigorously debated 1
whether different minority groups should be aggregated-- 2
particularly African American and Latino groups--towards 3
evaluating a Batson prima facie case. This Court has since 4
held that “a defendant raising a Batson claim of purposeful 5
racial discrimination does not have to demonstrate that all 6
venirepersons who were peremptorily excused belong to the 7
same ‘cognizable racial group.’” Green v. Travis, 414 F.3d 8
288, 297 (2d Cir. 2005) (internal citations omitted). The 9
state court (not yet guided by our decision in Green) 10
expressed reluctance to aggregate in discussing the second 11
Batson challenge, but implied no view on the issue in 12
denying the first Batson challenge. However, because the 13
petitioner has not sufficiently established the factual 14
circumstances giving rise to the second Batson challenge, 15
the state court’s erroneous view on aggregation is not 16
implicated here. 17
5
Next, the prosecution exercised peremptory strikes 1
against three jurors: [i] Martinez; [ii] Carlos Rivera, who 2
is of Salvadoran descent; and [iii] and John Harper, an 3
African American. Defendant then raised the first of his 4
two Batson objections. Defendant argued: that Martinez was 5
a peace officer who likely would be welcomed by the 6
prosecution but for a discriminatory motive; that Rivera had 7
filled out an unobjectionable jury questionnaire and that 8
there was no basis for striking him other than his 9
nationality, which was the same as the defendant’s; and that 10
the use of three prosecutorial strikes against three 11
minority potential jurors established (under the 12
circumstances) a pattern of discrimination. 1
13
The prosecution disputed the existence of a prima facie 14

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2 At trial, the parties disputed whether the 1
“withdrawal” of a challenge has any impact for Batson 2
purposes. For purposes of this appeal we will assume, 3
arguendo, that the withdrawn strike still factors into a 4
prima facie analysis. 5
6
case of discrimination, and accordingly offered no further 1
explanation for its strikes. However, the prosecution 2
withdrew its objection to Martinez, thereby empaneling one 3
of the two challenged Latino jurors. 2 Defendant casts the 4
prosecution’s about-face as a telling implicit admission; 5
the court construed it as a token of the good faith. 6
The state court denied the Batson challenge for lack of 7
a prima facie case, but agreed to remain seized of the 8
issue, especially as related to the strike of Rivera: “the 9
Court will keep it in mind as we proceed. So certainly we 10
should keep both the questionnaire and the card of 11
[Rivera].” Trial Tr. at 132. 12
13
Round Two 14
Only two jurors were successfully empaneled after round 15
one; a second set of potential jurors were called to the 16
jury box for voir dire. On this second round, the 17
prosecution challenged Hazel Mays (an African American ) for 18
cause on the ground that Mays had hesitated before agreeing 19
to be fair and impartial, and because she supposedly 20

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7
admitted that she “identifie[d] with the defendant because 1
he is a member of a minority group.” When the challenge for 2
cause was denied, the prosecution exercised a peremptory 3
challenge to excuse her. After the peremptory strike of 4
Mays, the defendant interposed a second Batson challenge, 5
claiming discrimination “in regards to the prosecution’s 6
elimination of Mrs. Mays.” (emphasis added). The record 7
does not clearly show what evidence was submitted to support 8
the prima facie case at this juncture. Defendant did not 9
reprise the first-round eliminations of Harper and Rivera as 10
evidence to support a prima facie case on this later motion, 11
but the judge may have made that assumption, because he 12
asked, with regard to this second Batson challenge, whether 13
defendant placed “Hispanic and black in the same group.” 14
In response to the second Batson challenge, the 15
prosecution spontaneously explained its strike of juror 16
Harper--the African American dismissed in round one--even 17
though Harper was not mentioned as the subject or basis of 18
the second motion. The prosecutor defended that strike on 19
the ground of Harper’s “sympathy” for his imprisoned nephew, 20
and Harper’s prior hostile run-ins with the police. The 21
prosecution did not attempt to explain its round-one strike 22
of Rivera, nor was that strike ever mentioned by either 23

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3 Use of the singular (“juror”) is suggestive: Even if 1
the trial judge assumed at the onset that the second Batson 2
challenge was supported by the Rivera and Martinez strikes, 3
and even if the trial judge operated under this assumption 4
while denying the challenge, reference to a “particular 5
juror” indicates that the state court believed that only the 6
Mays strike (and not the previous round’s strike of Rivera) 7
had been challenged. 8
8
party during round two. 1
Next, the prosecution explained that it challenged Mays 2
because of her announced self-identification with the 3
defendant. In any event, the prosecution asserted that no 4
explanation was needed because no prima facie case had been 5
stated. 6
The state court dismissed the second Batson challenge 7
on the grounds that the defendant “hadn’t reached the 8
threshold with respect to the particular juror,” 3 and in the 9
alternative (“in case another Court were to find 10
differently”), that the prosecution had successfully offered 11
non-pretextual, race-neutral explanations for the dismissals 12
of jurors Harper and Mays. 13
Sorto’s state appeal argued (inter alia) that the trial 14
court (1) erroneously ruled that a prima facie case had not 15
been established after the first round objections, (2) 16
erroneously ruled that a prima facie case had not been 17
established after the second round objection, and (3) 18

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9
erroneously found the prosecution’s proffered explanations 1
for the Harper and Mays strikes were non-pretextual. The 2
Appellate Division treated “defendant’s [Batson] contentions 3
[as] either unpreserved for appellate review or without 4
merit.” People v. Sorto, 274 A.D.2d 487, 487 (N.Y. App. 5
Div. 2000). As to the existence of a Batson prima facie 6
case, the parties agree that because the government offered 7
no procedural default argument, the Appellate Division 8
affirmance constitutes a ruling on the merits for purposes 9
of the Antiterrorism and Effective Death Penalty Act of 1996 10
(“AEDPA”). The New York Court of Appeals denied leave to 11
appeal. 95 N.Y.2d 893. 12
Sorto next petitioned for federal habeas relief, 13
challenging (inter alia) the Batson rulings. The district 14
court denied the petition, but granted a certificate of 15
appealability as to the Batson claims. 16
17
DISCUSSION 18
Because the Appellate Division rendered a decision on 19
the merits, our review of the prima facie rulings is 20
governed by AEDPA. Torres v. Berbary, 340 F.3d 63, 68 (2d 21
Cir. 2003). Under AEDPA, a petition for a writ of habeas 22
corpus claiming a state court error of law “shall not be 23

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10
granted . . . unless the adjudication of the claim resulted 1
in a decision that was contrary to, or involved an 2
unreasonable application of, clearly established Federal 3
law, as determined by the Supreme Court of the United 4
States.” 28 U.S.C. § 2254(d)(1). See also Williams v. 5
Taylor, 529 U.S. 362, 365 (2000). “[A]n unreasonable 6
application of clearly established Supreme Court precedent 7
occurs when a state court identifies the correct governing 8
legal principle from the Supreme Court's decisions but 9
unreasonably applies that principle to the facts of the 10
prisoner's case.” Torres, 340 F.3d at 69 (internal 11
citations omitted). While “[t]he precise method for 12
distinguishing objectively unreasonable decisions from 13
merely erroneous ones” is somewhat unclear, “it is 14
well-established in this Circuit that the ‘objectively 15
unreasonable’ standard of § 2254(d)(1) means that petitioner 16
must identify some increment of incorrectness beyond error 17
in order to obtain habeas relief.” Id. (internal citations 18
omitted). This Court reviews a district court’s denial of 19
petition for a writ of habeas corpus de novo. Harris v. 20
Kuhlman, 346 F.3d 330, 342 (2d Cir. 2003). 21
22
23

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11
Round One 1
The Supreme Court’s decision in Batson v. Kentucky, 476 2
U.S. 79 (1986), and its progeny limit the traditionally 3
unfettered prerogative of exercising peremptory strikes by 4
forbidding certain discrimination in jury selection. The 5
Supreme Court has generally granted individual courts the 6
leeway to adopt their own procedures to test for 7
discriminatory strikes. See Howard v. Senkowski, 986 F.2d 8
24, 29 (2d Cir. 1993) (“[T]he decisions . . . recognize the 9
role that remains for lower courts to work out the mechanics 10
for implementing these requirements.”). That leeway is 11
granted within a procedural framework: 12
The Batson Court . . . establish[ed] a three-step 13
burden-shifting framework for the evidentiary 14
inquiry into whether a peremptory challenge is 15
race-based: First, the moving party--i.e., the 16
party challenging the other party's attempted 17
peremptory strike--must make a prima facie case 18
that the nonmoving party's peremptory is based on 19
race. Second, the nonmoving party must assert a 20
race-neutral reason for the peremptory challenge. 21
The nonmoving party's burden at step two is very 22
low. . . . [A]lthough a race-neutral reason must 23
be given, it need not be persuasive or even 24
plausible. Finally, the court must determine 25
whether the moving party carried the burden of 26
showing by a preponderance of the evidence that 27
the peremptory challenge at issue was based on 28
race. 29
30
McKinney v. Artuz, 326 F.3d 87, 97-98 (2d Cir. 2003) 31
(internal citations omitted). 32

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12
The first step of the Batson analysis, requiring the 1
showing of a prima facie case, is not meant to be onerous. 2
Johnson v. California, 545 U.S. 162, 170 (2005). However, 3
this stage of the analysis still requires consideration of 4
“all relevant circumstances.” Batson, 476 U.S. at 96. As 5
Batson explained: 6
[A] ‘pattern’ of strikes against black jurors 7
included in the particular venire might give rise 8
to an inference of discrimination. Similarly, the 9
prosecutor's questions and statements during voir 10
dire examination and in exercising his challenges 11
may support or refute an inference of 12
discriminatory purpose. These examples are merely 13
illustrative 14
15
Id. The prima facie inquiry is a hurdle that preserves the 16
traditional confidentiality of a lawyer’s reason for 17
peremptory strikes unless good reason is adduced to invade 18
it: While litigants must now explain their motivations for 19
certain strikes, courts must still be mindful of “each 20
side’s historical prerogative to make a peremptory strike or 21
challenge . . . without a reason stated” if a prima 22
facie case of discrimination has not been established. 23
Miller-El v. Dretke, 125 S. Ct. 2317, 2324 (2005) (internal 24
citation omitted). 25
To establish a prima facie case, “a defendant must show 26
facts and circumstances that raise an inference that the 27
prosecutor used the peremptory challenge to exclude 28

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13
potential jurors from the petit jury on account of their 1
race.” Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002). 2
The discharge of this burden may entail a review of 3
prosecutorial strikes over the span of the selection 4
process: Thus this Court has held, on habeas review, that a 5
state court does not act unreasonably where it denies a 6
Batson challenge early in the jury selection process. Id. 7
at 279. 8
Where a litigant points to a pattern of strikes as 9
evidence of discrimination, “statistical disparities are to 10
be examined” as part of the Batson prima facie inquiry. 11
United States v. Alvarado, 923 F.2d 253, 255 (2d Cir. 1991). 12
The need to examine statistical disparities may commend a 13
wait-and-see approach. As we held in Overton (where the 14
Batson challenge was brought after seven of ten potential 15
African American jurors were dismissed through peremptory 16
challenges), an early Batson challenge limits the state 17
court’s ability to properly assess a prima facie case: 18
the trial judge never confront[s], and the trial 19
record does not reveal, what the statistics would 20
[] show[] at the conclusion of jury selection. If 21
those statistics sufficiently establish[] the 22
inference that challenges [a]re based on race, the 23
court could then [] implement[] the Batson process 24
to ensure that impermissible challenges [are] not 25
[] allowed. If, on the other hand, the statistics 26
at the conclusion fail[] to support a sufficient 27
inference, there would be no need to engage in the 28

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4 Alternatively, petitioner argues that the 1
prosecution’s withdrawal of its peremptory challenge to 2
juror Martinez was so irregular as to evince a prima facie 3
case of discrimination. The state court interpreted this 4
withdrawal as a gesture of good faith by the prosecution. 5
This was a reasonable interpretation of the prosecution’s 6
motive: The withdrawn challenge could reasonably be viewed 7
as expressing a willingness to empanel one of two potential 8
Hispanic jurors interviewed in round one. Though Sorto 9
cannot understand why the prosecution would have withdrawn a 10
peremptory from a juror previously challenged for cause, 11
Sorto himself provides a possible answer: As part of his 12
Batson challenge, Sorto reminded the prosecution that 13
Martinez worked as a peace officer and would therefore 14
likely be a favorable witness for the prosecution. 15
Accordingly, the state court did not act unreasonably in 16
ruling that the withdrawn challenge did not support a prima 17
facie case. 18
14
process. 1
2
Overton, 295 F.3d at 279 (emphasis added). Overton 3
concluded that the state trial judge acted reasonably in 4
“refus[ing] to implement Batson's process for testing each 5
questioned challenge midway in the process.” Id. at 280 6
(emphasis added). 7
Sorto raised his first Batson challenge after only 8
three peremptory strikes. The state court acted reasonably 9
in denying this challenge as premature, while remaining open 10
to reevaluating these strikes as part of a later challenge. 11
Accordingly, the district court did not err in denying the 12
habeas petition challenging the denial of the first round 13
Batson challenge.4
14

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15
1
Round Two 2
The existence of a prima facie Batson case is a mixed 3
question of law and fact. Overton, 295 F.3d at 276-77. On 4
habeas review, then, we will disturb the state court ruling 5
only if it “was contrary to, or involved an unreasonable 6
application of, clearly established Federal law.” Id. at 7
277 (quoting 28 U.S.C. § 2254(d)(1)). Sorto raises no 8
argument that the state court identified the wrong legal 9
standard; he therefore must show an unreasonable 10
application. 11
“[A] state court decision fails the ‘unreasonable 12
application’ prong of AEDPA analysis, ‘if the state court 13
identifies the correct governing legal principle from [the 14
Supreme Court's] decisions but unreasonably applies that 15
principle to the facts of the prisoner’s case.’” Id. 16
(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). To 17
challenge the application of law to fact, a petitioner must 18
demonstrate the existence of a particular set of facts to 19
which a legal rule was applied: We cannot say whether a 20
properly identified rule of law was wrongly applied unless 21
we know the set of facts to which the rule was applied. 22
See generally Escalera v. Coombe, 826 F.2d 185, 193 (2d Cir. 23

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5 Here, “venire” refers to the jurors who were called 1
to the jury box and subject to evaluation and strike. The 2
term may also be used to reference the entire group of 3
jurors eligible to be called into the jury box. Information 4
regarding jurors who were eligible but not called may form 5
part of a sufficient record insofar as that information 6
assists a reviewing court in evaluating the pattern of 7
strikes at issue or the strategy and motive of the lawyer 8
exercising the strikes. 9
16
1987) (mixed questions of law and fact create “subsidiary 1
questions of historical fact”). Facts on which a petitioner 2
hopes to rely must be established by (at least) a 3
preponderance of the evidence in the habeas court. Galarza 4
v. Keane, 252 F.3d 630, 637 n.5 (2d Cir. 2001). 5
When, as here, a Batson prima facie case depends on a 6
pattern of strikes, a petitioner cannot establish that the 7
state court unreasonably concluded that the pattern was not 8
sufficiently suspicious unless the petitioner can adduce a 9
record of the baseline factual circumstances attending the 10
Batson challenge. A sufficient record would likely include 11
evidence such as the composition of the venire, 5 the 12
adversary’s use of peremptory challenges, the race of the 13
potential jurors stricken, and a clear indication as to 14
which strikes were challenged when and on what ground, and 15
which strikes were cited to the trial court as evidence of a 16
discriminatory intent. That information may be common 17
knowledge in the courtroom based on the shared perceptions 18

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17
of the lawyers and the trial judge; but an appellate court 1
does not have the benefit of what can be observed by those 2
in the trial courtroom. Therefore, to the (appreciable) 3
extent that information regarding the jury and the voir dire 4
process bears upon establishing a prima facie case, a 5
sufficient appellate record may depend on a recitation of 6
relevant information on the record in the trial court. 7
For example, in United States v. Alvarado we stated: 8
[T]he prosecution’s challenge rate against 9
minorities was 50 percent (three of six) in the 10
selection of the jury of 12, and 57 percent (four 11
of seven) in the selection of the jury of 12 plus 12
alternates. Whether this rate creates a 13
statistical disparity would require knowing the 14
minority percentage of the venire; for example, if 15
the minority percentage of the venire was 50, it 16
could be expected that a prosecutor, acting 17
without discriminatory intent, would use 50 18
percent of his challenges against minorities. 19
20
923 F.2d 253, 255 (2d Cir. 1991) (emphasis added). The 21
analysis is thus driven by information regarding the 22
prosecution’s strikes so that the federal court can usefully 23
consider a prosecutorial strike pattern in the essential 24
contexts. 25
The Alvarado Court met this need by taking judicial 26
notice of the counties that compose the Eastern District of 27
New York and the minority percentage of the populations of 28
those counties, and then accepting that percentage as a 29

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18
“surrogate” for the minority population of the venire. Id. 1
at 256. On direct appeal from a conviction in district 2
court, a panel may, in a suitable case, supplement the 3
record in such a manner (though that is a thin basis for 4
assigning discriminatory motive to an officer of the court). 5
But it is one thing to say that a panel may exercise that 6
discretion on direct appeal in a suitable case, and quite 7
another to hold on collateral review that it is contrary to 8
or an unreasonable application of Batson for a state court 9
to fail to take judicial notice of such “surrogate” facts 10
and data, particularly where no such request appears to have 11
been made, cf. N.Y. C.P.L.R. 4511, and where, for all we 12
know, “surrogate” data in lieu of record facts may not have 13
been at hand in the state court. In any event, we would in 14
this case decline to exercise our discretion to take 15
judicial notice of the counties from which Sorto’s venire 16
was drawn in order to determine the minority percentages of 17
those counties, or to assume that those percentages would 18
reflect the ethnic or racial makeup of the venire in Sorto’s 19
trial. 20
The record before us contains insufficient data as to 21
the prosecution’s strike pattern to support a finding that 22
the state court unreasonably applied Batson. For example, 23

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6 Our analysis is naturally influenced by the context 1
of this case: [i] a state court’s denial [ii] of a Batson 2
motion that is premised on an allegedly pernicious pattern 3
of strikes. Given our deferential habeas review, we cannot 4
disturb a state court judgment as “unreasonable” unless we 5
19
between the strikes of Rivera and Mays, the prosecution 1
exercised peremptory challenges against potential jurors 2
Mink and Burdonis. Petitioner’s brief states that Mink was 3
not a minority; however, we have no particulars about 4
Burdonis or about the prospective and empaneled jurors who 5
were not challenged by the prosecution. Moreover, Sorto 6
lacks any resource in the record to resolve in his favor 7
conflicting reports as to the composition of the venire. At 8
oral argument, petitioner suggested--without evidence--that 9
the strikes of Rivera and Martinez removed all the Hispanic 10
potential jurors from the venire. But petitioner’s brief 11
acknowledges (at least) one additional Hispanic potential 12
juror on the venire (potential juror Zate). Appellant’s Br. 13
at 7. Beyond this, we have no information as to how many 14
Hispanic and minority potential jurors remained on the 15
venire after all of the challenged strikes. Absent this 16
information, we cannot say that the state court acted 17
unreasonably: The venire may have overwhelmingly consisted 18
of minority jurors, rendering any individual peremptory 19
strike of a minority juror less suspicious. 6
20

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can consider the factual background that gave rise to a 1
state court ruling. Background data as to the venire would 2
seem less necessary when a Batson challenge is premised on 3
evidence other than pattern, such as comments made during 4
voir dire or during the exercise of challenges. See 5
generally Batson, 476 U.S. at 96. 6
20
The dissent illustrates what happens when insufficient 1
care is taken to build a record of Batson discrimination: 2
the case is made to depend on a labored piecing together of 3
transcript fragments in an effort to intuit the race and 4
ethnicity of jurors and to reconstruct and imagine what 5
might have happened. 6
A well-crafted record in the state trial court is 7
needed also to fix (1) the scope of a given Batson challenge 8
and (2) the evidence adduced to support the motion. Sorto 9
argues that the state “court’s failure to require a reason 10
for the challenge to Rivera was an unreasonable disregard of 11
its duty under Batson.” Petitioner’s Br. at 34. But the 12
record is far too sketchy to support a conclusion that the 13
state court acted unreasonably in refusing to demand an 14
explanation for the Rivera strike. In reviewing the second- 15
round Batson challenge, we are unable to identify (1) 16
precisely which strikes were challenged, and (2) on what 17
basis any challenge was made. 18
Seemingly, the round two challenge was limited to the 19

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7 See our discussion at supra note 3. 1
8 Sorto did not waive his ability to petition for 1
habeas relief by his failure to restate his challenges to 2
Rivera and Harper. It is true that a Batson objection is 3
waived if not restated in the federal district court; but on 4
a habeas petition challenging a state judgment, waiver is a 5
matter of state procedure. DeBerry v. Portuondo, 403 F.3d 6
57, 66 (2d Cir. 2005). The issue of restated challenges is 7
not implicated here; our ruling is premised on the 8
substantive insufficiency of the habeas claim. For example, 9
we would be no more likely to find a Batson violation in 10
Round Two even if petitioner had not challenged the Rivera 11
and Harper strikes in Round One. 12
21
strike of Mays: Sorto described the second round challenge 1
as “regard[ing] the prosecution’s elimination of Mrs. Mays.” 2
Trial Tr. at 208 (emphasis added). Petitioner argues that a 3
question posed by the trial judge (whether the second round 4
challenge grouped together strikes to African Americans and 5
Hispanics) indicated that “the trial court understood that 6
the scope of the renewed Batson challenge included all four 7
challenged minority jurors.” 7 Appellant’s Br. at 33. This 8
may or may not have been the trial court’s thinking. But 9
habeas may not be granted based on speculation as to the 10
trial court’s thought process; the record limits the set of 11
challenges under review. Petitioner explicitly limited the 12
challenge to the strike of Mays; the record therefore does 13
not command the conclusion that the strikes to Rivera and 14
Harper were even in play in the second round; 8 and 15
consequently we cannot rule that the state court acted 16

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22
unreasonably in refusing to demand an explanation for the 1
strike to Rivera. While unrecorded impressions may have 2
given the trial judge certain clues as to the intended scope 3
and basis of the round-two Batson challenge, we need a clear 4
record. 5
The inadequacy of the record is one reason that the 6
trial court’s rejection of Sorto’s second Batson challenge 7
was not unreasonable; another independent reason is the 8
preliminary stage at which the challenge was lodged. As 9
discussed above, Sorto raised his first challenge after only 10
three peremptory strikes, and accordingly the state court’s 11
denial of that challenge was reasonable. The same logic 12
applies to Sorto’s second challenge, which came only after 13
the prosecutor’s sixth peremptory challenge, four fewer than 14
the number in Overton, 295 F.3d at 274. Between Sorto’s 15
first and second Batson challenge, the prosecutor struck 16
potential jurors Mink and Burdonis; neither of them, on the 17
record before us, appears to have been black or Hispanic. 18
It was the prosecutor’s sixth peremptory strike (of Mays) 19
that precipitated Sorto’s second Batson challenge, at which 20
point the prosecutor had used four of six peremptory strikes 21
to remove black or Hispanic potential jurors. We cannot say 22
that this stage of the voir dire was materially less 23

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23
preliminary than the stage at which Sorto made his first 1
challenge. Accordingly, it was reasonable for the state 2
court to conclude that a problematic pattern of strikes had 3
not yet developed. Sorto did not renew his objection in 4
later rounds of voir dire, and so we cannot say whether such 5
a pattern ever developed. See id. at 279-80. 6
It is here that the dissent parts ways. Despite its 7
agreement that “the state court acted reasonably in denying 8
the first Batson challenge as premature,” the dissent 9
concludes, leaning heavily on Green v. Travis, 414 F.3d 288 10
(2d Cir. 2005), that the state court “unreasonably applied 11
Batson” when it denied Sorto’s second challenge. Dissent Op. 12
at [28:11] Between the first (premature) challenge and the 13
second challenge, the government [i] withdrew its strike 14
against a Hispanic juror (Martinez), [ii] struck a juror who 15
was neither African American nor Hispanic (Mink), [iii] 16
struck a juror who was African American (Mays), and [iv] 17
struck a juror who was neither African American nor Hispanic 18
(Burdonis). These intervening events furnish no appreciable 19
support for a finding of discrimination beyond the showing 20
that (we all agree) was insufficient and premature. 21
In any event, the dissent’s reliance on Green is 22
misplaced. In Green, the “Appellate Division [had] not 23

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9 Petitioner argues that the state court mooted the 1
prima facie issue in addressing--for the sake of appellate 2
review--the credibility of the prosecution’s proffered 3
explanations. Though that approach was taken in Hernandez 4
v. New York, 500 U.S. 352, 359 (1991), a habeas court 5
remains free to affirm based on the prima facie rulings. 6
See, e.g., United States v. Diaz, 176 F.3d 52, 77-78 (2d 7
Cir. 1999). 8
24
address[ed] whether the pattern of the prosecution’s 1
peremptory strikes established a prima facie case of 2
discrimination.” 414 F.3d at 299. So there was no state 3
court determination on that issue to which the Green Court 4
could give AEDPA deference: it is one thing to conclude 5
that a pattern of strikes is prima facie evidence of 6
discrimination; it is a very different thing to hold that 7
the contrary conclusion would be an unreasonable application 8
of Batson. 9
Accordingly, we hold that the record is insufficient to 10
disturb the state court’s ruling on the existence of a prima 11
facie case in support of the Batson challenge to the Mays 12
strike. We similarly refuse to disturb the second round 13
treatment of the Rivera strike, as the record does not even 14
clearly indicate that that strike was at issue. 9
15
16
* * * 17
We have considered petitioner’s remaining arguments and 18
find each of them to be without merit. For the foregoing 19

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25
reasons, the judgment of the district court is affirmed. 1
2
3
4
5
6
7
8
9
10

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26
POOLER, Circuit Judge, dissenting: 1
I respectfully dissent, because I disagree with the 2
majority that “[r]esolution of the Batson issue in this case 3
requires more information about the possible jurors than the 4
record discloses.” Majority Op. [2:29-3:2]. Because the 5
majority overlooks the fact that the record discloses a 6
great deal about the possible jurors in this case, it 7
imposes a substantial and unnecessary evidentiary burden on 8
Sorto. 9
Before I turn to the majority’s long disquisition on 10
the amount of evidence required to judge a Batson claim, I 11
highlight two statements made by the prosecutor during jury 12
selection: 13
“If [defense counsel] accepts our withdrawal of 14
[the Martinez] peremptory challenge, we would have 15
accepted fifty percent of Hispanic potential 16
jurors that are before us.” 17
18
“[Defense counsel] has made no threshold offer of 19
any pattern of discriminating on the People’s part 20
because we peremptorily challenged the only two 21
African American potential jurors we had.” 22
23
The first statement shows that there were two Hispanic 24
jurors in the box during Round One of jury selection. The 25
second statement, made during Round Two, establishes that 26
only two African-American jurors were present during the 27
first two rounds of jury selection. 28

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1 Neither Mink nor Burdonis can be African-American, 1
because the prosecutor made his comment regarding African- 2
American potential jurors after he struck both Mink and 3
Burdonis. 4
The fact that Mink was not Hispanic can be deduced from 5
the fact that he was a Round One juror, and therefore would 6
have been seated in the box, along with Rivera, when the 7
prosecutor described Martinez as fifty percent of the 8
Hispanic potential jurors. While there is less evidence 9
with respect to Round Two potential juror Burdonis, the 10
record suggests that she was not Hispanic. When defendant 11
raised his second Batson challenge, he referred to the 12
prosecutor’s use of peremptories against Hispanic and 13
African-American individuals during Round One (i.e., against 14
Martinez, Rivera, and Harper), and the use of a peremptory 15
27
Thus, the record demonstrates the following. Prior to 1
the first Batson challenge, the prosecutor attempted to use 2
peremptory strikes against three potential jurors: Vidal 3
Martinez, Carlos Rivera, and John Harper. Martinez and 4
Rivera are Hispanic, while Harper is African-American. 5
Majority Op. [5]. At the time of the first Batson 6
challenge, these were the only Hispanic or African-American 7
individuals seated in the jury box. Prior to the second 8
Batson challenge, the prosecutor exercised additional 9
peremptory strikes against Round One potential juror Steven 10
Mink, and Round Two potential jurors MaryAnn Burdonis and 11
Hazel Mays. Id. at [18]. Mays is African-American. Id. at 12
[6] Mink is neither African-American nor Hispanic. 13
Burdonis is not African-American, and it is a fair inference 14
that she is not Hispanic. 1 An additional Hispanic potential 15

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against Mays in Round Two, but did not mention the 1
prosecutor’s decision to strike Burdonis. Because the 2
Burdonis strike preceded the Mays strike, if Burdonis had 3
been Hispanic, counsel presumably would have mentioned this 4
fact when raising the second Batson challenge. 5
28
juror, Selina Zate, was seated in the jury box at the 1
beginning of Round Two, but removed for cause before the 2
parties exercised their Round Two peremptories. 3
The record therefore shows that at the time of the 4
first Batson challenge, the prosecutor had attempted to 5
exercise one hundred percent of his peremptory challenges 6
against minorities, and had challenged one hundred percent 7
of the minorities not already struck for cause. At the time 8
of the second Batson challenge, the prosecutor had attempted 9
to exercise sixty-six percent of his strikes against 10
minorities, had stricken one hundred percent of the African- 11
American potential jurors not already struck for cause, and- 12
-assuming Burdonis is not Hispanic--had attempted to strike 13
one hundred percent of the Hispanic jurors not already 14
struck for cause. Reaching such a conclusion does not 15
require a “labored piecing together of transcript fragments 16
or “intuit[ing] the race and ethnicity of jurors.” See 17
Majority Op. [19]. Rather, it simply requires a 18
straightforward reading of the record in this case. Cf. 19
Majority Op. [19]. Thus, the majority’s conclusion that we 20

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2 With respect to prospective jurors Harper and Mays, 1
Sorto argues that the race neutral reasons given by the 2
prosecutor for these strikes were pretextual. Because it is 3
not clear whether the state court adjudicated this issue on 4
the merits, it is questionable whether AEDPA would apply to 5
review of this claim. See DeBarry v. Portuondo, 403 F.3d 6
57, 67 (2d Cir. 2005). However, even under the more lenient 7
pre-AEDPA standard, I would find that Sorto’s claim with 8
respect to these jurors fails, because there were several 9
differences between the jurors who were struck and those who 10
remained. We have found that such differences, in light of 11
the deference we owe a trial court’s credibility 12
determinations, support a state court’s rejection of a 13
Batson claim. See Messiah v. Duncan, 435 F.3d 186, 200-01 14
(2d Cir. 2006). Sorto makes no claim of pretext with 15
respect to Rivera, because the prosecutor never attempted to 16
articulate a race neutral reason for striking Rivera. 17
29
lack sufficient evidence to reach the Batson challenge, and 1
its suggestion that the jury pool “may have overwhelmingly 2
consisted of minority jurors, rendering any individual 3
peremptory strike of a minority juror less suspicious,” does 4
not stand up to scrutiny. See Majority Op. [19] 5
I agree with the majority that the state court acted 6
reasonably in denying the first Batson challenge as 7
premature. However, as to the second challenge, I would 8
find that the state court unreasonably applied Batson when 9
it refused to consider whether African-American and Hispanic 10
jurors could constitute a cognizable group. 2
11
We recently considered a similar Batson claim in Green 12
v. Travis, 414 F.3d 288 (2d Cir. 2005). Like Sorto, Green 13
was a habeas petitioner who challenged the government’s 14

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30
pattern of strikes against minority prospective jurors. See 1
id. at 291, 299. In Green, as in this case, we lacked 2
precise data about the composition of the venire, because 3
“[t]he number of persons in the venire and the racial and 4
ethnic composition of the venire were not preserved in the 5
record.” Id. at 291. Based on the record, however, we knew 6
that at the time of the Batson challenge, “the prosecutor 7
had used one hundred percent of her peremptory strikes to 8
remove Black and Hispanic jurors,” and “had stricken all of 9
the Black members of the jury pool not already struck for 10
cause.” Id. at 299. We were therefore able to conclude 11
that the “pattern of the prosecution’s peremptory strikes 12
established a prima facie case of discrimination under 13
Batson.” Id. In this case, the record shows that at the 14
time of the second Batson challenge, the prosecutor had 15
attempted to use sixty-six percent of his peremptory strikes 16
to remove African-American and Hispanic jurors, had stricken 17
all of the African-American members of the jury pool not 18
already struck for cause, and had attempted to strike all 19
Hispanic jurors not already struck for cause. Thus, the 20
type of evidence available in this case is comparable to the 21
evidence available in Green, where we found that the record 22
provided a sufficient basis to evaluate the Batson 23

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31
challenge. 1
To reach the opposite conclusion, the majority relies 2
on United States v. Alvarado, 923 F.2d 253 (2d Cir. 1991). 3
In Alvarado, we explained that “statistical disparities are 4
to be examined” as part of the Batson prima facie inquiry. 5
Id. at 255. In that case, we knew what percentage of the 6
prosecution’s peremptory strikes were exercised against 7
minority jurors (the “challenge rate”), but we did not know 8
the minority percentage of the venire. Id. at 255-56. As 9
we explained, if, “for example . . . the minority percentage 10
of the venire was 50, it could be expected that a 11
prosecutor, acting without discriminatory intent, would use 12
50 percent of his challenges against minorities.” Id. at 13
255. In other words, because we had only one category of 14
statistical information, we had no context in which to 15
analyze disparity. However, rather than create an 16
unnecessary evidentiary obstacle for the defendant in that 17
case, we employed the relevant population data as a 18
surrogate figure for the minority percentage of the venire. 19
Id. at 256. 20
The majority’s reliance on Alvarado overlooks the fact 21
that in this case we have sufficient information to assess 22
statistical disparity. We know both the prosecution’s 23

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32
challenge rate with respect to minority potential jurors and 1
what percentage of minority potential jurors the prosecution 2
attempted to strike. Thus, we have two categories of data 3
that provide the basis for an analysis of disparity. 4
Moreover, while we do not know the precise minority 5
percentage of the venire, because we know that at the time 6
of the second Batson challenge, the prosecutor had attempted 7
to strike all minority potential jurors not already struck 8
for cause, we know that during the first two rounds the 9
venire included only four qualified minority jurors. I 10
would therefore find, as we did in Green, that the record in 11
this case provides sufficient evidence for a reasoned 12
analysis of Sorto’s Batson claim. 13
The majority also contends that the trial court’s 14
rejection of Sorto’s second Batson challenge was not 15
unreasonable because, like the first challenge, the second 16
was lodged at a “preliminary stage,” when it was too early 17
to tell whether a problematic pattern of strikes had 18
developed. The majority notes that there were only six 19
peremptory strikes at the time of the challenge in this 20
case, and compares that to the ten strikes that were found 21
to be insufficient in Overton v. Newton, 295 F.3d 270, 274 22
(2d Cir. 2002). Overton is distinguishable, as in that 23

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33
case, several minority jurors had actually been seated at 1
the time of the Batson challenge. See id. at 274. On the 2
other hand, in Green, where the statistical evidence was 3
similar to this case, we found that a prima facie showing of 4
discrimination under Batson had been established after the 5
prosecutor exercised only five peremptory strikes. See 6
Green, 414 F.3d at 291, 299. Moreover, by the time of the 7
second Batson challenge, it was apparent that what might 8
have initially appeared to be a statistical fluke had in 9
fact emerged as a consistent pattern: the prosecutor struck 10
or attempted to strike each and every Hispanic and African- 11
American juror not excused for cause. 12
I disagree with the majority’s assessment of the 13
evidence in this case and its conclusion as to what evidence 14
is necessary to make out a successful statistical Batson 15
claim. And therefore, unlike the majority, I believe the 16
state court’s erroneous view on aggregation is implicated. 17
Cf. Majority Op. [5 n.1]. In evaluating whether Sorto had 18
made out a prima facie case with respect to the strike of 19
Rivera, both the state courts and the district court assumed 20
that strikes against members of different minority groups 21
could not be considered together to show a pattern of 22
discriminatory strikes. This is a view we rejected in 23

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34
Green, where we concluded, applying the AEDPA standard, that 1
a state court decision that “Black and Hispanic 2
venirepersons do not constitute a ‘cognizable racial group’ 3
was an unreasonable application of Batson.” Green, 414 F.3d 4
at 293, 298. I would therefore follow Green and find that 5
in this case the state court’s conclusion that African- 6
American and Hispanic potential jurors should not be 7
aggregated for the purposes of evaluating whether Sorto had 8
established a prima facie case of discrimination based on a 9
suspicious pattern of peremptory strikes was an unreasonable 10
application of Batson. 11
The Supreme Court has recently cautioned that 12
establishing a prima facie case of discrimination is not 13
intended to be a high bar, in part because “[t]he Batson 14
framework is designed to produce actual answers to 15
suspicions and inference that discrimination may have 16
infected the jury selection process.” Johnson v. 17
California, 545 U.S. 162, 172 (2005). Moreover, as the 18
Court noted in Powers v. Ohio, 499 U.S. 400 (1991), Batson 19
protects the rights of both individual defendants and the 20
community at large: 21
Batson was designed to serve multiple ends, only 22
one of which was to protect individual defendants 23
from discrimination in the selection of jurors. 24
Batson recognized that a prosecutor's 25

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35
discriminatory use of peremptory challenges harms 1
the excluded jurors and the community at large. 2
The opportunity for ordinary citizens to 3
participate in the administration of justice has 4
long been recognized as one of the principal 5
justifications for retaining the jury system. 6
7
Id. at 406 (internal quotation marks and citations omitted). 8
Thus, we do both defendants and ordinary citizens a 9
disservice when we create unnecessary obstacles to the 10
vindication of such rights. 11
I therefore respectfully dissent. 12
13
14
15

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