J.b. Boston v. TERRY L. McCANN, Warden

* After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and record. See
Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2007*
Decided May 24, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1083
J.B. BOSTON,
Petitioner-Appellant,
v.
TERRY L. McCANN, Warden,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 05 C 1779
Robert W. Gettleman,
Judge.
O R D E R
J.B. Boston filed a petition for collateral relief, see 28 U.S.C. § 2254, claiming
that at his jury trial his right to equal protection as articulated by the Supreme
Court in Batson v. Kentucky, 476 U.S. 79 (1986), was violated when the prosecutor
peremptorily struck six black prospective jurors. The district court denied Boston’s
petition. Because the state appellate court permissibly concluded that there was no
racial motivation for the strikes, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-1083 Page 2
1 In all, the prosecutor peremptorily struck six black prospective jurors and one
black prospective alternate juror. However, the Supreme Court has not yet extended
Batson to alternate jurors; neither have we. See United States v. Canoy, 38 F.3d 893,
899 n.6 (7th Cir. 1994); see also Carter v. Kemna, 255 F.3d 589, 592-93 (8th Cir. 2001).
And because this case comes to us on collateral review, we decline to address whether
Batson applies to alternate jurors. See 28 U.S.C. § 2254(d)(1); Holman v. Gilmore, 126
F.3d 876, 884-85 (7th Cir. 1997) (stating when “[n]o such principle has been adopted
to date by the Supreme Court . . . § 2254(d)(1) precludes its recognition for the first
time on collateral review”); see also Carter, 255 F.3d at 592. Therefore, we will not
address Boston’s Batson claim as to the prospective alternate juror. See 28 U.S.C.
§ 2254(d)(1); Holman, 126 F.3d at 884-85.
Boston, who is black, was charged in 1985 with committing rape, armed
robbery, and home invasion; shortly thereafter he exercised his right to be tried by a
jury. At the conclusion of jury selection, defense counsel unsuccessfully moved to
dismiss the venire on the basis that the prosecutor impermissibly struck six black
prospective jurors for racial reasons.1 The case proceeded to trial, the jury found
Boston guilty, and the trial court sentenced him to life imprisonment. Boston
appealed, arguing that the prosecutor’s peremptory strikes were racially motivated,
and thus violated his right to equal protection as determined by the Supreme Court
in the then-recently announced Batson decision. See also Griffith v. Kentucky, 479
U.S. 314, 316 (1987) (holding that Batson applied to cases pending on direct review
when it was decided). Boston accordingly asked the Appellate Court of Illinois to
remand his case for a hearing to determine whether the prosecutor’s strikes were
motivated by race; the state appellate court granted his request.
On remand the trial court stated that Boston first would have to establish
facts showing a prima facie case of discrimination; if he succeeded, the court would
then require the prosecutor to proffer race-neutral explanations for the peremptory
strikes. See Batson, 427 U.S. at 96-98. Before Boston’s appointed attorney could
proceed, however, Boston dismissed him and, proceeding pro se, questioned the
prosecutor on his peremptory strikes. Before the trial court ruled on whether
Boston established a prima facie case, the state (represented by a state lawyer
different from the prosecutor at Boston’s trial) proposed several race-neutral
justifications for the strikes based on circumstantial evidence apparent from the
transcript of the voir dire: the excluded jurors were not long-time community
residents, had insufficient personal experience with crime, or were affiliated with
charities or religious groups. The trial court then heard from the trial prosecutor
himself. Although the prosecutor admitted that he could not remember why he
sought to strike specific prospective jurors (the trial having occurred four years
earlier), he identified some general guidelines that he adhered to throughout his
career when conducting voir dire; these guidelines echoed the race-neutral
justifications for the strikes that the state had culled from the voir dire transcript.

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No. 07-1083 Page 3
Following the prosecutor’s testimony, the trial court concluded that Boston
failed to show that the peremptory strikes were motivated by race. The court first
found that Boston failed to establish a prima facie case of discrimination, noting
that the empaneled jury was one-quarter black, which, according to the court,
corresponded with “the population of the black community in this county.” The
court further stated that from its review of the voir dire transcript, its notes from
the voir dire and trial, the juror cards, and the prosecutor’s testimony, and from its
experience of working with the prosecutor during “many cases,” it was apparent
that the prosecutor was seeking to empanel jurors who: (1) had “long ties to the
community”; (2) were “not ‘bleeding hearts’”; and (3) “had some understanding of
being the victim of a crime.” The court also stated that the state’s and prosecutor’s
reasons for the strikes were “legitimate trial strategies,” thus supporting the
ultimate conclusion that the strikes were not racially motivated.
Boston appealed, arguing that the trial court erred procedurally by
considering the state’s race-neutral justifications for the peremptory strikes before
deciding whether he had met his burden of establishing a prima facie case, and
erred factually by concluding that no discrimination occurred. See People v. Boston,
586 N.E.2d 326, 328-29 (Ill. App. Ct. 1991). A divided panel of the Appellate Court
of Illinois rejected Boston’s arguments. Id. at 329-30. Specifically, the state
appellate court determined that, under Hernandez v. New York, 500 U.S. 342
(1991), once the state offered race-neutral reasons for the peremptory strikes, and
the trial court ruled on the ultimate question of intentional discrimination, whether
Boston made a prima facie showing became moot. See Boston, 586 N.E.2d at 329.
And, the court continued, the trial court acted within its discretion to accept the
state’s and prosecutor’s “rather detailed explanations” for the strikes when
concluding that the strikes were not racially motivated. Id. at 328-30. One judge
dissented, however, largely on the opinion that the court’s accepted “reasons for the
exclusions were merely a pretext for . . . racial discrimination.” Id. at 331 (Johnson,
J., dissenting). Boston’s further state court challenges to his convictions were
summarily rejected.
In March 2005 Boston brought this § 2254 action. In his petition Boston
again argued that the trial court incorrectly considered the state’s reasons for the
peremptory strikes before ruling on whether he established a prima facie case.
Boston also asserted that the trial court erroneously concluded that the strikes were
not racially motivated. The district court denied the petition, finding that, though
“there are serious concerns about the prosecutor’s reasons for excluding the venire
persons in question,” the state appellate court’s decision was not “objectively
unreasonable as that standard has been applied under [the Anti-Terrorism and
Effective Death Penalty Act of 1996].” However, the district court granted Boston a
certificate of appealability so he could further pursue his Batson claim.

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No. 07-1083 Page 4
On appeal Boston reasserts his argument that the trial court should have
ruled on his prima facie case before seeking and evaluating the state’s race-neutral
proffer; he does not claim, however, that he was prevented from presenting his
prima facie case. He also contends that the court was wrong to conclude that the
prosecutor’s peremptory strikes were not racially motivated. Our review is de novo.
See Richardson v. Briley, 401 F.3d 794, 799 (7th Cir. 2005).
Under Batson and its progeny, a defendant’s challenge to peremptory strikes
requires a three-step inquiry. First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor exercised
peremptory strikes on the basis of race. See Rice v. Collins, 546 U.S. 333, 338
(2006); Aki-Khuam v. Davis, 339 F.3d 521, 526 (7th Cir. 2003). If the showing is
made, the burden shifts to the prosecutor to present a race-neutral explanation for
the strikes. See Rice, 546 U.S. at 338; Aki-Khuam, 339 F.3d at 526. The trial court
must then determine whether the defendant has carried his burden of proving
purposeful discrimination. See Rice, 546 U.S. at 338. The relevant question during
this final step is whether the peremptory strikes were racially motivated, see
Hernandez, 500 U.S. at 365, and “[i]t follows that Batson and its progeny direct trial
judges to assess the honesty—not the accuracy—of a proffered race-neutral
explanation,” Lamon v. Boatwright, 467 F.3d 1097, 1101 (7th Cir. 2006) (citing
Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam), and United States v. George,
363 F.3d 666, 674 (7th Cir. 2004)).
Because this case comes to us as a collateral challenge under 28 U.S.C.
§ 2254, Boston bears a very heavy burden. See Lamon, 467 F.3d at 1100. He must
show that the last state court decision addressing the merits of his Batson
claim—that is, the Appellate Court of Illinois’s decision on direct appeal—“resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1); see also Lamon, 467 F.3d at 1100-01, or “was based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding,” 28 U.S.C. § 2254(d)(2); see also Rice, 546 U.S. at 338.
As pertinent here, Boston can prevail only if he shows that the state appellate court
unreasonably applied Supreme Court precedent when rejecting his Batson claim, or
unreasonably affirmed the trial court’s factual finding that no discrimination
occurred. See Rice, 546 U.S. at 338. We presume that the state appellate court’s
factual determinations are correct, and Boston can rebut that presumption only by
producing “clear and convincing evidence” to the contrary. 28 U.S.C. § 2254(e)(1);
Rice, 546 U.S. at 338-39; Lamon, 467 F.3d at 1002.
Boston is unable to shoulder this burden. First, he cannot show that the
Appellate Court of Illinois unreasonably applied Supreme Court precedent when

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concluding that the trial court did not err procedurally by considering race-neutral
justifications for the peremptory strikes before ruling on his prima facie case. The
Supreme Court has held that “[o]nce a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes moot.” See Hernandez, 500
U.S. at 359. The state appellate court identified this rule, see Boston, 586 N.E.2d at
329, and applied it reasonably to determine that the trial court did not procedurally
err by hearing from the prosecutor and evaluating the honesty of his proffer before
deciding whether Boston made a prima facie case. We require no more. See
Lamon, 467 F.3d at 1100; Hammer v. Karlen, 342 F.3d 807, 812 (7th Cir. 2003).
Likewise, Boston cannot show that it was unreasonable for the Appellate
Court of Illinois to affirm the trial court’s conclusion that the peremptory strikes
were not motivated by race. The trial court was permitted to conclude that the
strikes were race neutral based on (1) the circumstantial evidence culled from the
voir dire transcript supporting the state’s race-neutral justifications for the strikes;
and (2) the prosecutor’s description of his general practices in jury selection. See
Morse v. Hanks, 172 F.3d 983, 984-85 & 985 n.1 (7th Cir. 1999); Mahaffey v. Page,
162 F.3d 481, 484 n.1 (7th Cir. 1998); cf. Hardcastle v. Horn, 368 F.3d 246, 256-57 &
257 n.4 (3d Cir. 2004) (“‘[W]e are unprepared to hold . . . that the state’s burden can
never be carried without direct evidence from the decisionmaking prosecutor
regarding his or her state of mind.’” (citations omitted)). This conclusion is “‘a pure
issue of fact’ accorded significant deference,” Hernandez, 500 U.S. at 364, and
presumed correct unless Boston shows by clear and convincing evidence that it is
not, see 28 U.S.C. § 2254(e)(1); Rice, 546 U.S. at 338-39; Lamon, 467 F.3d at 1002;
see also Batson, 476 U.S. at 98 n.21. Boston points to no such evidence, either in his
§ 2254 petition or his submissions to this court. Rather, he merely asserts—without
elaboration—that the prosecution challenged the six prospective jurors because of
their race; such a conclusory declaration alone is insufficient to establish on
collateral attack a constitutional violation. See Rice, 546 U.S. at 338-39; Purkett,
514 U.S. at 768 (per curiam); see also Daniels v. Knight, 476 F.3d 426, 434 (7th Cir.
2007); Conner v. McBride, 375 F.3d 643, 652 (7th Cir. 2004).
Like the district court, we are mindful that the dissent from the Appellate
Court of Illinois’s decision expressed concern that the government’s justifications for
the peremptory strikes were pretext for racial discrimination. However, because
Boston proffers no evidence showing that the prosecutor was dishonest when
justifying the strikes, see Lamon, 467 F.3d at 1101 (citing Purkett, 514 U.S. at 769
(per curiam)), on collateral review we are bound by the state appellate court’s
finding of no racial discrimination, see Rice, 546 U.S. at 341-42 (“Reasonable minds
reviewing the record might disagree about the prosecutor’s credibility, but on

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habeas review that does not suffice to supersede the trial court’s credibility
determination.”); Hernandez, 500 U.S. at 369; Morse, 172 F.3d at 985.
We accordingly AFFIRM the district court’s denial of Boston’s petition for
collateral relief.

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