07-1313-pr Jones v. West UNITED STATES COURT OF APPEALS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 FOR THE SECOND…

07-1313-pr
Jones v. West
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT
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August Term, 2008
(Argued: December 1, 2008 Decided: February 4, 2009)
Docket No. 07-1313-pr
________________________________________________________________
WENDYLL JONES,
Petitioner-Appellant, 15
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-v.-
CALVIN WEST,∗
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Respondent-Appellee.
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24 Before: McLAUGHLIN, PARKER, Circuit Judges, and KOELTL, District
Judge.1
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________________________________________________________________
Appeal from a judgment of the United States District Court
for the Western District of New York (Bianchini, Magistrate Judge)
denying Wendyll Jones’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petitioner argues that the New
York state court unreasonably applied
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Batson v. Kentucky, 476 U.S.
79 (1986), in concluding that Jones had failed to establish a
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∗ We retain in the caption the name of the original custodian of
Wendyll Jones, Calvin West, the Superintendent of the Elmira
Correctional Facility. Should the parties desire that the caption
reflect his current custodian, they may file a motion requesting such a
change, supported by documentation identifying the current custodian.
1 The Honorable John G. Koeltl of the United States District Court
for the Southern District of New York, sitting by designation.
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prima facie case of discrimination with respect to the
prosecutor’s strike of a black prospective juror.
REVERSED AND REMANDED.
ANNETTE GIFFORD (J. NELSON THOMAS, on the
brief), Dolin, Thomas & Solomon LLP,
Rochester, New York, for Petitioner- 6
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Appellant.
KELLY WOLFORD, Of Counsel (WENDY LEHMANN, Of
Counsel, on the brief), Monroe County
District Attorney’s Office, Rochester,
New York, for Respondent-Appellee. 12
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KOELTL, District Judge: 14
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The petitioner, Wendyll Jones (“Jones”), appeals from the
judgment of the United States District Court for the Western
District of New York (Bianchini, Magistrate Judge), entered
February 16, 2007, denying his petition for a writ of habeas
corpus. Jones, who is black, was convicted in July 1998 on four
counts of robbery in the second degree after a jury trial in the
New York State Supreme Court, Monroe County, located in Rochester.
In 2003, after exhausting his state court remedies, Jones filed a
petition for habeas corpus against the respondent, Calvin West,
the Superintendent of the Elmira Correctional Facility where the
petitioner was incarcerated at that time. The district court
denied the petition but granted a certificate of appealability on
the sole question of whether the state courts erred in concluding
that Jones had failed to establish a prima facie case of
discrimination under
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Batson v. Kentucky, 476 U.S. 79 (1986), with 29
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respect to the prosecutor’s peremptory strike of a black
prospective juror. We conclude that the state courts unreasonably
applied
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Batson and that the petition for habeas corpus relief
should be granted.
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BACKGROUND
The state court before which Jones was tried employed a
modified jury box system for selecting the jury. Under that
system, a panel of twenty-one potential jurors was placed in the
jury box, given questionnaires, and interviewed by the court. The
parties were then given an opportunity to conduct fifteen minutes
of voir dire with the panel, after which the court considered
challenges for cause. The parties then exercised their peremptory
strikes in a first round with the first twelve members of the
venire, followed by successive rounds with the number of
prospective jurors needed to complete a jury of twelve. If a jury
was not selected from the first panel, a second panel of twenty-
one was placed in the box. Each party had a total fifteen
peremptory challenges to exercise across all panels.
Because almost all of the peremptory challenges were
exercised off the record, the record in Jones’s case does not
reflect the race of many of the venire members who were struck by
each party. However, the Batson challenges raised by defense
counsel were made on the record, and the facts relating to those
challenges are clear from the record.
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The jury was selected after two panels. In the first panel,
three members of the panel were struck for cause, two of whom were
black. Of the remaining eighteen members of the venire, five were
black. These were Ms. Jefferson, Ms. Peters, Mr. Barry, Ms.
Hannah, and Ms. Benbow. The issue on this appeal is whether the
state court unreasonably applied
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Batson when it found that Jones
had not established a prima facie case of discrimination with
respect to the prosecutor’s strike of Ms. Peters.
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9 During the first round of peremptories in the first panel,
defense counsel raised his first Batson challenge with respect to
Ms. Peters, who had been in seat number ten. The court turned to
the prosecutor, who responded that Ms. Jefferson, a black woman,
had been seated as the foreperson of the jury. The court appeared
to accept this explanation, noting: “It appears that we do have
one or more minority members on the jury, on the sworn jury.”
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16 During the second round of strikes, the defense raised a
second Batson challenge: “[The prosecutor’s] selections in
respect to removing, in particular, Mr. Barry, who is number 15,
and Ms. Hannah, who is number 18, I would point out to the Court
and ask the Court to revisit the earlier Batson decision that now,
but [for] Mrs. Jefferson, all the black potential jurors have been
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removed from the panel, three of them by [the prosecutor] for
peremptory challenges.”
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The court again turned to the prosecutor for a response. The
prosecutor pointed out for a second time that the foreperson of
the jury, Ms. Jefferson, was black. With respect to his strike
against Mr. Barry, he explained: “Mr. Barry is of the same
general age as Mr. Jones, can relate as to that respect to Mr.
Jones. When questioning him, Mr. Barry did not appear to be
looking -- or looking in other directions.” He also explained
that he struck Ms. Hannah because she had both a son and a nephew
who had legal problems.
Defense counsel argued that the prosecutor’s proffered
reasons for the strikes against Mr. Barry and Ms. Hannah were
pretextual and that the prosecutor had offered no explanation for
the peremptory strike of Ms. Benbow. Regarding Mr. Barry, defense
counsel argued:
Judge, if I may, the first issue regarding Mr. Barry is
pretextual, in my opinion. His age has nothing to do with his
ability to deliberate. We have members of variant age who
have children, they have indicated, of the same age as my
client. Mr. Barry did not respond frequently to any
individual questioning as based upon my observations of the
2 The prosecutor had actually exercised four peremptory challenges
against black potential jurors, which included Ms. Peters, Mr. Barry,
Ms. Hannah, and Ms. Benbow. Two black potential jurors had also been
struck for cause, one by the prosecutor, and the other by defense
counsel. It is not clear whether defense counsel was referring to the
current round of strikes when he referred to three black potential
jurors having been struck by the prosecutor, or whether he was mistaken.
However, he later included Ms. Benbow and Ms. Peters in the same Batson
challenge, indicating that he was aware of all four peremptory
challenges and that he brought all four to the court’s attention.
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jury. There were a number of individuals who, at some point,
either became bored with my questions, with [the
prosecutor’s] questions, and although they looked away, I’m
sure they weren’t bored with the Court’s questions, so the
mere manner, his physical appearance is not sufficient, in my
opinion to support that contention. Mr. Barry is being
removed, quite obviously, because he is of the same race as
my client.
Defense counsel then continued, objecting to the prosecutor’s
strikes of Ms. Hannah and Ms. Benbow. Finally, defense counsel
requested the court to reconsider its earlier ruling with respect
to Ms. Peters. Defense counsel elaborated:
I would indicate to the Court that Miss Peters has none of
these characteristics to which [the prosecutor] has related.
She is a retired employee of General Motors, she is involved,
and she, at my recollection, had -- no particular inquiry was
made of her regarding any circumstances. She has two
children whose ages were not indicated and there was no
inquiry of the circumstances regarding those children. And,
in point of fact, she distinguishes herself as a member of
the jury, quite frankly, and did so in all of her physical
demeanor in front of the Court, so I would ask the Court to,
first of all, grant my application regarding the current
Batson challenge and revisit the application regarding Miss
Peters.
The court responded:
The Court denies the application to revisit the challenge to
Ms. Peters. Regarding the three peremptory challenges
executed during this second round of challenges, peremptory
challenges, I’m going to disallow the challenge to Mr. Barry.
There has not been a satisfactory neutral explanation for
that challenge. I shall permit the peremptory challenges as
to the other two jurors, Ms. Benbow . . . [and Ms. Hannah].
Mr. Barry was the only juror to be sworn from the second
round of strikes, bringing the total number of jurors at that
point to eight. A second panel of twenty-one potential jurors was
then placed in the jury box. The prosecutor struck the first
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black member of the second panel to come up for consideration, Ms.
Thompson, and defense counsel raised a third
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Batson challenge.
Defense counsel stated: “[M]y position is Mrs. Thompson is the
next available black female that we get on the list and we have
this recurrent issue arising every time we come to the next
available black candidate.” The prosecutor explained that he had
struck Ms. Thompson because she had a brother who had been
convicted in the last year, which the court accepted as a
satisfactory race-neutral explanation. The defense raised its
fourth and last
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Batson challenge when the next black member of the
venire, Ms. Seawright, came up for consideration and was then
struck by the prosecutor. Defense counsel argued: “And we are at
the next black potential juror and we now have this same issue,
Judge. My application continues and if this is not a pattern,
nothing is.” The court, however, accepted the prosecutor’s
explanation that Ms. Seawright’s nephew had been convicted of a
drug charge a year before. The parties then completed jury
selection and chose two alternates. Ms. Jefferson and Mr. Barry
were the only two members of the jury, including the two
alternates, who were black.
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At the conclusion of the trial, the jury returned a verdict
finding the petitioner guilty of four counts of robbery in the
second degree. On July 2, 1998, the petitioner was sentenced as a
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second felony offender to concurrent terms of fifteen years in
prison. His earliest release date is February 28, 2010.
The petitioner appealed his conviction to the New York State
Supreme Court, Appellate Division, Fourth Department. In a
memorandum opinion, the Appellate Division affirmed the
conviction, finding in relevant part that the trial court had
properly determined that the defendant failed to meet his burden
of presenting a prima facie case of discrimination. People v. 8
Jones, 738 N.Y.S.2d 260, 260 (App. Div. 2001). On May 14, 2002,
the petitioner’s application for leave to appeal to the Court of
Appeals was denied.
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People v. Jones, 772 N.E.2d 614, 614 (N.Y.
2002). On March 11, 2003, the petitioner timely filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The district court denied the petition,
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Jones v. West, 473 F.
Supp. 2d 390 (W.D.N.Y. 2007), and the petitioner timely appealed.
We now reverse.
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DISCUSSION
I.
We review a district court’s denial of a petition for a writ
of habeas corpus de novo. See Shabazz v. Artuz, 336 F.3d 154, 160
(2d Cir. 2003). Under the Antiterrorism and Effective Death
Penalty Act of 1996, codified at 28 U.S.C. § 2254, a federal court
may grant a writ of habeas corpus for a claim that has previously
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been adjudicated on the merits by a state court only if the
adjudication of the claim:
(1) 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;
or
(2) resulted in a decision that 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).
A state court decision involves an “unreasonable application”
of clearly established federal law as determined by the Supreme
Court when “the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). “While the precise
method for distinguishing objectively unreasonable decisions from
merely erroneous ones is somewhat unclear, it is well-established
in this Circuit that the objectively unreasonable standard of
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§ 2254(d)(1) means that petitioner must identify some increment of
incorrectness beyond error in order to obtain habeas relief.”
Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (internal
quotation marks and alteration omitted). That increment, however,
“need not be great; otherwise habeas relief would be limited to
state court decisions so far off the mark as to suggest judicial
incompetence.”
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Overton v. Newton, 295 F.3d 270, 277 (2d Cir.
2002) (internal quotation marks omitted).
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II. 1
In Batson, the Supreme Court held that racial discrimination
in jury selection in state courts violates the Equal Protection
Clause of the Fourteenth Amendment to the Constitution. 476 U.S.
at 85-87. Under
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Batson, a claim of racial discrimination in jury
selection is evaluated using a three-step process:
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First, the defendant must make out a prima facie case by
showing that the totality of the relevant facts gives rise to
an inference of discriminatory purpose. Second, once the
defendant has made out a prima facie case, the burden shifts
to the State to explain adequately the racial exclusion by
offering permissible race-neutral justifications for the
strikes. Third, if a race-neutral explanation is tendered,
the trial court must then decide . . . whether the opponent
of the strike has proved purposeful racial discrimination.
Johnson v. California, 545 U.S. 162, 168 (2005) (internal
quotations, citations, and alteration omitted). The parties do
not dispute that the state court never required the prosecutor to
provide a race-neutral explanation for striking Ms. Peters. The
issue in this case, therefore, is whether Jones met the first step
of the
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Batson inquiry so that the trial court should have
proceeded to the second step of the
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Batson inquiry and required
the prosecutor to state a non-discriminatory reason for his strike
of Ms. Peters.
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As we noted in Sorto, the Supreme Court has indicated that
“[t]he first step of the Batson analysis, requiring the showing of
a prima facie case, is not meant to be onerous.”
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Sorto, 497 F.3d
at 170 (citing
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Johnson, 545 U.S. at 170). A defendant need only 29
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produce “evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.”
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Johnson, 545 U.S. at
170. In deciding whether the defendant has demonstrated a prima
facie case of discrimination, the trial court should take into
account “all relevant circumstances.”
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Batson, 476 U.S. at 96. In 5
Batson, the Supreme Court provided two examples of what
“circumstances” might establish a prima face case of
discrimination: “[A] ‘pattern’ of strikes against black jurors
included in the particular venire might give rise to an inference
of discrimination. Similarly, the prosecutor’s questions and
statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory
purpose.”
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Id. at 97. 13
14 III.
When Jones raised his first Batson challenge against the
prosecutor’s strike of Ms. Peters, he failed to make out a prima
facie case of discrimination. At that point, the prosecution had
used a peremptory challenge against only one of the two black
members of the venire that had come up for consideration in the
first round, Ms. Jefferson and Ms. Peters, and neither the pattern
of strikes nor anything in the prosecutor’s recorded statements
provided any basis for a prima facie case of discrimination.
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United States v. Stavroulakis, 952 F.2d 686, 696 (2d Cir. 1992). 23
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However, the record before the trial court was very different
when Jones raised his second
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Batson challenge to the prosecutor’s
peremptory strike of Ms. Peters. At that point, the prosecutor
had struck four out of the only five black venire members in the
first panel. Of those four, Ms. Peters was the only subject of a
peremptory strike for whom the prosecutor did not provide a race-
neutral reason. Most significantly, in response to the
prosecutor’s stated reason for using a peremptory strike against
Mr. Barry, the state court rejected that reason as pretextual. At
that point, the trial court had concluded that the prosecutor was
not only capable of racial discrimination in the jury selection
process, but had also provided an unsatisfactory pretextual reason
for a peremptory strike. Despite the significant pattern of
strikes and the finding that the prosecutor had provided a
pretextual reason for another peremptory challenge, the trial
court did not ask for any explanation of the prosecutor’s reason
for striking Ms. Peters. In light of these facts, we conclude
that the Appellate Division’s finding that Jones had not made out
a prima facie case of discrimination at the time of his second
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Batson challenge was an unreasonable application of Batson. 20
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to conclude that the state court unreasonably applied Batson
because the record is too poorly developed to determine whether
Jones had established a prima facie case of discrimination with
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respect to Ms. Peters. Without information about the racial make-
up of the entire venire, the demographics of Monroe County, and
the races of the other persons who were the subject of the
prosecutor’s peremptory challenges, the respondent argues that it
is impossible to perform the statistical analysis needed to
support an inference of discrimination. The respondent also
argues that Jones’s second
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Batson challenge was premature, and
that the state court did not act unreasonably by waiting to see if
a more discernable pattern of discrimination would emerge later in
the jury selection process. This is essentially an argument that
Jones had not adduced sufficient evidence at the time of the
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Batson challenge to raise an inference of discrimination. 12
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The respondent’s arguments, however, conflate the variety of
patterns that can give rise to an inference of discrimination.
Discriminatory purpose may be inferred when a party exercises a
disproportionate share of its total peremptory strikes against
members of a cognizable racial group compared to the percentage of
that racial group in the venire. See, e.g., Brown v. Alexander,
543 F.3d 94, 101 (2d Cir. 2008);
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Green v. Travis, 414 F.3d 288,
299 (2d Cir. 2005);
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Overton, 295 F.3d at 278 n.9; United States v. 20
Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991). This rate is
sometimes referred to as the “challenge rate.”
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However, an intent to exclude can also be inferred when a
party uses peremptory challenges to strike a disproportionate
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number of members of a cognizable racial group from the venire.
In such a case, the
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Batson challenge is based on the party’s
“exclusion rate.” The distinction between the two types of
challenges is an important one. Cases involving successful
challenges to exclusion rates have typically included patterns in
which members of the racial group are completely or almost
completely excluded from participating on the jury.
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See, e.g., 7
Johnson, 545 U.S. at 173 (prima facie case established where all
three black prospective jurors removed from jury);
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Batson, 476
U.S. at 100 (prima facie case established where all four black
prospective jurors removed from the jury);
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Harris v. Kuhlmann, 346
F.3d 330, 345-46 (2d Cir. 2003) (prima facie case established
where prosecutor used peremptory strikes to exclude all five black
potential jurors in venire);
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Tankleff v. Senkowski, 135 F.3d 235,
249 (2d Cir. 1998) (“[T]he fact that the government tried to
strike the only three blacks who were on the panel constitutes a
sufficiently dramatic pattern of actions to make out a prima facie
case.”);
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United States v. Stewart, 65 F.3d 918, 925 (11th Cir.
1995) (in hate crime case, prima facie case established where
defendants struck three out of the four black venire members);
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see 20
also United States v. Battle, 836 F.2d 1084, 1085-86 (8th Cir.
1987) (prima facie case established where “[t]he government
exercised five of its six (83%) allowable peremptory challenges to
strike five of the seven (71%) blacks from the jury panel”).
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When, on habeas review, a party argues that the state court
unreasonably denied a
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Batson challenge based upon the challenge
rate--that is, the percentage of a party’s total strikes used
against a cognizable racial group--the record should include, at a
minimum, the number of peremptory challenges used against the
racial group at issue, the number of peremptory challenges used in
total, and the percentage of the venire that belongs to that
racial group.
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Cf. Sorto, 497 F.3d at 171-72 (noting that when a 8
Batson challenge depends on a pattern of strikes, a sufficient
record would likely include,
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inter alia, the composition of the
venire, the adversary’s use of peremptory challenges, and the race
of the potential jurors stricken). When the record lacks one of
those facts, it is impossible for a reviewing court to conclude
that the state court should have drawn an inference of
discrimination.
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See id. at 173 (absent information about the
composition of the venire, court on habeas review could not
conclude whether challenge rate established a prima facie case of
discrimination).
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The district court computed the relevant challenge rate of
the prosecutor’s strikes against black potential jurors in Jones’s
case and found “a substantial statistical disparity” that would
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of discrimination.3 Jones, 473 F. Supp. 2d at 408. Nevertheless,
the district court found that Jones’s failure to articulate the
numerical basis for his challenge was fatal to his
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Batson claim. 3
See id. at 409-10. 4
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However, Jones’s Batson challenge was not based upon a
disproportionate challenge rate, but rather on a disproportionate
exclusion rate. Defense counsel argued to the trial court that
the prosecutor had attempted to use peremptory challenges to
exclude all but one of the black prospective jurors.
When the asserted prima facie case is based upon the use of
strikes to exclude all or nearly all of the members of a
particular racial group, the record need only include how many
members of that group were in the venire, and how many of those
were struck. See Harris, 346 F.3d at 345 (“[W]here every black
juror was subject to a peremptory strike, a ‘pattern’ plainly
exists.”);
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Tankleff, 135 F.3d at 249 (finding prima facie case
based solely on the fact that the government tried to strike the
only three black potential jurors);
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see also Johnson, 545 U.S. at
173 (finding prima facie case of discrimination where prosecutor
had struck all three black prospective jurors without requiring
analysis of other data). Information about the races of the
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3 The district court calculated that the minority challenge rate,
which was 40%, was nearly twice the percentage of minorities in the
venire, 21.4%. Jones, 473 F. Supp. 2d at 408. This calculation was
based on the fact that over the entire jury selection process, the
prosecutor used six of his available fifteen peremptory challenges to
strike black potential jurors.
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remaining members of the venire, beyond knowing that they do not
belong to the racial group that is allegedly being targeted, is
not necessary, nor is information about how the challenged party
used its other peremptory strikes.
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The respondent is therefore incorrect to argue that the
record in Jones’s case is deficient because it does not include
the races of every venire member, the racial make-up of Monroe
County,4 or how the prosecutor’s remaining peremptory strikes were
used. While the record did lack this information, Jones’s counsel
recited on the record which of the venire members were black, and
that the remaining members of the venire were white.5 From this
information, it is clear that there were seven black potential
jurors in the first panel of the venire. Two of these were struck
for cause. The prosecutor then used his peremptory challenges to
attempt to strike four of the five remaining black members of the
4 The minority percentage of the population of the area from which
the venire is drawn can be used as a surrogate for the minority
percentage of the venire when the record on direct appeal lacks the
information about the actual minority percentage of the venire. See
Alvarado, 923 F.2d at 255-56. This information is used in calculating
the prosecutor’s challenge rate. However, the use of this information
is more dubious on a petition for habeas corpus where the issue is
whether the state court unreasonably applied Batson, where it is unclear
if the state court had this statistical information, and where the state
court can determine the racial composition of the actual venire without
turning to surrogate statistics. See Sorto, 497 F.3d at 172-73.
5 During voir dire of the first panel, defense counsel stated for
the record: “Mr. Barry, Ms. Peters, Miss Hannah, Mr. Jefferson, Mrs.
Dixon, Mrs. Hayward. You’re the black members of the proposed jury. At
this point my client is black. The other representatives of the jury
panel at this time are white.” Defense counsel did not mention Ms.
Benbow’s name at that time, but he clearly identified Ms. Benbow as
black when he raised his second Batson challenge. He stated: “Ms.
Benbow is the other black female who was involved.”
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voir dire panel. It is beyond dispute that, where all members of
a racial group are excluded from a jury, a pattern is obvious
enough to draw an inference of discriminatory intent.
1
2
See, e.g., 3
Johnson, 545 U.S. at 173; Batson, 476 U.S. at 100; Harris, 346
F.3d at 345-46;
4
Tankleff, 135 F.3d at 249. This Court has also
stated that a party “may not avoid the Batson obligation to
provide race-neutral explanations for what appears to be a
statistically significant pattern of racial peremptory challenges
simply by forgoing the opportunity to use all of his challenges
against minorities.”
5
6
7
8
9
Harris, 346 F.3d at 346 (quoting Alvarado,
923 F.2d at 256). Where a party has used its strikes to exclude
all or nearly all of several members of a racial group from
serving on a jury, such a pattern may give rise to an inference of
discrimination.
10
11
12
13
See Batson, 476 U.S. at 93 (“[T]otal or seriously
disproportionate exclusion of Negroes from jury venires . . . is
itself such an unequal application of the law . . . as to show
intentional discrimination.” (quoting
14
15
16
Washington v. Davis, 426
U.S. 229, 241, 242 (1976)) (internal quotation marks and citation
omitted)).
17
18
19
20
21
22
23
24
It is unnecessary to decide whether a pattern of striking
four out of five members of a single racial group would, on its
own, establish a prima facie case of discrimination. In this
case, in addition to the prosecutor’s pattern of strikes, the
state trial court also had the significant circumstance before it
18

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that it had concluded that the prosecutor’s statements concerning
Mr. Barry were pretextual reasons for the peremptory strike. In
addition to a pattern of strikes, the other example of
circumstantial evidence that the
1
2
3
Batson Court indicated could give
rise to an inference of discrimination is “the prosecutor’s
questions and statements during voir dire examination and in
exercising his challenges.”
4
5
6
Batson, 476 U.S. at 97. These
circumstances were plainly sufficient to establish a prima facie
case that required an explanation for why the prosecutor exercised
a peremptory strike against Ms. Peters.
7
8
9
10
11
12
13
14
Here, defense counsel had argued that the prosecutor’s stated
reasons for striking Mr. Barry--that he was of the same age as the
defendant and had been looking in other directions during voir
dire--were pretexutal, and the state trial court agreed. However,
a trial court is required under Batson to take into consideration
“all relevant circumstances,” and a pretextual statement made by a
prosecutor in the course of jury selection is a highly relevant
circumstance. The state court nevertheless rejected defense
counsel’s application to reconsider the
15
16
17
18
Batson challenge with
respect to Ms. Peters and did not require the prosecutor to give a
race-neutral explanation for having struck her.
19
20
21
22
23
24
The district court held that Jones missed his opportunity to
rely upon the disallowed challenge of Mr. Barry as circumstantial
evidence of the prosecutor’s improper motive in striking Ms.
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Peters. Jones, 473 F. Supp. 2d at 410. The respondent also
argues that defense counsel should have explicitly told the state
trial court that it should have considered this circumstance in
evaluating the peremptory challenge against Ms. Peters. However,
in this case, defense counsel adequately brought its
1
2
3
4
Batson
challenge to the attention of the trial court and explained the
basis for a prima facie case of discrimination. Defense counsel
pointed to the statistics, and in the course of the second
5
6
7
Batson
challenge, asked the court to reconsider its rejection of the
8
9
Batson challenge to Ms. Peters and also argued that the reasons
given by the prosecutor for the additional peremptory challenges
were pretextual. The finding that the trial court then made which
found that the prosecutor had provided a pretextual excuse for the
peremptory strike of Mr. Barry should have been taken into account
by the trial court in connection with the strike of Ms. Peters
which the trial court was being asked to reconsider in the very
same set of challenges. It was not necessary for defense counsel
to ask for reconsideration yet again based on the circumstances
that were already before the trial court.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Taking into account both the prosecutor’s pretextual
justification for striking Mr. Barry and the prosecutor’s use of
strikes against four out of the five black members of the first
venire, we conclude that Jones had established a prima facie case
of discrimination at the time he raised his second Batson 24
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challenge against the strike of Ms. Peters, and that the Appellate
Division unreasonably applied
1
Batson in finding that Jones had
failed to do so.
2
3
Overton and Sorto are not to the contrary. Most importantly,
these cases did not involve an explicit finding by the state court
that the prosecutor had provided pretextual reasons for striking
another juror in the same jury selection process. Moreover, both
4
5
6
7
Overton and Sorto are principally about deficiencies in the
record. In
8
Overton, defense counsel raised a Batson challenge at
the end of the second round of peremptory strikes based on the
prosecutor’s challenge rate against black prospective jurors. The
defense claimed that, by a “rough count,” the prosecutor had used
seven of nine peremptory challenges against black prospective
jurors.
9
10
11
12
13
6 Overton, 295 F.3d at 273. The prosecutor responded by
pointing out that three of the eight jurors who had been seated at
that point were black; however, there was no contemporaneous
record made of the races of all of the prospective jurors. The
state court denied the challenge. At the end of the third round,
the state court identified on the record the racial backgrounds of
the prospective jurors, but the defense did not renew its
14
15
16
17
18
19
Batson
challenge at any point after the record was made. This Court’s
holding in
20
21
Overton, therefore, was that when the defendant raised 22
6 The prosecutor had actually exercised seven of ten of his
peremptory challenges against black prospective jurors by the end of the
second round. Overton, 295 F.3d at 273 n.4.
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his Batson challenge, the facts that would have been necessary to
raise an inference of discrimination had not yet been fully
established.
1
2
Id. at 279-80. 3
In Sorto, the defense made two Batson challenges. The first
was raised after the prosecution used its first round challenges
to strike three minority venire members, although one challenge
was subsequently withdrawn. The second was raised after the
prosecution used a second round strike against another minority
venire member. The state court denied both challenges for lack of
a prima facie case, and also gave the alternative explanation for
its denial of the defendant’s second challenge that the prosecutor
had supplied, on its own volition, a non-pretextual and race-
neutral justification for the strike. At neither the time of the
first strike nor the time of the second strike did the defense
establish on the record the racial composition of the venire. On
habeas review, this Court held that the state court did not act
unreasonably when it denied the first
4
5
6
7
8
9
10
11
12
13
14
15
16
Batson challenge as
premature.
17
Sorto, 497 F.3d at 171. This Court denied habeas
relief with respect to the second
18
Batson challenge on the ground
that the record did not contain “the baseline factual
circumstances” necessary to find that the state court acted
unreasonably.
19
20
21
Id. at 171-72. The record did not contain clear
information about the races of other venire members struck by the
prosecution, or information about how many minority persons
22
23
24
22

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remained on the venire after the challenged strikes, and this
Court declined to conclude that the state court acted unreasonably
on such an incomplete record.
1
2
Id. at 172-74. 3
4 The record in this case does not suffer from the deficiencies
of those in Overton and Sorto. Although the record does not
disclose the specific races of the remaining persons on the first
panel, it shows that they were not black. Therefore, when Jones
raised his second
5
6
7
Batson challenge, the record established that
four of the five qualified black venire members had been struck by
the prosecutor. Moreover, the trial court was presented with a
record that the prosecutor was providing a pretextual excuse for
striking another black potential juror, and the trial court agreed
that the prosecutor had indeed provided a pretextual reason.
There was thus more than a sufficient record for the trial court
to conclude that defense counsel had established a prima facie
case that required an explanation for the prosecutor’s peremptory
strike of Ms. Peters.
8
9
10
11
12
13
14
15
16
17
18
19
IV.
When a federal habeas court has concluded that the state
court unreasonably applied Batson, there are several remedial
options: 1) require the district court to “hold a reconstruction
hearing and take evidence regarding the circumstances surrounding
the prosecutor’s use of the peremptory challenges . . . ; 2)
return the case to the state trial court on a conditional writ of
20
21
22
23
24
23

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habeas corpus so that the state court could conduct the inquiry on
its own; or 3) order a new trial.”
1
Harris, 346 F.3d at 347
(internal quotations and citations omitted).
2
3
4
5
6
7
8
9
10
11
12
13
Over ten years have elapsed since Jones’s trial, and he will
be eligible for release in a little over a year. Jones argues
that he should be granted a new trial because an accurate
reconstruction of the prosecutor’s reasons would now be
impossible. However, the respondent has requested a
reconstruction hearing and represented at oral argument that the
court and the lawyers involved in the case are available. This
Court has noted that “there are cases where the passage of time
may impair a trial court’s ability to make a reasoned
determination of the prosecutor’s state of mind when the jury was
selected,” in which a new trial must be held. Brown v. Kelly, 973
F.2d 116, 121 (2d Cir. 1992). Nevertheless, this Court has also
recognized that the prosecutor should be allowed an opportunity to
present its reasons for exercising the challenged strikes at a
reconstruction hearing “if appropriate findings may conveniently
be made.”
14
15
16
17
18
Id. (quoting Alvarado, 923 F.2d at 256). 19
20
21
22
23
We are concerned about the significant amount of time that
has passed since Jones’s trial, as well as the fact that he has
already served almost the entirety of his sentence. These
concerns can be satisfied with a prompt remand to the state court
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1
2
3
4
5
6
7
8
9
10
with instructions to hold a reconstruction hearing within ninety
days or grant Jones a new trial also within ninety days.
CONCLUSION
For the reasons explained above, we REVERSE the judgment of
the district court and REMAND with instructions to conditionally
grant the writ and order the respondent to release Jones unless
the state court holds a reconstruction hearing within ninety days
or, if it determines that such a hearing would not be possible,
grant Jones a new trial within ninety days of the date of this
decision. The mandate shall issue forthwith.
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