05-0728-pr Sorto v. Herbert

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term 2005 6 7 8 (Argued: June 20, 2006 Decided: March 9, 2007) 9 10 (Amended: August 10, 2007) 11 12 Docket No. 05-0728-pr 13 14 - - - - - - - - - - - - - - - - - - - -x 15 16 VALENTIN SORTO,* 17 18 Petitioner-Appellant, 19 20 - v. - 21 22 VICTOR HERBERT, Superintendent of the 23 Attica Correctional Facility, 24 25 Respondent-Appellee. 26 27 28 - - - - - - - - - - - - - - - - - - - -x 29

30 Before: JACOBS, Chief Judge, POOLER, WESLEY, Circuit 31 Judges. 32 33 Appeal from a judgment of the United States District

34 Court for the Eastern District of New York (Korman, Ch.J.),

35 denying the petition for habeas corpus. A state court jury

36 convicted petitioner of murder, assault, and criminal

* 1 The official caption misspells petitioner’s name. 2 The caption is hereby corrected. 1 possession of a weapon; petitioner claims that jury

2 selection was conducted in violation of the rule in Batson

3 v. Kentucky,

(1986), and its progeny.

4 The district court denied the petition, and we affirm.

5 Judge Pooler dissents in a separate opinion.

6

7 MONICA A. JACOBSON, New York, 8 NY, for Petitioner-Appellant . 9 10 11 DENISE PALVIDES, Assistant 12 District Attorney for Nassau 13 County (Kathleen M. Rice, 14 District Attorney for Nassau 15 County, Peter A. Weinstein, 16 Assistant District Attorney for 17 Nassau County, of counsel), 18 Mineola, NY, for Respondent- 19 Appellee. 20 21 22 23 DENNIS JACOBS, Chief Judge:

24 Petitioner Valentin Sorto, convicted of murder and

25 related offenses in New York state court, petitions for a

26 federal writ of habeas corpus on the ground that the state

27 courts unreasonably misapplied Batson v. Kentucky,

(1986), and its progeny. During jury selection,

29 Sorto twice asserted that the prosecution was discriminating

30 against minority jurors in its exercise of peremptory

31 strikes; both challenges were denied for failure to

2 1 establish a prima facie case of discrimination. Resolution

2 of the Batson issue in this case requires more information

3 about the possible jurors than the record discloses. Only

4 limited portions of jury selection were recorded: This

5 Court has not been presented with a full transcript of the

6 voir dire, or with data describing the composition of the

7 potential juror pool. Because Sorto bears the burden of

8 demonstrating an unreasonable application of federal law,

9 the insufficiency of the record defeats his petition, and we

10 therefore affirm.

11

12 BACKGROUND

13 Valentin Sorto was arrested for the April 27, 1997

14 murder of Jose Alvarez and the severe beating of Lazaro

15 Cruz. According to the prosecution, Sorto and another man

16 retaliated for an attack on their fellow gang member by

17 stabbing Alvarez in the neck and chest, leaving him to bleed

18 to death in a stairwell; and Sorto punched Cruz and slashed

19 his hands with a broken glass bottle. Sorto and his

20 accomplice were indicted for murder in the second degree,

21 assault in the second degree, and criminal possession of a

22 weapon in the third degree. The accomplice pled guilty;

3 1 Sorto went to trial and was convicted.

2 At Sorto’s trial, jury selection proceeded according

3 to the “jury box” system, in which groups of fourteen

4 prospective jurors are randomly called from the venire,

5 interviewed, and then challenged by the attorneys.

6 Following decision on the challenges for cause, the lawyers

7 are afforded the opportunity to exercise one or more of

8 their twenty peremptory challenges. A new set of potential

9 jurors is then invited into the jury box, and the process

10 repeated until a jury is empaneled. See generally People v.

11 Webb,

(N.Y. Sup. Ct. 2001).

12

13 Round One

14 In the first round of jury selection, the prosecution

15 challenged potential juror Vidal Martinez for cause, citing

16 Martinez’s expressed sympathy for gang members, and his

17 concession that he would have trouble deferring to the

18 interpreter in the translations from Spanish. Sorto

19 contested the challenge for cause, but allowed that the

20 prosecution would be free to “us[e] one of his peremptories”

21 to strike Martinez. The trial judge agreed and rejected the

22 challenge for cause. Five more first-round jurors were

23 dismissed for cause, all upon objection by the prosecutor.

4 1 Next, the prosecution exercised peremptory strikes

2 against three jurors: [i] Martinez; [ii] Carlos Rivera, who

3 is of Salvadoran descent; and [iii] and John Harper, an

4 African American. Defendant then raised the first of his

5 two Batson objections. Defendant argued: that Martinez was

6 a peace officer who likely would be welcomed by the

7 prosecution but for a discriminatory motive; that Rivera had

8 filled out an unobjectionable jury questionnaire and that

9 there was no basis for striking him other than his

10 nationality, which was the same as the defendant’s; and that

11 the use of three prosecutorial strikes against three

12 minority potential jurors established (under the

13 circumstances) a pattern of discrimination.1

14 The prosecution disputed the existence of a prima facie

1 1 In the state court, the parties vigorously debated 2 whether different minority groups should be aggregated-- 3 particularly African American and Latino groups--towards 4 evaluating a Batson prima facie case. This Court has since 5 held that “a defendant raising a Batson claim of purposeful 6 racial discrimination does not have to demonstrate that all 7 venirepersons who were peremptorily excused belong to the 8 same ‘cognizable racial group.’” Green v. Travis,

(2d Cir. 2005) (internal citations omitted). The 10 state court (not yet guided by our decision in Green) 11 expressed reluctance to aggregate in discussing the second 12 Batson challenge, but implied no view on the issue in 13 denying the first Batson challenge. However, because the 14 petitioner has not sufficiently established the factual 15 circumstances giving rise to the second Batson challenge, 16 the state court’s erroneous view on aggregation is not 17 implicated here. 5 1 case of discrimination, and accordingly offered no further

2 explanation for its strikes. However, the prosecution

3 withdrew its objection to Martinez, thereby empaneling one

4 of the two challenged Latino jurors.2 Defendant casts the

5 prosecution’s about-face as a telling implicit admission;

6 the court construed it as a token of the good faith.

7 The state court denied the Batson challenge for lack of

8 a prima facie case, but agreed to remain seized of the

9 issue, especially as related to the strike of Rivera: “the

10 Court will keep it in mind as we proceed. So certainly we

11 should keep both the questionnaire and the card of

12 [Rivera].” Trial Tr. at 132.

13

14 Round Two

15 Only two jurors were successfully empaneled after round

16 one; a second set of potential jurors were called to the

17 jury box for voir dire. On this second round, the

18 prosecution challenged Hazel Mays (an African American) for

19 cause on the ground that Mays had hesitated before agreeing

20 to be fair and impartial, and because she supposedly

2 1 At trial, the parties disputed whether the 2 “withdrawal” of a challenge has any impact for Batson 3 purposes. For purposes of this appeal we will assume, 4 arguendo, that the withdrawn strike still factors into a 5 prima facie analysis. 6 1 admitted that she “identifie[d] with the defendant because

2 he is a member of a minority group.” When the challenge for

3 cause was denied, the prosecution exercised a peremptory

4 challenge to excuse her. After the peremptory strike of

5 Mays, the defendant interposed a second Batson challenge,

6 claiming discrimination “in regards to the prosecution’s

7 elimination of Mrs. Mays.” (emphasis added). The record

8 does not clearly show what evidence was submitted to support

9 the prima facie case at this juncture. Defendant did not

10 reprise the first-round eliminations of Harper and Rivera as

11 evidence to support a prima facie case on this later motion,

12 but the judge may have made that assumption, because he

13 asked, with regard to this second Batson challenge, whether

14 defendant placed “Hispanic and black in the same group.”

15 In response to the second Batson challenge, the

16 prosecution spontaneously explained its strike of juror

17 Harper--the African American dismissed in round one--even

18 though Harper was not mentioned as the subject or basis of

19 the second motion. The prosecutor defended that strike on

20 the ground of Harper’s “sympathy” for his imprisoned nephew,

21 and Harper’s prior hostile run-ins with the police. The

22 prosecution did not attempt to explain its round-one strike

23 of Rivera, nor was that strike ever mentioned by either

7 1 party during round two.

2 Next, the prosecution explained that it challenged Mays

3 because of her announced self-identification with the

4 defendant. In any event, the prosecution asserted that no

5 explanation was needed because no prima facie case had been

6 stated.

7 The state court dismissed the second Batson challenge

8 on the grounds that the defendant “hadn’t reached the

9 threshold with respect to the particular juror,”3 and in the

10 alternative (“in case another Court were to find

11 differently”), that the prosecution had successfully offered

12 non-pretextual, race-neutral explanations for the dismissals

13 of jurors Harper and Mays.

14 Sorto’s state appeal argued (inter alia) that the trial

15 court (1) erroneously ruled that a prima facie case had not

16 been established after the first round objections, (2)

17 erroneously ruled that a prima facie case had not been

18 established after the second round objection, and (3)

3 1 Use of the singular (“juror”) is suggestive: Even if 2 the trial judge assumed at the onset that the second Batson 3 challenge was supported by the Rivera and Martinez strikes, 4 and even if the trial judge operated under this assumption 5 while denying the challenge, reference to a “particular 6 juror” indicates that the state court believed that only the 7 Mays strike (and not the previous round’s strike of Rivera) 8 had been challenged.

8 1 erroneously found the prosecution’s proffered explanations

2 for the Harper and Mays strikes were non-pretextual. The

3 Appellate Division treated “defendant’s [Batson] contentions

4 [as] either unpreserved for appellate review or without

5 merit.” People v. Sorto,

(N.Y. App.

6

). As to the existence of a Batson prima facie

7 case, the parties agree that because the government offered

8 no procedural default argument, the Appellate Division

9 affirmance constitutes a ruling on the merits for purposes

10 of the Antiterrorism and Effective Death Penalty Act of 1996

11 (“AEDPA”). The New York Court of Appeals denied leave to

12 appeal.

.

13 Sorto next petitioned for federal habeas relief,

14 challenging (inter alia) the Batson rulings. The district

15 court denied the petition, but granted a certificate of

16 appealability as to the Batson claims.

17

18 DISCUSSION

19 Because the Appellate Division rendered a decision on

20 the merits, our review of the prima facie rulings is

21 governed by AEDPA. Torres v. Berbary,

(2d

22 Cir. 2003). Under AEDPA, a petition for a writ of habeas

23 corpus claiming a state court error of law “shall not be

9 1 granted . . . unless the adjudication of the claim resulted

2 in a decision that was contrary to, or involved an

3 unreasonable application of, clearly established Federal

4 law, as determined by the Supreme Court of the United

5 States.”

(d)(1). See also Williams v.

U.S. 362, 365 (2000). “[A]n unreasonable

7 application of clearly established Supreme Court precedent

8 occurs when a state court identifies the correct governing

9 legal principle from the Supreme Court's decisions but

10 unreasonably applies that principle to the facts of the

11 prisoner's case.” Torres,

(internal

12 citations omitted). While “[t]he precise method for

13 distinguishing objectively unreasonable decisions from

14 merely erroneous ones” is somewhat unclear, “it is

15 well-established in this Circuit that the ‘objectively

16 unreasonable’ standard of § 2254(d)(1) means that petitioner

17 must identify some increment of incorrectness beyond error

18 in order to obtain habeas relief.” Id. (internal citations

19 omitted). This Court reviews a district court’s denial of

20 petition for a writ of habeas corpus de novo. Harris v.

21 Kuhlman,

, 342 (2d Cir. 2003).

22

23

10 1 Round One

2 The Supreme Court’s decision in Batson v. Kentucky, 476

3

(1986), and its progeny limit the traditionally

4 unfettered prerogative of exercising peremptory strikes by

5 forbidding certain discrimination in jury selection. The

6 Supreme Court has generally granted individual courts the

7 leeway to adopt their own procedures to test for

8 discriminatory strikes. See Howard v. Senkowski,

(2d Cir. 1993) (“[T]he decisions . . . recognize the

10 role that remains for lower courts to work out the mechanics

11 for implementing these requirements.”). That leeway is

12 granted within a procedural framework:

13 The Batson Court . . . establish[ed] a three-step 14 burden-shifting framework for the evidentiary 15 inquiry into whether a peremptory challenge is 16 race-based: First, the moving party--i.e., the 17 party challenging the other party's attempted 18 peremptory strike--must make a prima facie case 19 that the nonmoving party's peremptory is based on 20 race. Second, the nonmoving party must assert a 21 race-neutral reason for the peremptory challenge. 22 The nonmoving party's burden at step two is very 23 low. . . . [A]lthough a race-neutral reason must 24 be given, it need not be persuasive or even 25 plausible. Finally, the court must determine 26 whether the moving party carried the burden of 27 showing by a preponderance of the evidence that 28 the peremptory challenge at issue was based on 29 race. 30 31 McKinney v. Artuz,

(2d Cir. 2003)

32 (internal citations omitted).

11 1 The first step of the Batson analysis, requiring the

2 showing of a prima facie case, is not meant to be onerous.

3 Johnson v. California,

(2005). However,

4 this stage of the analysis still requires consideration of

5 “all relevant circumstances.” Batson,

. As

6 Batson explained:

7 [A] ‘pattern’ of strikes against black jurors 8 included in the particular venire might give rise 9 to an inference of discrimination. Similarly, the 10 prosecutor's questions and statements during voir 11 dire examination and in exercising his challenges 12 may support or refute an inference of 13 discriminatory purpose. These examples are merely 14 illustrative 15 16

The prima facie inquiry is a hurdle that preserves the

17 traditional confidentiality of a lawyer’s reason for

18 peremptory strikes unless good reason is adduced to invade

19 it: While litigants must now explain their motivations for

20 certain strikes, courts must still be mindful of “each

21 side’s historical prerogative to make a peremptory strike or

22 challenge . . . without a reason stated” if a prima

23 facie case of discrimination has not been established.

24 Miller-El v. Dretke,

(2005) (internal

25 citation omitted).

26 To establish a prima facie case, “a defendant must show

27 facts and circumstances that raise an inference that the

28 prosecutor used the peremptory challenge to exclude 12 1 potential jurors from the petit jury on account of their

2 race.” Overton v. Newton,

(2d Cir. 2002).

3 The discharge of this burden may entail a review of

4 prosecutorial strikes over the span of the selection

5 process: Thus this Court has held, on habeas review, that a

6 state court does not act unreasonably where it denies a

7 Batson challenge early in the jury selection process.

8 at 279.

9 Where a litigant points to a pattern of strikes as

10 evidence of discrimination, “statistical disparities are to

11 be examined” as part of the Batson prima facie inquiry.

12 United States v. Alvarado,

(2d Cir. 1991).

13 The need to examine statistical disparities may commend a

14 wait-and-see approach. As we held in Overton (where the

15 Batson challenge was brought after seven of ten potential

16 African American jurors were dismissed through peremptory

17 challenges), an early Batson challenge limits the state

18 court’s ability to properly assess a prima facie case:

19 the trial judge never confront[s], and the trial 20 record does not reveal, what the statistics would 21 [] show[] at the conclusion of jury selection. If 22 those statistics sufficiently establish[] the 23 inference that challenges [a]re based on race, the 24 court could then [] implement[] the Batson process 25 to ensure that impermissible challenges [are] not 26 [] allowed. If, on the other hand, the statistics 27 at the conclusion fail[] to support a sufficient 28 inference, there would be no need to engage in the 13 1 process. 2 3 Overton,

(emphasis added). Overton

4 concluded that the state trial judge acted reasonably in

5 “refus[ing] to implement Batson's process for testing each

6 questioned challenge midway in the process.”

at 280

7 (emphasis added).

8 Sorto raised his first Batson challenge after only

9 three peremptory strikes. The state court acted reasonably

10 in denying this challenge as premature, while remaining open

11 to reevaluating these strikes as part of a later challenge.

12 Accordingly, the district court did not err in denying the

13 habeas petition challenging the denial of the first round

14 Batson challenge.4

4 1 Alternatively, petitioner argues that the 2 prosecution’s withdrawal of its peremptory challenge to 3 juror Martinez was so irregular as to evince a prima facie 4 case of discrimination. The state court interpreted this 5 withdrawal as a gesture of good faith by the prosecution. 6 This was a reasonable interpretation of the prosecution’s 7 motive: The withdrawn challenge could reasonably be viewed 8 as expressing a willingness to empanel one of two potential 9 Hispanic jurors interviewed in round one. Though Sorto 10 cannot understand why the prosecution would have withdrawn a 11 peremptory from a juror previously challenged for cause, 12 Sorto himself provides a possible answer: As part of his 13 Batson challenge, Sorto reminded the prosecution that 14 Martinez worked as a peace officer and would therefore 15 likely be a favorable witness for the prosecution. 16 Accordingly, the state court did not act unreasonably in 17 ruling that the withdrawn challenge did not support a prima 18 facie case.

14 1

2 Round Two

3 The existence of a prima facie Batson case is a mixed

4 question of law and fact. Overton,

. On

5 habeas review, then, we will disturb the state court ruling

6 only if it “was contrary to, or involved an unreasonable

7 application of, clearly established Federal law.”

at

8 277 (quoting

(d)(1)). Sorto raises no

9 argument that the state court identified the wrong legal

10 standard; he therefore must show an unreasonable

11 application.

12 “[A] state court decision fails the ‘unreasonable

13 application’ prong of AEDPA analysis, ‘if the state court

14 identifies the correct governing legal principle from [the

15 Supreme Court's] decisions but unreasonably applies that

16 principle to the facts of the prisoner’s case.’”

17 (quoting Williams v. Taylor,

(2000)). To

18 challenge the application of law to fact, a petitioner must

19 demonstrate the existence of a particular set of facts to

20 which a legal rule was applied: We cannot say whether a

21 properly identified rule of law was wrongly applied unless

22 we know the set of facts to which the rule was applied.

23 See generally Escalera v. Coombe,

(2d Cir.

15 1 1987) (mixed questions of law and fact create “subsidiary

2 questions of historical fact”). Facts on which a petitioner

3 hopes to rely must be established by (at least) a

4 preponderance of the evidence in the habeas court. Galarza

5 v. Keane,

, 637 n.5 (2d Cir. 2001).

6 When, as here, a Batson prima facie case depends on a

7 pattern of strikes, a petitioner cannot establish that the

8 state court unreasonably concluded that the pattern was not

9 sufficiently suspicious unless the petitioner can adduce a

10 record of the baseline factual circumstances attending the

11 Batson challenge. A sufficient record would likely include

12 evidence such as the composition of the venire,5 the

13 adversary’s use of peremptory challenges, the race of the

14 potential jurors stricken, and a clear indication as to

15 which strikes were challenged when and on what ground, and

16 which strikes were cited to the trial court as evidence of a

17 discriminatory intent. That information may be common

18 knowledge in the courtroom based on the shared perceptions

5 1 Here, “venire” refers to the jurors who were called 2 to the jury box and subject to evaluation and strike. The 3 term may also be used to reference the entire group of 4 jurors eligible to be called into the jury box. Information 5 regarding jurors who were eligible but not called may form 6 part of a sufficient record insofar as that information 7 assists a reviewing court in evaluating the pattern of 8 strikes at issue or the strategy and motive of the lawyer 9 exercising the strikes. 16 1 of the lawyers and the trial judge; but an appellate court

2 does not have the benefit of what can be observed by those

3 in the trial courtroom. Therefore, to the (appreciable)

4 extent that information regarding the jury and the voir dire

5 process bears upon establishing a prima facie case, a

6 sufficient appellate record may depend on a recitation of

7 relevant information on the record in the trial court.

8 For example, in United States v. Alvarado we stated:

9 [T]he prosecution’s challenge rate against 10 minorities was 50 percent (three of six) in the 11 selection of the jury of 12, and 57 percent (four 12 of seven) in the selection of the jury of 12 plus 13 alternates. Whether this rate creates a 14 statistical disparity would require knowing the 15 minority percentage of the venire; for example, if 16 the minority percentage of the venire was 50, it 17 could be expected that a prosecutor, acting 18 without discriminatory intent, would use 50 19 percent of his challenges against minorities. 20 21

(2d Cir. 1991) (emphasis added). The

22 analysis is thus driven by information regarding the

23 prosecution’s strikes so that the federal court can usefully

24 consider a prosecutorial strike pattern in the essential

25 contexts.

26 The Alvarado Court met this need by taking judicial

27 notice of the counties that compose the Eastern District of

28 New York and the minority percentage of the populations of

29 those counties, and then accepting that percentage as a

17 1 “surrogate” for the minority population of the venire.

2 at 256. On direct appeal from a conviction in district

3 court, a panel may, in a suitable case, supplement the

4 record in such a manner (though that is a thin basis for

5 assigning discriminatory motive to an officer of the court).

6 But it is one thing to say that a panel may exercise that

7 discretion on direct appeal in a suitable case, and quite

8 another to hold on collateral review that it is contrary to

9 or an unreasonable application of Batson for a state court

10 to fail to take judicial notice of such “surrogate” facts

11 and data, particularly where no such request appears to have

12 been made, cf. N.Y. C.P.L.R. 4511, and where, for all we

13 know, “surrogate” data in lieu of record facts may not have

14 been at hand in the state court. In any event, we would in

15 this case decline to exercise our discretion to take

16 judicial notice of the counties from which Sorto’s venire

17 was drawn in order to determine the minority percentages of

18 those counties, or to assume that those percentages would

19 reflect the ethnic or racial makeup of the venire in Sorto’s

20 trial.

21 The record before us contains insufficient data as to

22 the prosecution’s strike pattern to support a finding that

23 the state court unreasonably applied Batson. For example,

18 1 between the strikes of Rivera and Mays, the prosecution

2 exercised peremptory challenges against potential jurors

3 Mink and Burdonis. Petitioner’s brief states that Mink was

4 not a minority; however, we have no particulars about

5 Burdonis or about the prospective and empaneled jurors who

6 were not challenged by the prosecution. Moreover, Sorto

7 lacks any resource in the record to resolve in his favor

8 conflicting reports as to the composition of the venire. At

9 oral argument, petitioner suggested--without evidence--that

10 the strikes of Rivera and Martinez removed all the Hispanic

11 potential jurors from the venire. But petitioner’s brief

12 acknowledges (at least) one additional Hispanic potential

13 juror on the venire (potential juror Zate). Appellant’s Br.

14 at 7. Beyond this, we have no information as to how many

15 Hispanic and minority potential jurors remained on the

16 venire after all of the challenged strikes. Absent this

17 information, we cannot say that the state court acted

18 unreasonably: The venire may have overwhelmingly consisted

19 of minority jurors, rendering any individual peremptory

20 strike of a minority juror less suspicious.6

6 1 Our analysis is naturally influenced by the context 2 of this case: [i] a state court’s denial [ii] of a Batson 3 motion that is premised on an allegedly pernicious pattern 4 of strikes. Given our deferential habeas review, we cannot 5 disturb a state court judgment as “unreasonable” unless we 19 1 The dissent illustrates what happens when insufficient

2 care is taken to build a record of Batson discrimination:

3 the case is made to depend on a labored piecing together of

4 transcript fragments in an effort to intuit the race and

5 ethnicity of jurors and to reconstruct and imagine what

6 might have happened.

7 A well-crafted record in the state trial court is

8 needed also to fix (1) the scope of a given Batson challenge

9 and (2) the evidence adduced to support the motion. Sorto

10 argues that the state “court’s failure to require a reason

11 for the challenge to Rivera was an unreasonable disregard of

12 its duty under Batson.” Petitioner’s Br. at 34. But the

13 record is far too sketchy to support a conclusion that the

14 state court acted unreasonably in refusing to demand an

15 explanation for the Rivera strike. In reviewing the second-

16 round Batson challenge, we are unable to identify (1)

17 precisely which strikes were challenged, and (2) on what

18 basis any challenge was made.

19 Seemingly, the round two challenge was limited to the

1 can consider the factual background that gave rise to a 2 state court ruling. Background data as to the venire would 3 seem less necessary when a Batson challenge is premised on 4 evidence other than pattern, such as comments made during 5 voir dire or during the exercise of challenges. See 6 generally Batson,

.

20 1 strike of Mays: Sorto described the second round challenge

2 as “regard[ing] the prosecution’s elimination of Mrs. Mays.”

3 Trial Tr. at 208 (emphasis added). Petitioner argues that a

4 question posed by the trial judge (whether the second round

5 challenge grouped together strikes to African Americans and

6 Hispanics) indicated that “the trial court understood that

7 the scope of the renewed Batson challenge included all four

8 challenged minority jurors.”7 Appellant’s Br. at 33. This

9 may or may not have been the trial court’s thinking. But

10 habeas may not be granted based on speculation as to the

11 trial court’s thought process; the record limits the set of

12 challenges under review. Petitioner explicitly limited the

13 challenge to the strike of Mays; the record therefore does

14 not command the conclusion that the strikes to Rivera and

15 Harper were even in play in the second round;8 and

16 consequently we cannot rule that the state court acted

7 1 See our discussion at supra note 3. 8 1 Sorto did not waive his ability to petition for 2 habeas relief by his failure to restate his challenges to 3 Rivera and Harper. It is true that a Batson objection is 4 waived if not restated in the federal district court; but on 5 a habeas petition challenging a state judgment, waiver is a 6 matter of state procedure. DeBerry v. Portuondo,

57, 66 (2d Cir. 2005). The issue of restated challenges is 8 not implicated here; our ruling is premised on the 9 substantive insufficiency of the habeas claim. For example, 10 we would be no more likely to find a Batson violation in 11 Round Two even if petitioner had not challenged the Rivera 12 and Harper strikes in Round One. 21 1 unreasonably in refusing to demand an explanation for the

2 strike to Rivera. While unrecorded impressions may have

3 given the trial judge certain clues as to the intended scope

4 and basis of the round-two Batson challenge, we need a clear

5 record.

6 The inadequacy of the record is one reason that the

7 trial court’s rejection of Sorto’s second Batson challenge

8 was not unreasonable; another independent reason is the

9 preliminary stage at which the challenge was lodged. As

10 discussed above, Sorto raised his first challenge after only

11 three peremptory strikes, and accordingly the state court’s

12 denial of that challenge was reasonable. The same logic

13 applies to Sorto’s second challenge, which came only after

14 the prosecutor’s sixth peremptory challenge, four fewer than

15 the number in Overton,

. Between Sorto’s

16 first and second Batson challenge, the prosecutor struck

17 potential jurors Mink and Burdonis; neither of them, on the

18 record before us, appears to have been black or Hispanic.

19 It was the prosecutor’s sixth peremptory strike (of Mays)

20 that precipitated Sorto’s second Batson challenge, at which

21 point the prosecutor had used four of six peremptory strikes

22 to remove black or Hispanic potential jurors. We cannot say

23 that this stage of the voir dire was materially less

22 1 preliminary than the stage at which Sorto made his first

2 challenge. Accordingly, it was reasonable for the state

3 court to conclude that a problematic pattern of strikes had

4 not yet developed. Sorto did not renew his objection in

5 later rounds of voir dire, and so we cannot say whether such

6 a pattern ever developed. See

.

7 It is here that the dissent parts ways. Despite its

8 agreement that “the state court acted reasonably in denying

9 the first Batson challenge as premature,” the dissent

10 concludes, leaning heavily on Green v. Travis,

(2d Cir. 2005), that the state court “unreasonably applied

12 Batson” when it denied Sorto’s second challenge. Dissent Op.

13 at [28:11] Between the first (premature) challenge and the

14 second challenge, the government [i] withdrew its strike

15 against a Hispanic juror (Martinez), [ii] struck a juror who

16 was neither African American nor Hispanic (Mink), [iii]

17 struck a juror who was African American (Mays), and [iv]

18 struck a juror who was neither African American nor Hispanic

19 (Burdonis). These intervening events furnish no appreciable

20 support for a finding of discrimination beyond the showing

21 that (we all agree) was insufficient and premature.

22 In any event, the dissent’s reliance on Green is

23 misplaced. In Green, the “Appellate Division [had] not

23 1 address[ed] whether the pattern of the prosecution’s

2 peremptory strikes established a prima facie case of

3 discrimination.” 414 F.3d at 299. So there was no state

4 court determination on that issue to which the Green Court

5 could give AEDPA deference: it is one thing to conclude

6 that a pattern of strikes is prima facie evidence of

7 discrimination; it is a very different thing to hold that

8 the contrary conclusion would be an unreasonable application

9 of Batson.

10 Accordingly, we hold that the record is insufficient to

11 disturb the state court’s ruling on the existence of a prima

12 facie case in support of the Batson challenge to the Mays

13 strike. We similarly refuse to disturb the second round

14 treatment of the Rivera strike, as the record does not even

15 clearly indicate that that strike was at issue.9

16

17 * * *

18 We have considered petitioner’s remaining arguments and

19 find each of them to be without merit. For the foregoing

9 1 Petitioner argues that the state court mooted the 2 prima facie issue in addressing--for the sake of appellate 3 review--the credibility of the prosecution’s proffered 4 explanations. Though that approach was taken in Hernandez 5 v. New York,

(1991), a habeas court 6 remains free to affirm based on the prima facie rulings. 7 See, e.g., United States v. Diaz,

(2d 8 Cir. 1999). 24 1 reasons, the judgment of the district court is affirmed.

2

3

4

5

6

7

8

9

10

25 1 POOLER, Circuit Judge, dissenting:

2 I respectfully dissent, because I disagree with the

3 majority that “[r]esolution of the Batson issue in this case

4 requires more information about the possible jurors than the

5 record discloses.” Majority Op. [2:29-3:2]. Because the

6 majority overlooks the fact that the record discloses a

7 great deal about the possible jurors in this case, it

8 imposes a substantial and unnecessary evidentiary burden on

9 Sorto.

10 Before I turn to the majority’s long disquisition on

11 the amount of evidence required to judge a Batson claim, I

12 highlight two statements made by the prosecutor during jury

13 selection:

14 “If [defense counsel] accepts our withdrawal of 15 [the Martinez] peremptory challenge, we would have 16 accepted fifty percent of Hispanic potential 17 jurors that are before us.” 18 19 “[Defense counsel] has made no threshold offer of 20 any pattern of discriminating on the People’s part 21 because we peremptorily challenged the only two 22 African American potential jurors we had.” 23 24 The first statement shows that there were two Hispanic

25 jurors in the box during Round One of jury selection. The

26 second statement, made during Round Two, establishes that

27 only two African-American jurors were present during the

28 first two rounds of jury selection.

26 1 Thus, the record demonstrates the following. Prior to

2 the first Batson challenge, the prosecutor attempted to use

3 peremptory strikes against three potential jurors: Vidal

4 Martinez, Carlos Rivera, and John Harper. Martinez and

5 Rivera are Hispanic, while Harper is African-American.

6 Majority Op. [5]. At the time of the first Batson

7 challenge, these were the only Hispanic or African-American

8 individuals seated in the jury box. Prior to the second

9 Batson challenge, the prosecutor exercised additional

10 peremptory strikes against Round One potential juror Steven

11 Mink, and Round Two potential jurors MaryAnn Burdonis and

12 Hazel Mays.

at [18]. Mays is African-American. Id. at

13 [6] Mink is neither African-American nor Hispanic.

14 Burdonis is not African-American, and it is a fair inference

15 that she is not Hispanic.1 An additional Hispanic potential

1 1 Neither Mink nor Burdonis can be African-American, 2 because the prosecutor made his comment regarding African- 3 American potential jurors after he struck both Mink and 4 Burdonis. 5 The fact that Mink was not Hispanic can be deduced from 6 the fact that he was a Round One juror, and therefore would 7 have been seated in the box, along with Rivera, when the 8 prosecutor described Martinez as fifty percent of the 9 Hispanic potential jurors. While there is less evidence 10 with respect to Round Two potential juror Burdonis, the 11 record suggests that she was not Hispanic. When defendant 12 raised his second Batson challenge, he referred to the 13 prosecutor’s use of peremptories against Hispanic and 14 African-American individuals during Round One (i.e., against 15 Martinez, Rivera, and Harper), and the use of a peremptory 27 1 juror, Selina Zate, was seated in the jury box at the

2 beginning of Round Two, but removed for cause before the

3 parties exercised their Round Two peremptories.

4 The record therefore shows that at the time of the

5 first Batson challenge, the prosecutor had attempted to

6 exercise one hundred percent of his peremptory challenges

7 against minorities, and had challenged one hundred percent

8 of the minorities not already struck for cause. At the time

9 of the second Batson challenge, the prosecutor had attempted

10 to exercise sixty-six percent of his strikes against

11 minorities, had stricken one hundred percent of the African-

12 American potential jurors not already struck for cause, and-

13 -assuming Burdonis is not Hispanic--had attempted to strike

14 one hundred percent of the Hispanic jurors not already

15 struck for cause. Reaching such a conclusion does not

16 require a “labored piecing together of transcript fragments

17 or “intuit[ing] the race and ethnicity of jurors.” See

18 Majority Op. [19]. Rather, it simply requires a

19 straightforward reading of the record in this case. Cf.

20 Majority Op. [19]. Thus, the majority’s conclusion that we

1 against Mays in Round Two, but did not mention the 2 prosecutor’s decision to strike Burdonis. Because the 3 Burdonis strike preceded the Mays strike, if Burdonis had 4 been Hispanic, counsel presumably would have mentioned this 5 fact when raising the second Batson challenge. 28 1 lack sufficient evidence to reach the Batson challenge, and

2 its suggestion that the jury pool “may have overwhelmingly

3 consisted of minority jurors, rendering any individual

4 peremptory strike of a minority juror less suspicious,” does

5 not stand up to scrutiny. See Majority Op. [19]

6 I agree with the majority that the state court acted

7 reasonably in denying the first Batson challenge as

8 premature. However, as to the second challenge, I would

9 find that the state court unreasonably applied Batson when

10 it refused to consider whether African-American and Hispanic

11 jurors could constitute a cognizable group.2

12 We recently considered a similar Batson claim in Green

13 v. Travis,

(2d Cir. 2005). Like Sorto, Green

14 was a habeas petitioner who challenged the government’s

2 1 With respect to prospective jurors Harper and Mays, 2 Sorto argues that the race neutral reasons given by the 3 prosecutor for these strikes were pretextual. Because it is 4 not clear whether the state court adjudicated this issue on 5 the merits, it is questionable whether AEDPA would apply to 6 review of this claim. See DeBarry v. Portuondo,

57, 67 (2d Cir. 2005). However, even under the more lenient 8 pre-AEDPA standard, I would find that Sorto’s claim with 9 respect to these jurors fails, because there were several 10 differences between the jurors who were struck and those who 11 remained. We have found that such differences, in light of 12 the deference we owe a trial court’s credibility 13 determinations, support a state court’s rejection of a 14 Batson claim. See Messiah v. Duncan,

, 200-01 15 (2d Cir. 2006). Sorto makes no claim of pretext with 16 respect to Rivera, because the prosecutor never attempted to 17 articulate a race neutral reason for striking Rivera.

29 1 pattern of strikes against minority prospective jurors. See

2

. In Green, as in this case, we lacked

3 precise data about the composition of the venire, because

4 “[t]he number of persons in the venire and the racial and

5 ethnic composition of the venire were not preserved in the

6 record.”

. Based on the record, however, we knew

7 that at the time of the Batson challenge, “the prosecutor

8 had used one hundred percent of her peremptory strikes to

9 remove Black and Hispanic jurors,” and “had stricken all of

10 the Black members of the jury pool not already struck for

11 cause.”

. We were therefore able to conclude

12 that the “pattern of the prosecution’s peremptory strikes

13 established a prima facie case of discrimination under

14 Batson.”

In this case, the record shows that at the

15 time of the second Batson challenge, the prosecutor had

16 attempted to use sixty-six percent of his peremptory strikes

17 to remove African-American and Hispanic jurors, had stricken

18 all of the African-American members of the jury pool not

19 already struck for cause, and had attempted to strike all

20 Hispanic jurors not already struck for cause. Thus, the

21 type of evidence available in this case is comparable to the

22 evidence available in Green, where we found that the record

23 provided a sufficient basis to evaluate the Batson

30 1 challenge.

2 To reach the opposite conclusion, the majority relies

3 on United States v. Alvarado,

(2d Cir. 1991).

4 In Alvarado, we explained that “statistical disparities are

5 to be examined” as part of the Batson prima facie inquiry.

6

. In that case, we knew what percentage of the

7 prosecution’s peremptory strikes were exercised against

8 minority jurors (the “challenge rate”), but we did not know

9 the minority percentage of the venire.

. As

10 we explained, if, “for example . . . the minority percentage

11 of the venire was 50, it could be expected that a

12 prosecutor, acting without discriminatory intent, would use

13 50 percent of his challenges against minorities.”

at

14 255. In other words, because we had only one category of

15 statistical information, we had no context in which to

16 analyze disparity. However, rather than create an

17 unnecessary evidentiary obstacle for the defendant in that

18 case, we employed the relevant population data as a

19 surrogate figure for the minority percentage of the venire.

20

.

21 The majority’s reliance on Alvarado overlooks the fact

22 that in this case we have sufficient information to assess

23 statistical disparity. We know both the prosecution’s

31 1 challenge rate with respect to minority potential jurors and

2 what percentage of minority potential jurors the prosecution

3 attempted to strike. Thus, we have two categories of data

4 that provide the basis for an analysis of disparity.

5 Moreover, while we do not know the precise minority

6 percentage of the venire, because we know that at the time

7 of the second Batson challenge, the prosecutor had attempted

8 to strike all minority potential jurors not already struck

9 for cause, we know that during the first two rounds the

10 venire included only four qualified minority jurors. I

11 would therefore find, as we did in Green, that the record in

12 this case provides sufficient evidence for a reasoned

13 analysis of Sorto’s Batson claim.

14 The majority also contends that the trial court’s

15 rejection of Sorto’s second Batson challenge was not

16 unreasonable because, like the first challenge, the second

17 was lodged at a “preliminary stage,” when it was too early

18 to tell whether a problematic pattern of strikes had

19 developed. The majority notes that there were only six

20 peremptory strikes at the time of the challenge in this

21 case, and compares that to the ten strikes that were found

22 to be insufficient in Overton v. Newton,

, 274

23 (2d Cir. 2002). Overton is distinguishable, as in that

32 1 case, several minority jurors had actually been seated at

2 the time of the Batson challenge. See

. On the

3 other hand, in Green, where the statistical evidence was

4 similar to this case, we found that a prima facie showing of

5 discrimination under Batson had been established after the

6 prosecutor exercised only five peremptory strikes. See

7 Green, 414 F.3d at 291, 299. Moreover, by the time of the

8 second Batson challenge, it was apparent that what might

9 have initially appeared to be a statistical fluke had in

10 fact emerged as a consistent pattern: the prosecutor struck

11 or attempted to strike each and every Hispanic and African-

12 American juror not excused for cause.

13 I disagree with the majority’s assessment of the

14 evidence in this case and its conclusion as to what evidence

15 is necessary to make out a successful statistical Batson

16 claim. And therefore, unlike the majority, I believe the

17 state court’s erroneous view on aggregation is implicated.

18 Cf. Majority Op. [5 n.1]. In evaluating whether Sorto had

19 made out a prima facie case with respect to the strike of

20 Rivera, both the state courts and the district court assumed

21 that strikes against members of different minority groups

22 could not be considered together to show a pattern of

23 discriminatory strikes. This is a view we rejected in

33 1 Green, where we concluded, applying the AEDPA standard, that

2 a state court decision that “Black and Hispanic

3 venirepersons do not constitute a ‘cognizable racial group’

4 was an unreasonable application of Batson.” Green,

. I would therefore follow Green and find that

6 in this case the state court’s conclusion that African-

7 American and Hispanic potential jurors should not be

8 aggregated for the purposes of evaluating whether Sorto had

9 established a prima facie case of discrimination based on a

10 suspicious pattern of peremptory strikes was an unreasonable

11 application of Batson.

12 The Supreme Court has recently cautioned that

13 establishing a prima facie case of discrimination is not

14 intended to be a high bar, in part because “[t]he Batson

15 framework is designed to produce actual answers to

16 suspicions and inference that discrimination may have

17 infected the jury selection process.” Johnson v.

18 California,

(2005). Moreover, as the

19 Court noted in Powers v. Ohio,

(1991), Batson

20 protects the rights of both individual defendants and the

21 community at large:

22 Batson was designed to serve multiple ends, only 23 one of which was to protect individual defendants 24 from discrimination in the selection of jurors. 25 Batson recognized that a prosecutor's 34 1 discriminatory use of peremptory challenges harms 2 the excluded jurors and the community at large. 3 The opportunity for ordinary citizens to 4 participate in the administration of justice has 5 long been recognized as one of the principal 6 justifications for retaining the jury system. 7 8

(internal quotation marks and citations omitted).

9 Thus, we do both defendants and ordinary citizens a

10 disservice when we create unnecessary obstacles to the

11 vindication of such rights.

12 I therefore respectfully dissent.

13

14

15

35