16‐1562‐cv
Carmichael v. Chappius
In the
United States Court of Appeals
for the Second Circuit
________
AUGUST TERM 2016
No. 16‐1562‐cv
BRIAN CARMICHAEL,
Petitioner‐Appellee,
v.
SUPERINTENDENT PAUL CHAPPIUS, JR.,
ELMIRA CORRECTIONAL FACILITY,
Respondent‐Appellant.
________
Appeal from the United States District Court
for the Southern District of New York
________
ARGUED: SEPTEMBER 28, 2016
DECIDED: FEBRUARY 17, 2017
________
Before: WINTER, CABRANES, Circuit Judges, and RESTANI, Judge.*
* Judge Jane A. Restani, of the United States Court of International Trade,
sitting by designation.
________
The Superintendent of the Elmira Correctional Facility, Paul
Chappius, Jr., appeals from the April 21, 2016 Order of the United
States District Court for the Southern District of New York
(Katherine Polk Failla, Judge) granting Brian Carmichael’s petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Carmichael
sought the writ, in part, on grounds that the Supreme Court of the
State of New York misapplied the decision by the Supreme Court of
the United States in Batson v. Kentucky, 476 U.S. 79 (1986), when it
found that Carmichael failed to make a prima facie showing of race
discrimination during jury selection. In granting Carmichael the
writ, the District Court held that the New York State Appellate
Division’s judgment affirming the state trial court’s denial of
Carmichael’s Batson challenge was an unreasonable application of
Supreme Court precedent.
We hold that the District Court incorrectly applied the
standard for evaluating a state court’s rulings set forth in the Anti‐
Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d). We further hold that the Appellate Division’s order
affirming the state trial court’s denial of petitioner’s Batson challenge
was not an unreasonable application of “clearly established Federal
law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d).
Accordingly, we VACATE the District Court’s Order granting
petitioner the writ of habeas corpus and REMAND for such further
2
proceedings as may be appropriate and consistent with this
Opinion.
________
SARA GURWITCH (Richard M. Greenberg, on the
brief), Office of the Appellate Defender, New
York, NY, for Defendant‐Appellant.
DEBORAH L. MORSE, Assistant District Attorney
(Christopher P. Marinelli, Assistant District
Attorney, on the brief) for Cyrus R. Vance, Jr.,
District Attorney, New York County, New York,
NY, for Plaintiff‐Appellee.
________
JOSÉ A. CABRANES, Circuit Judge:
Respondent‐Appellant Paul Chappius, Jr., Superintendent of
the Elmira Correctional Facility, appeals from the April 21, 2016
Order of the United States District Court for the Southern District of
New York (Katherine Polk Failla, Judge) granting Petitioner‐
Appellee Brian Carmichael’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.1 The Order granting the writ, stayed
pending this appeal, would invalidate Carmichael’s custody
imposed pursuant to a December 10, 2007 judgment of the Supreme
1 Carmichael v. Chappius, 182 F. Supp. 3d 74 (S.D.N.Y. 2016).
3
Court of the State of New York, New York County (Robert H.
Straus, Justice), following a jury trial and conviction.2
After an unsuccessful direct appeal of his conviction,3 as well
as a failed motion to vacate his conviction based on a claim of
ineffective assistance of counsel,4 Carmichael sought a writ of habeas
corpus in federal court on grounds (1) that the state trial court
misapplied the decision by the Supreme Court of the United States
in Batson v. Kentucky,5 and (2) that Carmichael received ineffective
assistance of counsel. On July 17, 2015, Magistrate Judge Andrew J.
Peck filed a Report and Recommendation proposing that the District
2 The District Court had jurisdiction to hear Carmichael’s habeas petition
because Carmichael was convicted in a state court within the geographic
boundary of the Southern District of New York. See 28 U.S.C. § 2241(d) (“Where
an application for a writ of habeas corpus is made by a person in custody under
the judgment and sentence of a State court of a State which contains two or more
Federal judicial districts, the application may be filed in the district court . . .
within which the State court was held which convicted and sentenced him . . . .”).
3 People v. Carmichael, 73 A.D.3d 622 (1st Dep’t 2010) (affirming
Carmichael’s conviction on direct appeal); see also People v. Carmichael, 16 N.Y.3d
797 (2011) (denying Carmichael leave to appeal), cert. denied sub nom. Carmichael
v. New York, 132 S. Ct. 199 (2011) (Mem.).
4 People v. Carmichael, 118 A.D.3d 603 (1st Dep’t 2014) (affirming denial of
Carmichael’s motion to vacate judgment of conviction); see also People v.
Carmichael, 24 N.Y.3d 1042 (2014) (denying Carmichael leave to appeal Appellate
Division’s denial of his motion to vacate judgment of conviction).
5 476 U.S. 79 (1986).
4
Court reject both of Carmichael’s arguments and deny his petition.6
The District Court declined the recommendations of Magistrate
Judge Peck and granted Carmichael’s petition, holding that the New
York State Appellate Division, First Department, had unreasonably
applied Batson and its progeny when it affirmed the state trial
court’s finding that Carmichael failed to make a prima facie case
showing that the prosecution used its peremptory challenges in a
discriminatory manner.7
We hold that the District Court incorrectly applied the
standard for evaluating a state court’s rulings set forth in the Anti‐
Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”),
28 U.S.C. § 2254(d). We further hold that the Appellate Division’s
order affirming the trial court’s denial of Carmichael’s Batson
challenge was not an unreasonable application of “clearly
established Federal law, as determined by the Supreme Court of the
United States.”8
Accordingly, we VACATE the District Court’s April 21, 2016
Order granting Carmichael the writ of habeas corpus and REMAND
the cause to the District Court for such further proceedings as may
be appropriate and consistent with this Opinion.
6 Carmichael v. Chappius, No. 14 Civ. 10012 (KPF)(AJP), 2015 WL 4385765,
at *1 (S.D.N.Y. July 17, 2015).
7 Carmichael, 182 F. Supp. 3d. at 90–93.
8 28 U.S.C. § 2254(d).
5
BACKGROUND
I. Jury Selection in Carmichael’s Trial
On September 17, 2007, jury selection began in Brian
Carmichael’s criminal trial before Justice Robert H. Straus of the
Supreme Court of the State of New York.9 The Court tasked the
parties with selecting a twelve‐person jury from three separate
panels, each composed of twenty‐six venirepersons. Both
Carmichael and the People of the State of New York, represented by
the New York County District Attorney’s Office (“the State”),
received twenty peremptory challenges for use during jury selection.
The parties could use their peremptory challenges to remove
potential jurors from the venire. Both parties also received six
additional peremptory challenges, which they could use only to
strike potential alternate jurors. This appeal concerns the State’s use
of its peremptory challenges during the process of jury selection.
After questioning of the twenty‐six venirepersons on the first
panel concluded, the Court asked the parties if they wished to
exercise any of their peremptory challenges against the first twelve
potential jurors. The State exercised five peremptory challenges and
counsel for Carmichael exercised three. Then, the Court asked the
parties to consider the next twelve venirepersons. When the State
9 A grand jury in New York County had filed an indictment against
Carmichael charging him with various narcotics offenses.
6
struck four more potential jurors, defense counsel raised his first
Batson challenge.10
Defense counsel told the Court that he “fe[lt] compelled to
make a Batson challenge” because “we [ ] had two African
Americans in the jury pool and [the State] has challenged both of
them.”11 Specifically, the State used two of its peremptory challenges
to strike Shackwanna Boiken and Charmaine Hamilton, both black
females. The Court denied defense counsel’s challenge finding that
the removal of two black jurors “by itself does not constitute [a]
prima facie showing of a pattern of use of strike[s] in a
discriminatory way.”12
Following the denial of defense counsel’s first Batson
challenge, the State declined to use any more strikes on
venirepersons in the first panel. Defense counsel, however, struck all
six of the remaining potential jurors.
The parties next considered the second panel of twenty‐six
potential jurors. The State and defense counsel combined to strike
10 A party raises a “Batson challenge” when he or she believes the
opposing party has struck a potential juror from the venire based on
impermissible factors such as the potential juror’s race. See Galarza v. Keane, 252
F.3d 630, 635–36 (2d Cir. 2001) (describing the three‐part test trial courts use to
determine “whether a party exercised a peremptory challenge in a
discriminatory manner” set forth in Batson v. Kentucky, 476 U.S. 79 (1986)).
11 Joint Appendix (“JA”) 181–82.
12 Id. at 182.
7
eleven of the first sixteen individuals in this group. Notably, neither
party struck Bettina Boyd, a black woman.13 During consideration of
the next five venirepersons, however, the State struck Dina Grant,
another black female. This strike prompted defense counsel to raise
his second Batson challenge.
Defense counsel stated, “[a]lthough [the State] has allowed
Ms. Bo[yd] to remain on the jury, the lone black juror selected so far
. . . I believe out of the four African American jurors we have
considered on the panel[,] [the State] has challenged three of
them.”14 The Court responded by noting that Ms. Boyd, a black
female, remained on the jury, and that defense counsel struck
another venireperson, Yalira Velarde, whom the Court believed to
be a black female. A disagreement then ensued between defense
counsel and the Court over whether Ms. Velarde was “Hispanic” or
“African‐American.”15 Specifically, the Court told defense counsel,
“I am not saying you are right and I am wrong or the opposite. I am
only making a record as to race because it’s sometimes necessary to
do so when there’s a Batson challenge.”16 Ultimately, the Court
13 Although Ms. Boyd’s name appears as “Bode” in the transcript of the
voir dire, the parties refer to her as “Boyd” in their briefs on appeal.
14 JA 322–23.
15 Cf. Vill. of Freeport v. Barrella, 814 F.3d 594, 602–06 (2d Cir. 2016)
(discussing the confusing use of the term “Hispanic” to identify an individual’s
race).
16 JA 324.
8
denied defense counsel’s challenge, holding again that “the
statistical basis is not sufficient alone to raise a discriminatory use of
a free peremptory challenge under New York law.”17
The parties resumed their consideration of the remaining
venirepersons on panel two. Defense counsel used one peremptory
challenge and the State used two. One of the two venirepersons
struck by the State was Jessica Simmons, a black female. In response,
defense counsel raised his third Batson challenge.
Defense counsel argued that, “Ms. Simmons is African
American and it’s now four out of five. . . . We’ve had probably 140
people that we’ve considered in two days, only five African
Americans have come before us in this case.”18 The Court calculated
that four out of six black potential jurors had been struck, including
Ms. Velarde. The Court also repeated its prior refrain that challenges
based on statistical evidence, such as defense counsel’s challenges,
“are generally not sufficient to raise or create an inference or create a
prima facie case of discriminatory use of p[ere]mptory challenges.”19
Defense counsel responded that he could not “see any potential
basis [for a Batson challenge] . . . other than the numbers.”20
17 Id. at 325.
18 Id. at 327.
19 Id. at 328.
20 Id.
9
Accordingly, the Court denied defense counsel’s third Batson
challenge.
After the State struck the last remaining venireperson in panel
two, the parties considered the potential jurors in the third and final
panel. At this point, the parties had selected nine jurors and were
aiming to fill only three outstanding seats before choosing
alternates. The State struck the first venireperson in the third panel,
but the parties accepted the second and third individuals as jurors.
Diana Duggins, a black female, was one of the two persons thus
selected for the jury. The parties filled the final open seat with the
sixth individual on the third panel. Ultimately, two black women—
Ms. Boyd and Ms. Duggins—were seated on the jury.
With the jury of twelve selected, the parties turned their
attention to picking alternate jurors. Each side had six peremptory
challenges to use during this part of the process. The State began by
striking three potential alternates, two of whom were black.
Consequently, defense counsel raised his fourth and final Batson
challenge.
Defense Counsel explained his position as follows:
It seems again that [the State] is exercising [its]
challenges to exclude African Americans. I do note that
as we proceeded with selection [the State] did not
challenge Ms. Duggins who was the sixth in my view
African American that we have considered . . . but when
we got to the alternates he challenged Ms. Sanders[,] a
10
black female[,] and now he’s also challenging Mr. Pratt
who is a male black, so I see a clear pattern of
challenging African Americans, your Honor. I make my
Batson challenge on that basis. Four of the six we have
considered have been challenged. We have been
through three panels so approximately 210 have come
into this courtroom. . . . [W]e have considered in total
eight African Americans and six of those have been
challenged by [the State] in my view.21
The Court denied defense counsel’s final Batson challenge. It
reiterated that “the statistical analysis by itself does not provide for
this court that level of challenge, doesn’t create a prima facie case
requiring us to go on to step two of the analysis so the challenge
must be denied.”22 As a result, the Court did not require the State to
articulate any nondiscriminatory reasons for its use of the
challenged peremptory strikes. The parties then selected the final
alternate juror and Carmichael’s case proceeded to trial.
On October 17, 2007, the jury convicted Carmichael on three
counts of second degree criminal sale of a controlled substance. Two
21 JA 425.
22 Id. at 426.
11
months later, Justice Straus sentenced Carmichael to three
concurrent seventeen‐year terms of imprisonment.23
II. Procedural History
On September 30, 2009, Carmichael appealed his conviction to
the New York State Appellate Division, First Department. One of the
grounds for Carmichael’s direct appeal is relevant here: his claim
that the trial court erred in finding that he failed to establish a prima
facie case that the State used its peremptory challenges in a racially
discriminatory manner. The crux of Carmichael’s argument on
direct appeal was that the trial court had misinterpreted the New
York Court of Appeals’ decision in People v. Brown, 97 N.Y.2d 500
(N.Y. 2002), by concluding that statistical evidence of a
discriminatory pattern in the use of peremptory strikes is never
sufficient to set forth a prima facie case of discrimination. The
Appellate Division affirmed the judgments of the state trial court,
holding that:
[t]he [trial] court properly denied defendant’s
applications made pursuant to Batson v. Kentucky (476
U.S. 79 [1986]). Viewing jury selection as a whole, we
conclude that defendant did not meet his burden at step
23 At sentencing, Justice Straus noted that the State was seeking maximum
consecutive sentences for each of Carmichael’s three counts of second degree
criminal sale of a controlled substance, while defense counsel was seeking a
minimum concurrent sentence of eight years. Justice Straus ultimately sentenced
Carmichael to concurrent seventeen‐year terms of imprisonment, in part, because
of his long criminal history.
12
one of the inquiry. Defendant did not produce
“evidence sufficient to permit the trial judge to draw an
inference that discrimination ha[d] occurred” in the
exercise of peremptory challenges (Johnson v. California,
545 U.S. 162, 170 [2005]). While numerical evidence may
suffice, in this case it did not warrant an inference of
discrimination.24
After the New York Court of Appeals denied Carmichael
leave to appeal25 and after the Supreme Court of the United States
denied Carmichael’s petition for a writ of certiorari,26 Carmichael
filed a motion to vacate his judgment of conviction in the state trial
court on grounds that he received ineffective assistance of counsel.27
Justice Roger S. Hayes denied Carmichael’s motion.28 Carmichael
appealed Justice Hayes’s order to the Appellate Division, First
24 Carmichael, 73 A.D.3d at 622.
25 Carmichael, 16 N.Y.3d at 797.
26 Carmichael, 132 S. Ct. at 199.
27 See Carmichael, 118 A.D.3d at 604.
28 Id.
13
Department, which affirmed the denial.29 The New York Court of
Appeals denied Carmichael leave to appeal.30
Thereafter, Carmichael filed a petition for a writ of habeas
corpus in the District Court. He raised two claims: (1) the jury
selection process violated his rights as set forth in Batson and its
progeny, and (2) he received ineffective assistance of counsel
because his attorney lacked knowledge of the standard for
establishing a prima facie Batson case under New York law. On April
21, 2016, the District Court declined the recommendations of the
magistrate judge and granted Carmichael’s petition.
The District Court reviewed the Appellate Division’s
judgment affirming the state trial court’s denial of Carmichael’s
Batson challenge because it was the last reasoned state‐court decision
to address Carmichael’s claim.31 It then concluded that the Appellate
Division had unreasonably applied Batson and its progeny when it
affirmed the state trial court’s finding that Carmichael did not make
out a prima facie showing that the State used its peremptory
29 Id.
30 Carmichael, 24 N.Y.3d at 1042.
31 Carmichael, 182 F. Supp. 3d at 86 (citing Johnson v. Williams, 133 S. Ct.
1088, 1094 n.1 (2013) (suggesting that a federal court charged with examining a
state court conviction should review the last reasoned state‐court decision to
address the asserted grounds for habeas relief)).
14
challenges in a racially discriminatory manner.32 According to the
District Court, evidence of the discriminatory use of peremptory
challenges was so abundant—for example, the State “struck twice
the number of black jurors than one would expect, and two‐thirds to
three‐quarters of the black jurors under consideration”33—that it had
no choice but to conclude “that the Appellate Division [had] applied
Batson and its progeny in an unreasonable manner.”34 Having
determined that the Appellate Division erred in affirming the trial
court’s Batson finding, the District Court did not reach Carmichael’s
ineffective‐assistance‐of‐counsel claim. The State timely filed a
notice of appeal as of right and the District Court granted the State’s
application for a stay pending this appeal.
DISCUSSION
I. Standard of Review
We review de novo a district court’s order granting a petition
for a writ of habeas corpus.35 Section 2254 of Title 28 of the U.S. Code,
as amended by the AEDPA, prohibits federal courts from granting a
petition for a writ of habeas corpus on the basis of a claim that was
adjudicated on the merits in a state court proceeding “unless the
32 Id. at 90–93.
33 Id. at 90.
34 Id.
35 Overton v. Newton, 295 F.3d 270, 275 (2d Cir. 2002).
15
adjudication [of the claim] resulted in a decision (1) 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) that was ‘based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.’”36 In this case, we are concerned only with
the first of the two enumerated bases for granting habeas relief.37
The Supreme Court has instructed that section 2254(d)(1)’s
“contrary to” and “unreasonable application of” clauses have
independent meaning.38 A state court decision is “contrary to . . .
clearly established Federal law, as determined by the Supreme
Court” when “the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state
court decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.”39 An “unreasonable
application” of Supreme Court precedent, on the other hand, occurs
when a 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.”40 The District Court here
36 Id. (quoting 28 U.S.C. § 2254(d)).
37 28 U.S.C. § 2254(d)(1).
38 Williams v. Taylor, 529 U.S. 362, 404–05 (2000).
39 Id. at 412–13.
40 Id. at 413.
16
concluded that the Appellate Division had applied Supreme Court
precedent to the facts of Carmichael’s case in “an unreasonable
manner.”41
To merit federal habeas relief under the “unreasonable
application” prong of section 2254(d)(1), a petitioner “must show
that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”42 In other words, a federal
court may not issue a writ of habeas corpus “simply because that
court concludes in its independent judgment that the relevant state‐
court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.”43 In
determining whether a particular state court application is
“reasonable” under the circumstances presented, “a habeas court
must be guided by the level of specificity of the relevant precedent’s
holding.”44 When the applicable rule is “more general,” state courts
41 Carmichael, 182 F. Supp. 3d at 90.
42 Harrington v. Richter, 562 U.S. 86, 103 (2011).
43 Williams, 529 U.S. at 411 (emphasis added).
44 Contreras v. Artus, 778 F.3d 97, 110 (2d Cir. 2015); see also Fuentes v. T.
Griffin, 829 F.3d 233, 245 (2d Cir. 2016).
17
will have “more leeway . . . in reaching outcomes in case‐by‐case
determinations.”45
Ultimately, this represents a “highly deferential standard for
evaluating state‐court rulings, which demands that state‐court
decisions be given the benefit of the doubt.”46
II. The Batson Standard
The Supreme Court precedent relevant here is, of course,
Batson v. Kentucky. In Batson, the Supreme Court established “a
three‐step burden‐shifting framework for the evidentiary inquiry
into whether a peremptory challenge is race‐based.”47 In the first
step, the objecting party must set forth a prima facie showing “that
the circumstances give rise to an inference that a member of the
venire was struck because of his or her race.”48 If the objecting party
makes the requisite showing, “the burden shifts to the [party
striking the potential juror] to come forward with a neutral
explanation” for its peremptory challenge.49 Finally, if the party
45 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
46 Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
47 McKinney v. Artuz, 326 F.3d 87, 97 (2d Cir. 2003); see Batson, 476 U.S. at
96–98.
48 Overton, 295 F.3d at 276; see Batson, 476 U.S. at 96.
49 Batson, 476 U.S. at 97.
18
striking the juror tenders a “neutral explanation,” the trial court has
“the duty to determine if the [objecting party] has established
purposeful discrimination.”50
An objecting party can establish a prima facie case of
discrimination “by offering a wide variety of evidence, so long as
the sum of the proffered facts gives ‘rise to an inference of
discriminatory purpose.’”51 For example, in Batson, the Supreme
Court explained that “a ‘pattern’ of strikes against black jurors
included in the particular venire might give rise to an inference of
discrimination.”52 In addition, “the prosecutor’s questions and
statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory
purpose.”53 As we have had occasion to note in the past, the
Supreme Court has not “provided a more particularized view of
what constitutes a prima facie showing of discrimination under
Batson.”54 We have held, however, that statistical evidence alone
may, in some circumstances, suffice to establish a prima facie case of
50 Id. at 98.
51 Johnson v. California, 545 U.S. 162, 169 (2005) (quoting Batson, 476 U.S. at
94); see Batson, 476 U.S. at 96 (“In deciding whether the defendant has made the
requisite showing, the trial court should consider all relevant circumstances.”).
52 Batson, 476 U.S. at 97.
53 Id.
54 Overton, 295 F.3d at 278.
19
discrimination during jury selection.55 Ultimately, the Supreme
Court has expressed confidence in the ability of trial judges to be
able to determine whether “the circumstances concerning the
prosecutor’s use of peremptory challenges creates a prima facie case
of discrimination against [ ] jurors [from a protected class].”56
III. Application
The specific issue in this appeal concerns the first step of the
Batson framework. In granting Carmichael the writ of habeas corpus,
the District Court held that it was unreasonable for the Appellate
Division to conclude that Carmichael failed to make a prima facie
showing of discrimination given the high percentage of black
members of the venire removed during jury selection.57 On appeal,
the State contends that the District Court failed to give the Appellate
Division’s ruling the level of deference required by the AEDPA. We
agree. While statistical evidence alone may, in some circumstances,
suffice to establish a prima facie case of discrimination during jury
selection,58 the Appellate Division did not apply Batson and its
progeny in an unreasonable manner when it concluded that, in the
circumstances presented, the statistical evidence did not warrant an
inference of discrimination.
55 See id.
56 Batson, 476 U.S. at 97.
57 Carmichael, 182 F. Supp. 3d. at 88.
58 See Overton, 295 F.3d at 278.
20
Carmichael made four separate Batson applications during the
jury selection process. He based each of his applications on
numerical evidence alone, i.e., the number of peremptory challenges
used against black members of the venire compared to the total
population of blacks in the venire. The trial court denied each
application on the basis that Carmichael had failed to make a prima
facie showing of racial discrimination. In denying Carmichael’s
fourth and final challenge, the state trial court declared that “the
statistical analysis by itself does not . . . create a prima facie case
requiring us to go on to step two . . . .”59
Carmichael’s argument on appeal focuses almost entirely on
his contention that the state trial court incorrectly held him to a
heightened evidentiary standard when it concluded “the statistical
basis is not sufficient alone to raise a discriminatory use of a free
peremptory challenge under New York law.”60 Indeed, the District
Court concluded that the trial court acted “contrary to” clearly
established Supreme Court precedent in denying Carmichael’s
Batson applications because the trial court applied New York law in
a way that increased Carmichael’s evidentiary burden at step one of
the Batson framework.61 However, because the Appellate Division
59 JA 426.
60 Id. at 325.
61 Carmichael, 182 F. Supp. 3d at 84; see Batson, 476 U.S. at 97 (explaining
that “a ‘pattern’ of strikes against black jurors included in the particular venire
might give rise to an inference of discrimination”).
21
considered Carmichael’s Batson challenge on the merits and affirmed
the trial court’s denial, the District Court rightly based its
consideration of Carmichael’s habeas petition on whether the
Appellate Division’s ruling on the Batson challenges was “contrary
to, or involved an unreasonable application of, clearly established
Federal law.”62 For that reason, our review concerns only the District
Court’s conclusion that the Appellate Division applied Batson
unreasonably when it affirmed the trial court’s ruling.63
On direct appeal of Carmichael’s conviction, the Appellate
Division held that Carmichael “did not meet his burden at step one
of the [Batson] inquiry” because he “did not produce evidence
sufficient to permit the trial judge to draw an inference that
discrimination ha[d] occurred in the exercise of peremptory
challenges.”64 It noted that “numerical evidence may suffice,” but
concluded that “in this case it did not warrant an inference of
discrimination.”65 The District Court correctly gave the Appellate
Division’s ruling the “benefit of the doubt” by concluding that it did
not apply law “contrary to” Supreme Court precedent when, in
contrast to the state trial court, the Appellate Division treated
62 28 U.S.C. § 2254(d).
63 See Clark v. Perez, 510 F.3d 382, 394 (2d Cir. 2008) (“The habeas court
looks to the last state court decision rendering a judgment on the petitioner’s
federal claim.”).
64 Carmichael, 73 A.D.3d at 622 (internal quotation marks omitted).
65 Id. (emphasis added).
22
numerical evidence as capable of satisfying step one of the Batson
framework.66 Nevertheless, the District Court held that the Appellate
Division “applied Batson and its progeny in an unreasonable
manner” because it concluded that the numerical evidence
presented by Carmichael did not warrant an inference of
discrimination.67 We disagree.
Out of approximately 210 individuals considered for the jury
only eight were black.68 And of those eight, the State removed six
from the venire with peremptory challenges. As the District Court
noted, the eight black potential jurors accounted for 14 to 16 percent
of the total number of individuals questioned during jury selection
who were not removed for cause. Yet, the State used six of its
twenty‐one peremptory challenges on black venirepersons, or close
to 29 percent of its available strikes, to remove 75 percent of them
from the potential jury.
The first step in the Batson framework, which the Appellate
Division was charged with applying in Carmichael’s case, is a
66 See Pinholster, 563 U.S. at 181.
67 Carmichael, 182 F. Supp. 3d at 90.
68 The parties dispute whether one of the potential jurors removed by
defense counsel, Ms. Velarde, was black. We agree with the District Court that “it
is not necessary to determine Ms. Velarde’s race in order to resolve
[Carmichael’s] Petition.” Id. at 87 n.4. Accordingly, for purposes of this opinion,
we adopt Carmichael’s version of the facts and do not include Ms. Velarde in our
calculation of black venirepersons.
23
paradigmatic “general standard.”69 Courts must rely on their own
judgment and experience to determine whether the objecting party
has established a prima facie showing “that the circumstances give
rise to an inference that a member of the venire was struck because
of his or her race.”70 For that reason, we must afford the Appellate
Division’s ruling “more leeway” on habeas review.71
As we have previously explained, “[c]ases 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.”72
Whether the 75 percent exclusion rate at issue here meets that high
69 Cf. Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (characterizing the
holding in Strickland v. Washington, 466 U.S. 668 (1984) as a “general standard”
for purposes of habeas review because “its application to a specific case requires
‘a substantial element of judgment’ on the part of the state court” (quoting
Alvarado, 541 U.S. at 664)).
70 Overton, 295 F.3d at 276; see Batson, 476 U.S. at 97 (“We have confidence
that trial judges, experienced in supervising voir dire, will be able to decide if the
circumstances concerning the prosecutor’s use of peremptory challenges creates
a prima facie case of discrimination against black jurors.”).
71 Alvarado, 541 U.S. at 664 (explaining that when a habeas court reviews a
trial court decision, the habeas court should afford the trial court “more leeway
. . . in reaching outcomes in case‐by‐case determinations” if the rule being
applied by the trial court was “more general”).
72 Jones v. West, 555 F.3d 90, 98 (2d Cir. 2009). The term “exclusion rate”
refers to the percentage of members of a particular racial group that one party
strikes from the venire. See id.
24
threshold is a matter on which “fairminded jurists could disagree.”73
For that reason alone, the District Court’s conclusion that the
Appellate Division’s ruling was an “unreasonable” application of
Batson and its progeny warrants vacatur.74
That said, it bears noting that there was other evidence in the
record supporting the Appellate Division’s reasonable conclusion
that the prosecutor’s 75‐percent exclusion rate did not warrant an
inference of discrimination. For example, during his third attempt at
a Batson challenge, Carmichael’s counsel admitted to the trial court
that he did not “see any potential basis . . . other than the numbers”
for his Batson challenge.75 In addition, although defendants of any
73 Richter, 562 U.S. at 101 (quoting Alvarado, 541 U.S. at 664).
74 In his reply brief submitted to the District Court, Carmichael clarified
that his Batson claim was based on the State’s “exclusion rate,” not its “challenge
rate.” However, even if Carmichael’s Batson claim was based on the State’s
“challenge rate”—“the percentage of a party’s total strikes used against a
cognizable racial group,” Jones, 555 F.3d at 98—the fact that the State’s “challenge
rate” was nearly double the percentage of blacks in the venire would permit a
court to find that Carmichael had made a prima facie showing of race
discrimination, see United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991), but
would not require a court to reach that conclusion, see Sorto v. Herbert, 497 F.3d
163, 174 (2d Cir. 2007) (“[I]t is one thing to conclude that a pattern of strikes is
prima facie evidence of discrimination; it is a very different thing to hold that the
contrary conclusion would be an unreasonable application of Batson.”).
75 JA 328; see Batson 476 U.S. at 97 (recognizing that “the prosecutorʹs
questions and statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory purpose”
(emphasis added)).
25
race may assert Batson challenges,76 it is not entirely irrelevant that
Carmichael himself was not black. Nor was there any indication in
the record at the time of the Batson challenges that racial sympathy
or antipathy would play any role in his trial. Finally, two black
venirepersons ultimately were seated on Carmichael’s jury, which
(as the District Court noted) represented 17 percent of all sworn
jurors—one to three percentage points higher than the percentage of
blacks in the venire.77 Although the District Court explained why it
did not find these countervailing factors persuasive, a rational
person considering all of the “relevant circumstances” presented
could reasonably conclude that there was insufficient evidence of
discrimination.78
76 See Powers v. Ohio, 499 U.S. 400, 416 (1991) (“The emphasis in Batson on
racial identity between the defendant and the excused prospective juror is not
inconsistent with our holding today that race is irrelevant to a defendant’s
standing to object to the discriminatory use of peremptory challenges.”).
77 While it is true that “[a] prosecutor 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,” Alvarado, 923 F.2d at
256, the fact that two black venirepersons were seated is, as the District Court
itself admitted, “compelling” evidence supporting the Appellate Division’s
conclusion that there was no evidence of racial discrimination, Carmichael, 182 F.
Supp. 3d at 89–90.
78 See Batson, 476 U.S. at 96–97 (“In deciding whether the defendant has
made the requisite showing, the trial court should consider all relevant
circumstances.” (emphasis added)).
26
Had we been presiding over jury selection in Carmichael’s
case in the first instance, we might very well have concluded that
Carmichael made out a prima facie showing of race discrimination.79
However, as we have had occasion to observe before, the fact that
numerical evidence may have permitted an inference of
discrimination does not establish that a contrary conclusion must be
an unreasonable application of Batson and its progeny.80 The AEDPA
establishes a “highly deferential standard for evaluating state‐court
rulings:”81 a state court’s error must be “beyond any possibility for
fairminded disagreement” if it is to warrant reversal on a habeas
petition in federal court.82 Deference to state courts is especially
important when reviewing habeas claims predicated on a violation of
the first step of the Batson framework because Batson and its progeny
79 It is, however, important to note that the State’s 75 percent exclusion
rate is based on a small sample size: the removal of six out of eight black
venirepersons. As the Supreme Court has observed in the context of Title VII
discrimination claims, “[c]onsiderations such as small sample size may, of
course, detract from the value of [statistical] evidence.” Int’l Bhd. of Teamsters v.
United States, 431 U.S. 324, 339, n.20 (1977); see also Mayor of Philadelphia v. Educ.
Equal. League, 415 U.S. 605, 620–21 (1974) (noting, in the context of a
discrimination claim brought under the Equal Protection Clause, that the district
court was properly skeptical of statistical evidence derived from a small sample
size).
80 See Sorto, 497 F.3d at 174.
81 Pinholster, 563 U.S. at 181.
82 Richter, 562 U.S. at 103.
27
provide state courts with limited guidance on what constitutes a
prima facie case of discrimination.83
The Appellate Division’s conclusion that there was
insufficient evidence of discrimination was simply not unreasonable
under the circumstances presented. The District Court erroneously
applied too stringent a standard on habeas review. Accordingly, on
these facts, we are required to vacate the District Court’s Order
granting Carmichael the writ of habeas corpus.
CONCLUSION
To summarize: we hold that the District Court incorrectly
applied the standard for evaluating a state court’s rulings set forth in
the AEDPA when it concluded that the Appellate Division’s order
affirming the denial of Carmichael’s Batson challenge was an
“unreasonable application” of Supreme Court precedent.
For the reasons set out above, we VACATE the District
Court’s April 21, 2016 Order granting Carmichael the writ of habeas
corpus and we REMAND the cause to the District Court for such
further proceedings as may be appropriate and consistent with this
Opinion.
83 See Alvarado, 541 U.S. at 664; Overton, 295 F.3d at 278.
28