NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2082
_____________
DAVID MINOR,
Appellant
v.
BEVERLY HASTINGS; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
______________
Appeal from the United States District Court
for the District of New Jersey
(District Court No. 1-13-cv-00558)
District Judge: Hon. Jerome B. Simandle
______________
Argued
April 25, 2017
______________
Before: SMITH, Chief Judge, McKEE, and RENDELL, Circuit Judges
(Opinion filed: August 22, 2017)
Steven G. Sanders, Esq. [ARGUED]
Anne M. Collart, Esq.
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Attorneys for Appellant
Frank J. Ducoat, Esq. [ARGUED]
Maria I. Guerrero, Esq.
Barbara A. Rosenkrans, Esq.
Essex County Office of Prosecutor
50 West Market Street
Essex County Veterans Courthouse
Newark, NJ 07102
Attorneys for Appellees
_______________________
OPINION*
______________________
McKEE, Circuit Judge.
Appellant David Minor appeals the District Court’s order dismissing his habeas
petition. For the reasons that follow, we will affirm the judgment of the District Court.1
I.
Minor appealed his conviction to the Appellate Division of the New Jersey
Superior Court, arguing that the trial court had violated his constitutional rights when it
concluded that he had not made out a prima facie showing of race discrimination in jury
selection. He also argued that the prosecutor deprived him of his right to a fair trial by
misstating the burden of proof in summation and effectively directing a guilty verdict.
The court rejected the first claim, holding that Minor “did not make a prima facie
showing that the jury was not drawn from a representative cross-section of the
community.”2 The court also rejected Minor’s second claim based largely on the trial
court’s curative instructions.
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253.
2
App. at 294.
2
The New Jersey Supreme Court denied Minor’s petition for discretionary review.
Minor then filed a pro se application for habeas relief. The District Court denied Minor’s
application. Minor filed his notice of appeal and a pro se motion for a Certificate of
Appealability, which we granted as to both of the aforementioned issues.
I.
We apply the same standard of review as the District Court pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).3 Under AEDPA, an
application for habeas relief shall not be granted for any claim adjudicated on the merits
in state court unless the state court’s adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law . . . or
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.”4
“[A] federal habeas court may not issue the writ 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 [objectively] unreasonable.”5
II.
3
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
4
28 U.S.C. § 2254(d)(1)-(2).
5
Williams v. Taylor, 529 U.S. 362, 411 (2000).
3
Minor argues that (1) the state court unreasonably applied Darden v. Wainwright6
when it did not find that the weakness of the State’s evidence combined with the
prosecution’s improper summation concerning the standard of beyond a reasonable doubt
deprived Minor of a fair trial; and (2) the state court unreasonably applied Johnson v.
California7 when it did not proceed to step two under a Batson analysis. We do not find
the state court’s determinations to be unreasonable, and thus, we must affirm the District
Court’s decision.
A. Prosecution’s Summation
A petitioner is deprived of a fair trial where “the prosecutor’s comments so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.”8 In making this determination, the reviewing court “must examine the
prosecutor’s offensive actions in context and in light of the entire trial, assessing the
severity of the conduct, the effect of the curative instructions, and the quantum of
evidence against the defendant.”9 “[T]he proper inquiry is not whether the instruction
‘could have’ been applied in an unconstitutional manner, but whether there is a
reasonable likelihood that the jury did so apply it.”10
6
477 U.S. 168 (1986).
7
545 U.S. 162 (2005).
8
Darden, 477 U.S. at 181 (internal quotation marks omitted); see also Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (same).
9
Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
10
Victor v. Nebraska, 511 U.S. 1, 6 (1994).
4
A petitioner is not prejudiced where prosecutor’s comments are “invited by” 11 or
are a “fair reply to defense counsel’s” comments.12 Further, curative instructions may
correct an improper remark where “the judge direct[s] the jury’s attention to the remark
particularly challenged [], declare[s] it to be unsupported, and admonishe[s] the jury to
ignore it.”13
Here, although the prosecution’s summation was troublesome, it did not so infect
the trial with unfairness as to make the resulting conviction a denial of due process under
our standard of deferential review. First, the prosecution’s comments did not manipulate
or misstate the evidence. Second, the comments were in response to defense counsel’s
arguments. Third, the trial court provided the jurors with curative instructions, including
the correct explanation of the standard of proof beyond a reasonable doubt and instructed
the jury to ignore any statement made by counsel regarding the law. In light of this, we
cannot say that the state court’s decision denying Minor’s claim for relief because of the
prosecution’s summation “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
B. Batson claim
11
Darden, 477 U.S. at 182.
12
United States v. Pungitore, 910 F.2d 1084, 1128 (3d Cir. 1990).
13
Donnelly, 416 U.S. at 644; see also Pungitore, 910 F.2d at 1128 (“[A]s appellants did
not object to the curative instruction or request additional instructions, they apparently
were satisfied with the district court’s response and cannot now complain that comments
gave rise to reversible error.”).
5
Minor also argues that the state court did not comply with Johnson v. California
when it held that Minor had not raised an inference of discrimination in jury selection.
This claim is more troubling.
To establish a Batson challenge, the defendant must first “make a prima facie
showing that the prosecutor has exercised peremptory challenges on the basis of race.”14
If the defendant makes this showing, the burden then shifts to the prosecutor to present a
race-neutral explanation for striking the jurors in question.15 The trial court must then
determine whether the defendant has met his burden of proving purposeful
discrimination.16 In Johnson, the Supreme Court clarified that the first step under Batson
is not intended to “be so onerous that a defendant would have to persuade the judge-on
the basis of all the facts, some of which are impossible for the defendant to know with
certainty-that the challenge was more likely than not the product of purposeful
discrimination.”17
In determining whether a defendant has made the requisite showing, “the trial
court should consider all relevant circumstances. For example, a ‘pattern’ of strikes
against black jurors included in the particular venire might give rise to an inference of
discrimination.”18 This Court has identified the following five factors that are relevant
14
Hernandez v. New York, 500 U.S. 352, 358 (1991) (citing Batson v. Kentucky, 476 U.S.
79, 96-97 (1986)).
15
Id. at 359.
16
Id.
17
545 U.S. at 163.
18
Batson, 476 U.S. at 97.
6
when assessing whether a prima facie showing of discrimination has been made: “1) the
number of racial group members in the panel; 2) the nature of the crime; 3) the race of the
defendant; 4) a pattern of strikes against racial group members; and 5) the questions and
statement[s] during the voir dire.”19 Once the defendant makes a prima facie showing,
the prosecution bears the burden of providing “a neutral explanation for challenging
black jurors.”20 “[T]he trial court’s decision on the ultimate question of discriminatory
intent represents a finding of fact of the sort accorded great deference on appeal and will
not be overturned unless clearly erroneous.”21
We agree that this record is worrisome insofar as Minor’s Batson claim is
concerned. Yet, the trial court required the prosecutor to justify her challenges, and she
did so. However, the prosecutor then complained that the State “now has run out of its
challenges” and asked the court to excuse the jury and begin anew because “the majority
19
Holloway v. Horn, 355 F.3d 707, 722 (3d Cir. 2004) (internal quotation marks
omitted).
20
Batson, 476 U.S. at 97.
21
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citation and internal quotation marks
omitted). The Appellate Division and the District Court also seem to have erred in their
application of Miller-El to this case. The Supreme Court’s requirement for deference to a
trial court’s Batson finding is limited to the discriminatory intent prong of Batson, and
not to the initial prima facie showing. See Id. at 339 (“[T]he court’s finding of the
absence of discriminatory intent is . . . accorded significant deference.”). The District
Court was incorrect in relying on Miller-El for the proposition that a trial court may
consider the ultimate composition in the first step of Batson, as Miller-El addressed the
denial of a COA after petitioner’s Batson claim was denied at step three. The State in
Batson had conceded that petitioner had satisfied Step One; the only issue was whether
Step Three had been satisfied. Id. at 338.
7
of the individuals on the jury are African American.”22 The trial court denied the State’s
motion. Ultimately, the majority of jurors in Minor’s trial were African American.23
Nevertheless, the prosecutor did offer race-neutral reasons for the strikes removing
African American jurors, the record supports those nonracial reasons, and the trial court
found that the prosecutor’s reasons were credible. Therefore, although the prosecution’s
comments on the second day of voir dire are worrisome, given the ultimate composition
of the jury, the credited race-neutral explanations for the challenged strikes, and the
significant deference we afford to the trial court’s finding, we cannot say that the state
court’s denial of Minor’s Batson claim “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” Although we
may well have reached a different result if we were reviewing this record de novo, given
the limitations of our appellate review under AEDPA, we must affirm the District Court’s
decision.
IV.
For the aforementioned reasons, we affirm the judgment of the District Court.
22
App. at 812.
23
The Appellate Division incorrectly focused on the ultimate composition of the jury at
Step One. At that stage, all that matters is whether any juror was being removed because
of race. Being required to defeat the ultimate composition of the jury at Step One would
impose too high of a burden at that stage. See Batson, 476 U.S. at 95 (“A single
invidiously discriminatory governmental act is not immunized by the absence of such
discrimination in the making of other comparable decisions.”); see also Madison v.
Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333, 1338 (state court reached a decision
“contrary to clearly established federal law . . . because the court increased [petitioner’s]
prima facie burden beyond what Batson requires.”).
8