NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0106n.06
Case No. 19-3546
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 18, 2020
JANERO MITCHELL, )
DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
CHRISTOPHER LAROSE, Warden, ) OHIO
)
Respondent-Appellee. )
)
BEFORE: COLE, Chief Judge; COOK and THAPAR, Circuit Judges.
COOK, Circuit Judge. An Ohio court convicted Janero Mitchell of aggravated murder and
sentenced him to life in prison without parole. After exhausting state court remedies, Mitchell
filed a federal habeas petition, claiming that the trial court conducted a flawed Batson hearing.
The district court denied the petition, and we affirm.
I.
During the voir dire phase of Mitchell’s trial, the prosecutor exercised peremptory
challenges to dismiss two black jurors. Mitchell—an African-American man—did not object to
the first strike. But when the prosecutor moved to excuse a second black juror, Christopher
Whitfield, Mitchell raised a Batson objection. The prosecutor told the court that she sought to
dismiss Whitfield because he shared a last name with other Youngstown residents who lived in
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Whitfield’s neighborhood and against whom the prosecutor’s office had brought charges. She
worried that Whitfield’s questionnaire failed to disclose prosecutions against family members.
The trial court decided to sustain the strike, saying:
Well, the court does find that the—I’m going to allow the excuse of him. And the
court does acknowledge that there are other blacks sitting in—waiting in the back
that are available. And Mr. Whitfield was not the only minority on this jury. So
we will overrule that.
The trial proceeded and resulted in Mitchell’s conviction for aggravated murder.
Mitchell’s direct appeal and applications for state postconviction relief failed. He then filed this
habeas petition. The district court denied relief but granted a certificate of appealability on
Mitchell’s claim that the trial court failed to make necessary credibility findings under Batson.
This appeal followed.
II.
In a habeas proceeding, we give fresh review to the district court’s legal conclusions.
Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013). But at the same time, the Antiterrorism
and Effective Death Penalty Act of 1996 significantly limits our review of any claim already
adjudicated in state court. See 28 U.S.C. § 2254(d)(1). The parties agree—as we do—that the
Ohio Court of Appeals decided Mitchell’s Batson claim on the merits. See State v. Mitchell, 62
N.E.3d 820, 828–34 (Ohio Ct. App. 2016). That means we may grant relief only if the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Our
deference “reflects the view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington
v. Richter, 562 U.S. 86, 102–03 (2011).
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Mitchell argues that the state court’s rejection of his Batson claim unreasonably applied
clearly established federal law. To succeed, he must show that the court’s decision misapplied a
Supreme Court holding, resulting in an “objectively unreasonable” error. White v. Woodall, 572
U.S. 415, 419–20 (2014). Even clear error will not suffice; Mitchell must demonstrate that the
state court’s reasoning was “so lacking in justification” that no fairminded jurist could agree with
it. Id.
III.
The Equal Protection Clause forbids prosecutors from using race-based peremptory strikes.
Batson v. Kentucky, 476 U.S. 79, 89 (1986). A Batson challenge to a peremptory strike necessitates
a three-step, burden-shifting inquiry: First, the defendant must make a prima facie showing of
discrimination. Second, the prosecutor must offer a nondiscriminatory reason for the strike. Third,
the trial court determines whether the defendant established purposeful discrimination. Id. at 96–
98.
Mitchell focuses on the trial court’s handling of Batson’s third step. At that stage, Batson
requires courts to undertake “a sensitive inquiry into such circumstantial and direct evidence of
intent as may be available.” 476 U.S. at 93. Mitchell argues that the trial court’s laconic denial of
his objection—“I’m going to allow the excuse of him”—violated Batson because the court failed
to note explicitly whether it credited the prosecutor’s proffered race-neutral rationale.
The Ohio Court of Appeals rejected Mitchell’s argument. It held that because a trial court
may express its “ruling on the credibility of a proffered race-neutral explanation . . . in the form of
a clear rejection or acceptance of a Batson objection,” the trial court’s brief but clear rejection of
the defense’s motion adequately showed that it credited the prosecutor. Mitchell, 62 N.E.3d at
832.
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That reasoning does not obviously misapply Batson. After all, “The Supreme Court has
never directed trial courts to make detailed findings . . . before ruling on a Batson motion.” Caudill
v. Conover, 881 F.3d 454, 459 (6th Cir. 2018), cert. denied, 139 S. Ct. 793 (2019); see Miller-El
v. Cockrell, 537 U.S. 322, 347 (2003) (“[A] state court need not make detailed findings” to render
a proper Batson ruling). Nor has the Supreme Court generally required trial courts to make
credibility findings about a party’s proffered race-neutral reason beyond a clear acceptance or
rejection of the motion. Indeed, Batson itself “decline[d] . . . to formulate particular procedures to
be followed” beyond the three-step framework. 476 U.S. at 99. While “the state court would have
done well (and would have done better)” to make explicit findings about the prosecutor’s proffered
reason, Caudill, 881 F.3d at 459, Mitchell fails to show how the failure to do so plainly misapplies
Batson. Absent an “objectively unreasonable” misapplication of a Supreme Court holding, we
may not disturb the state court’s judgment. White, 572 U.S. at 419.
Citing out-of-circuit authority, Mitchell argues that Batson requires a trial court to
“explicitly rule whether it credited the prosecutor’s proffered explanations for striking” jurors.
Galarza v. Keane, 252 F.3d 630, 639 (2d Cir. 2001). As an initial matter, Galarza did not apply
AEDPA. See id. at 635 n.4. But in any event, read in full context, Galarza faulted the trial court
for its ambiguous ruling that failed to make clear whether its rejection of the defense’s Batson
motion covered all or only some of the jurors whose dismissal the defense challenged. See id. at
634, 636. In fact, a more analogous case shows that the Second Circuit shares our view that an
“unambiguous rejection of a Batson challenge” without explicit credibility findings does not
violate clearly established federal law. Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir. 2006).
Mitchell also argues that the Ohio Court of Appeals “invented factual findings for the trial
court,” unreasonably applying Batson and Snyder v. Louisiana, 552 U.S. 472 (2008). Snyder held
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that when a prosecutor dismisses a juror because of the juror’s demeanor, “the trial court must
evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also
whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike
attributed to the juror by the prosecutor.” 552 U.S. at 477. Because the prosecutor here did not
seek to dismiss Whitfield because of his demeanor, Snyder does not apply.
Regardless, the alleged factual inventions—(1) that “Whitfield is not a noticeably common
surname like Jones or Smith” and (2) that the prosecutor’s office prosecuted other Whitfields living
near Christopher Whitfield—stem from (1) common experience and (2) information that counsel
related to the trial court during the Batson hearing. No holding in Batson or Snyder mandates that
an appellate court ignore common sense or counsel’s undisputed representations to the trial court.
To the extent Mitchell argues that the state appellate court invented the trial court’s no-
discrimination finding, we repeat that a clear rejection of a Batson motion without explicit findings
violates no clearly established federal law.
IV.
The dissent suggests that the prosecutor proffered an explicitly race-based rationale for
excluding Whitfield and that the trial court objectively misapplied Batson by accepting that
rationale. At the outset, we note that this issue falls outside the certificate of appealability. Sitting
in habeas, we consider only issues certified for appeal. See 28 U.S.C. § 2253(c). Among the three
Batson claims that Mitchell advanced below, the district court authorized Mitchell to appeal only
one—his argument that the trial court failed to make explicit credibility findings. Mitchell could
have sought expansion of the certificate in this court but failed to do so. The dissent’s
consideration of a non-certified issue sidesteps the certificate’s limits on this appeal, depriving the
warden (who appropriately cabined his arguments) of an opportunity to respond.
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The dissent argues that the district court authorized Mitchell to appeal all his Batson claims,
reading one portion of the district court order certifying “Mitchell’s Batson claim” as a general
permit to appeal his various other Batson issues. We must respectfully disagree. First, the district
court certified a singular “Batson claim” for appeal among the three Batson claims it analyzed.
And the court specified which claim “deserve[d] encouragement to proceed further.” Immediately
following the short quotation the dissent emphasizes, the district court explained that it agreed with
the state appellate court “that ‘more thorough findings by the trial court in denying the defense
Batson objections would have been helpful.’” That quotation draws from a portion of the state
court opinion discussing Mitchell’s explicit findings argument. The district court observed that
while “no Supreme Court holding specifies the extent to which a trial court must make such a
record, this Court acknowledges that reasonable jurists could debate that conclusion.” Viewing
the lack of precedent addressing the explicit findings issue as “expos[ing] a troublesome gap in
Batson doctrine,” the district court limited the scope of the certificate accordingly. We should not
circumvent the certificate process by sua sponte expanding the scope of this appeal.
That said, the certificate does not delimit our jurisdiction. See Gonzalez v. Thaler, 565
U.S. 134, 142 (2012). Assuming, however, the propriety of entertaining the issue raised by the
dissent despite its omission from the certificate, Mitchell’s appeal still fails. During the Batson
hearing, defense counsel spoke first and pressed the court to retain Whitfield, though he
“stipulate[d] there are two remaining minority jurors in this case.” After explaining that she sought
to excuse Whitfield over her concern that Whitfield’s questionnaire failed to disclose prosecutions
against his relatives, the prosecutor echoed defense counsel’s comments, saying “there’s more than
two [minority jurors] left in the back of the courtroom as well.” The dissent suggests that the trial
court “explicitly seized upon the prosecutor’s race-based assertion” when it remarked “the court
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does acknowledge that there are other blacks sitting in—waiting in the back that are available.”
Those remarks—the argument goes—show that the court accepted a race-based rationale for
excluding a juror, violating Batson’s requirement for courts to “ensure that no citizen is
disqualified from jury service because of his race.” 476 U.S. at 99.
The Ohio Court of Appeals rejected this very argument, deciding that “mere
acknowledgement of the composition of the present jury and venire would not constitute an error.”
Mitchell, 62 N.E.3d at 832. We agree. The Supreme Court itself has evaluated the racial
composition of jury venires in Batson cases. See Miller-El v. Dretke, 545 U.S. 231, 254 (2005);
Cockrell, 537 U.S. at 346. Indeed, the racial composition of the venire and the proportion of strikes
exercised against a particular group can serve as powerful indicators of the strike proponent’s
intent. A repeated “pattern of strikes” against a particular group, Batson, 476 U.S. at 96, especially
when the strike proponent appears determined to eliminate or nearly eliminate a particular group’s
representation in the venire, see Cockrell, 537 U.S. at 325, can provide probing evidence of pretext.
The state appellate court and district court correctly held that acknowledging the racial
composition of the panel violates no clearly established federal law.
Besides, the record seems to contradict the dissent’s contention that the trial court denied
the defense’s motion because other black venire members remained available. Rather, after
rejecting the Batson motion, the trial court said that “the court does acknowledge that there are
other blacks sitting in—waiting in the back that are available.” The state appellate court viewed
the comment as a “mere acknowledgement,” not an explanation of the court’s ruling. Mitchell, 62
N.E.3d at 832. Because that’s not an “unreasonable determination of the facts,” 28 U.S.C.
§ 2254(d)(2), we cannot set aside the state court judgment on grounds that the trial court embraced
a race-based rationale in denying the defense’s Batson motion. At any rate, Mitchell expressly
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disclaimed seeking any relief under the “unreasonable determination of the facts” prong of
AEDPA at oral argument.
We AFFIRM.
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COLE, Chief Judge, dissenting. The Equal Protection Clause guarantees that no citizen
will be barred from jury service on the basis of race. In Batson v. Kentucky, the Supreme Court
enshrined this proposition as a matter of clearly established constitutional law and enunciated a
three-step process for courts to follow when adjudicating a claim that a prospective juror has been
struck based on race. 476 U.S. 79, 95–98 (1986). Batson accordingly requires both state and
federal courts to “ensure that no citizen is disqualified from jury service because of his race.” Id.
at 99. The Ohio courts in this case not only failed to uphold Batson’s mandate but also applied
Batson and its progeny in an objectively unreasonable way. I would reverse the district court’s
judgment1 and grant Mitchell a conditional writ of habeas corpus.
A district court’s denial of a habeas petition is reviewed de novo. Daniel v. Burton,
919 F.3d 976, 978 (6th Cir. 2019). That said, on federal habeas review, a state court’s decision is
afforded a high degree of deference. A federal court may grant habeas relief with respect to a
claim decided on the merits in state court only if the state court’s decision was (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This court
has analyzed Batson claims, which often present a mixed question of law and fact, under the
“unreasonable application” prong of section 2254(d). See Lancaster v. Adams, 324 F.3d 423, 429
(6th Cir. 2003); see also Braxton v. Gansheimer, 561 F.3d 453, 458 (6th Cir. 2009). Under this
prong, the question is whether the state court’s decision is “objectively unreasonable”; a merely
1
Mitchell raised a Batson claim and a Confrontation Clause claim in his petition for habeas relief.
The district court rejected both claims and denied the petition, but it granted a certificate of
appealability “on Mitchell’s Batson claim.” (Judgment, R. 11, PageID 1177; see also Order, R.
10, PageID 1176.)
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incorrect decision is not enough. White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v.
Andrade, 538 U.S. 63, 75–76 (2003)). As the Supreme Court has said, habeas review is “not a
substitute for ordinary error correction through appeal,” but rather serves as “a ‘guard against
extreme malfunctions in the state criminal justice systems.’” Harrington v. Richter, 562 U.S. 86,
102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring
in the judgment)).
This is one of those extreme cases. At issue is whether the state trial court fulfilled its duty
under Batson “to determine if the defendant has established purposeful discrimination.” Batson,
476 U.S. at 98. The Ohio Seventh District Court of Appeals decided that the trial court satisfied
this requirement because Batson does not compel detailed factual findings, and “the trial court
clearly rejected the Batson objection, which was sufficient to express its ruling.” State v. Mitchell,
62 N.E.3d 820, 832 (Ohio Ct. App. 2016).
A review of the trial transcript, however, shows that the conclusion of the Ohio court of
appeals is not objectively reasonable. The transcript reflects that after the state used its third
peremptory challenge to strike Christopher Whitfield, a black man, Mitchell’s trial counsel raised
a Batson objection on the basis that Whitfield “[wa]s the second minority juror excused by the
state of Ohio.” (R. 6-2, PageID 452.) Mitchell’s counsel also stipulated that there were “two
remaining minority jurors” and predicted that these two jurors would be the only two minorities
on the jury, assuming they were not later struck. (Id.) The prosecutor then proffered her reason
for seeking to strike Whitfield:
Your Honor, this one Christopher Whitfield, his last name, we have prosecuted
many Whitfields. He’s from the south side as well. So even though he didn’t
indicate that he had any family members that were prosecuted by us or who had
convictions, I’m afraid that this Mr. Whitfield is related not only to Reginald
Whitfield, who we just had a case with in Judge Durkin’s court, but many of the
other Whitfields who we have prosecuted [sic]. They are all from the south side.
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(Id., PageID 453.) Mitchell’s counsel responded that the prosecutor could have asked Whitfield
in voir dire if he had relatives with convictions—and indeed still could. The prosecutor, in turn,
replied, “Your Honor, and there’s more than two [minorities] left in the back of the courtroom as
well. There’s at least three or four in the back of the courtroom.” (Id.) At this point, another
prosecutor added that both the defendant and the victim were black. (Id., PageID 454.) Following
this exchange, the trial court permitted the peremptory strike, saying:
All right. Well, the court does find that the—I’m going to allow the excuse of him.
And the court does acknowledge that there are other blacks sitting in—waiting in
the back that are available. And Mr. Whitfield was not the only minority on this
jury. So we will overrule that.
(Id. at PageID 455.)
Thus, as the trial transcript makes evident, this is not a case—as the Ohio court of appeals
found—where the trial court simply rejected the Batson objection without any explanation or
reasoning. See 62 N.E.3d at 832. This is a case where the state trial court rejected the Batson
objection using impermissible reasoning. The trial court said there were “other blacks” available
on the venire and that Whitfield was “not the only” black person on the jury, so the court
“overrule[d]” the Batson objection. (R. 6-2, PageID 455.) In other words, rather than fulfilling its
“duty to determine if the defendant ha[d] established purposeful discrimination,” as Batson
instructs, the trial court here condoned the idea that it is permissible to strike one black person as
long as there are others in the jury pool. See 476 U.S. at 98. This unquestionably conflicts with
Batson’s clear requirement for courts to “ensure that no citizen is disqualified from jury service
because of his race.” See id. at 99.
The Ohio court of appeals nevertheless attempted to rationalize the trial court’s ruling, but
the court’s attempted rationalization is not objectively reasonable. First, the Ohio court of appeals
stated that it was Mitchell’s defense counsel who “first brought up the fact that only two minorities
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would remain on the jury without [Whitfield] and predicted he would not reach the other minorities
in the back of the courtroom during voir dire.” 62 N.E.3d at 832. This point misses the mark. A
defendant unquestionably may rely on factors such as “a ‘pattern’ of strikes against black jurors”
in establishing a prima facie case of purposeful discrimination. Batson, 476 U.S. at 97. What a
prosecutor unquestionably may not do, however, is proffer a race-based excuse for excluding a
juror. See id. Yet as the trial transcript clearly and convincingly shows, the prosecutor asserted
that there were “at least three or four” minorities in the back of the courtroom—and she made this
assertion after Mitchell’s attorney challenged as pretextual her first proffered reason for striking
Whitfield. (R. 6-2, PageID 453.) The trial court explicitly seized upon the prosecutor’s assertion
in permitting the state to strike Whitfield. That the prosecutor made her assertion after defense
counsel brought up the composition of the jury does not make the prosecutor’s assertion any less
race-based. Nor does it permit the trial court to rely on the assertion in allowing the peremptory
challenge. See Batson, 476 U.S. at 99 (requiring that “no citizen” be disqualified from jury service
because of his or her race). Thus, for the Ohio court of appeals to suggest that the trial court’s
statement was permissible because defense counsel was the first one to bring up the composition
of the jury is not an objectively reasonable application of Batson.
Second, the Ohio court of appeals attempted to rationalize the trial court’s ruling by
concluding that “because the effect of the challenge is a circumstance a court can consider in
evaluating the issue of pretext, the mere acknowledgement of the composition of the present jury
and venire would not constitute an error.” 62 N.E.3d at 832. As an initial matter, to construe the
trial court’s statement as a “mere acknowledgement” is not objectively reasonable. The trial
court’s acknowledgement is the only elaboration the court provided in allowing the state’s
peremptory challenge. Following its acknowledgment, the trial court even said, “So we will
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overrule [the Batson objection].” (R. 6-2, PageID 455.) And yet, the Ohio court of appeals refused
to take the trial court at its word and instead presumed that the trial court allowed the state’s
peremptory challenge for some other, unstated reason.
The Supreme Court’s holding in Snyder v. Louisiana clearly establishes that such a
presumption is inappropriate when evaluating a Batson claim. In Snyder, the prosecutor proffered
two reasons for striking a prospective black juror: (1) the juror “looked very nervous,” and (2) the
juror had indicated that he had student-teaching obligations. 552 U.S. 472, 478 (2008). The trial
court simply stated that it was “going to allow the challenge,” and nothing more. Id. at 479. The
Louisiana Supreme Court presumed that the trial court credited the prosecutor’s stated concern
about the juror’s nervous demeanor, but the United States Supreme Court held that the Louisiana
Supreme Court’s presumption was erroneous because the trial court made no specific finding on
the record concerning the juror’s demeanor. See id.; see also State v. Snyder, 942 So. 2d 484, 496
(La. 2006).
Likewise here, no specific finding in the record supports a presumption that the Ohio trial
court credited the prosecutor’s stated concern about Whitfield’s relation to other Whitfields. Even
worse, the Ohio court of appeals trivialized the specific statements that the trial court did make.
This was an unreasonable application of clearly established federal law as determined in Snyder.
See 552 U.S. at 479.
Additionally, the conclusion of the Ohio court of appeals that acknowledging the
composition of the jury and venire “would not constitute an error” is objectively unreasonable.
See 62 N.E.3d at 832. As the Supreme Court has repeatedly and unequivocally held, “The
‘Constitution forbids striking even a single prospective juror for a discriminatory purpose.’”
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder, 552 U.S. at 478); see also
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Batson, 476 U.S. at 95–96. We have accordingly held, “Where purposeful discrimination has
occurred, to conclude that the subsequent selection of an African-American juror can somehow
purge the taint of a prosecutor’s impermissible use of a peremptory strike to exclude a venire
member on the basis of race confounds the central teachings of Batson.” Lancaster, 324 F.3d at
434; accord Rice v. White, 660 F.3d 242, 258 (6th Cir. 2011). Thus, for the state trial court to have
accepted the presence of other black men or women on the venire as an excuse for allowing a
peremptory challenge of a black prospective juror—and for the state appellate court to have
concluded that it was appropriate for the trial court to have considered such a circumstance—is an
objectively unreasonable application of Batson and its progeny.
Not only did the state courts unreasonably apply Batson, it is clear that a Batson violation
occurred at Mitchell’s trial. Here, the Ohio court of appeals credited the state’s alleged concern
that Whitfield was related to other Whitfields whom the state had prosecuted. See 62 N.E.3d at
832–34. But evaluating the plausibility of that concern “in light of all evidence with a bearing on
it,” as Batson instructs, shows that it was clear error for the court of appeals to have accepted the
prosecutor’s proffered explanation so readily. See Miller-El v. Dretke (Miller-El II), 545 U.S. 231,
252 (2005); Batson, 476 U.S. at 96–98. As Mitchell’s defense counsel noted, the prosecutor could
easily have asked—and, at that point in voir dire, still could ask—Whitfield whether he was related
to the other Whitfields prosecuted by the state. That the prosecutor refused to do so is indicative
of pretext. See Miller-El II, 545 U.S. at 246 (2005); see also id. at 250 n.8. Worse still, the
prosecutor waved off defense counsel’s concern, asserting that there were other black people in
the jury pool.
The Ohio court of appeals suggests that even had the prosecutor questioned Whitfield, she
reasonably could have remained concerned about Whitfield’s relation to other Whitfields
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prosecuted by the state. See 62 N.E.3d at 833–34. This reasoning, however, is mere post hoc
rationalization and does nothing to establish that the prosecutor’s stated concern as to Whitfield
was plausible. Such reasoning also ignores the Supreme Court’s warning that a Batson challenge
“does not call for a mere exercise in thinking up any rational basis.” Miller-El II, 545 U.S. at 252.
Pretext “does not fade because a trial judge, or an appeals court, can imagine a reason that might
not have been shown up as false.” Id. Here, based on the evidence in the record, I can only
conclude that the state appellate court’s finding of no discrimination is unsupportable and clearly
erroneous.
“Even in the context of federal habeas, deference does not imply abandonment or
abdication of judicial review. Deference does not by definition preclude relief.” Miller-El v.
Cockrell (Miller-El I), 537 U.S. 322, 340 (2003). Where there have been “extreme malfunctions
in the state criminal justice systems,” a federal habeas court may properly intervene. Harrington,
562 U.S. at 102 (internal quotation marks and citation omitted). Here, the state trial court failed
in its duty to ensure no person is excluded from jury service on the basis of race, and the state
appellate court unreasonably condoned said abdication. Where racial discrimination in jury
selection is condoned, the harm extends to the defendant, the excluded juror, and the entire
community, as it “undermine[s] public confidence in the fairness of our system of justice.” Batson,
476 U.S. at 87. A federal habeas court is allowed to remedy such an “extreme malfunction.”
Therefore, I respectfully dissent.
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