concurring.
I agree with my colleagues that Clausell has forfeited his substantive Batson claim by failing to raise a contemporaneous objection at trial. Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir.2008), vacated on other grounds sub nom. Beard v. Abu-Jamal, — U.S. -, 130 S.Ct. 1134, — L.Ed.2d *198-, 2010 WL 154862 (2010). While I would also affirm the dismissal of Clausell’s ineffective-assistance-of-counsel claim, I would do so on narrower grounds, and write separately to address another matter, not necessary to the outcome of this case, that I nonetheless deem of concern.
In state post-conviction review proceedings, Clausell submitted a self-prepared chart purporting to identify the racial composition of the venire from his 1995 retrial. ClauselFs chart reflects that (1) the venire consisted of 47 individuals,7 eight of whom were minorities (five African-Americans and three Hispanies); (2) one African-American and one white venireperson were excused by the trial court; and (3) out of 11 peremptory challenges, the State used three against the four remaining African-American venirepersons, and two against the three Hispanic venirepersons.8 On appeal, Clausell emphasizes that his chart reveals a “strike rate” of 45%, and an “exclusion rate” of 71%.9 Accordingly, he argues that trial counsel could have made out a prima facie Batson claim based on a “pattern” of strikes, which, as our Court recently explained, requires evidence of “both the strike rate and the racial composition of the venire.” Id. at 290. Trial counsel’s failure to raise a Bat-son challenge based on these statistics— resulting in the failure to trigger the three-step Batson inquiry — is the basis of ClauselFs ineffective-assistance-of-counsel claim.
Clausell concedes, however, that the trial record itself does not indicate the racial composition of the venire or the races of the venirepersons who were struck by the State. Lacking any record evidence to corroborate ClauselFs chart, we cannot rely on it or the racial makeup it purports to disclose, as it is apparently based solely on his memory of jury selection in a trial that occurred six years prior. See Lewis v. Horn, 581 F.3d 92, 104 (3d Cir.2009) (petitioner’s allegations that the prosecutor “exercised eight peremptory strikes against African American potential jurors and four against white potential jurors,” and that he was “tried ... by an all-white jury,” failed to establish a prima facie Batson claim, where petitioner “d[id] not cite to any record support, nor d[id] he offer other support outside the record, to substantiate [his] bare allegation[s]”); Abu-Jamal, 520 F.3d at 291-92 & n. 18 (although record showed that prosecution used 10 out of 15 peremptory strikes to remove black venirepersons, “[t]here [was] no factual finding at any level of adjudication, nor evidence from which to determine the racial composition ... of the entire venire — facts that would permit the computation of the exclusion rate and would provide important contextual markers to evaluate the strike rate”). Because we cannot rely on ClauselFs allegations regarding the racial composition of the venire, we need not reach the question whether an objection based on statistics consistent with his chart would have been *199sufficient to establish a prima facie Bat-son claim. That is, even under a less “demanding” standard than that announced in State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986), Maj. Op. at 196 n. 6, Clausell’s allegations are insufficient to show that trial counsel was deficient for failing to raise a Batson objection.
Although they also discredit the reliability of Clausell’s chart, id., my colleagues conclude that Clausell’s ineffective-assistance-of-counsel claim fails because a Bat-son challenge by trial counsel, based on the “unadorned fact” that five out of eight minorities were struck, “would have been rejected by all courts and thus utterly futile, given the precedent set by Gilmore.” 10 Id. at 197. However, I am troubled by portions of the majority opinion that could be read to imply that Gilmore’s “substantial likelihood” standard itself is not “contrary to, or ... an unreasonable application of,” Batson. 28 U.S.C. § 2254(d)(1).
My colleagues first suggest that the Supreme Court only recently “clarified” in Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), that a standard similar to Gilmore’s “substantial likelihood” standard — i.e., California’s “more likely than not” test — is inconsistent with Batson. Maj. Op. at 194. I have doubts about this characterization of Johnson. Although the Supreme Court reaffirmed in Johnson that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred,” 545 U.S. at 170, 125 S.Ct. 2410 (emphasis added), the Batson Court itself used the term “inference” to describe the requisite prima facie showing, and held that a “pattern” of strikes against minority jurors “might give rise to an inference of discrimination.” Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Indeed, the Johnson Court concluded that California’s “more likely than not” standard found “no support” in Batson.11 Johnson, 545 U.S. at 169, 125 S.Ct. 2410.
The Majority also appears to suggest that Gilmore is not contrary to Batson because Batson “deeline[d] ... to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges,” Batson, 476 U.S. at 99, 106 S.Ct. 1712, and the “substantial likelihood” standard was New Jersey’s answer to the Batson Court’s “implicit invitation.” Maj. Op. at 193-94. I do not read this language from Batson as authorizing states to impose a more onerous burden to *200establish a prima facie case, however. Rather, the Batson Court seemed to be referring to the “particular procedures” to be followed after a finding of discrimination had been made. See Batson, 476 U.S. at 99 n. 24, 106 S.Ct. 1712 (“[W]e express no view on whether it is more appropriate in a particular case, upon a finding of discrimination ..., for the trial court to discharge the venire and select a new jury ..., or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.”) (internal citations omitted). Indeed, the Supreme Court rejected a similar argument in Johnson, reasoning that although states “have flexibility in formulating appropriate procedures to comply with Batson,” California’s “more likely than not” standard was “an inappropriate yardstick by which to measure the sufficiency of a prima facie case.” Johnson, 545 U.S. at 168, 125 S.Ct. 2410; but see id. at 173-74, 125 S.Ct. 2410 (Thomas, J., dissenting) (arguing that California’s “more likely than not” standard fell “comfortably within its broad discretion to craft its own rules of criminal procedure,” and arguing that Batson had “disclaimed any intent to instruct state courts on how to implement its holding”).
In any event, our Court has never addressed whether the Gilmore “substantial likelihood” standard is contrary to or an unreasonable application of Batson, and we are not required to answer that question in this ease. With this qualification, I join my colleagues in concluding that Clausell has not met his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), of showing that trial counsel was deficient for failing to raise a Batson objection.
. Although the venire initially had 50 potential jurors, three were excused by the trial court before the parties began exercising their peremptory strikes.
. According to ClauselFs chart, his own counsel struck the third Hispanic venireperson, and the State used its remaining 6 peremptory strikes against white venirepersons.
. As we explained in Abu-Jamal, "[t]he strike rate is computed by comparing the number of peremptory strikes the prosecutor used to remove black potential jurors with the prosecutor’s total number of peremptory strikes exercised. This statistical computation differs from the 'exclusion rate,’ which is calculated by comparing the percentage of exercised challenges used against black potential jurors with the percentage of black potential jurors known to be in the venire.” Id. at 290.
. I do not understand my colleagues to be holding that evidence of a “pattern” of strikes against minority venirepersons, without more, would have been insufficient as a matter of law to establish a prima facie case under Gilmore. Indeed, the Gilmore Court emphasized that determining whether there is a "substantial likelihood” of group bias requires consideration of "all relevant circumstances,” including whether (1) the prosecutor struck " 'most or all of the members of [an] identified group from the venire,’ ” or (2) the prosecutor used a " ‘disproportionate number’ ” of peremptory strikes against members of that group. Gilmore, 511 A.2d at 1165 (quoting People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, 764 (1978)).
. I note that Gilmore’s "substantial likelihood" standard was "based on the reasoning in” People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) — the California Supreme Court decision that established the "more likely than not” standard the Supreme Court rejected in Johnson. State v. Osorio, 199 N.J. 486, 973 A.2d 365, 376 (2009) ("[T]he ‘more likely than not’ standard on which Gilmore is premised is the very standard the Supreme Court of the United States condemned as being ‘at odds with the prima facie inquiry mandated by Batson.' ”) (quoting Johnson, 545 U.S. at 173, 125 S.Ct. 2410).