dissenting:
I respectfully dissent, because I disagree with the majority that “[rjesolution of the Batson issue in this case requires more information about the possible jurors than the record discloses.” Majority Op. at 166. Because the majority overlooks the fact that the record discloses a great deal about the possible jurors in this case, it imposes a substantial and unnecessary evidentiary burden on Sorto.
Before I turn to the majority’s long disquisition on the amount of evidence required to judge a Batson claim, I highlight two statements made by the prosecutor during jury selection:
“If [defense counsel] accepts our withdrawal of [the Martinez] peremptory challenge, we would have accepted fifty percent of Hispanic potential jurors that are before us.”
“[Defense counsel] has made no threshold offer of any pattern of discriminating on the People’s part because we peremptorily challenged the only two African American potential jurors we had.”
The first statement shows that there were two Hispanic jurors in the box during Round One of jury selection. The second statement, made during Round Two, establishes that only two African-American jurors were present during the first two rounds of jury selection.
Thus, the record demonstrates the following. Prior to the first Batson challenge, the prosecutor attempted to use peremptory strikes against three potential jurors: Vidal Martinez, Carlos Rivera, and John Harper. Martinez and Rivera are Hispanic, while Harper is African-American. Majority Op. at 167. At the time of the first Batson challenge, these were the only Hispanic or African-American individuals seated in the jury box. Prior to the second Batson challenge, the prosecutor exercised additional peremptory strikes against Round One potential juror Steven Mink, and Round Two potential jurors Mary Ann Burdonis and Hazel Mays. Id. at 172-73. Mays is African-American. Id. at 168. Mink is neither African-American nor Hispanic. Burdonis is not African-American, and it is a fair inference that she is not Hispanic.1 An *176additional Hispanic potential juror, Selina Zate, was seated in the jury box at the beginning of Round Two, but removed for cause before the parties exercised their Round Two peremptories.
The record therefore shows that at the time of the first Batson challenge, the prosecutor had attempted to exercise one hundred percent of his peremptory challenges against minorities, and had challenged one hundred percent of the minorities not already struck for cause. At the time of the second Batson challenge, the prosecutor had attempted to exercise sixty-six percent of his strikes against minorities, had stricken one hundred percent of the African-American potential jurors not already struck for cause, and — assuming Burdonis is not Hispanic- — -had attempted to strike one hundred percent of the Hispanic jurors not already struck for cause. Reaching such a conclusion does not require a “labored piecing together of transcript fragments” or “intuit[ing] the race and ethnicity of jurors.” See Majority Op. at 173. Rather, it simply requires a straightforward reading of the record in this case. Cf id. Thus, the majority’s conclusion that we lack sufficient evidence to reach the Batson challenge, and its suggestion that the jury pool “may have overwhelmingly consisted of minority jurors, rendering any individual peremptory strike of a minority juror less suspicious,” does not stand up to scrutiny. See id.
I agree with the majority that the state court acted reasonably in denying the first Batson challenge as premature. However, as to the second challenge, I would find that the state court unreasonably applied Batson when it refused to consider whether African-American and Hispanic jurors could constitute a cognizable group.2
We recently considered a similar Batson claim in Green v. Travis, 414 F.3d 288 (2d Cir.2005). Like Sorto, Green was a habeas petitioner who challenged the government’s pattern of strikes against minority prospective jurors. See id. at 291, 299. In Green, as in this case, we lacked precise data about the composition of the venire, because “[t]he number of persons in the venire and the racial and ethnic composition of the venire were not preserved in the record.” Id. at 291. Based on the record, however, we knew that at the time of the Batson challenge, “the prosecutor had used one hundred percent of her peremptory strikes to remove Black and Hispanic jurors,” and “had stricken all of the Black members of the jury pool not already struck for cause.” Id. at 299. We were therefore able to conclude that the “pattern of the prosecution’s peremptory strikes established a prima facie case of discrimination under Batson.” Id. In this case, the record shows that at the time of *177the second Batson challenge, the prosecutor had attempted to use sixty-six percent of his peremptory strikes to remove African-American and Hispanic jurors, had stricken all of the African-American members of the jury pool not already struck for cause, and had attempted to strike all Hispanic jurors not already struck for cause. Thus, the type of evidence available in this case is comparable to the evidence available in Green, where we found that the record provided a sufficient basis to evaluate the Batson challenge.
To reach the opposite conclusion, the majority relies on United States v. Alvarado, 923 F.2d 253 (2d Cir.1991). In Alvarado, we explained that “statistical disparities are to be examined” as part of the Batson prima facie inquiry. Id. at 255. In that case, we knew what percentage of the prosecution’s peremptory strikes were exercised against minority jurors (the “challenge rate”), but we did not know the minority percentage of the venire. Id. at 255-56. As we explained, if, “for example ... the minority percentage of the venire was 50, it could be expected that a prosecutor, acting without discriminatory intent, would use 50 percent of his challenges against minorities.” Id. at 255. In other words, because we had only one category of statistical information, we had no context in which to analyze disparity. However, rather than create an unnecessary evi-dentiary obstacle for the defendant in that case, we employed the relevant population data as a surrogate figure for the minority percentage of the venire. Id. at 256.
The majority’s reliance on Alvarado overlooks the fact that in this case we have sufficient information to assess statistical disparity. We know both the prosecution’s challenge rate with respect to minority potential jurors and what percentage of minority potential jurors the prosecution attempted to strike. Thus, we have two categories of data that provide the basis for an analysis of disparity. Moreover, while we do not know the precise minority percentage of the venire, because we know that at the time of the second Batson challenge, the prosecutor had attempted to strike all minority potential jurors not already struck for cause, we know that during the first two rounds the venire included only four qualified minority jurors. I would therefore find, as we did in Green, that the record in this case provides sufficient evidence for a reasoned analysis of Sorto’s Batson claim.
The majority also contends that the trial court’s rejection of Sorto’s second Batson challenge was not unreasonable because, like the first challenge, the second was lodged at a “preliminary stage,” when it was too early to tell whether a problematic pattern of strikes had developed. The majority notes that there were only six peremptory strikes at the time of the challenge in this case, and compares that to the ten strikes that were found to be insufficient in Overton v. Newton, 295 F.3d 270, 274 (2d Cir.2002). Overton is distinguishable, as in that case, several minority jurors had actually been seated at the time of the Batson challenge. See id. at 274. On the other hand, in Green, where the statistical evidence was similar to this case, we found that a prima facie showing of discrimination under Batson had been established after the prosecutor exercised only five peremptory strikes. See Green, 414 F.3d at 291, 299. Moreover, by the time of the second Batson challenge, it was apparent that what might have initially appeared to be a statistical fluke had in fact emerged as a consistent pattern: the prosecutor struck or attempted to strike each and every Hispanic and African-American juror not excused for cause.
I disagree with the majority’s assessment of the evidence in this case and its *178conclusion as to what evidence is necessary to make out a successful statistical Batson claim. And therefore, unlike the majority, I believe the state court’s erroneous view on aggregation is implicated. Cf. Majority Op. at 167 n. 1. In evaluating whether Sorto had made out a prima facie case with respect to the strike of Rivera, both the state courts and the district court assumed that strikes against members of different minority groups could not be considered together to show a pattern of discriminatory strikes. This is a view we rejected in Green, where we concluded, applying the AEDPA standard, that a state court decision that “Black and Hispanic venireper-sons do not constitute a ‘cognizable racial group’ was an unreasonable application of Batson.” Green, 414 F.3d at 293, 298. I would therefore follow Green and find that in this case the state court’s conclusion that African-American and Hispanic potential jurors should not be aggregated for ■the purposes of evaluating whether Sorto had established a prima facie case of discrimination based on a suspicious pattern of peremptory strikes was an unreasonable application of Batson.
The Supreme Court has recently cautioned that establishing a prima facie case of discrimination is not intended to be a high bar, in part because “[t]he Batson framework is designed to produce actual answers to suspicions and inference that discrimination may have infected the jury selection process.” Johnson v. California, 545 U.S. 162, 172, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). Moreover, as the Court noted in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), Batson protects the rights of both individual defendants and the community at large:
Batson was designed to serve multiple ends, only one of which was to protect individual defendants from discrimination in the selection of jurors. Batson recognized that a prosecutor’s discriminatory use of peremptory challenges harms the excluded jurors and the community at large.
The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system.
Id. at 406, 111 S.Ct. 1364 (internal quotation marks and citations omitted). Thus, we do both defendants and ordinary citizens a disservice when we create unnecessary obstacles to the vindication of such rights.
I therefore respectfully dissent.
. Neither Mink nor Burdonis can be African-American, because the prosecutor made his comment regarding African-American potential jurors after he struck both Mink and Bur-donis.
The fact that Mink was not Hispanic can be deduced from the fact that he was a Round One juror, and therefore would have been seated in the box, along with Rivera, when the prosecutor described Martinez as fifty percent of the Hispanic potential jurors. While there is less evidence with respect to Round Two potential juror Burdonis, the record suggests that she was not Hispanic. When defendant raised his second Batson challenge, he referred to the prosecutor’s use of perempto-ries against Hispanic and African-American individuals during Round One (i.e., against Martinez, Rivera, and Harper), and the use of a peremptory against Mays in Round Two, but did not mention the prosecutor's decision *176to strike Burdonis. Because the Burdonis strike preceded the Mays strike, if Burdonis had been Hispanic, counsel presumably would have mentioned this fact when raising the second Batson challenge.
. With respect to prospective jurors Harper and Mays, Sorto argues that the race neutral reasons given by the prosecutor for these strikes were pretextual. Because it is not clear whether the state court adjudicated this issue on the merits, it is questionable whether AEDPA would apply to review of this claim. See DeBerry v. Portuondo, 403 F.3d 57, 67 (2d Cir.2005). However, even under the more lenient pre-AEDPA standard, I would find that Sorto’s claim with respect to these jurors fails, because there were several differences between the jurors who were struck and those who remained. We have found that such differences, in light of the deference we owe a trial court’s credibility determinations, support a state court’s rejection of a Batson claim. See Messiah v. Duncan, 435 F.3d 186, 200-01 (2d Cir.2006). Sorto makes no claim of pretext with respect to Rivera, because the prosecutor never attempted to articulate a race neutral reason for striking Rivera.