SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this case is AFFIRMED.
Following a jury trial in New York State Supreme Court, Queens County, petitioner-appellant Rashon Harrison was found guilty of criminal sale of a controlled substance in the third degree and sentenced to an indeterminate prison term of eight to sixteen years. During jury selection in advance of that trial, defense counsel claimed, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the prosecution was deliberately using its peremptory challenges to strike prospective African-American jurors on the basis of their race, thereby violating the Equal Protection Clause. The trial court held, however, that defense counsel failed to establish a prima facie case under Batson, and the Appellate Division affirmed that result. See People v. Harrison, 272 A.D.2d 554, 708 N.Y.S.2d 433 (2d Dep’t 2000) (holding that the trial court correctly held that Harrison “failed to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination”).
Harrison thereafter filed this habeas petition in order to challenge the propriety of the Appellate Division’s Batson ruling. The district court — applying the deferential standards of review set forth in
Even as we are compelled to acknowledge the reasonableness of the Appellate Division’s ruling, we join the Appellate Division and the district court in expressing disapproval of the manner in which Justice Jaime Rios conducted jury selection in this case. See People v. Harrison, 708 N.Y.S.2d at 434; Harrison, 326 F.Supp. at 381. For one thing, we are deeply concerned that, in evaluating the defense counsel’s challenge to the prosecution’s use of peremptories, the trial judge seemed to consider the manner in which defense counsel was exercising her own peremptories. To the extent that he did, this was an obvious misapplication of Bat-son for two important, related reasons: First, the only circumstances that can ever be relevant when a trial court evaluates the strength of a defendant’s prima facie case are circumstances that raise an inference of discrimination by the prosecution. See Batson, 476 U.S. at 96, 106 S.Ct. 1712 (providing that a defendant can make out a prima facie case under Batson only where “relevant circumstances” support an inference that the prosecution has exercised its peremptory challenges in discriminatory fashion). The manner in which the defendant exercises his or her own peremptory challenges cannot reasonably be said to buttress — or undermine — an inference of discrimination by the prosecution. Second and similarly, Batson and its progeny make clear that any peremptory challenge made on account of race violates the Constitution, because it tramples on not only the defendant’s Equal Protection rights, but the Equal Protection rights of the excluded jurors, as well. See Powers v. Ohio, 499 U.S. 400, 406-09, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); cf. Walker v. Girdich, 410 F.3d 120, 123 (2d Cir.2005) (“[U]nder Batson and its progeny, striking even a single juror for a discriminatory purpose is unconstitutional.”); Tankleff v. Senkowski, 135 F.3d 235 (2d Cir.1998) (holding that the race-based exclusion of a juror is a structural error that can never be harmless). Even assuming arguendo that Justice Rios believed that defense counsel was exercising her peremptories in an unconstitutional racially discriminatory fashion, Justice Rios would still have been obligated to proceed to step two of the Batson test if “relevant circumstances” supported an inference of discrimination by the prosecution.1
We are also quite troubled by the fact that, during jury selection, Justice Rios repeatedly denigrated Harrison’s trial counsel, a Legal Aid lawyer who, based on our review of the record, zealously and skillfully advocated for her client. We believe that, at least in this one case, Justice Rios did little to bring honor to the bench with his scornful statements.
1.
We wish to make clear that although Justice Rios clearly misapplied Batson, the Appellate Division did not; we affirm only because the Appellate Division's ruling was not an unreasonable application of Batson.