Frederick Harris v. Glenn Haeberlin

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0112p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

FREDERICK JESSE HARRIS,

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No. 09-5858

v.

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Respondent-Appellee. -

GLENN HAEBERLIN, Warden,

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Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 03-00754—John G. Heyburn II, District Judge.

Decided and Filed: May 28, 2014

Before: BATCHELDER, Chief Judge; COLE and GRIFFIN, Circuit Judges.

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COUNSEL

ON BRIEF: David Debold, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C.,

for Appellant. Bryan D. Morrow, Ken W. Riggs, OFFICE OF THE KENTUCKY

ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

GRIFFIN, J., delivered the opinion of the court, in which, COLE, J., joined, and

BATCHELDER, C.J., joined in the result. COLE, J. (pp. 14–15), delivered a separate

concurring opinion. BATCHELDER, C.J. (pp. 16–18), delivered a separate opinion

concurring in the judgment.

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OPINION

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GRIFFIN, Circuit Judge. Previously, we remanded Frederick Jesse Harris’s

28 U.S.C. § 2254 petition to the district court for a hearing to determine whether the

prosecutors at his state trial had exercised certain peremptory strikes in a racially

discriminatory manner. The district court held a reconstructed Batson v. Kentucky,

1

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476 U.S. 79 (1986), hearing and concluded that the strikes in question had not been

motivated by purposeful racial discrimination. After remand, Harris appeals the district

court’s factual findings. We affirm.

I.

We have previously detailed the facts underlying this case. See Harris v.

Haeberlin, 526 F.3d 903, 905–09 (6th Cir. 2008). Harris’s current argument now hinges

solely on the prosecution’s peremptory strike of Juror 49, who is African-American. The

facts pertinent to this claim are as follows: After jury selection in Harris’s

1998 Kentucky state criminal trial, Harris objected to the prosecution’s use of its

peremptory strikes, four of which eliminated prospective African-American jurors from

the jury pool, including Juror 49. The trial court accepted the prosecution’s rationale

that Juror 49 was struck “because she had difficulty following questions asked of her,

was joking with a neighboring juror who was subsequently struck for cause, and had a

grandson who was convicted for his involvement in a shooting.” Id. at 906.

Harris was convicted and sentenced to seventy-five years in prison. After he was

sentenced, Harris discovered that a courtroom videotape system had reactivated during

a recess in his criminal trial and had recorded a conversation among the prosecutors in

which they discussed how to exercise the last of their peremptory strikes. During this

conversation, the chief prosecutor, John Dolan, reviewed the eight prospective jurors

whom the prosecution had already struck and commented, “We’ve got [name deleted],

49, she’s the old lady, the black lady. The other one is already off.” Id. at 907

(emphasis added).

Harris argued on direct appeal in the Supreme Court of Kentucky that the newly-

discovered videotape evidence clearly demonstrated the prosecution’s improper reliance

on race. Nevertheless, a 4-3 majority of the Supreme Court of Kentucky rejected

Harris’s Batson claim, reviewing the videotape evidence and concluding that it did not

put into question the soundness of the trial court’s adjudication of Harris’s Batson

allegations. Id. at 908. Harris subsequently pursued state habeas relief, but it was

denied.

No. 09-5858 Harris v. Haeberlin Page 3

In 2003, Harris filed a § 2254 petition in federal district court, alleging various

constitutional defects in his state prosecution, including a Batson violation. The district

court denied his petition but granted a certificate of appealability on the Batson claim.

Harris appealed to this court. In 2008, a majority of this panel ruled that Batson

and Hernandez v. New York, 500 U.S. 352, 365 (1991), required a trial court—rather

than an appellate court—to review the uniquely relevant videotape evidence that was

discovered in Harris’s case after his sentencing but prior to his direct appeal. See Harris,

526 F.3d at 912. We held that, “[b]ecause the after-acquired videotape is an ideal piece

of evidence with which to assess prosecutorial credibility, the Kentucky Supreme Court

unreasonably applied clearly established federal law, as enshrined in Hernandez, when

it upheld the trial court’s Batson finding without allowing it to consider this new

evidence.” Id. Having determined that the state appellate court had unreasonably

applied Batson by failing to remand Harris’s case to the state trial court, we gave Harris

a specific remedy for the state courts’ error, vacating and remanding his case to the

district court for it “to conduct a renewed Batson hearing in light of the videotaped

evidence.” Id. at 910. We directed that, at this “second Batson hearing,” the district

court must “reassess prosecutorial credibility in light of the videotaped evidence.” Id.

at 914.

On remand, the district court held the required Batson hearing. The district court

took testimony from both of the state prosecutors involved in Harris’s case, reviewed the

videotape, reviewed the prosecutors’ contemporaneous voir dire notes, and reviewed the

record of the Batson hearing that had taken place before the state trial court. It then

ruled (1) that it had been able to reconstruct a meaningful Batson hearing, despite the

lapse of eleven years since Harris’s prosecution, and (2) that the prosecution’s

peremptory strikes had not been improperly motivated by race. See Harris v. Haeberlin,

2009 WL 1883934, at *6–12 (W.D. Ky. June 30, 2009).

Harris again appeals the district court’s judgment.

No. 09-5858 Harris v. Haeberlin Page 4

II.

On appeal, Harris argues that the district court erred in concluding (1) that it

could hold a meaningful Batson hearing more then eleven years after his state trial, and

(2) that the prosecution’s strike of Juror 49 was not improperly motivated by racial

considerations.

A.

At the outset, the parties briefly allude to Cullen v. Pinholster, 131 S. Ct. 1388

(2011)—which the Supreme Court decided while Harris’s current appeal was

pending—questioning whether it bars our consideration of the new evidence produced

during the evidentiary hearing on remand. It does not. Pinholster held that “evidence

introduced in federal court has no bearing on [28 U.S.C.] § 2254(d)(1) review”—that is,

on whether a state court’s adjudication of a claim was contrary to or involved an

unreasonable application of clearly established federal law. Id. at 1400. Instead, “[i]f

a claim has been adjudicated on the merits by a state court, a federal habeas petitioner

must overcome the limitation of § 2254(d)(1) on the record that was before that state

court.” Id.; see Moore v. Mitchell, 708 F.3d 760, 780 (6th Cir.), cert. denied, 134 S. Ct.

693 (2013).

In this case, we determined in our prior decision that, on the basis of the evidence

that was before the state appellate court, the state court unreasonably disregarded

Batson’s directive “that the trial court, not the appellate court, assess the prosecutor’s

demeanor as captured on the videotape.” Harris, 526 F.3d at 913–14. We then gave

Harris a specific form of relief for the state court’s unreasonable federal-law error: we

remanded the case to the district court for “a second Batson hearing” so that the district

court could “reassess prosecutorial credibility” and determine if the relevant peremptory

strikes had been improperly motivated. Id. at 914.

Pinholster is inapplicable to this case because it precludes consideration of

evidence introduced in federal court only when determining whether a state court’s

adjudication of a claim involved an unreasonable federal-law error. See Pinholster,

No. 09-5858 Harris v. Haeberlin Page 5

131 S. Ct. at 1400.1 Here, by contrast, the evidence introduced in federal court was not

considered for the purpose of ascertaining whether the state court had unreasonably

applied clearly-established federal law, because we had already concluded that the state

court had done so. Instead, the evidentiary hearing was ordered as a remedy for the state

court’s unreasonable federal-law error: the state court had denied Harris a meaningful

Batson hearing before a trial court, so we ordered that he receive one, albeit in the

federal district court. See, e.g., Hardcastle v. Horn, 368 F.3d 246, 261 (3d Cir. 2004)

(noting that the federal habeas statutes do not permit a federal appellate court to remand

a habeas petition to a state court for an evidentiary hearing and directing that the district

court review the merits of a § 2254 petitioner’s Batson claim in a federal evidentiary

hearing); Jordan v. Lefevre, 293 F.3d 587, 593 (2d Cir. 2002) (where the state courts

have inadequately dealt with a state prisoner’s Batson claim, “the responsibility for

assessing the prosecutor’s credibility and determining his intent falls on the district

judge”).

Because the evidentiary hearing in this case was ordered as a remedy for a

federal-law error that had already been found by this court on the basis of the record that

was before the state courts, Pinholster does not bar consideration of the evidence

introduced for the first time in the district court on remand. See Pinholster, 131 S. Ct.

at 1400. The Fifth Circuit has reached the same conclusion on similar facts. See Smith

v. Cain, 708 F.3d 628 (5th Cir.), cert. denied, 134 S. Ct. 134 (2013). It held that, where

the district court “determined on the basis of the state court record that the state court’s

Batson analysis . . . involved an unreasonable application of [ ] clearly established

Federal law” and subsequently granted the petitioner relief for the state court’s error “in

the form of an evidentiary hearing on [the petitioner’s] Batson claim,” Pinholster did not

bar the district court’s consideration of the evidence produced at the evidentiary hearing.

Id. at 634–35 (internal quotation marks omitted). Smith’s reasoning is sound, and its

1

Federal courts are also barred by the plain terms of § 2254(d)(2) from reviewing federal court

evidence to determine whether the state court’s decision involved an unreasonable determination of the

facts. See Pinholster, 131 S. Ct. at 1400 n.7.

No. 09-5858 Harris v. Haeberlin Page 6

analysis applies equally to Harris’s case. The district court properly reviewed the

evidence introduced at the evidentiary hearing.

B.

The first strand of Harris’s argument on the merits is his assertion that the district

court erred in concluding that it could hold a meaningful Batson hearing more than

eleven years after the jury selection in his state trial. The district court’s “assessment of

the feasibility of reconstruction [i]s entitled to substantial deference,” Jordan, 293 F.3d

at 594, and is reviewed for an abuse of discretion. See Green v. Travis, 414 F.3d 288,

300 (2d Cir. 2005); Pruitt v. McAdory, 337 F.3d 921, 929 n.4 (7th Cir. 2003).

Batson protects a criminal defendant’s constitutional right “to be tried by a jury

whose members are selected pursuant to nondiscriminatory criteria.” Batson, 476 U.S.

at 85–86. A challenge under Batson to a prosecutor’s exercise of a peremptory strike

involves three sequential steps. First, “the opponent of the peremptory strike must make

a prima facie case that the challenged strike was based on race.” United States v.

Lawrence, 735 F.3d 385, 443 (6th Cir. 2013). Second, if a prima facie case is

established, the prosecution must articulate a race-neutral explanation for the strike. Id.

Because the burden of persuasion remains on the challenger to demonstrate purposeful

discrimination, the prosecution’s articulated explanation “need not be particularly

persuasive or plausible.” Id. Third, the trial court “must . . . assess the plausibility of

the prosecution’s explanation in light of all the evidence, to determine whether the

defendant has met his burden of proving purposeful discrimination.” Id.

The crux of Harris’s argument is that his Batson claim must prevail as a matter

of law where the prosecution has no independent recollection of the reasons for its

peremptory strike. In Harris’s view, the whole purpose of the remand in 2008 was to

learn what the prosecutor meant by the statement, “The other one is already off,” so the

prosecutor’s failure to recall what he meant by the statement deprived the district court

of its ability to find the fact for which the remand was directed.

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There are two flaws in Harris’s position. First, Harris misconstrues the purpose

of the remand. The purpose of the remand was to give Harris a specific remedy that the

state court had denied him: a Batson hearing at which a trial court—as opposed to an

appellate court—could review the newly-discovered videotape evidence, weigh it

against the prosecutors’ on-the-record explanations for their peremptory strikes, and

make an assessment of their credibility. Harris, 526 F.3d at 913–14. That is what the

federal evidentiary hearing gave Harris: trial court review of the relevant Batson

evidence—including the prosecutors’ record testimony in the initial Batson hearing—in

light of the videotape. Because the purpose of the evidentiary hearing was not as narrow

as Harris believes, the prosecutors’ inability to fully recall in the district court what their

previous statement had meant did not wholly frustrate the utility of the evidentiary

hearing.

Second, Harris’s repeated assertion that his claim must succeed in light of the

prosecutors’ lack of an independent recollection about the meaning of the statement

ignores the substantial body of authority that directs otherwise. The second step of the

Batson analysis is a low bar that requires only that the prosecutor produce a race-neutral

justification for the strike. The justification need not be persuasive; in fact, if true, it

may even be “only a frivolous or utterly nonsensical justification.” Johnson v.

California, 545 U.S. 162, 171 (2005). As a result, a prosecutor’s lack of an independent

recollection about the reasons for his peremptory strike is not fatal to the prosecution’s

ability to articulate a race-neutral justification for the strike at Batson’s second step. See

Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596, 626 (3d Cir. 2011) (rejecting argument

that lack of an independent recollection automatically means that the petitioner’s Batson

claim must succeed).

Nor does the prosecutors’ lack of independent recollection doom the

Commonwealth’s position at the third step of the Batson analysis. The trial court’s

determination on the issue of intent need not be based on direct evidence of improper

motivation; it may also be informed by available circumstantial evidence of intent. See

Batson, 476 U.S. at 93; United States v. Thompson, 735 F.3d 291, 297 (5th Cir. 2013);

No. 09-5858 Harris v. Haeberlin Page 8

Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1199 (11th Cir. 2013), cert. denied,

134 S. Ct. 1542 (2014); Paulino v. Harrison, 542 F.3d 692, 700 (9th Cir. 2008);

Hardcastle, 368 F.3d at 260; Bui v. Haley, 321 F.3d 1304, 1317 (11th Cir. 2003);

Johnson v. Love, 40 F.3d 658, 667 (3d Cir. 1994).

Because circumstantial evidence may support a district court’s finding of intent,

it is possible to reconstruct a meaningful Batson hearing even in the absence of a

prosecutor’s independent recollection of his motives for making the challenged strike.

“Th[e] burden of persuasion rests with, and never shifts from,” the petitioner alleging

a Batson violation. Johnson, 545 U.S. at 171. Thus, where a prosecutor can generally

recall the trial, review contemporaneous transcripts or notes, and articulate race-neutral

explanations for the challenged strikes, the issue of intent is ordinarily well within the

province of the trial court, even absent the prosecutor’s independent recollection about

his motivations for the specific strikes in question. See, e.g., Crittenden v. Ayers,

624 F.3d 943, 958 (9th Cir. 2010) (“During reconstruction [of the prosecutor’s reasons

for striking a juror], the state may rely on any relevant evidence, such as jury

questionnaires, the prosecutor’s notes or testimony of the prosecutor.”); Yee v. Duncan,

463 F.3d 893, 898 n.2 (9th Cir. 2006) (speculation about a prosecutor’s motive is not

permitted, but circumstantial evidence may be reviewed where “other circumstances,

such as forgetfulness, prevent the proponent of the strike from coming forward with an

explanation for the strike”); Green, 414 F.3d at 300–01 (prosecutor could not recall the

strikes in question but reviewed her contemporaneous notes and testified as to her usual

race-neutral practice); Hardcastle, 368 F.3d at 260–61 (noting that the state is entitled

to reconstruct a prosecutor’s rationale for the challenged strikes even where the

prosecutor has no independent recollection of his motivation); Jordan, 293 F.3d at 595

(prosecutor recalled the case, reviewed his contemporaneous notes, had previously given

explanations for each of the challenges in question, and testified as to his general

philosophy of jury selection).

The cases upon which Harris relies do not support his position. In Paulino, for

example, the Ninth Circuit held that it was insufficient for a prosecutor to simply “guess

No. 09-5858 Harris v. Haeberlin Page 9

why she might have removed the jurors in question” where she had no independent

recollection of her actual reasons for making the challenged strikes. Paulino, 542 F.3d

at 700. But in Paulino, not only did the prosecutor lack any independent recollection of

the strikes in question, the voir dire transcript also “did not refresh her recollection; her

jury selection notes no longer existed; and there were no contemporaneous oral

statements regarding the contested strikes because the trial court never asked her for an

explanation.” Id. The other cases cited by Harris involved circumstances similarly

bereft of circumstantial evidence bearing on the issue of prosecutorial intent. See, e.g.,

United States v. Thomas, 320 F.3d 315, 320 (2d Cir. 2003) (the trial court “was unable

to make any findings as to the credibility of the government’s stated reasons” for the

challenged strikes); United States v. Alcantar, 897 F.2d 436, 438 (9th Cir. 1990)

(“[a]lmost no information as to the excluded or accepted jurors was available” on the

question of prosecutorial intent).

Here, by contrast, Dolan had already testified on the record about his motivations

at the initial Batson hearing. Our remand directed the district court to reassess

prosecutorial credibility in light of the videotape. The district court did so by examining

materials that were contemporaneous to the state trial; namely, the videotape, the record

of the jury selection proceedings, the prosecution’s voir dire notes, and the prosecutors’

testimony before the state trial court at the initial Batson hearing. The district court

supplemented this evidence with additional testimony given at the evidentiary hearing,

where Dolan explained his voir dire notes and his typical jury selection strategies,

testified about his recollection of specific jurors in Harris’s trial and about excusing

Juror 155 for cause, and articulated a race-neutral reason for excusing Juror 49—her

conversation with Juror 155—based on his review of contemporaneous materials. Given

this array of circumstantial evidence bearing on prosecutorial motivation, the district

court did not abuse its discretion in concluding that it could conduct a meaningful Batson

hearing, despite the eleven-year interim between jury selection and the evidentiary

hearing.

No. 09-5858 Harris v. Haeberlin Page 10

C.

Harris next claims that the district court clearly erred in determining that the

prosecutors’ peremptory strike of Juror 49 was not improperly motivated by race. A trial

court’s determination of a Batson claim is reviewed “with great deference,” United

States v. Copeland, 321 F.3d 582, 599 (6th Cir. 2003) (internal quotation marks omitted),

and its “ruling on the issue of discriminatory intent must be sustained unless it is clearly

erroneous.” Snyder v. Louisiana, 552 U.S. 472, 477 (2008). Cf. Jamerson v. Runnels,

713 F.3d 1218, 1225 (9th Cir. 2013), cert. denied, 134 S. Ct. 1285 (2014) (opining that

“AEDPA deference still applies” to state court Batson decisions where the federal

district court holds a reconstructed Batson hearing).

Here, there was no clear error in the findings of fact. The Commonwealth

satisfied its burden at step two of the Batson analysis by articulating a race-neutral

reason for the prosecution’s strike of Juror 49. See Johnson, 545 U.S. at 171 (the

prosecution satisfies this burden even by advancing “only a frivolous or utterly

nonsensical justification”). And at step three, as we exhaustively recounted in Harris’s

earlier appeal, “the evaluation of a prosecutor’s state of mind based on demeanor and

credibility lies peculiarly within a trial judge’s province.” Harris, 526 F.3d at 912

(citation and internal quotation marks omitted). See also Moody v. Quarterman, 476

F.3d 260, 268 (5th Cir. 2007) (opining that “the third step of the [Batson] analysis should

lie solely in the province of trial judges”).

Although Dolan admitted at the district court evidentiary hearing that he had no

independent recollection of his motivation for striking Juror 49, he was able to review

his contemporaneous notes and the videotape of the voir dire. Dolan’s notes indicated

that Juror 49 had been sitting next to Juror 155, a white juror who had been struck for

cause because she claimed to be an eyewitness to the events of the crime and had already

formed an opinion that Harris was not guilty. Dolan noted at the federal evidentiary

hearing that he had informed the state trial court that Juror 49 had been joking with Juror

155, and he testified that he believed that his subsequent comment—“The other one is

No. 09-5858 Harris v. Haeberlin Page 11

already off”—referred to Juror 155 (the “other” party to the conversation between Jurors

49 and 155) and was therefore race-neutral.

Although Harris claims that Dolan offered multiple rationales for striking Juror

49 and was therefore dissembling, “[d]etermining whether the reason offered is an

honest one turns on in-person credibility assessments which clearly the district court is

in the best position to make.” United States v. Montgomery, 210 F.3d 446, 453 (5th Cir.

2000); see also Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (noting that a Batson

claim “turns largely on an evaluation of credibility” (internal quotation marks omitted));

Lawrence, 735 F.3d at 443 (“[d]eference to the trial court’s findings is particularly

appropriate” in a Batson challenge because it requires an assessment of credibility). The

circumstantial evidence in this case—which includes the prosecutors’ testimony at both

the initial Batson hearing and the evidentiary hearing held in the district court—was

sufficient to support the district court’s resolution of the issue of intent. As the Supreme

Court has observed, the “best evidence” bearing on the issue of whether an attorney’s

articulated race-neutral explanation is credible “often will be the demeanor of the

attorney who exercises the challenge.” Hernandez, 500 U.S. at 365. Here, the district

court was able to assess the credibility of Harris’s prosecutors as they gave their

explanations for their peremptory strike of Juror 49 and the suspicious-sounding

comment. See Thaler v. Haynes, 559 U.S. 43, 49 (2010) (per curiam) (Batson

determinations are not required to be made by the same judge who presided over jury

selection). Because the district court’s determination was informed by matters squarely

within the core competence of a finder of fact, this court will not lightly second-guess

the conclusions that the district court drew from the facts that it was “peculiarly” expert

in divining. Harris, 526 F.3d at 913 (quoting Hernandez, 500 U.S. at 365).

Harris asserts that Dolan’s suspect statement plausibly may have referred to a

different African-American juror who had also been removed from the jury pool. But

the statement is obviously susceptible to competing interpretations. It could just as

easily have referred to Juror 155, as Dolan later claimed. In resolving this question, the

district court simply came down on the side of the prosecution.

No. 09-5858 Harris v. Haeberlin Page 12

There is nothing in the record that persuades us that the interpretation accepted

by the district court was clearly erroneous. Contrary to Harris’s assertion, Dolan never

admitted that Juror 49’s conversation with Juror 155 would not have prompted him to

exercise a peremptory strike. Harris has not identified any other prospective jurors who

were not peremptorily struck by the prosecution, despite having similarly conversed with

a juror who was later struck for having pre-judged the case. Cf. Harris v. Hardy,

680 F.3d 942, 949 (7th Cir. 2012) (noting that inconsistent application of a race-neutral

justification may bear upon credibility). Despite Harris’s efforts to cast Dolan’s

explanations into doubt, none of Harris’s arguments renders Dolan’s explanation of his

statement so “pretextual” or “implausible,” Snyder, 552 U.S. at 453, that this court could

conclude that the district court’s findings in this respect were clear error. See Johnson,

545 U.S. at 171 (noting that the burden of proof “rests with, and never shifts from,” the

petitioner alleging a Batson violation); Pruitt, 337 F.3d at 930 (“We cannot reverse a

trial court’s finding that proffered, race-neutral, reasons for a strike were credible unless

the court’s finding is clearly erroneous—even if we find it dubious.” (citation omitted)).

In accepting Dolan’s explanation of his statement, the district court credited his

previous representation to the state trial court that Juror 49 was struck because of her

conversation with Juror 155. See Harris, 526 F.3d at 906. This finding of a race-neutral

explanation is sufficient to defeat Harris’s current claim.

Ironically, the success of Harris’s previous appeal to this court was predicated

on his assertions that a trial court, rather than an appellate court, must be permitted to

assess whether the prosecution exercised its peremptory strikes in a racially

discriminatory manner. In agreeing with Harris, we could hardly have been more

insistent in emphasizing “the trial court’s central role in assessing the facts necessary to

conduct the three-step inquiry into allegations of racially discriminatory peremptory

challenges” and in stressing that “reviewing courts . . . ordinarily should give [a trial

court’s Batson] findings great deference.” Id. at 913 (internal quotation marks omitted).

Yet, now that Harris’s request has been granted and a trial court has made factual

findings on his Batson claim, he reverses course and asks for exactly what he previously

No. 09-5858 Harris v. Haeberlin Page 13

deplored: that an appellate court substitute its own assessment of the facts for those

found in the trial court. Granting Harris the relief he now seeks would directly

contradict the relief that he sought and was afforded. See id.

In Harris’s initial appeal to this court, we remanded this case for a trial court to

determine whether, in light of the newly-discovered videotape evidence, Dolan’s

explanations for the strikes could be believed. Id. at 914. The district court found that

they could. Deference to a trial court’s Batson determination is required “[i]n the

absence of exceptional circumstances.” Snyder, 552 U.S. at 477. Because none are

presented here, the district court’s finding that the prosecution did not improperly rely

on racial considerations when striking Juror 49 will not be disturbed on appeal.

III.

We affirm the judgment of the district court.

No. 09-5858 Harris v. Haeberlin Page 14

________________________

CONCURRENCE

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COLE, Circuit Judge, concurring. During voir dire, the chief prosecutor

explained privately to his colleagues that he would strike “the old lady, the black lady”

because “the other one is already off.” He did not realize a video camera had captured

his comments. The district court found that the prosecutor’s strike was not motivated

by the juror’s race, and I agree with the lead opinion that, under Batson and its progeny,

we must affirm the district court’s judgment. I write separately, however, to emphasize

two important considerations.

First, although evidence of a prosecutor’s actual reasons for striking a juror may

be circumstantial, speculation is never proper evidence of a prosecutor’s reasons, see

Johnson v. California, 545 U.S. 162, 172 (2005), and a prosecutor’s lack of an

independent recollection of his reasons may be evidence of discriminatory intent, see Yee

v. Duncan, 463 F.3d 893, 899–900 (9th Cir. 2006); see also Johnson, 545 U.S. at 171

n.6 (noting that a prosecutor’s refusal to testify about his reasons for striking a juror

“would provide additional support for the inference of discrimination”). Indeed, if the

State has not put forth the prosecutor’s actual reasons for striking a juror, rather than

conjecture or speculation, it will lose the Batson challenge in most cases. Paulino v.

Harrison, 542 F.3d 692, 702–03 (9th Cir. 2008); see also Johnson, 545 U.S. at 172

(“The Batson framework is designed to produce actual answers to suspicions and

inferences that discrimination may have infected the jury selection process.” (emphasis

added)).

Second, in the absence of sufficient, competent circumstantial evidence, the

passage of time may make it impossible for a district court to hold a meaningful Batson

hearing. See Snyder v. Louisiana, 552 U.S. 472, 486 (2008) (“Nor is there any realistic

possibility that this subtle question of [the prosecutor’s reasons for striking a juror] could

be profitably explored further on remand at this late date, more than a decade after

petitioner’s trial.”); Harris v. Hardy, 680 F.3d 942, 955 (7th Cir. 2012) (noting that

No. 09-5858 Harris v. Haeberlin Page 15

“conclusory comments by the trial judge about the [prosecutor’s] credibility ring

hollow” because the prosecutor’s “explanation of the reasons for the strikes appears to

have been recreated, principally from reviewing the transcripts of the jury selection

process, . . . roughly 3 years after the strikes were used”); Crittenden v. Ayers, 624 F.3d

943, 958 (9th Cir. 2010) (“[T]he court may reject a reconstructed articulation [of the

prosecutor’s reasons for striking a juror] as mere ‘speculation’ or accept it as properly

based on relevant circumstantial evidence.”); United States v. McMath, 559 F.3d 657,

666 (7th Cir. 2009) (“[I]f the passage of time precludes the district court from making

factual findings, it must vacate the judgment of conviction.”); Dolphy v. Mantello, 552

F.3d 236, 240 (2d Cir. 2009) (“[I]f the passage of time has made such a determination

[of the prosecutor’s state of mind at the time of jury selection] impossible or

unsatisfactory, the district court may grant the [habeas] writ contingent on the state

granting [the defendant] a new trial.”); Riley v. Taylor, 277 F.3d 261, 294 (3d Cir. 2001)

(“[A] new trial is especially appropriate where[,] as here, the passage of time makes a

new evidentiary hearing on the petition impossible.” (internal quotation marks omitted)).

I understand today’s opinion not to undermine these considerations in any way.

With these additional comments, I join Judge Griffin’s lead opinion.

No. 09-5858 Harris v. Haeberlin Page 16

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CONCURRENCE IN THE JUDGMENT

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ALICE M. BATCHELDER, Chief Judge, concurring in the judgment only. The

lead opinion concludes that Petitioner Harris is not entitled to habeas relief. For the

reasons stated in my dissent from the prior panel opinion, I agree. See Harris v.

Haeberlin, 526 F.3d 903, 914-21 (6th Cir. 2008) (Batchelder, C.J., dissenting).

Therefore, I concur in the judgment.

As I explained in that dissent, the prior panel majority was mistaken in its

proposition that Batson announces a clearly established law forbidding a state appellate

court from considering new Batson evidence. This led to the further mistake, and

unprecedented proposition, that upon discovery of new Batson evidence at the appellate

stage, a state appellate court must sua sponte remand the case to the state trial court for

redetermination in light of that new evidence. And, as the Supreme Court subsequently

made clear, the panel majority was also mistaken in ordering the federal district court

to conduct a new “reconstructed” Batson hearing, collect new evidence, and decide the

Batson claim de novo. See Cullen v. Pinholster, 563 U.S. --, 131 S. Ct. 1388, 1398

(2011) (“It would be contrary to th[e] purpose [of § 2254(d)] to allow a petitioner to

overcome an adverse state-court decision with new evidence introduced in a federal

habeas court and reviewed by that court in the first instance effectively de novo.”).

While the prior panel majority offered a novel interpretation of the law, the Supreme

Court in Pinholster announced a clearly established rule: “We now hold that review

under § 2254(d)(1) is limited to the record that was before the state court that

adjudicated the claim on the merits.” Id.

Attempting to overcome this prohibition, the lead opinion commits yet another

mistake. The lead opinion attempts to distinguish Pinholster because it finds --- relying

entirely on the record that was before the state court --- that the state court “decision”

was a misapplication of federal law. With this premise, the lead opinion purports to

satisfy § 2254(d)(1), thereby releasing itself from the limitations of both § 2254(d)(1)

No. 09-5858 Harris v. Haeberlin Page 17

and Pinholster, and justifying its order of a new evidentiary hearing and a de novo

Batson re-determination. Importantly, the lead opinion considers the wrong decision.

There are two state court “decisions” at play and the lead opinion here is as mistaken as

was the petitioner in the case of Greene v. Fisher:

[Petitioner] Greene alternatively contends that the relevant ‘decision’ to

which the ‘clearly established Federal law’ criterion must be applied is

the decision of the state supreme court . . . even when (as here) that

decision does not adjudicate the relevant claim on the merits. This is an

implausible reading of § 2254(d)(1). The text, we repeat, provides that

habeas relief

‘shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings

unless the adjudication of the claim . . . resulted in a

decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law. . . .’

The words ‘the adjudication’ in the ‘unless’ clause obviously refer back

to the ‘adjudication on the merits,’ and the phrase ‘resulted in a decision’

in the ‘unless’ clause obviously refers to the decision produced by that

same adjudication on the merits. A later affirmance of that decision on

alternative procedural grounds, for example, would not be a decision

resulting from the merits adjudication.

Greene v. Fisher, 565 U.S. --, 132 S. Ct. 38, 44-45 (2011) (certain editorial marks

omitted). To repeat: the relevant decision to which the clearly established federal law

criterion must be applied obviously refers to the decision produced by the adjudication

on the merits.

Here we have two Batson-related questions with associated state-court decisions:

one substantive (on the merits), the other procedural (i.e., which court should consider

the new evidence in the first instance). The relevant “decision” for the § 2254(d)(1)

inquiry is the decision on the substantive question: whether the Kentucky Supreme Court

unreasonably applied Batson when it decided that the state prosecutors had not exercised

certain peremptory strikes in a racially discriminatory manner. But the lead opinion (like

the panel majority before) thinks the relevant § 2254(d)(1) “decision” is the one deciding

the procedural question: whether the Kentucky Supreme Court unreasonably applied

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Batson when it failed to remand the case to the state trial court to reconsider the

substantive question in light of the newly discovered videotape evidence.

The lead opinion is mistaken. The procedural decision (not to remand the case)

does not adjudicate Harris’s claim on the merits; the merits adjudication is the

substantive decision (that the prosecutors had not exercised certain peremptory strikes

in a racially discriminatory manner). The lead opinion bases its § 2254(d)(1)

determination --- and justifies its subsequent holdings --- on an ancillary decision that

did not adjudicate the relevant claim on the merits.

Because the lead opinion did not satisfy § 2254(d)(1), it did not actually

distinguish Pinholster; instead, Pinholster applies, the district court’s evidentiary hearing

was improper and should be stricken, and the district court’s “reconstructed” de novo

Batson analysis is a nullity. Based on the foregoing, I cannot join any of the lead

opinion’s reasoning or holdings. But, as fully explained in my prior dissent, I do agree

that Petitioner Harris is not entitled to habeas relief on this claim.

Therefore, I concur in the judgment only.