Charmell Brown v. Alex Jones

In the

United States Court of Appeals

For the Seventh Circuit

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No. 19-3172

CHARMELL BROWN,

Petitioner-Appellant,

v.

ALEX JONES, Acting Warden,

Respondent-Appellee.

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Appeal from the United States District Court for the

Central District of Illinois.

No. 17-2212 — Sue E. Myerscough, Judge.

____________________

ARGUED SEPTEMBER 24, 2020 — DECIDED OCTOBER 21, 2020

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Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. When selecting jurors for Charmell

Brown’s murder trial in Illinois state court, the prosecution

struck venireperson Devon Ware who had been to the crime

scene. As it happens, Ware is also African American. In his

petition for habeas relief now before us, Brown argues that

the prosecution struck Ware on the basis of his race and that

the Illinois Appellate Court unreasonably applied Batson v.

2 No. 19-3172

Kentucky, 476 U.S. 79 (1986), when holding otherwise in

Brown’s direct appeal.

The court made no such error. It correctly noted the pros-

ecution’s apparent reason for striking Ware—that he had been

to the crime scene—and found no circumstances giving rise

to an inference that the prosecution engaged in racial discrim-

ination. We therefore affirm the district court’s decision deny-

ing Brown’s petition for a writ of habeas corpus.

I. BACKGROUND

In 2008, a jury convicted Charmell Brown of three counts

of first-degree murder and one count of aggravated battery

with a firearm for shooting three people outside of the Amer-

ican Legion building in Champaign, Illinois. The court sen-

tenced Brown to 90 years’ imprisonment. Since his sentenc-

ing, Brown has filed two postconviction motions, a direct ap-

peal, and the petition for federal habeas relief now before us.

Brown’s only remaining claim is that the Illinois Appellate

Court unreasonably applied Batson when reviewing his claim

that the prosecutor in his case struck potential juror Devon

Ware because of Ware’s race.

Ware was one of two African Americans in the sixty-per-

son venire gathered for Brown’s trial. The clerk called Ware

as a potential juror in the first panel of four venirepersons. The

court then asked the panel general questions regarding their

fitness as jurors. One question inquired whether anyone was

familiar with the American Legion where Brown’s crime took

place. Ware said yes, and the other three venirepersons said

no. The court followed up and asked Ware if he had visited

the Legion. Ware answered, “Been on the outside. Not in-

side.” But he denied that his familiarity with the American

No. 19-3172 3

Legion would affect his service as a juror. The court then ten-

dered questioning to the prosecutor, who immediately re-

quested that Ware be excused. The court obliged.

Brown objected that Ware’s excusal violated Batson. The

court overruled the objection and found that Ware was

“properly excused” because Brown failed to make “a prima

facie case that a discriminatory practice was being conducted

by the State.” The court thus did not ask the prosecution to

provide “a race neutral explanation” for its strike.

Brown raised this issue before the trial court again in his

post-trial motions. Once more, the trial court denied the

claim. The court explained that Ware, “unlike every other ju-

ror that was questioned,” had been to the American Legion,

and therefore Brown failed to establish a prima facie Batson

case.

On direct appeal, Brown raised his Batson issue a third

time, but the Illinois Appellate Court rejected it. The court

noted the relevant factors for establishing a prima facie Batson

case, considered the record pertaining to Brown’s voir dire

proceedings, and determined that the trial court did not

clearly err in ruling that Brown failed to establish a prima fa-

cie case of racial discrimination in the jury selection process.

To support this conclusion, the court explained that there was

no evidence of a pattern of striking African Americans from

the jury or of a disproportionate number of strikes used

against African Americans and that the other factors “were

unremarkable in the overall context of this case.” The court

further noted that Ware meaningfully distinguished himself

from the other potential jurors by stating that he was familiar

with the crime scene. Brown petitioned for leave to appeal the

4 No. 19-3172

court’s decision, but the Illinois Supreme Court denied his re-

quest.

Brown then sought federal habeas relief. The district court

denied Brown’s habeas petition but granted a certificate of ap-

pealability on the Batson issue. The district court noted that

the prosecutor struck one of two African-American venireper-

sons but held that Brown “must do more than point to the fact

that the prosecutor exercised a peremptory strike on an Afri-

can American venireperson to establish a prima facie case.”

Brown now appeals the district court’s decision.

II. ANALYSIS

Brown seeks habeas relief under 28 U.S.C. § 2254 as

amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Federal courts may only grant habeas

relief under AEDPA if a state court’s last reasoned opinion on

a defendant’s claim (1) was contrary to, or relied on an unrea-

sonable application of, clearly established federal law or

(2) rested on an unreasonable factual determination. 28 U.S.C.

§ 2254(d)(1)–(2).

A state court’s decision relies on an “unreasonable appli-

cation of clearly established federal law” if it identifies the

correct legal rule but applies the rule in an objectively unrea-

sonable way. Bynum v. Lemmon, 560 F.3d 678, 683 (7th Cir.

2009). Regarding factual determinations, a petitioner “bears

the burden of rebutting the state court’s factual findings ‘by

clear and convincing evidence,’” and “a state-court factual de-

termination is not unreasonable merely because the federal

habeas court would have reached a different conclusion.”

Burt v. Titlow, 571 U.S. 12, 18 (2013) (first quoting 28 U.S.C.

No. 19-3172 5

§ 2254(e)(1); and then quoting Wood v. Allen, 558 U.S. 290, 301

(2010)).

This standard “erects a formidable barrier to federal ha-

beas relief.” Id. at 19. AEDPA requires “a state prisoner [to]

show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was

an error ... beyond any possibility for fairminded disagree-

ment.” Id. at 19–20 (alterations in original) (quoting Harring-

ton v. Richter, 562 U.S. 86, 103 (2011)).

In this case, Brown contends that he is entitled to habeas

relief because the Illinois Appellate Court unreasonably ap-

plied Batson and based its decision on unreasonable factual

determinations. In response, the State argues that Brown’s pe-

tition is untimely and meritless. We disagree with the State’s

timeliness argument but agree that Brown’s petition is merit-

less.

A. The State waived its timeliness argument.

AEDPA imposes a one-year statute of limitations. 28

U.S.C. § 2244(d)(1). But this limitations period is not jurisdic-

tional. See Wood v. Milyard, 566 U.S. 463, 474 (2012). A state

respondent may waive the defense by “expressing its clear

and accurate understanding of [a] timeliness issue” yet “de-

liberately steer[ing] the District Court away from the question

and towards the merits of [the] petition.” Id. And a federal ap-

pellate “court is not at liberty … to bypass, override, or excuse

a State’s deliberate waiver of a limitations defense.” Id. at 466.

For example, in Wood, “the State twice informed the District

Court that it ‘w[ould] not challenge, but [is] not conceding’

the timeliness of [the] petition.” Id. at 474 (second alteration

in original). The Supreme Court held that the court of appeals

6 No. 19-3172

was therefore required to reach the merits of the petition ra-

ther than decide the case on timeliness grounds. Id.

Much like the state respondent in Wood, the State in this

case waived its statute of limitations defense. Initially, the

State did file a motion to dismiss arguing that Brown’s peti-

tion was untimely. But after the court set an evidentiary hear-

ing on timeliness and appointed counsel to represent Brown,

the State asked the court to set a briefing schedule on the mer-

its of the petition instead. The State informed the court that

“consideration of the merits and any procedural bars to the

claims raised in the instant petition may be more efficient than

continued litigation of [Brown’s] equitable tolling argument.”

This was textbook waiver. The state “express[ed] its clear

and accurate understanding of [a] timeliness issue” yet “de-

liberately steered the District Court away from the question

and towards the merits of [Brown’s] petition.” Id. And the dis-

trict court acknowledged as much by deciding the merits of

this case. We too will therefore consider the merits of Brown’s

petition.

B. The Illinois Appellate Court reasonably applied Batson.

“In Batson, the Supreme Court established a three-step

framework for determining whether [a] prosecut[or] violated

[a] defendant’s Equal Protection rights by exercising peremp-

tory challenges in a racially discriminatory manner.” Bennett

v. Gaetz, 592 F.3d 786, 791 (7th Cir. 2010).

First, the defendant must make out a prima facie case “by show-

ing that the totality of the relevant facts gives rise to an inference

of discriminatory purpose.” Second, if the defendant establishes a

prima facie case, the “burden shifts to the State to explain ade-

quately the racial exclusion” … . Third, the trial court must eval-

uate the plausibility of the prosecution’s reasons, in light of all of

No. 19-3172 7

the surrounding circumstances, to decide whether the defendant

has proved purposeful discrimination.

Id. (citations omitted) (quoting Batson, 476 U.S. at 94, 98).

This case turns on Batson’s first step—the prima facie case.

“[A] defendant may establish a prima facie case by offering a

wide variety of evidence that raises a mere inference of a dis-

criminatory purpose.” Id. (citing Johnson v. California, 545 U.S.

162, 169 (2005); United States v. Stephens, 421 F.3d 503, 512 (7th

Cir. 2005)). For example, a defendant may establish a prima

facie Batson case by offering proof of a pattern of strikes

against African Americans or showing that the prosecutor’s

questions and statements during voir dire support an infer-

ence of discrimination. See Flowers v. Mississippi, 139 S. Ct.

2228, 2246 (2019); Batson, 476 U.S. at 96–97.

“The burden at this stage is light.” Bennett, 592 F.3d at 791.

A challenger must only point to “circumstances raising a sus-

picion that discrimination occurred.” Franklin v. Sims, 538

F.3d 661, 665 (7th Cir. 2008). Nevertheless, “the prima facie

burden is an essential part of the Batson framework, and trial

courts may justifiably demand that defendants carry this bur-

den before requiring prosecutors to engage in the difficult

task of articulating their instinctive reasons for peremptorily

striking a juror.” Bennett, 592 F.3d at 791 (7th Cir. 2010) (citing

Miller-El v. Drekte, 545 U.S. 231, 267–68 (2005) (Breyer, J., con-

curring)).

In this case, the Illinois Appellate Court applied Batson

correctly. To start, the court identified the wide swath of fac-

tors to consider in determining whether a defendant has

made a prima facie Batson claim. Then the court found that, in

Brown’s case, there “was no evidence of any pattern of strik-

ing African-Americans from the jury, nor was there any

8 No. 19-3172

evidence of a disproportionate number of strikes used against

African-Americans,” and “[t]he facts pertaining to the other

factors were unremarkable in the overall context of this case.”

Brown takes issue with this analysis on three grounds, but

none prevails. First, Brown argues that the Illinois Appellate

Court failed to consider (1) that, because only two members

of the venire were African American, striking Ware dramati-

cally increased the chance that no African Americans would

serve on Brown’s jury and (2) that the prosecutor’s decision

not to question Ware before excusing him differed from the

prosecutor’s treatment of other venirepersons.

This argument is not persuasive because the Illinois Ap-

pellate Court did consider these circumstances and correctly

noted that they “were unremarkable in the overall context of

this case.” Though striking Ware decreased the chance that

African Americans would serve on Brown’s jury, that merely

highlighted a minor anomaly in the venire. It did not shed any

light on the prosecutor’s strike. Moreover, the prosecutor’s

decision to ask more questions of other jurors was unremark-

able because Ware distinguished himself by stating that he

had been to the crime scene.

Second, Brown argues that the Illinois Appellate Court im-

properly considered that Ware was familiar with the crime

scene to explain the prosecution’s strike. Courts considering

Batson claims at the prima facie stage may consider “appar-

ent” reasons for a strike. See Stephens, 421 F.3d at 515 (“[I]n

considering ‘all relevant circumstances,’ courts may consider

distinctions such as [a venireperson’s] attorney status in de-

termining whether the inference of discrimination is demon-

strated.”). This “normally works to the government’s ad-

vantage, showing that a seemingly discriminatory pattern of

No. 19-3172 9

peremptories is readily explained by factors apparent in the

record.” Id. (citing Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th

Cir. 1998); Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996);

Capers v. Singletary, 989 F.2d 442, 446 (11th Cir. 1993)). But the

Supreme Court has made clear that the persuasiveness of a

Batson challenge is to be determined at the third Batson stage,

not the first, and has rejected efforts by courts to supply rea-

sons for questionable strikes. Miller-El, 545 U.S. at 252. An in-

quiry into apparent reasons is thus “relevant only insofar as

the strikes are so clearly attributable to that apparent, non-

discriminatory reason that there is no longer any suspicion,

or inference, of discrimination.” Franklin, 538 F.3d at 665

(quoting Stephens, 421 F.3d at 516).

Here, the Illinois Appellate Court was not unreasonable in

considering Ware’s history with the crime scene as an appar-

ent reason for his excusal—just the opposite. Ware’s state-

ment that he, unlike any other jurors,1 had been to the crime

scene was a highly relevant circumstance for the court to con-

sider. And the prosecutor’s strike was “clearly attributable” to

that circumstance because the prosecutor used the strike im-

mediately upon learning of it.

Third, Brown argues that the Illinois Appellate Court im-

posed too high of a burden at the prima facie stage. For the

reasons already stated, this is incorrect. The court reasonably

determined that the circumstances of Ware’s excuse did not

1 Brown notes that another juror, who was not stricken, stated that she

knew the address of the American Legion. This comparator juror does not

reveal anything about the strike used against Ware because she, unlike

Ware, had not been to the scene of the crime.

10 No. 19-3172

“rais[e] a suspicion that discrimination occurred.” Id. (quot-

ing Stephens, 421 F.3d at 512).

In sum, we see nothing unreasonable—much less any er-

ror beyond the possibility for fairminded disagreement—in

the Illinois Appellate Court’s application of Batson. Brown is

therefore not entitled to habeas relief on this ground.

C. The Illinois Appellate Court’s decision did not rest on any

unreasonable factual determinations.

Brown argues that the Illinois Appellate Court relied on

the unreasonable factual determination that the prosecution

in fact did not strike Ware because of his race. Brown leans

heavily on the trial court’s statement that Ware was “properly

excused” and the Illinois Appellate Court’s affirmance of that

purported “finding.”

There are several issues with this argument. First, the trial

court made clear that Ware was “properly excused” because

Brown did not establish a prima facie Batson case. The trial

court never purported to determine any facts about his ex-

cuse. Second, the Illinois Appellate Court did not reiterate this

“finding” when reviewing the trial court’s decision. The Illi-

nois Appellate Court made clear that it only held that the trial

court did not err insofar as it found that Brown failed to es-

tablish a prima facie Batson case. For those reasons, the Illinois

Appellate Court did not rely on the allegedly unreasonable

“factual finding” that Brown complains of.

III. CONCLUSION

We AFFIRM the decision of the district court.