Rice v. White

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0283p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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GREGORY RICE,

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Petitioner-Appellee,

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No. 10-1583

v.

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Respondent-Appellant. -

JEFF WHITE,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-11610—Denise Page Hood, District Judge.

Argued: July 26, 2011

Decided and Filed: October 24, 2011

Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.*

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COUNSEL

ARGUED: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Gary P. Supanich, GARY P. SUPANICH PLLC, Ann

Arbor, Michigan, for Appellee. ON BRIEF: Brad H. Beaver, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Gary P.

Supanich, GARY P. SUPANICH PLLC, Ann Arbor, Michigan, for Appellee.

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OPINION

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CLAY, Circuit Judge. Respondent Jeff White, Warden, appeals the district

court’s grant of a conditional writ of habeas corpus to Petitioner Gregory Rice pursuant

*

The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio,

sitting by designation.

1

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to 28 U.S.C. § 2254. For the reasons discussed below, we AFFIRM the decision of the

district court.

BACKGROUND

Petitioner Gregory Rice and his co-defendant Jerome Knight were charged with

first degree murder, in violation of Michigan Compiled Laws (“M.C.L.”) § 750.316, for

the murder of Knight’s former girlfriend, Yahnica Hill. Petitioner was also charged with

one count of possession of a firearm during the commission of a felony in violation of

M.C.L. § 750.227b. Petitioner and Knight were tried jointly by a jury in the Wayne

County Circuit Court. The instant habeas petition focuses on jury selection, which

spanned three days, from July 26 to 28, 1999.

During the morning session on the third day of jury selection, July 28, 1999,

defense counsel objected “that the prosecution is attempting to exclude black juro[r]s

from this particular jury; particularly black men.” (Tr. at 53.) Defense counsel’s

objection constituted an allegation that the prosecution was using its peremptory

challenges during jury selection to exclude potential jurors from the jury on the basis of

race in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The trial judge inquired

into the matter, and the prosecutor stated that she struck one African American male; two

African American females; three white men; and a white female. (Id. at 55.) After a

brief exchange in which the prosecutor stated her reasons for striking these jurors, the

trial judge denied the Batson motion, stating, “I do not see a pattern of the prosecution

improperly excluding African American males. . . . I think the reasons are acceptable.

So I don’t see a problem here.” (Id. at 58.)

After a recess for lunch, the judge excused a juror for cause and selected Ms.

Ruby Jones from the jury venire as a replacement prospective juror. (Id. at 59.) Ms.

Jones answered certain basic questions pertaining to her qualifications to serve as a juror.

(Id. at 59–69.) After two additional potential jurors were struck, the court selected Ms.

Christina Johnson and Ms. Bonita Bonner as replacement prospective jurors. (Id.) After

questioning by the court and the attorneys, the prosecutor exercised peremptory

No. 10-1583 Rice v. White Page 3

challenges against both Ms. Johnson and Ms. Bonner, and the defense exercised a

peremptory challenge against another potential juror. The trial court accordingly

replaced these individuals with others from the pool of potential jurors. (Id. at 75.)

After questioning the replacement prospective jurors, defense counsel exercised

a peremptory challenge, and the prosecutor exercised a peremptory challenge against

Ms. Jones. At that point, defense counsel requested an opportunity to approach the

bench, and the trial court responded, “Yes. Let me have the jurors step out in the hall

for a few minutes.” (Id. at 85.) After the potential jurors left the courtroom, defense

counsel objected under Batson to the prosecutor’s peremptory strike of Ms. Jones.

Defense counsel argued that the prosecutor had used peremptory challenges to strike

three African American women from the jury on the basis of race. (Id. at 86.)

In response to defense counsel’s argument, the trial court stated: “Miss Jones

still out there?” That question went unanswered, and without waiting for the trial court

to rule on whether the defense had presented a prima facie case of discrimination, as is

required under Batson, the prosecutor proffered race-neutral reasons for her three prior

peremptory strikes, which the prosecutor conceded were against African American

females—Ms. Bonner, Ms. Johnson, and Ms. Jones.

First, as to Ms. Bonner, the prosecutor stated:

Miss Bonner the reason that I struck her, she has been very closely

related to two people that have been charged in and convicted with

murder in the first degree. Although she indicates she can be fair, I think

that having had such close associations with people that have had similar

charges is something that would make me strike here. I believe that’s an

appropriate reason. It is not because she is black.

(Id. at 86–87.) Second, as to Ms. Johnson, the prosecutor stated:

Miss Johnson indicated that -- looking at her body language when she

was seated and the tone of her voice and the look that she gave when she

indicated that she could be fair; she was hesitant in her demeanor. And

she also indicated that she had a close relative that was convicted of a

drug charge. And although she indicated that she could be fair, she was

very reticent in terms of her demeanor.

No. 10-1583 Rice v. White Page 4

(Id. at 87.) Finally, as to Ms. Jones, the prosecutor stated:

Miss Jones, the person that was last dismissed, is a person that has a child

that’s close in age to the victim in this case. She’s a person that is a

working person that is in some type of professional position at Blue

Cross. In this case we have a young woman who [was killed] . . . . Miss

Jones . . . has a daughter that may be different from our victim. And she

may view the life style of this victim and compare and contrast that with

her own child. I don’t think that that should enter into it. She indicated

that she could be fair. But the reason that she was stricken is because

young woman whose life-style in this case maybe significantly varying

from her own daughter and from the background she is from. So

therefore she was stricken.

(Id.) The trial court then interjected:

Just before we recessed for lunch, I thought that it was very clear that we

didn’t have a problem here. But now I think we are getting very close to

a sensitive issue. I didn’t see a problem with . . . Christine Johnson. She

was, actually her demeanor was soft and she seemed very forthright and

honest. And I understand with Miss Bonner, I didn’t see any problems

with that.

But I was very surprised about Miss Johnson. I didn’t say anything

because the defense didn’t object. So I didn’t object.

The same thing with Miss Jones. I do not see a reason other than – I

mean, it seems to me for the prosecution to say, she has a daughter the

same age as the victim, that would seem to work in the prosecution’s

favor, just in terms of thinking in the jury selection. So I don’t accept

that. . . .

I do see that we are getting close, and there are, I don’t know two or three

minority jurors left in this panel. So I think we are getting close to a

serious issue here. I wish that somebody had said something about

keeping Miss Jones and Miss Johnson. And then we address this matter

because I probably would not have excused either one of them. . . .

The only reason I mention Johnson at the time is because the prosecution

excused both Miss Johnson and Miss Bonner at the same time. I saw a

reason for Miss Bonner. I didn’t see a reason for Miss -- but I wasn’t

going to interfere. I do, but I say, if some, if an objection had been made

as far as Miss Johnson and Miss Jones I probably would have addressed

it. And I tend to think I probably would have kept them on the jury.

(Id. at 89–90 (internal paragraph breaks added).)

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The following colloquy subsequently ensued between the prosecutor and the trial

court:

PROSECUTOR: Your Honor, may I just make a record here?

THE COURT: Sure, sure.

PROSECUTOR: Under Batson v. Kentucky, . . . . [a]s long as I come up

with a neutral reason for their dismissal, I believe that

that’s appropriate.

THE COURT: But the Court has to accept or reject whether the reason

is neutral or not.

PROSECUTOR: I understand.

THE COURT: And I’m not, I’m saying that I think we’re getting close

to a sensitive issue here on Jones and Johnson. That’s all

I’m saying. I’m making my record too.

PROSECUTOR: . . . . Miss Johnson in terms of her reticent demeanor, this

is going to be a very interesting case for these people to

decide in terms of who can stand up and who has a strong

enough personality. In terms of her reticent demeanor,

I’m not sure that she would stand up in a jury. She’s

barely is audible when she speaks.

THE COURT: Why didn’t you ask her that? You didn’t ask any

questions of any of these jurors. You just simply are

excusing them.

PROSECUTOR: I think that they have given me the neutral reason. And

I don’t think that there is anything that says that I have to

question them if I can give a neutral reason.

(Id.)

At this point, the prosecutor lodged her own Batson objection to the peremptory

strikes made by defense counsel, claiming that defense counsel struck white potential

jurors on the basis of their race. The prosecutor stated:

Except for one person [] who is a black female, that was excused

yesterday. We have people who said that they could be fair in each

instance[.] And we have . . . five white females[] that have been excused

by defense counsel for Knight. I would indicate that that, [sic] Miss

Oumedian, Miss Enmery, Miss Ignacio, Miss Acosta, and . . . Miss Farris

No. 10-1583 Rice v. White Page 6

are all similarly white females saying that they could be fair and have

been dismissed.

Now at this point, I’m going to hava [sic] a Batson challenge because that

can be challenged with the defense. So I’m indicating the same thing.

I’ve been prudent in terms of waiting for this and looking at it. And I

believe that they are not being released except for they are white.

(Id. at 91–92.) Defense counsel denied the prosecutor’s allegations, but focused again

on the prosecutor’s peremptory strikes. (Id. at 92–93.) The following colloquy ensued:

DEF. COUNSEL: []I don’t think the Court ruled on whether or not you’re

going to allow Miss Jones to be struck. She’s still

downstairs, I’m sure.

THE COURT: I don’t know if she is or not.

PROSECUTOR: It [sic] thought she was held.

THE COURT: If she is still here, I’m going to keep her.

DEF. COUNSEL: Thank you.

(Id. at 92–93.) Following this colloquy, a deputy informed the trial judge that Ms. Jones

“had already gone.” (Id. at 93, 96.)

The trial judge then permitted defense counsel to make a record as to the

prosecutor’s Batson challenge. Counsel explained that he struck only individuals who

he did not believe gave “candid answers.” (Id. at 93.) After a back and forth between

the parties, the trial court stated:

We have to be realistic here. I really don’t want any problems with this

case, especially along these lines. I’m not satisfied with the prosecutor’s

response as to potential juror Jones and Johnson. But I think they’ve

already left.

So I’m going to say from this point on let’s be very careful about the

selection. If you think that you, if the defense is not satisfied with me

just giving a cautionary instruction to the prosecution, then I’ll address

any other remedy. But realistically I think all of us are being, trying to

be conscientious about the selection of these jurors because of the racial

makeup of the jury panels, which we don’t have any control over.

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I’m just saying, I let Jones and Johnson go without holding them,

especially Jones. I guess I should have held her and I didn’t do that. I’ll

take the fault for that. But from this point on let’s try to be careful with

this jury selection. We are too close to getting this jury selected.

(Id. at 95–96.) After the trial judge satisfied herself that Ms. Jones could not be located,

the court remarked: “I don’t think it is serious enough at this point. We do have some

minorities left on the jury panel and I’ll be watching this closely.” (Id. at 96.) The trial

court continued with jury selection, and before adjourning court, stated:

With the panel that we ended up with, I think that any Batson problems

that may have been there have been cured. We have the same number if

not more jurors, African American female jurors on the panel as if we

had kept Miss Christina Johnson and Miss Ruby Jones.

I don’t think either side ended up selecting this panel for any reason other

than . . . these are the ones who will be the fair and impartial persons to

hear and try this case.

(Id. at 131–32.) The trial court empaneled the jury the next day, on July 29, 1999.

At trial, the prosecution’s theory was that Knight bailed Petitioner out of jail in

exchange for Petitioner’s agreement to murder the victim. Petitioner denied his guilt and

claimed that he used his own money to post bond and was at his grandmother’s home at

the time of the shooting. Petitioner contends on habeas that no physical evidence

connected him to the murder. On August 20, 1999, the jury returned verdicts of guilty

on all counts against Petitioner and Knight. On September 17, 1999, the trial court

sentenced Petitioner to life imprisonment for first degree murder and a consecutive two-

year term of imprisonment for the felony firearm conviction.

Following Petitioner’s conviction and sentence, Petitioner filed a direct appeal

in the Michigan Court of Appeals, seeking to overturn his conviction on the basis of,

among other things, the sufficiency of the evidence; the jury instructions; and ineffective

assistance of counsel. On October 15, 2002, the Michigan Court of Appeals affirmed

his conviction. See People v. Rice, No. 225865, 2002 WL 31310158 (Mich. Ct. App.

Oct. 15, 2002) (per curiam).

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Petitioner thereafter filed a delayed application for leave to appeal in the

Michigan Supreme Court, raising many of the same claims. On June 19, 2003, the

Michigan Supreme Court vacated “the portion of the judgment of the Court of Appeals

concerning defendant’s peremptory challenge issue under Batson v. Kentucky” and

remanded the case “for reconsideration of that issue.”1 People v. Rice, 664 N.W.2d 214

(Mich. 2003) (table). In remanding the case, the supreme court explained:

[The] [t]rial transcript indicates that the trial judge was not satisfied with

the prosecutor’s race neutral reasons for peremptorily dismissing several

jurors. Tr. at 95. Court of Appeals based its judgment on the premise

that the trial court rejected the Batson challenge and, in doing so, the

Court of Appeals also appears to have failed to follow Miller-El v.

Cockrell, 537 U.S. 322 (2003) (holding that evaluation of the

prosecutor’s state of mind based on demeanor and credibility lies

peculiarly within the trial judge’s province).

We remand to the Court of Appeals for reconsideration of whether the

trial judge erred in finding a Batson violation. If the Court finds that the

trial court did not err, the Court shall address whether the trial court was

correct in ruling that the racial composition of the final jury cured any

Batson violation that was not cured due to the failure to reseat the

peremptorily dismissed jurors.

Rice, 664 N.W.2d at 214 (paragraph break added) (internal citation omitted).

On remand, the Michigan Court of Appeals affirmed. The court noted that it was

“somewhat puzzled” by the remand because “there was no specific finding [by the trial

court] of a Batson violation.” People v. Rice, No. 225865, 2003 WL 22299839, at *2

(Mich. Ct. App. Oct. 7, 2003). Nevertheless, the court assumed that the trial court found

a Batson violation and affirmed, holding that “the record does not support a conclusion

of purposeful discrimination, and the court erred in finding a Batson violation.” Id.

Petitioner filed an application for leave to appeal with the Michigan Supreme Court,

1

Although Petitioner did not raise a Batson claim in his direct appeal, Petitioner’s co-defendant,

Knight, raised the issue in his parallel direct appeal, and the Michigan Supreme Court consolidated the

appeals and considered the Batson claim for purposes of both appeals; therefore, because the state courts

adjudicated the claim on the merits as to Petitioner, there is no procedural bar to our review. See, e.g.,

Guilmette v. Howes, 624 F.3d 286, 292 (6th Cir. 2010) (en banc).

No. 10-1583 Rice v. White Page 9

which the court granted as to the Batson claim, and consolidated with an appeal filed by

Knight. See People v. Knight, 682 N.W.2d 85 (Mich. 2004) (table).

On July 21, 2005, in a 4–3 decision, the Michigan Supreme Court affirmed the

decision of the intermediate appellate court. See People v. Knight, 701 N.W.2d 715

(Mich. 2005). As a “threshold matter,” the court observed that this case was “difficult,

in large part, because of the trial judge’s failure to rigorously follow the Batson

procedures and, more importantly, to clearly articulate her findings and conclusions on

the record.” Id. at 730. Nonetheless, based on the court’s “reading of the voir dire

transcripts,” the court concluded “that the trial court did not, in fact, find a Batson

violation and, thus, there is no error to complain of in these cases.” Id. The court

explained:

The trial judge’s initial expression of dissatisfaction with the prosecutor’s

race-neutral reasons, when considered in context with her subsequent

remarks that “we are getting close to a sensitive issue,” related to her

concern about the number of minority veniremembers left on the panel.

The judge further articulated her actual motivation in the following

excerpt: “I think all of us are being, trying to be conscientious about the

selection of these jurors because of the racial makeup of the jury panels,

which we don’t have any control over.” The trial judge’s remarks do not

reflect a finding that the prosecutor engaged in purposeful discrimination.

Rather, the comments demonstrate that her true motivation was to ensure

some modicum of racial balance in the jury panel. Use of peremptory

challenges, however, to ensure racial proportionality in the jury is

prohibited by Batson . . . .

The trial judge never expressly found that the prosecutor exercised

peremptory challenges for a racially discriminatory reason. In fact, her

comments at the end of jury selection suggest a contrary conclusion. The

trial judge was more concerned with achieving a proportionate racial

composition on the jury than with the exclusion of veniremember Jones.

She ultimately concluded that no Batson violation existed because a

satisfactory number of African-American females were still [] on the

jury.

We reject [the] conclusion that the trial judge ever found that defense

counsel met his burden of proving purposeful discrimination. Rather, the

trial judge’s focus, as her comments reflect, was to ensure that the racial

composition of the jury remained proportionate.

No. 10-1583 Rice v. White Page 10

. . . . [The trial judge’s] Batson analysis seemed to be infused with and

confused by the erroneous belief that Batson is violated if the challenge

resulted in too few minority jurors. The trial judge’s statements did not

imply that she would have kept Jones and Johnson on the jury because

she thought they had been wrongfully excluded on the basis of race.

Rather, her statements implied that she would have kept them on the jury

to ensure that the number of African-American jurors remained

proportionate to the number of Caucasian jurors.

The trial judge failed to recognize that a defendant is not entitled to a jury

of a particular racial composition as long as no racial group is

systematically and intentionally excluded. Defendants’ jury was drawn

from a fair cross section of the community. Nor was any racial group

systematically excluded.

Id. at 730–31 (internal citations omitted).

Three justices dissented in part, concluding that “the only conclusion that can

be fairly drawn is that the trial court believed that veniremembers Johnson and Jones

were improperly excluded from the jury pool on the basis of race.” Id. at 735

(Cavanagh, J., concurring in part, dissenting in part). Because the trial court nonetheless

proceeded with the trial without discharging the venire, the dissent viewed the “error [as]

subject to automatic reversal.” Id. at 740.

On April 4, 2006, Petitioner filed a pro se petition for a writ of habeas corpus in

the district court, raising numerous claims for relief, including a Batson claim. The

district court on March 31, 2010 issued a conditional writ of habeas corpus on the basis

of a Batson violation, explaining:

[T]he state’s highest court unreasonably determined the facts in light of

the evidence presented at trial, the state trial court incorrectly applied

Batson, and Petitioner was not afforded the only remedy that existed at

the time, “to discharge the venire and select a new jury from a panel not

previously associated with the case.” Batson, 476 U.S. at 99, n.24.

(Dist. Ct. Op. at 39.) The Warden thereafter filed this timely appeal.

No. 10-1583 Rice v. White Page 11

DISCUSSION

The Warden appeals the district court’s grant of a conditional writ of habeas

corpus pursuant to 28 U.S.C. § 2254(d)(2). The district court concluded that the

Michigan Supreme Court’s adjudication of Petitioner’s Batson claim was based on an

unreasonable determination of the facts in light of the evidence, within the meaning of

28 U.S.C. § 2254(d)(2), and that Petitioner’s constitutional right to equal protection was

violated by the state trial court, requiring the issuance of a conditional writ of habeas

corpus. For the reasons explained below, we AFFIRM.

I. Standard of Review

Our consideration of Petitioner’s claim begins with a thorough discussion of the

standards that guide our decision. We review de novo the district court’s grant of habeas

relief and review the underlying state court judgment pursuant to 28 U.S.C. §§ 2241 and

2254. See, e.g., Braxton v. Gansheimer, 561 F.3d 453, 457 (6th Cir. 2009).

Section 2241 of Title 28 of the U.S. Code provides that “[w]rits of habeas corpus

may be granted by the Supreme Court, any justice thereof, the district courts and any

circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The statute is

an affirmative grant of power to federal courts to issue writs of habeas corpus to

prisoners being held “in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c); see also United States v. Mauro, 436 U.S. 340, 357

(1978). Federal courts have long treated § 2241 as a grant of general jurisdiction over

habeas claims, and, until recently, federal courts would routinely exercise their

“independent judgment when deciding both questions of constitutional law and mixed

constitutional questions, . . . ow[ing] no deference to a state court’s resolution of such

questions of law or mixed questions.” Williams v. Taylor, 529 U.S. 362, 400 (2000)

(O’Connor, J., concurring).

This changed with the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), which imposed significant limitations on the authority

of federal courts to grant writs of habeas corpus to state prisoners. AEDPA, which is

No. 10-1583 Rice v. White Page 12

codified in relevant part at 28 U.S.C. § 2254, is not a “separate source of habeas

jurisdiction” from the grant of general jurisdiction in § 2241(a). Rittenberry v. Morgan,

468 F.3d 331, 337 (6th Cir. 2006); see also Williams, 529 U.S. at 379. It instead

“implement[s] [existing] authority with respect to state prisoners.” Allen v. White, 185

F. App’x 487, 486 (6th Cir. 2006) (citing Medberry v. Crosby, 351 F.3d 1049, 1060

(11th Cir. 2003) (stating that AEDPA is “more in the nature of a limitation on authority

than a grant of authority”)).

The limitations imposed by AEDPA are several and significant. See Cullen v.

Pinholster, 131 S. Ct. 1388, 1398–1401 (2011) (noting the congressional intent to

channel state prisoner claims to state courts to further the policies of comity, finality, and

federalism). Consistent with § 2241, § 2254(a) authorizes a federal court to “entertain

only those applications alleging that a person is in custody ‘in violation of the

Constitution or laws or treaties of the United States.’” Id. at 1398 (quoting 28 U.S.C.

§ 2254(a)); Wilson v. Corcoran, 131 S. Ct. 13, 17 (2010) (holding that habeas is not

available for violations of state law). “Sections 2254(b) and (c) provide that a federal

court may not grant such applications unless, with certain exceptions, the applicant has

exhausted state remedies.” Cullen, 131 S. Ct. at 1398 (citing 28 U.S.C. §§ 2254(b), (c)).

Section 2254(e) provides that “a determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

Most relevant to this case, subject to two exceptions, § 2254(d) bars the

relitigation of claims that were “adjudicated on the merits in State court proceedings.”

28 U.S.C. § 2254(d); see also Harrington v. Richter, 131 S. Ct. 770, 787 (2011). Under

the two exceptions set forth in subsections §§ 2254(d)(1) and (2), a federal court may

permit relitigation of a claim adjudicated on the merits in state court if the state

adjudication of the claim either:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law . . . ; or

No. 10-1583 Rice v. White Page 13

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. §§ 2254(d)(1), (2). With regard to the latter exception, it is not enough for the

petitioner to show some unreasonable determination of fact; rather, the petitioner must

show that the resulting state court decision was “based on” that unreasonable

determination. See, e.g., Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)

(holding that although the petitioner met his burden under § 2254(d)(2), the state court

decision was not based on that determination, thereby barring relitigation of the claim).

Taken together, §§ 2254(a)–(e) make clear that a federal court sitting in review

of a state court judgment owes great deference to that judgment. AEDPA deprives a

federal court of authority to grant relief to a state prisoner on the basis that the federal

court concludes, in its independent judgment, that a violation of federal law has

occurred. More is required, and the Supreme Court has reiterated as much in a series of

recent decisions. See, e.g., Cullen, 131 S. Ct. at 1398 (holding that a federal court may

not take additional evidence in a habeas proceeding under § 2254(d)(1) because the

evidentiary record is “limited to the record that was before the state court that

adjudicated the claim on the merits”); Harrington, 131 S. Ct. at 784 (holding that

unexplained state court decisions are entitled to deference as decisions on the merits

under § 2254(d)(1), and therefore the petitioner’s “burden still must be met by showing

there was no reasonable basis for the state court to deny relief”); Premo v. Moore, 131

S. Ct. 733 (2011) (reversing a court of appeals’ decision that state court decision

involved an unreasonable application of Strickland pursuant to § 2254(d)(1)); Renico v.

Lett, 130 S. Ct. 1855, 1866 (2010) (holding that a state court’s failure to apply federal

circuit court precedent did not constitute an independent ground for habeas relief).

Despite the great deference accorded state court adjudications of federal claims,

AEDPA, of course, “stops short of imposing a complete bar on federal court relitigation

of claims already rejected in state proceedings.” Harrington, 131 S. Ct. at 786. Federal

No. 10-1583 Rice v. White Page 14

courts retain statutory and constitutional authority, absent suspension of the writ,2 to

remedy detentions by state authorities that violate federal law, so long as the procedural

demands of AEDPA are satisfied. See Harris v. Haeberlin, 526 F.3d 903, 910 (6th Cir.

2008) (“[E]ven in the context of federal habeas, deference does not imply abandonment

or abdication of judicial review.” (quoting Miller-El v. Cockrell, 537 U.S. 322, 324

(2003))).

Because AEDPA, read properly, is a limitation on the otherwise broad equitable

power of federal courts to grant writs of habeas corpus, and is not itself an affirmative

grant of authority,3 the deference AEDPA demands is only as strong as the limitations

it imposes. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (performing de novo review

under Strickland’s second prong because the state court unreasonably applied the law

in resolving Strickland’s first prong).

In Panetti v. Quarterman, 551 U.S. 930, 947 (2007), for instance, the Supreme

Court considered a habeas application filed by a state prisoner alleging unlawful

detention in violation of the Eighth Amendment’s prohibition on “‘carrying out a

sentence of death upon a prisoner who is insane.’” Id. at 934 (quoting Ford v.

Wainwright, 477 U.S. 399, 409–10 (1986)). After concluding that the state court’s

failure to follow the procedures mandated by Ford v. Wainright resulted in an

unreasonable application of clearly established law under 28 U.S.C. § 2254(d)(1), the

Court held that “no deference is due” to the state court adjudication. See id. at 948. The

Supreme Court explained that the unreasonable application of federal law permitted a

plenary review of the “underlying [] claim, . . . unencumbered by the deference AEDPA

2

See U.S. Const. art. I, § 9 cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

3

That AEDPA is merely a limitation is confirmed by the numerous cases that refer to the statute

as containing limitations that can be overcome by meeting the exceptions to the rule of deference set forth

in the statute. See, e.g., Cullen, 131 S. Ct. at 1400; Medellin v. Dretke, 544 U.S. 660, 665 (2005); Montes

v. Trombley, 599 F.3d 490, 494 (6th Cir. 2010) (referring to “exceptions to the requirement of AEDPA

deference”); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010).

No. 10-1583 Rice v. White Page 15

normally requires.” Id. This analysis has been mirrored by countless decisions in the

courts of appeals.4

Plenary review of a federal claim when one of the exceptions to the relitigation

bar of § 2254(d) is satisfied is consistent with the treatment of claims that fall outside the

scope of both the relitigation bar of § 2254(d) and the procedural bar of §§ 2254(b) and

(c). It is well settled that we may review de novo an exhausted federal claim that was

not adjudicated on the merits in state court. See Hill v. Mitchell, 400 F.3d 308, 313 (6th

Cir. 2005). Such a claim is neither precluded by the procedural bar of § 2254(b) and (c),

nor the relitigation bar of § 2254(d). The same analysis dictates that we likewise review

de novo a claim adjudicated on the merits in state court if the petitioner shows, by virtue

of one of its exceptions, that the relitigation bar of § 2254(d) does not apply. See Hennes

v. Bagley, 644 F.3d 308 (6th Cir. 2011) (applying de novo review to federal habeas

claim, where none of the limitations in AEDPA applied); Smith v. Bradshaw, 591 F.3d

517, 522, 525 (6th Cir. 2010) (same).

4

See, e.g., Byrd, 645 F.3d at 1172 (opining that even if the petitioner could show an unreasonable

determination of the facts under § 2254(d)(2), “we would still be left to review [the petitioner’s] Strickland

claim de novo”); Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011) (“If we determine that the

Pennsylvania Supreme Court’s ruling was contrary to or an unreasonable application of Strickland, then

we still must review the claim de novo to determine whether [the petitioner] is entitled to relief.”); Cave

v. Sec’y for Dep’t of Corr., 638 F.3d 739, 747 (11th Cir. 2011) (conducting de novo review of federal claim

in habeas proceedings, where state court unreasonably determined the facts in light of the evidence)

(collecting cases); Williams v. Pliler, 411 F. App’x 954, 955 (9th Cir. 2011) (reviewing de novo a federal

claim adjudicated in state court because, as the state conceded, the state trial court applied the wrong legal

standard in considering the claim); Johnson v. Upton, 615 F.3d 1318, 1329–30 (11th Cir. 2010) (“[W]here

the petitioner makes the required § 2254(d) showing as to a state court decision, we owe no AEDPA

deference to that decision and instead review the claim de novo.”); Maxwell v. Roe, 628 F.3d 486, 506 (9th

Cir. 2010) (“[B]ecause the state court’s decision was based on an unreasonable determination of the facts

under § 2254(d)(2), the AEDPA deference no longer applies. Therefore, we proceed to resolve [the] claim

without the deference AEDPA otherwise requires.” (internal quotation marks and citations omitted));

Norris v. Morgan, 622 F.3d 1276, 1285 (9th Cir. 2010); Tucker v. Cason, 393 F. App’x 334, 338 (6th Cir.

2010); Miller v. Stovall, 608 F.3d 913, 922 n.7 (6th Cir. 2010); Holder v. Palmer, 588 F.3d 328, 343 (6th

Cir. 2009) (“When the state court issues a decision that is contrary to federal law, we review the merits of

the petitioner’s claim de novo.”(citing Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006))); Wilson v.

Workman, 577 F.3d 1284, 1303 (10th Cir. 2009) (conducting de novo review of federal claim in habeas

proceedings, where state court unreasonably determined the facts in light of the evidence); Brown v. Polk,

135 F. App’x 618, 627 (4th Cir. 2005) (“If the state court adjudication is contrary to or an unreasonable

application of ‘clearly established’ Supreme Court precedent, then § 2254(d) is no bar to relief, but habeas

relief is not required; rather, the federal court reviews the merits of the claim under the pre-AEDPA de

novo standard, no longer constrained by the deference required under § 2254(d).” (citing Moody v. Polk,

408 F.3d 141 (4th Cir. 2005))). Accord Dretke, 544 U.S. at 680 (O’Connor, J., dissenting) (stating that

because the state court “neither asked nor answered the right question,” consideration of the federal claim

“must proceed de novo”). Cf. Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (declining to reach

the issue of whether a federal habeas court would review de novo a constitutional claim adjudicated on the

merits in state court, where the state court’s adjudication of the claim was unreasonable).

No. 10-1583 Rice v. White Page 16

II. Analysis

Our analysis proceeds through the lens of AEDPA and is divided into three parts.

First, we discuss the constitutional standard governing Petitioner’s Batson claim.

Second, we conclude, pursuant to 28 U.S.C. § 2254(d)(2), that the Michigan Supreme

Court’s adjudication of Petitioner’s Batson claim was based on the court’s unreasonable

factual determination that the trial judge did not discredit the prosecutor’s proffered race-

neutral reasons for the exercise of her peremptory strikes. Finally, we conclude that

Petitioner is being held in violation of the Fourteenth Amendment and, therefore, that

relief is warranted under 28 U.S.C. §§ 2241 and 2254.

A. Legal Standard

The Equal Protection Clause of the Fourteenth Amendment commands that “no

state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. The Supreme Court has long interpreted the Equal

Protection Clause as prohibiting a state from trying a defendant before a jury from which

members of his race have been purposefully excluded. See, e.g., United States v. Harris,

192 F.3d 580, 586 (6th Cir. 1999) (citing Strauder v. West Virginia, 100 U.S. 303

(1879)). This principle was extended by the Supreme Court in Batson v. Kentucky,

which held that a prosecutor’s exercise of peremptory strikes on the basis of race violates

equal protection.5 476 U.S. at 79.

The Supreme Court explained in Batson that the prohibition on racially-

motivated peremptory strikes seeks to protect the rights of the litigants, the venire, and

the “entire community.” Batson, 476 U.S. at 86–88 (stating that the “harm from

discriminatory jury selection extends beyond that inflicted on the defendant and the

excluded juror . . . [by] undermin[ing] public confidence in the fairness of our system of

justice”); see also Smith v. Texas, 311 U.S. 128, 130 (1940) (“For racial discrimination

5

Although Batson considered only a prosecutor’s unconstitutional use of peremptory strikes, see

Batson, 476 U.S. at 89, subsequent case law has made clear that the Equal Protection Clause prohibits the

exercise of racially-motivated peremptory strikes more broadly. See, e.g., Georgia v. McCollum, 505 U.S.

42 (1992) (criminal defendant); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (private litigants

in civil trial).

No. 10-1583 Rice v. White Page 17

to result in the exclusion from jury service of otherwise qualified groups not only

violates our Constitution and the laws enacted under it but is at war with our basic

concepts of a democratic society and a representative government.” (internal footnote

omitted)). The Supreme Court further explained in Miller-El v. Dretke that “[w]hen the

government’s choice of jurors is tainted with racial bias, that ‘overt wrong . . . casts

doubt over the obligation of the parties, the jury, and indeed the court to adhere to the

law throughout the trial.’” 545 U.S. at 235 (quoting Powers v. Ohio, 499 U.S. 400, 412

(1991)).

The Supreme Court has articulated a three-step analysis to be applied to an equal

protection claim that purposeful discrimination occurred in jury selection. See Braxton,

561 F.3d at 458 (citing Batson, 476 U.S. at 89). First, the defendant must make out a

prima facie case by showing that the “totality of the relevant facts gives rise to an

inference of discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168 (2005)

(quoting Batson, 476 U.S. at 94). The defendant may satisfy his initial burden by

showing that:

he is a member of a cognizable racial group[,] that the prosecutor has

exercised peremptory challenges to remove from the venire members of

the defendant’s race[,] . . . [and] that these facts and any other relevant

circumstances raise an inference that the prosecutor used that practice to

exclude the venire men from the petit jury on account of their race.

Harris, 192 F.3d at 586 (internal quotation marks and citations omitted); see also

Johnson, 545 U.S. at 168 (holding that the defendant’s initial burden is minimal).

Second, if the defendant makes out a prima facie case, the burden shifts to the

prosecutor to “explain adequately the racial exclusion by offering permissible

race-neutral justifications for the strikes.” Johnson, 545 U.S. at 168 (internal quotation

marks and citations omitted). Like the defendant’s initial burden, the prosecutor’s

burden on step two is “extremely light”; the prosecutor’s proffered reason “need not be

particularly persuasive, or even plausible, so long as it is neutral.” Harris, 192 F.3d at

586 (citing Purkett v. Elem, 514 U.S. 765, 767–68 (1995)).

No. 10-1583 Rice v. White Page 18

Third, if the prosecutor tenders a race-neutral reason, “the trial court must then

decide . . . whether the opponent of the strike has proved purposeful racial

discrimination.” Johnson, 545 U.S. at 168 (quoting Purkett, 514 U.S. at 767) (alterations

in original). The third step is important; Batson imposes upon the trial court a strict

constitutional “duty to determine if the defendant has established purposeful

discrimination.” Batson, 476 U.S. at 98; 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.”).

B. Application

1. State Court Decision was Based on an Unreasonable

Determination of the Facts Under § 2254(d)(2)

In the last reasoned state court decision, the 2005 decision of the Michigan

Supreme Court, the state high court determined that the state trial court did not, as a

matter of fact, discredit the prosecutor’s proffered race-neutral reasons for the exercise

of her peremptory strikes. In granting habeas relief, the district court concluded that this

finding was an unreasonable determination of the facts in light of the evidence, within

the meaning of § 2254(d)(2).6 We agree.

Based on a review of the trial transcript, “the only conclusion that can be fairly

drawn is that the trial court believed that veniremembers Johnson and Jones were

improperly excluded from the jury pool on the basis of race.” Knight, 701 N.W.2d at

735 (Cavanagh, J., concurring in part, dissenting in part) (emphasis added). In fact, the

Michigan Supreme Court agreed in 2003, but then inexplicably reversed course in 2005.

Compare Knight, 664 N.W.2d at 213 (table) (“[The] transcript indicates that the trial

judge was not satisfied with the prosecutor’s race neutral reasons for peremptorily

dismissing several jurors[, requiring remand] for reconsideration of whether the trial

6

It is an open question whether 28 U.S.C. § 2254(e)(1), which presumes the correctness of state

court factual findings absent clear and convincing evidence to the contrary, “applies in every case

presenting a challenge under § 2254(d)(2).” Wood v. Allen, 130 S. Ct. 841, 845 (2010) (reserving decision

on the relationship between §§ 2254(d)(2) and (e)(1)). We need not resolve this question, because under

either section, the analysis herein would be unchanged. The factual determination at issue was as

unreasonable as it was clearly erroneous, and for that reason, the precise interplay between §§ 2254(d)(2)

and (e)(1) is of little moment under the circumstances of this case.

No. 10-1583 Rice v. White Page 19

judge erred in finding a Batson violation.”), with Knight, 701 N.W.2d at 729 (“The

record reflects that the trial judge never explicitly found that the prosecutor violated

Batson. Nor can we infer such a finding on this record.”). That the same court, based

on the same record, in the span of about two years, made contradictory findings of fact,

does not establish unreasonableness under § 2254(d)(2) as a matter of law, but in the

absence of any explanation for the about face, this sequence of events raises a red flag

to possible “extreme malfunctions in the state criminal justice system[].” Harrington,

131 S. Ct. at 786.

During the afternoon session on the third day of jury selection, defense counsel

objected to the peremptory strike of Ms. Jones and argued that the prosecutor had struck

Ms. Jones, as well as Ms. Johnson and Ms. Bonner, on the basis of their race in violation

in Batson. Without waiting for the trial court to rule as to whether defense counsel had

made out a prima facie case under the first step of Batson, the prosecutor proceeded to

step two by offering race-neutral reasons for her strikes.

The prosecutor’s proffered reasons were as follows: (1) Ms. Bonner had “close

associations” with people who have been charged with murder; (2) Ms. Johnson had a

“close relative” who was convicted of a drug crime, displayed a “reticent demeanor,”

and was “hesitant in her demeanor” when she indicated that she could be fair,

referencing her “body language,” “the tone of her voice,” and “look”; and (3) Ms. Jones

was a “working person” in a professional position, had a child close in age to the victim,

and her child “may be different from our victim” in terms of lifestyle, causing the juror

to “compare and contrast” the victim with her daughter. (Tr. at 87.)

After the prosecutor proffered her race-neutral reasons, the trial court, as the

Warden concedes, “did not ‘accept’ the prosecutor’s reasons” as to Ms. Jones and Ms.

Johnson. (Warden Br. at 23; see also, e.g., Tr. at 87 (“I don’t accept that”); id. (“I do not

see a reason”).) The Michigan Supreme Court itself found that “[t]he trial judge rejected

the prosecutor’s reasons for dismissing veniremember Johnson,” and “did not accept the

prosecution’s reasons for dismissing veniremember Jones.” 701 N.W.2d at 720.

No. 10-1583 Rice v. White Page 20

The fact that the trial court rejected the prosecutor’s race-neutral reasons for

striking Ms. Johnson and Ms. Jones is unmistakable from the trial court transcript. Cf.

Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (per curiam) (holding that the state

appellate court’s conclusion that no Batson violation occurred was reasonable where the

“trial court credited the prosecutor’s race-neutral explanations”). The trial court stated

that it “didn’t see a problem with” Ms. Johnson’s demeanor—which the prosecutor

described as “reticent”—because, with respect to Ms. Johnson, “actually her demeanor

was soft and she seemed very forthright and honest.” (Tr. at 89–90.) The trial court

found “[t]he same thing with Miss Jones,” explaining:

I do not see a reason other than -- I mean, it seems to me for the

prosecution to say, she has a daughter the same age as the victim, that

would seem to work in the prosecution’s favor, just in terms of thinking

in the jury selection. So I don’t accept that.

(Id. at 88–89.) The prosecutor did not give up after the trial court rejected her proffered

race-neutral reasons. Moments later, the prosecutor asserted that “[i]n terms of her

reticent demeanor, I’m not sure that [Ms. Johnson] would stand up in a jury,” to which

the trial court responded dismissively: “Why didn’t you ask her that? You didn’t ask

any questions of any of these jurors. You just simply are excusing them.” (Tr. at 89–90.)

The trial court’s rejection of the prosecutor’s proffered reasons was even more

explicit in subsequent statements. Responding to defense counsel’s question about

whether the court is “going to allow Miss Jones to be struck,” the trial court responded:

“If she is still here, I’m going to keep her.” Defense counsel acknowledged the

favorable ruling by responding, “Thank you.” The trial court soon thereafter added, “I’m

not satisfied with the prosecutor’s response as to potential juror[s] Jones and Johnson.”

The statements by the trial court unambiguously indicate that the trial court

discredited the prosecutor’s proffered reasons for her peremptory strikes, thereby

resolving the Batson inquiry against the prosecutor. Although the trial court did not

expressly state that the prosecutor engaged in discrimination, the trial court’s explicit

rejection of the prosecutor’s proffered race-neutral rationale necessarily constitutes such

No. 10-1583 Rice v. White Page 21

a finding. See, e.g., Dretke, 545 U.S. at 231 (granting habeas relief on a Batson claim,

where the state court found no discrimination, but each of the race-neutral reasons

proffered by the prosecution were deficient).

Despite the trial court’s unambiguous rejection of the prosecutor’s proffered

race-neutral reasons, the Michigan Supreme Court found that “the trial judge neither

explicitly nor implicitly” found a Batson violation. Knight, 701 N.W.2d at 731. To

reach its conclusion, the state supreme court offers two primary rationales, each of which

is unreasonable in light of the record. First, the court characterizes the trial judge’s

comments as “initial expression[s] of dissatisfaction.” Id. at 730. But nowhere in the

record does the trial judge retract her rejection of the prosecutor’s race-neutral reasons.

Second, the court characterizes the trial court’s statements as “impl[ying] that

[the court] would have kept [the challenged jurors] on the jury to ensure that the number

of African-American jurors remained proportionate to the number of Caucasian jurors,”

rather than implying the prosecutor engaged in discrimination. Id. at 731. It is true that

the trial court appears to have believed, erroneously, that Batson demands racial

proportionality. But this erroneous belief cannot explain the court’s express and

unambiguous rejection of the prosecutor’s race-neutral reasons as to Ms. Johnson and

Miss Jones. If the trial court’s rejection of the prosecutor’s proffered race-neutral

reasons had been motivated solely by a desire to ensure racial balance, it is illogical that

the trial court would not have also rejected the proffered reasons as to Ms. Bonner, an

African-American woman. It is also illogical that the court would have stated, as it did,

that the court should have “especially” kept Ms. Jones on the jury when discussing both

her and Ms. Johnson. (Tr. at 95-96.)

Although the trial judge erroneously believed that Batson demands racial balance

and that Batson violations may be “cured” by reference to the ultimate racial

composition of the panel, no fair and reasonable reading of the trial transcript suggests

that this erroneous belief would explain the trial court’s rejection of the specific reasons

proffered by the prosecutor as to Ms. Johnson and Ms. Jones. See Knight, 701 N.W.2d

at 736 (Cavanagh, J., concurring in part, dissenting in part) (“R]egardless of the trial

No. 10-1583 Rice v. White Page 22

court’s main goal . . . the record clearly demonstrates that the trial court along the way

also found that purposeful discrimination occurred in violation of Batson.”).

No fair and reasonable reading of the record would permit the Michigan Supreme

Court to find, as a matter of fact, that the trial judge did not discredit the prosecutor’s

proffered race-neutral reasons. Nothing in the record even suggests as much. The trial

judge appears to have misunderstood the nature of the court’s duty under Batson, but,

regardless of the trial judge’s subjective understanding or motivation, the record makes

clear that the trial judge rejected the prosecutor’s proffered race-neutral reasons for the

exclusion of either or both Ms. Jones and Ms. Johnson. As Petitioner states, “[t]here is

no other objectively reasonable way around it.” (Pet’r Br. at 34.)

Accordingly, the Michigan Supreme Court unreasonably determined, in light of

the record, that the trial court did not discredit the prosecutor’s proffered race-neutral

reasons for striking the challenged jurors, within the meaning of § 2254(d)(2). This

unreasonable determination was the basis of the court’s adjudication of Petitioner’s

Batson claim, and therefore the relitigation bar of § 2254(d) poses no obstacle to this

Court’s review. See Byrd, 645 F.3d at 1172.

2. Equal Protection Violation

Having determined that AEDPA’s relitigation bar does not preclude

consideration of Petitioner’s claim pursuant to § 2254(d), the next question is whether

Petitioner can prevail on his underlying constitutional claim. See Bradshaw, 591 F.3d

at 522. It is not enough that Petitioner show an unreasonable determination of fact under

§ 2254(d)(2)—doing so only removes AEDPA’s litigation bar. Once the bar is removed,

Petitioner must show that he is being held in violation of federal law by identifying, and

prevailing on, a federal claim. See Corcoran, 131 S. Ct. at 16 (reversing grant of habeas

under § 2254(d)(2), where the court of appeals did not identify an error of federal law

upon which to grant relief); see also 18 U.S.C. §§ 2241, 2254(a); Swarthout v. Cooke,

131 S. Ct. 859, 861 (2011); Matthews v. Parker, 651 F.3d 489, 522 (6th Cir. 2011).

No. 10-1583 Rice v. White Page 23

In this case, Petitioner alleges a violation of the Equal Protection Clause of the

Fourteenth Amendment as interpreted by Batson v. Kentucky. Although Petitioner’s

claim was adjudicated on the merits in state court, Petitioner has satisfied his burden to

show that the state court adjudication was premised on an unreasonable determination

of the facts, within the meaning of 28 U.S.C. § 2254(d)(2). Because the state court

decision was premised on a plainly erroneous reading of the record, deference is not

given to that decision, and the Court may review the claim de novo.7 Upon review, we

conclude that Petitioner has shown a violation of his right to equal protection under the

Fourteenth Amendment.

As an initial matter, the trial court failed to satisfy its constitutional duty under

Batson. The trial court did not acknowledge the applicable legal standard, nor did it

even attempt to apply the tripartite burden-shifting framework of Batson. This error was

recognized by the Michigan Supreme Court, which noted the trial judge’s “failure to

rigorously follow the Batson procedures and, more importantly, to clearly articulate her

findings and conclusions on the record.” Knight, 701 N.W.2d at 730. Based on a review

of the record, it appears that the trial court was unaware of the proper manner in which

to resolve a Batson objection. The trial court breached its constitutional duty at step

three of Batson “to determine if the defendant has established purposeful

discrimination.” Braxton, 561 F.3d at 461 (quoting Batson, 476 U.S. at 98); see also

United States v. Torres-Ramos, 536 F.3d 542, 559 (6th Cir. 2008).

Compounding these procedural errors, the trial court apparently believed that any

Batson violation could be “cured.” The Michigan Supreme Court summarized the

problem:

[T]he trial judge’s focus, as her comments reflect, was to ensure that the

racial composition of the jury remained proportionate. . . . Here, the jury

pool, by chance, contained a greater number of Caucasians than

African-Americans. The trial judge was preoccupied with this fact. Her

7

Reviewing de novo in this case makes sense; in light of the Michigan Supreme Court’s reliance

on erroneous facts, “we do not know what [that] court would have decided” had it not unreasonably

determined the facts in light of the record. Maxwell v. Row, 628 F.3d 486, 506 (9th Cir. 2010) (internal

citation and quotation marks omitted).

No. 10-1583 Rice v. White Page 24

Batson analysis seemed to be infused with and confused by the erroneous

belief that Batson is violated if the challenge resulted in too few minority

jurors. . . . The trial judge failed to recognize that a defendant is not

entitled to a jury of a particular racial composition as long as no racial

group is systematically and intentionally excluded.

Knight, 701 N.W.2d at 730. As we have repeatedly explained, and lament that we must

explain again: “Where purposeful discrimination has occurred, to conclude that the

subsequent selection of an African-American juror can somehow purge the taint of a

prosecutor’s impermissible use of a peremptory strike to exclude a venire member on the

basis of race confounds the central teachings of Batson.” Lancaster v. Adams, 324 F.3d

423, 434 (6th Cir. 2003). Batson does not guarantee a trial by a jury composed in whole

or in part of individuals of a certain race, but instead guarantees the “‘right to be tried

by a jury whose members are selected pursuant to nondiscriminatory criteria.’” Id.

(quoting Batson, 476 U.S. at 85–86).

Despite the state trial court’s failure to adhere to the constitutionally required

inquiry, and its egregious misunderstanding of the law, it is clear that a Batson violation

occurred. Appellate review in this case is complicated by the trial judge’s failure to

adhere to the constitutional framework, but the context of the proceedings permits

meaningful review under the proper standard.

At step one, Petitioner met his burden because the prosecutor proceeded to step

two of Batson before the trial court made a ruling at step one. As a result, “the

preliminary issue of whether the defendant had made a prima facie showing becomes

moot.” Braxton, 561 F.3d at 461 (quoting Hernandez v. New York, 500 U.S. 352, 359

(1991) (plurality)) (internal quotation marks omitted). At step two, the prosecutor met

her burden to proffer race-neutral reasons for the exercise of her peremptory strikes.

Although the prosecutor’s proffered reasons were flimsy, the reasons were race neutral

on their face, and thus the Batson inquiry proceeds to step three. See Johnson, 545 U.S.

at 171 (“[E]ven if the State produces only a frivolous or utterly nonsensical justification

for its strike, the case does not end—it merely proceeds to step three.”).

No. 10-1583 Rice v. White Page 25

The Batson inquiry in this case turned on step three, namely whether the trial

court accepted or rejected the prosecutor’s proffered race-neutral reasons. See Cockrell,

537 U.S. at 339 (stating that “the decisive question will be whether counsel’s race-

neutral explanation for a peremptory challenge should be believed”). As discussed

above, the record is clear that the trial court rejected the prosecutor’s reasons for striking

Ms. Johnson and Ms. Jones. Without repeating our entire prior discussion, the record

reveals that the trial court considered the prosecutor’s proffered explanations and

rejected them, stating, among other things, “I don’t accept that,” and “I’m not satisfied

with the prosecutor’s response as to potential juror[s] Jones and Johnson.”

The trial court may not have understood the nature of the inquiry it made. But

this is of little, if any, consequence because the trial court’s clear and unambiguous

rejection of the prosecutor’s race-neutral reasons, after an “on-the-record-analysis” of

the proffered reasons, Braxton, 561 F.3d at 461, amounts to a finding at step three that

the prosecutor engaged in invidious discrimination. This finding is accorded high

deference, Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (“On appeal, a trial court’s

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

erroneous.”), and based on the record, does not appear to be clearly erroneous or even

erroneous at all.

The trial record “reveals that the trial court became suspicious of the prosecutor’s

method of exercising peremptory challenges.” Knight, 701 N.W.2d at 737 (Cavanagh,

J., concurring in part, dissenting in part). In considering Petitioner’s Batson challenge

to the exclusion of venire members Johnson and Jones—and after observing the

proceedings and listening to the proffered race-neutral reasons of the prosecutor—the

trial court concluded that the prosecutor excluded Ms. Jones and Ms. Johnson because

of their race. With regard to Ms. Jones, the trial court dismissed the prosecutor’s

proffered reasons for her exclusion—that she was a professional woman with a child

close in age to the victim—as equally applicable to white women who were not

challenged. And with regard to Ms. Johnson, the trial court rejected the prosecutor’s

stated concerns about her demeanor, remarking that the trial court noticed no problem.

No. 10-1583 Rice v. White Page 26

See Dretke, 545 U.S. at 241 (“If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack who is permitted to serve,

that is evidence tending to prove purposeful discrimination to be considered at Batson’s

third step.”). Additionally, although not dispositive, the prosecutor’s peremptory

challenges during the afternoon session were largely against African-American jurors.

In light of the high degree of deference given to the trial court’s credibility

assessment, nothing in the record suggests that the trial court clearly erred in finding

purposeful discrimination in the striking of veniremembers Johnson and Jones. We

therefore conclude, as the trial judge did, that a Batson violation occurred during jury

selection.

C. Remedy

Having concluded that a Batson violation occurred at trial, the only issue that

remains is the appropriate remedy. The two primary remedies for a Batson violation

available to a trial court are first, disallowing the improper strike, and second,

discharging the entire venire and starting anew. See, e.g., United States v. Angel, 355

F.3d 462, 481, 481 n.3 (6th Cir. 2004) (citing Batson, 476 U.S. at 99 n.24). In this case,

the first remedy was unavailable to the trial court because the challenged jurors left the

courthouse. And the trial court did not employ the second remedy, presumably because

the court found that any Batson violation had been “cured.”

In the absence of any remedial action undertaken by the trial court, the existence

of an unmitigated Batson violation requires that the conviction be vacated. See Batson,

476 U.S. at 100 (holding that “[i]f the trial court decides that the facts establish, prima

facie, purposeful discrimination and the prosecutor does not come forward with a neutral

explanation for his action, our precedents require that petitioner’s conviction be

reversed”); United States v. Simon, No. 09-4194, 2011 WL 1778200, at *3 (citing United

States v. McFerron, 163 F.3d 952, 955–56 (6th Cir. 1998)). Because we are sitting as

a habeas court, the proper disposition of this matter shall consist of the issuance of a

conditional writ of habeas that orders the state to retry Petitioner within 180 days, or

release him from custody.

No. 10-1583 Rice v. White Page 27

CONCLUSION

For the reasons stated above, the judgment of the district court is AFFIRMED,

and a conditional writ of habeas corpus is hereby issued, directing the State of Michigan

to retry Petitioner within 180 days, or release him from custody.