Petition for Writ of Certiorari — Franklin v. Sims (No. 08-641)

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Supreme C

p ine purt U.S.

\ ) 08-641 NOV12 2008

No. __ OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MICHAEL FRANKLIN ;

Petitioner,

Vv.

GREGORY SIMS, WARDEN

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

BARRY LEVENSTAM

Counsel of Record

JAMES T. MALYSIAK

SHORGE K. SATO

JENNER & BLOCK LLP

330 N. Wabash Ave.

Chicago, IL 60611

(312) 222-9350

Attorneys for Petitioner

November 12, 2008

QUESTION PRESENTED

Does the Seventh Circuit’s decision conflict with

Batson v. Kentucky, 476 U.S. 79 (1986), by affirming

the summary denial of a defendant's Batson

objection on the grounds that it was not

unreasonable for state courts to rely primarily

upon the presence of minority venirepersons on the

jury as the basis for negating a prima facie inference

of discrimination from the prosecution’s unexplained

exclusion of other minority venirepersons?

fate Day ete, Ba ee

‘i

PARTIES TO THE PROCEEDING

The parties below were (1) Michael Franklin and

(2) Gregory Sims, Warden, Taylorville Correctional

Center, Taylorville, Illinois. The real party in

interest is the State of Illinois.

ill

TABLE OF CONTENTS

QUESTION PRESENTED.....................sscsssesssccssreeeees i

PARTIES TO THE PROCEEDING ........00..0..ecceeee 4]

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TARE OF FREE I 0n.0..ccscccccescsesensccecenssvescoses v

RARER PE FAA REMI BI onc ccicesccessnecsssevsssnessseneseses vi

1. This Petition Should Be Granted To

Resolve A Circuit Split On Whether

Courts May Consider Statistics Based

On The Race of Included Jurors As A

Basis To Negate A Prima Facie

Inference Of Discrimination At Batson’s

II cis ninaidescaihancisindniatintesiibabaibinisatalbnrenaweces 7

A. Consideration Of __Inclusion-Based

Measures Is Directly Contrary To And

An Unreasonable Application Of This

Court’s Clearly Established Batson

SUR. iniisids einpictitieiiacisdnimscininiersceces 7

B. There Is A Broad Circuit Conflict

Concerning The Relevance Under

Batson Of The Inclusion Of Minority

Members On The Trial Jury. ........................ 10

1. Seven Federal Circuit Courts of

Appeal Allow Courts To Consider The

Inclusion Of Minority Members As A

Relevant Basis To Defeat An

Inference Of Discrimination. ... ............... 10

2. Three Federal Circuit Courts Of

Appeal Clearly Reject Reliance On

* _ 5 ; an - bine tent a Tome ti ae

See cae ee a ee ae ee Te ge ee Ree ews ee ‘

Sees) ae a ee ee ee ee eee eee Ne, OL ae Nee cet Fea eS eee ae ee ee. vo ae ae 2 ~~

The Inclusion Of Minority Members

On The Trial Jury As A Basis For

Defeating A Prima Facie Inference Of

§ FE ERE SRE SNC 13

: . Conflicting Lines Of Authority Exist

SA a 15

: 4. There Is Substantial Conflict Among

; State Courts Of Last Resort As To

The Relevance Of Statistics Based

; On The Inclusion Of Minority

} Members On The Jury. ...........sccccceeeeeeees 17

TABLE OF APPENDICES

Appendix A --

Seventh Circuit Opinion..................... la- 13a

Appendix B--

District Court Opinion...................... 14a-17a

Appendix C'-- j

Illinois Appellate Court Opinion...... 18a - 43a

Appendix D --

VOlr Dive TYAMSCTING ...........00cccccsceseees 44a -70a

TABLE OF AUTHORITIES

CASES PAGE(S)

Aldridge v. State,

365 S.E.2d 111 (Ga. 1988) qc... e eee econ 19

Alexander v. Louisiana,

oo asaceceesesccvesevesossnticsoien 8

Alvarado v. United States,

497 U.S. 543 (1990) (“Alvarado IP).............004.. 15

Batson v. Kentucky,

a ibengntonl passim

Brinson v. Vaughn,

398 F.3d 225 (3d Cir. 2005) ..................cecceeeeeees 13

Coulter % McCann,

484 F.3d 459 (7th Cir. 2007)..............00ccceceeee 17

j Connecticut v. Teal,

: I csscsesccoseicenpassonsceccsbnoniees 17

Eagle v. Linahan,

i 279 F.3d 926 (11th Cir. 2001).........00000.0000.. 15, 16

Ex Parte Thomas,

I, TEND... scsscsconsdovesscuseonsiie 20

| Fleming v. Kemp, 7

} 794 F.2d 1478 (11th Cir. 1986) ...........ssseessssee 16 .

Se ee pt ee AT

_— a

> v

a ee TOS ee a ee ee Pen ee ee ee ee ee ee.

k ‘ >" 2 ae — 1 + A re Se

Harrell v. State,

571 So.2d 1270 (Ala. 1990) .............cccccceeeees 19, 20

Holloway v. Horn,

366 F.3d 707 (3d Cir. 2004) ................cccccccsessees 13

J.E.B. v. Alabama ex rel. T.B,,

is caccncccosccseocsissctocontin 8, 9

Johnson v. California,

i sammnnalenminudiin 8,9

Lancaster v. Adams,

324 F.3d 423 (6th Cir. 2003) ................ccccccceeeeee 16

Little v. United States,

613 A.2d 880 (D.C. 1992) 2.0.0.0... ceeceeeeeees 18, 19

People v. Bolling,

501 N.E.2d 1136 (N.Y. 1902) .................cccecccceee 18

People v. Evans,

530 N.E.2d 1360 (Ill. 1988) ..0..........ceceeeeeeeeeeeeees 19

People v. Houston,

890 N.E.2d 424 (III. 2008) ..0......ccccccseeceecceseeeeeee 17

People v. Jenkins,

S64 N.B.23d 47 GN.Y. 1900) .....................ccceccccces 18

People v. Reynoso,

I i scieeseeadnnimadiailis 18

;

‘

;

People v. Snow,

44 Cal.3d 216, 242 Cal.Rptr. 477

ESSE Se IS 8

People v. Williams,

670 N.E.2d 638 (Ill. 1996) .........0....ccccce eee 4-5,17

Powers v. Ohio,

EL SPE 8

Purkett v. Elem,

TINA a RN Pe Ny Be AE Fa 4

Stanley v. State,

Be ee RIE GO, BOD once nccccccccccccsscencccoses 19

Staples v. State,

NE BINT GGL, BED on .ccccccccccncecccesassonccess 19

State v. Smith,

Se FEB E.G. 1D) once cccccccoccccosssecee 17, 18

State v. Parker,

836 S.W.2d 930 (Mo. 1992) .............cccccceeseeseeeees 20

United States v. Alvarado,

Gas F.28 363 Ga Cie. 190)) ............-........... 14, 15

United States v. Alvarado,

891 F.2d 439 (2d Cir. 1991) .............................. 15

United States v. Battle,

836 F.2d 1084 (8th Cir. 1987)........0.....00000.. 13, 14

United States v. Campa,

529 F.3d 980 (11th Cir. 2008).................c ee 16

United States v. Chinchilla,

874 F.2d 695 (9th Cir. 1989) 0.0.0... eeeeeeeee 11

United States v. Clemons,

843 F.2d 741 (3d Cir. 1988) ................ccccee 13, 14

United States v. Dennis,

804 F.2d 1208 (11th Cir. 1986)....... 10, 11, 12, 15

United States v. Ervin,

266 Fed. Appx. 428 (6th Cir. 2008) .................. 16

United States v. Escobar-de Jesus,

187 F.3d 148 (1st Cir. 1999) ................... ce 12

United States v. Esparsen,

930 F.2d 1461 (10th Cir. 1991).............00...00 12

United States v. Girouard, 521 F.3d 110, 116-

collated 12

United States v. Grandison,

885 F.2d 143 (4th Cir. 1989) .............ccceceeseeeeeees 12

United States v. Johnson,

873 F.2d 1137 (8th Cir. 1989)........00. ee. 14

United States v. Lane,

866 F.2d 103 (4th Cir. 1989)...........0.... eee 12

_ United States v. Montgomery, ets ne

819 F. 2d 847 (8th Cir. 1989)................00.. 11, 12

United States v. Moore,

895 F. 2d 484 (8th Cir. 1990)...........cccesseeeeees 14

United States v. Sangineto-Miranda,

859 F.2d 1501 (6th Cir. 1988)......... 10, 11, 12, 16

Weems v. State,

416 S.E.2d 84 (Ga. 1992) ..............cccccccccscccsseees 19

STATUTES

8” ENE comer mee vires Oe An eB 1

LER: aan ee AARP TSE PM 2S 2,5

Sy SN ee) ae ee ERS ad

PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael Franklin asks this Court to

issue a writ of certiorari to review and reverse the

decision of the United States Court of Appeals for the

Seventh Circuit rejecting his claim that the jury that

convicted him was selected in a manner violating the

requirements of Batson v. Kentucky, 476 U.S. 89

(1986).

OPINIONS BELOW

The decision of the United States Court of

Appeals for the Seventh Circuit is published at 538

F.3d 661 (7th Cir. Aug. 14, 2008), and is reprinted at

App. A, la - 18a. The Court of Appeals affirmed a

denial of Franklin’s petition for habeas corpus by the

United States District Court for the Northern

District of Illinois. The District Court opinion is

reprinted at App. B, 14a - 17a. The Illinois Appellate

Court opinion is unpublished; relevant excerpts of

the opinion and dissent discussing Franklin’s Batson

objection are reprinted at App. C, 18a - 43a.

JURISDICTION

On August 14, 2008, the Court of Appeals

announced its decision affirming the District Court’s

denial of Petitioner’s petition for a writ of habeas

corpus. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment of the United States

Constitution provides, in pertinent part:

No State shall . . . deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws. . . .

Title 28, Section 2254 of the United States

Code provides, in pertinent part:

(d) An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State

court 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—

(1) resulted in a decision that was

contrary to, or involved = an

unreasonable application of, clearly

established Federal law, as

determined by the Supreme Court of

the United States; or

(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.

STATEMENT OF FACTS

Petitioner Michael Franklin was convicted of

armed robbery after a jury trial in Illinois Circuit

Court and sentenced to 23 years in prison. During

voir dire conducted on February 4, 2003, the trial

court questioned dozens of prospective jurors

individually. (App. D at 44a - 46a). Four African

American venire persons were questioned: Margaret

Cooley, Alma Minefe, Lance Tyson, and Dorothy

Gandy. Each one stated that they could be fair and

impartial and apply the law. (App. D at 50a - 51a,

53a - 54a, 55a, 57a - 59a, 63a, 65a).

The trial court called a panel of four prospective

jurors into the jury box for peremptory strikes. (App.

D at 66°). Ms. Cooley and Ms. Minefe were on the

first panel. (/d.) The State’s Attorney used his first

peremptory strike against Ms. Cooley. (id) Mr.

Tyson was then called to take Ms. Cooley’s place as a

prospective juror. (/d.) The State’s Attorney used his

next peremptory strike against Mr. Tyson. (/d)

Franklin’s counsel immediately objected on

Batson grounds. (App. D at 67a) The trial court

summarily denied this objection stating that

Franklin had failed to demonstrate a “prima facie

case of systematic exclusion.” (App. D at 67a - 69a).

The trial court observed that the panel tendered

“contains one African American.” (App. D at 68a.)

This was the sole factual finding made by the trial

judge, and the prosecution did not provide race-

neutral reasons for its strikes. (/d.)

After two more peremptory strikes, the final

African American venireperson, Dorothy Gandy, was

selected. (App. D at 69a - 70a.) The trial judge

stated: “(T]he record should reflect that the first

panel is Minefe, Freels, Gandy and McVicker. I

believe there’s four jurors, two are African American.

Okay. That’s your first panel.” (App. D at 70a.).

The final selected jury consisted of twelve

members, two of whom (Minefe and Gandy) were

African American. (App. C at 27a). After his

conviction, Franklin appealed to the _ [Illinois

Appellate Court, arguing that the State

unconstitutionally exercised its peremptory strikes

against two other African American venire persons

in violation of the principles set forth in Batson v.

Kentucky, 476 U.S. 79 (1986). On September 9,

2005, the Illinois Appellate Court affirmed.

The Ilhnois Appellate Court reviewed Franklin’s

prima facie claim by applying seven “relevant

circumstances” identified by the Illinois Supreme

Court. (App. C, at 25a - 29a, citing People v.

Williams, 670 N.E.2d 638, 650 (Ill. 1996)). These

seven “relevant circumstances” were: (1) the racial

identity between the defendant and the excluded

venire persons; (2) a pattern of strikes against

African American venire’ persons; (3) a

disproportionate use of peremptory strikes against

African-American venire persons; (4) the level of

African-American representation in the venire as

compared to the jury; (5) the prosecutor’s questions

and statements during voir dire examination and

while exercising peremptory challenges: (6) whether

the excluded African-American venire persons were a

heterogeneous group sharing race as their only

common characteristic; and (7) the race of the

defendant, victim, and witness. U/d)

Construing the record against Franklin, the

Illinois Appellate Court found that there were four

African Americans in the 36-person venire. (App. C

at 26a.) The Illinois Appellate Court concluded that

most of the Williams factors were neutral, in the

sense that they did not affirmatively support or

negate the Franklin’s prima facie case. (App. C at

25a - 29a.) However, the court found the fourth

Williams factor, the level of African-American

representation in the venire as compared to the jury,

weighed against Franklin’s Batson claim. (App. C at

27a.) The court’ noted, “African-Americans

constituted 16.7% of the jury, but only 11.2% of the

entire venire.” (/d.) The court held that “[t]hese

numbers belie any claim of purposeful discrimination

against African-Americans.” (/d.) (emphasis added).

The District Court denied Franklin’s petition for a

writ of habeas corpus. (App. B at 14a - 17a.) The

Seventh Circuit affirmed, observing that-its decision

“turnled] largely on the highly deferential standard

prescribed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1).”

(App. A at 7a.)

The Seventh Circuit held that “the [Illinois

Appellate Court primarily relied on the fact that the

State struck only two out of four African-American

jurors of the thirty-six-person venire; that it used

only two of its seven peremptory strikes against

African-Americans; that at 16%, African-Americans

were over-represented on the jury given that they

comprised 11% of the venire: and that the victim and

two of the witnesses were also African-American.”

(App. A at 12a). The Seventh Circuit concluded that

“the court’s reference to these factors cannot be

deemed unreasonable—as required by AEDPA.” (id.)

REASONS FOR GRANTING THE WRIT

This petition should be granted to settle a broad

and fundamental Circuit split concerning Batson v.

Kentucky, 476 U.S. 79 (1986). The Seventh Circuit

held that it was not unreasonable under Batson for a

state court to consider statistics based on the

numbers and percentages of African American

venirepersons included on the jury as factors

weighing against an inference of discrimination. This

Court has held, however, that decisions to include

minority members on the jury do not excuse or

explain decisions to exclude other minority members,

at least at Batson's prima facie stage.

Seven Circuits consider statistics concerning the

racial composition of the jury as a legitimate basis to

negate a Batson inference at the prima facie stage.

Three Circuits have rejected that approach, and

three of the seven Circuits that allow ‘such

consideration have conflicting authority on both

sides of the issue.

Further, several state courts of last resort are in

sharp conflict as to whether consideration of

inclusion-based statistics is proper at the prima facie

stage of a Batson inquiry. Given the depth and

breadth of the divisions between the positions and

the state of confusion within certain jurisdictions,

there is nothing to be gained by allowing this issue to

percolate further.

I. This Petition Should Be Granted To Resolve A

Circuit Split On Whether Courts May Consider

Statistics Based On The Race of Included Jurors

As A Basis To Negate A Prima Facie Inference Of

Discrimination At Batson’s First Stage.

Statistics that focus on the number or percentage

of racial or ethnic minorities that are allowed to

participate on a jury should not be considered at the

prima facie stage of a Batson inquiry because such

statistics are irrelevant.

A. Consideration Of Inclusion-Based Measures Is

Directly Contrary To And An Unreasonable

Application Of This Court’s§ Clearly

Established Batson Jurisprudence.

This Court stated that inclusion of some African-

Americans on a jury cannot insulate the exclusion of

other African Americans from Batson’s

individualized scruiiny. In Batson, this Court noted

that “[a] single invidiously discriminatory act is not

immunized by the absence of such discrimination in

the making of other comparable decisions.” 476 U.S.

at 95.

Statistics based on the numbers or percentages of

minority members included on a trial jury do not in

themselves demonstrate the absence of racial

discrimination in the selection of the jury. Some

courts have held that such statistics can indicate the

prosecution’s “good faith” in exercising its

peremptory strikes. However, this Court has long

held, even prior to Batson, that “affirmations of good

faith .. . are insufficient to dispel a prima facie case”

of discrimination because “[t]he result bespeaks

discrimination, whether or not it was a conscious

decision.” Alexander v. Louisiana, 405 U.S. 625, 632

(1972). This Court has stated more recently that

courts should not speculate as to the prosecutor’s

motives when “asking a simple question” at stage

two of the Batson process would “produce actual

answers to suspicions and _ inferences’ that

discrimination may have infected the jury selection

process.” Johnson v. California, 545 U.S. 162, 172

(2005). Focusing on the inclusion of minority jurors

as a sign of prosecutorial “good faith” could also

provide prosecutors with an “easy means of justifying

a pattern of unlawful discrimination which stops

only slightly short of total exclusion.” People v. Snow,

44 Cal.3d 216, 225, 242 Cal. Rptr. 477, 482 (Cal.

1987). As here, a prosecutor might switch gears

after his discriminatory use of peremptory strikes

elicits a Batson objection.

Inclusion-based statistics are also not relevant to

the extent that they are used to show the lack of

prejudice suffered by the defendant. This Court

emphasized in Powers v. Ohio, 499 U.S. 400 (1991),

that a Batson inquiry is designed to protect not only

defendants but also individual jurors and the

community from racially-motivated peremptory

challenges. Jd. at 411. Thus, “[blecause the right to

nondiscriminatory jury selection procedures belongs

to the potential jurors . . . , the possibility that

members fof a cognizable group] will get on the jury

despite the intentional discrimination is beside the

point.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,

142 n. 13 (1994) (emphasis added).

Further, such statistics are not relevant as mere

counterweights to an inference of discrimination, at

least at the prima facie stage. This Court has held

that evidence relating to the strength of an inference

of purposeful discrimination is not relevant until the

third stage of a Batson inquiry. Purkett v. Elem, 514

U.S. 765, 768 (1995) (per curiam) (“It is not until the

third step that the persuasiveness of the justification

becomes relevant—the step in which the trial court

determines whether the opponent of the strike has

carried his burden of proving’ purposeful

discrimination.”) More recently, this Court described

the “burden-shifting framework” of Batson as “just a

means of arranging the presentation of evidence” and

involving “no credibility assessment” at steps one or

two. Johnson, 545 US. at 171 n. 6. Thus, if the only

relevance of the inclusion of minority members on

the jury pertains to the weight or persuasiveness of

an inference of discrimination, consideration of such

evidence at the prima facie stage of a Batson inquiry

is no longer appropriate after Purkett and Johnson.

This Petition should be _ granted because

inclusion-based statistics are irrelevant at the prima

facie stage of a Batson inquiry, and therefore,

consideration of such statistics is an objectively

unreasonable application of Batson.

10 |

B. There Is A Broad Circuit Conflict Concerning

The Relevance Under Batson Of The Inclusion

Of Minority Members On The Trial Jury.

Recent decisions on both sides of the issue show

that Batson is being applied unevenly nationwide

and that the divisions are not resolving themselves.

1. Seven Federal Courts of Appeals Allow

Courts To Consider The Inclusion Of

Minority Members As A Relevant Basis To

Defeat An Inference Of Discrimination.

Seven federal Courts of Appeal have, at one time

or another, held that courts can consider the number

or percentage of minority members on the trial jury

as significant relevant circumstances that can negate

a prima facie inference of discrimination. Many of

these courts follow the leading decisions of United

States v. Dennis, 804 F.2d 1208 (11th Cir. 1986) and

United States v. Sangineto-Miranda, 859 F.2d 1501

(6th Cir. 1988). As this Petition discusses below,

however, there is conflicting authority within three

of these seven jurisdictions. See infra Sec. I.B.3.

The prosecution in Dennis used three out of its

four peremptory strikes against African-American

venirepersons. 804 F.2d at 1211. The Eleventh

Circuit concluded that there was no viable Batson

claim, however, because it was “obvious that the

government did not attempt to exclude all blacks, or

as many blacks as it could from the jury.” Jd. The

court stated that “the unchallenged presence of two

blacks on the jury undercuts any inference of

impermissible discrimination.” Jd.

_ A few months after the Eleventh Circuit decided

Dennis, the Sixth Circuit decided Sangineto-

Miranda. The Sixth Circuit stated that if “the

percentage of minority members in the ultimate jury

is the same or greater” than was present in the

venire, “that would be a factor tending to negate the

inference of discrimination.” 859 F.2d at 1521-22.

Similarly, the Sixth Circuit held that “{ilf there are

minority members on the jury but the prosecutor did

not use all its peremptory challenges, that would be

a factor tending to refute discrimination.” Jd. at

1522.

Several courts have since cited to these leading

cases as support for the consideration of inclusion-

based statistics. In United States v. Montgomery,

819 F.2d 847 (8th Cir. 1987), the Eighth Circuit

relied upon Dennis and “(t]he fact that the

government accepted a jury which included two

blacks, when it could have used its remaining

peremptory challenges to strike these potential

jurors” as the basis to reject a Batson claim. Jd. at

851. The Ninth Circuit would later cite to

Montgomery as support for the claim that “the

willingness of a prosecutor to accept minority jurors

weighs against the findings of a prima facie [Batson]

case.” United States v. Chinchilla, 874 F.2d 695, 698

n. 4 (9th Cir. 1989).

Sa EE Se

Citing to both Dennis and Montgomery, the

Fourth Circuit affirmed a conviction over an African

American defendant's Batson claim which was based

on the prosecution’s peremptory strikes against two

African American venirepersons. United States v.

Lane, 866 F.2d 103, 104 (4th Cir. 1989). The Fourth

Circuit concluded that the prosecutor’s conduct in

allowing two African American venirepersons to be

seated on the jury “weighs heavily in support of the

district court finding of no discrimination.” Jd. at

106-07. The Fourth Circuit reached the same

conclusion in United States v. Grandison, 885 F. 2d

143 (4th Cir. 1989), and relied upon Dennis,

Montgomery, Sangineto-Miranda, and Lane to

support its conclusion that “the fact the jury included

two black jurors is significant.” Jd. at 147. The Tenth

Circuit followed Grandison in holding that the final

composition of the jury is a relevant circumstance

that can negate a Batson inference. United States v.

Esparsen, 930 F.2d 1461, 1468 (10th Cir. 1991).

The First Circuit relied upon Sangineto-Miranda

in holding that a defendant failed to demonstrate a

“pattern” of strikes because the ultimate jury

included several African-Americans. United States v.

Escobar-de Jesus, 187 F.3d 148, 165 (ist Cir. 1999).

The First Circuit recently stated that the possibility

of seating minority members “might be critical to an

assessment of whether a prima facie case was made.”

United States v. Girouard, 521 F.3d 110, 116-17 (1st

Cir. 2008) (citing Escobar-de Jesus). ~

2. Three Federal Courts Of Appeals Clearly

Minority Members On The Trial Jury As A

Basis For Defeating A Prima Facie

The leading cases that rejected the consideration

of inclusion-based statistics as a basis to negate a

Batson inference are United States v. Clemons, 843

F.2d 741 (3d Cir. 1988) and United States v. Battle,

836 F.2d 1084 (8th Cir. 1987).

In Clemons, the Third Circuit rejected the

government’s position that “there could be no prima

facie case of discrimination under Batson because

only two blacks were struck.” Jd. at 748. Similarly,

in Holloway v. Horn, 355 F.3d 707 (3d Cir. 2004), the

Third Circuit concluded that “tLe final composition of

the jury . . . offers no reliable indication of whether

the prosecutor intentionally discriminated in

excluding a member of the defendant’s race.” Jd. at

728. Even more recently, the Third Circuit rejected

using the inclusion of minority members to defeat a

prima facie showing of racial discrimination as

~ “directly contrary” to Batson’s goal “to ensure that a

State does not use peremptory challenges to remove

any black juror because of his race.” Brinson v.

Vaughn, 398 F.3d 225, 233 (3d Cir. 2005).

In Battle, the Eight Circuit emphasized that “the

striking of a single black juror for racial reasons

violates the equal protection clause, even though

other black jurors are seated, and even when there

are valid reasons for the striking of some black

jurors.” Jd. at 1086. In United States v. Johnson, 873

F.2d 1137 (8th Cir. 1989), the court rejected the

argument that there was no Batson claim where the

prosecutor had already seated two African American

venirepersons, stating that this view constituted a

“misreading of Batson,” and cited to Battle and

Clemons for the proposition that “a Batson inquiry

focuses on whether or not racial discrimination exists

in the striking of a black person from the jury, not on

the fact that other blacks may remain on the panel.”

Id. at 1139 - 40; see also United States v. Moore, 895

F.2d 484, 487 n. 5 (8th Cir. 1990) (recognizing that

“it is the exclusion of blacks and not their inclusion

(ze. the final number) that is vital to a prima facie

case of discrimination {under Batson]).”)

The Second Circuit has reversed a previously held

position that allowed consideration of statistics based

on the inclusion of minority members on a jury as a

relevant factor negating a prima facie inference of

discrimination. In United States v. Alvarado, 923

F.2d 253 (2d Cir. 1991) (“Alvarado IIT), the Second

Circuit rejected the argument that the prosecutor's

failure to exercise an available challenge against a

minority venireperson supported a finding of no

prima facie case of discrimination, stating that “[t]he

discrimination condemned by Batson need not be as

extensive as numerically possible.” Jd. at 256. The

Second Circuit stated further that “[a] prosecutor

may not avoid the Batson obligation to provide race-

neutral explanations for what appears to be a

statistically significant pattern of racial peremptory

challenges simply by forgoing the opportunity to use

all of his challenges against minorities.” Jd.

Alvarado ITI was decided on remand from this

Court, which had vacated the Second Circuit's

previous decision in United States v. Alvarado, 891

F.2d 439 (2d Cir. 1989) (“Alvarado IP). See Alvarado

v. United States, 497 U.S. 543, 544 (1990) (per

curiam) (“Alvarado IT). In Alvarado I, the Second

Circuit held that it did not need to reach the issue of

whether the defendant had sufficiently alleged a

prima facie Batson claim, because on review, it was

entitled to take a “bottom line” approach and

consider the fact that the racial composition of the

jury reflected a fair cross section of the community.

Id. at 445. Before this Court, however, the Solicitor

General of the United States confessed that the

Second Circuit’s “bottom line” analysis was “contrary

to Batson” and declined to pursue the argument,

which led to this Court’s remand and the Second

Circuit's reversal. A/varado II, 497 U.S. at 544.

3. Conflicting Lines Of Authority Exist In

Three Circuits.

Three Circuits now have conflicting decisions on

this issue. The Eleventh Circuit recently

contradicted its earlier position in Dennis by holding

that “(tlhe trial court’s exclusive reliance on a

comparison of the proportion of blacks on the petit

jury to the proportion of blacks in the venire to

determine the presence of a Batson violation was in

error.” Eagle v. Linahan, 279 F.3d 926, 942 (11th Cir.

2001). The court concluded that, “[w]hile it may be

true that the prosecution’s use of peremptory strikes

did not result in a racially unbalanced petit jury,

that is not the test for deciding whether there has

been an equal protection violation.” Jd; cf Fleming

v. Kemp, 794 F.2d 1478, 1483 (11th Cir. 1986)

(rejecting the argument that Batson is inapplicable

where the prosecutor did not exclude all black

jurors); but see United States v. Campa, 529 F.3d

980 (llth Cir. 2008) (stating that the “well-

established precedent” of Dennis “controls” the issue

that defendants did not establish a prima facie

Batson claim where the seated jury included two

black persons).

The Sixth Circuit has also recently decided this

issue in a manner that conflicts with its holding in

Sangineto-Miranda. In Lancaster v. Adams, 324 F.3d

423 (6th Cir. 2003), the Sixth Circuit, on habeas

review, concluded that a state court’s application of

Batson was unreasonable in finding no violation in

the peremptory challenge to an African American

venireperson because of the prosecution’s failure to

strike subsequent African American venirepersons.

Id. at 433-34. The Sixth Circuit concluded that “the

prosecutor’s decision to select a subsequent African-

American juror from the venire does nothing to cure

the wrong committed under Batson.” Id. at 434. A

recent Sixth Circuit opinion, however, expressly

relied upon Sangineto-Miranda in finding no Batson

violation where there was very little difference in the

composition of the jury compared to the composition

of the venire. United States v. Ervin, 266 Fed. Appx.

428, 432 (6th Cir. 2008).

Similarly, although the Seventh Circuit in this

case held that it was not unreasonable under AEDPA

for the Illinois Appellate Court to rely upon the

inclusion of African Americans on the trial jury, it

previously stated that the correctness of such an

argument was “dubious, given Batson’s emphasis on

the impermissible nature of discrimination against

individual potential jurors” and given this Court’s

holding in Connecticut v. Teal, 457 U.S. 440, 442

(1982), which “rejectfed] the same kind of ‘bottom

line’ approach ffor Title VII employment

discrimination cases.” Coulter v. McCann, 484 F.3d

459, 467-68 (7th Cir. 2007).

4. There Is Substantial Conflict Among State

Courts Of Last Resort As To The Relevance

Minority Members On The Jury.

In addition to the broad split among .federal

courts, there is a substantial conflict among state

courts of last resort about the continuing relevance of

the statistics based on the inclusion of minority

members on a jury as evidence tending to negate an

inference of discrimination.

Illinois state courts have long considered the

inclusion of minorities on a jury as a relevant

circumstance that could negate an inference of

discrimination. See Williams, 670 N.E.2d at 650; see

also People v. Houston, 890 N.E.2d 424, 429 (Ill.

2008). North Carolina courts also consider the

“acceptance rate” of minority jurors as a factor

“tending to refute an allegation of discriminatory use

of [peremptory challenges].” State v. Smith, 400

S.E.2d 712, 724 (N.C. 1991). The California Supreme

Court has cited to the acceptance of minority jurors

approvingly as “an appropriate factor for the trial

judge to consider in ruling on a [Batson] motion.”

People v. Reynoso, 74 P.3d 852, 867 (Cal. 2003).

However, state courts have also _ rejected

consideration of irclusion-based statistics as

irrelevant at the outset of a Batson inquiry. The

New York Court of Appeals held that a defendant

made out a prima facie Batson claim, despite the

inclusion of African American venirepersons on the

jury in a percentage resem ling the percentage of

African Americans in the community. JPeople v.

Jenkins, 554 N.E.2d 47, 58-59 (N.Y. 1990). The court

stated that “the constitutional violation is the

exclusion of any blacks solely because of their race. If

any blacks are so excluded, it is of no moment that

the jury nevertheless contains a token number of

blacks.” Jd. at 558-59; see also People v. Bolling, 591

N.E.2d 1136, 1139 (N.Y. 1992) (“The wrong may

occur after only one strike and the prosecution

cannot .. . overcome it with evidence that the jury,

as finally selected, contained a proportionate number

of African-Americans.”)

The D.C. Court of Appeals held that a comparison

of the racial compositions of the jury and venire is an

irrelevant factor. Little v. United States, 613 A.2d

880, 886 (D.C. 1992). The court noted that “the mere

presence of blacks on the jury in a ratio similar to

that of blacks in the venire or community does not

’

negate a defendant’s prima facie case.” Jd. at 886.

The Maryland Court of Appeals was also early to

reject the notion that “Batson may be rendered a

priori inapplicable by a prosecutorial game of

numbers.” Stanley v. State, 542 A.2d 1267, 1279

(Md. 1988).

Further, states that once accepted inclusion-

based statistics have since rejected them as

irrelevant. In Georgia, courts once openly considered

such inclusion-based statistics as a basis to defeat a

Batson inference. See Aldridge v. State, 365 S.E.2d

111, 115 (Ga. 1988).1 The Georgia Supreme Court

has since questioned the reasoning of A/dridge,

holding that the “mere fact that the trial jury

contained a greater percentage of black jurors .. .

than were in the qualified venire . . . no longer is

sufficient to rebut the inference of intentional

discrimination.” Staples v. State, 434 S.E.2d 757, 759

(Ga. 1993); see also Weems v. State, 416 S.E.2d 84,

85 (Ga. 1992) (discussing how this Court’s evolving

Batson jurisprudence cast A/dridge into doubt).

The Alabama Supreme Court has also changed its

position on the relevance of inclusion-based

statistics. In Harrell v. State, 571 So.2d 1270 (Ala.

1990), the Alabama Supreme Court observed that an

1 The Illinois Supreme Court originally cited to

Aldridge as the basis for allowing Illinois courts to

consider inclusion-based statistics. People v. Evans,

530 N.E.2d 1360, 1365 (Ill. 1988).

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inference of discrimination could be negated with a

showing that “a greater percentage of blacks sat on

the jury than sat on the lawfully established venire.”

Id. at 1272. Four years later, however, in Ex Parte

Thomas, 659 So.2d 3 (Ala. 1994), the Alabama

Supreme Court disclaimed this observation, stating

that “[a] skilled but racially biased attorney could

learn to manipulate the strike process . . . as long as

some blacks were left on the jury. Such a result

should not be approved.” Jd. at 7.

The State of Missouri also changed its stance on

the relevance of inclusion-based measures. In State

v. Parker, 836 S.W.2d 930 (Mo. 1992), the Missouri

Supreme Court described the “former practice of

placing decisive reliance upon the presence of

African-Americans on the defendant’s jury .. . to

undercut any inference of discrimination is no longer

valid” because of this Court’s evolving Batson

jurisprudence. /d. at 940.

Clearly, fundamental divisions exist between

state courts of last resort. Although a few courts

have, upon close consideration of the issue, reversed

their position and rejected inclusion-based statistics

as irrelevant, other courts still uncritically accept

such statistics as appropriate and even significant.

The persistence of these divisions shows that there is

no benefit to further percolation. This petition is an

ideal vehicle for this Court to address this broad and

fundamental dispute and ensure the uniform

application of the Equal Protection principles of

Batson nationwide.

CONCLUSION

For the foregoing reasons, this Court should grant

this Petition for writ of certiorari.

Respectfully submitted,