Case Information
‐ ‐ cv v. Chappius In the
United States Court of Appeals
for the Second Circuit
________
A UGUST T ERM No. ‐ ‐ cv
B RIAN C ARMICHAEL , Petitioner ‐ Appellee, S UPERINTENDENT P AUL C HAPPIUS , J R .,
E LMIRA C ORRECTIONAL F ACILITY Respondent Appellant.
________
Appeal from United States Southern New York ________
A RGUED : S EPTEMBER D ECIDED : F EBRUARY ________
Before: W INTER C ABRANES Circuit Judges, R ESTANI Judge [*]
________ Superintendent of the Elmira Correctional Facility, Paul
Chappius, Jr., appeals from the April Order of the United States District Court for the Southern District of New York (Katherine Polk Failla, Judge ) granting Brian petition for writ of habeas corpus pursuant U.S.C. § Carmichael sought the writ, part, grounds the Supreme Court of the State New York misapplied decision by the Supreme Court of United States Kentucky (1986), found failed make showing race discrimination during selection. In granting writ, District Court held New York Appellate Division’s judgment affirming state trial court’s denial challenge an unreasonable application Supreme precedent.
We hold incorrectly applied standard evaluating state court’s rulings set forth Anti ‐ Terrorism Effective Death Penalty Act U.S.C. § 2254(d). We further hold Division’s order affirming court’s denial petitioner’s challenge unreasonable application “clearly established Federal law, determined United States.” U.S.C. § 2254(d).
Accordingly, VACATE Court’s Order granting petitioner writ corpus REMAND such further *3 proceedings may appropriate consistent with this Opinion.
________
S ARA G URWITCH (Richard M. Greenberg, brief) Office Defender, New
York, NY, for Defendant ‐ Appellant .
D EBORAH L. M ORSE Assistant District Attorney (Christopher P. Marinelli, Assistant District Attorney, brief ) for Cyrus R. Vance, Jr., District Attorney, New York County, New York, NY, for Plaintiff ‐ Appellee
________
J OSÉ A. C ABRANES Circuit Judge :
Respondent Appellant Paul Chappius, Jr., Superintendent Elmira Correctional Facility, appeals from April Order United States Southern New York (Katherine Polk Failla, Judge ) granting Petitioner ‐ Appellee Brian petition writ corpus pursuant U.S.C. § Order granting writ, stayed pending appeal, would invalidate custody imposed pursuant December judgment of State of New York, New York County (Robert H. Straus, Justice ), following a trial and conviction. [2]
After an unsuccessful direct appeal of his conviction, [3] as well a failed motion to vacate his conviction based on a claim of ineffective assistance of counsel, [4] Carmichael sought a writ of habeas corpus in federal court grounds (1) state court misapplied decision by of United States v. Kentucky , [5] and (2) Carmichael received ineffective assistance of counsel. On July Magistrate Judge Andrew J. Peck filed a Report and Recommendation proposing District *5 Court reject both Carmichael’s arguments and deny petition. [6] District Court declined recommendations Magistrate Judge Peck and granted petition, holding New York Appellate Division, First Department, unreasonably applied and its progeny affirmed state trial court’s finding Carmichael failed make showing prosecution used discriminatory manner.
We hold District incorrectly applied standard evaluating court’s rulings set forth Anti ‐ Terrorism and Effective Death Penalty Act (the “AEDPA”), U.S.C. § 2254(d). We further hold Division’s order affirming court’s denial challenge unreasonable application “clearly established Federal law, as determined United States.”
Accordingly, VACATE Court’s April 21, Order granting Carmichael writ corpus REMAND cause such further proceedings may appropriate consistent with Opinion.
BACKGROUND
I. Jury Selection Trial On September jury selection began Brian criminal before Justice Robert H. Straus of the the State New York. The Court tasked the parties with selecting twelve ‐ person jury from three separate panels, each composed twenty ‐ six venirepersons. Both Carmichael People State New York, represented New York County Attorney’s Office (“the State”), received twenty peremptory challenges use during jury selection. The parties could use their peremptory challenges remove potential jurors from venire. Both parties also received six additional peremptory challenges, which they could use only strike potential alternate jurors. This appeal concerns State’s peremptory challenges during process jury selection.
After questioning twenty six venirepersons first panel concluded, asked parties if they wished exercise any their peremptory challenges against first twelve potential jurors. State exercised five counsel exercised three. Then, asked parties consider next twelve venirepersons. When *7 struck four more potential jurors, defense counsel raised first Batson challenge.
Defense counsel told he “fe[lt] compelled make a Batson challenge” “we [ ] two African Americans in pool and [the State] has challenged both them.” Specifically, State used two peremptory strike Shackwanna Boiken Charmaine Hamilton, both black females. The denied defense counsel’s challenge finding removal two jurors “by itself does constitute [a] showing a pattern use strike[s] a discriminatory way.”
Following denial defense counsel’s first challenge, State declined use any more strikes venirepersons first panel. Defense counsel, however, struck all six remaining potential jurors.
The parties next considered second panel twenty ‐ six potential jurors. defense counsel combined strike *8 eleven the first sixteen individuals group. Notably, neither party struck Bettina Boyd, black woman. During consideration the next five venirepersons, however, the struck Dina Grant, another black female. This strike prompted defense counsel to raise second challenge.
Defense counsel stated, “[a]lthough [the State] has allowed Ms. Bo[yd] to remain on jury, lone black juror selected so far . . I believe out four African American jurors have considered on panel[,] [the State] has challenged three them.” Court responded noting Ms. Boyd, black female, remained jury, and defense counsel struck another venireperson, Yalira Velarde, whom Court believed female. A disagreement then ensued between defense counsel over whether Ms. Velarde “Hispanic” or “African American.” Specifically, told defense counsel, “I am saying you are right I am wrong opposite. I am only making record as race it’s sometimes necessary do so there’s challenge.” Ultimately, *9 denied defense counsel’s challenge, holding again “the statistical basis is not sufficient alone raise discriminatory use free peremptory challenge under New York law.”
The parties resumed their consideration remaining venirepersons panel two. Defense counsel used one challenge State used two. One two venirepersons struck Jessica Simmons, black female. In response, defense counsel raised third challenge.
Defense counsel argued that, “Ms. Simmons African American it’s now four out five. . . . We’ve had probably people we’ve considered two days, only five African Americans have come before us case.” The calculated four out six potential jurors been struck, including Ms. Velarde. also repeated prior refrain based statistical evidence, such defense counsel’s challenges, “are generally not sufficient raise create inference or create discriminatory p[ere]mptory challenges.” Defense counsel responded he could “see any potential basis [for challenge] . . other than numbers.” *10 Accordingly, the denied defense counsel’s third challenge.
After the State struck the last remaining venireperson panel two, the parties considered the potential jurors the third and final panel. At this point, the parties had selected nine jurors and were aiming fill only three outstanding seats before choosing alternates. The State struck first venireperson third panel, but parties accepted second and third individuals as jurors. Diana Duggins, black female, one two persons thus selected jury. The parties filled final open seat with sixth individual third panel. Ultimately, two women— Ms. Boyd Ms. Duggins—were seated jury.
With twelve selected, parties turned their attention picking alternate jurors. Each side six challenges during part process. began striking three potential alternates, two whom were black. Consequently, defense counsel raised his fourth final challenge.
Defense Counsel explained position as follows: It seems again [the State] exercising [its] exclude African Americans. I do note we proceeded with selection [the State] did challenge Ms. Duggins who sixth my view African American we have considered . . but got alternates he challenged Ms. Sanders[,] female[,] and now he’s also challenging Mr. Pratt who male black, so I see clear pattern challenging African Americans, your Honor. I make my challenge on basis. Four six have considered have been challenged. We have been through three panels so approximately have come into this courtroom. . . [W]e have considered total eight African Americans six those have been challenged by [the State] my view.
The denied defense counsel’s final challenge. It reiterated “the statistical analysis itself does not provide level challenge, doesn’t create case requiring us go step two analysis so challenge must denied.” As result, did require articulate any nondiscriminatory reasons challenged strikes. parties then selected final alternate juror proceeded trial.
On October convicted three counts second degree criminal sale controlled substance. Two *12 months later, Justice Straus sentenced Carmichael to three concurrent seventeen ‐ year terms of imprisonment.
II. Procedural History
On September appealed his conviction New York State Appellate Division, First Department. One of grounds Carmichael’s direct appeal is relevant here: his claim that trial court erred in finding that he failed establish a prima facie case State used peremptory a racially discriminatory manner. The crux of argument direct appeal was trial misinterpreted New York of Appeals’ decision People v. Brown N.Y.2d (N.Y. 2002), concluding statistical of discriminatory pattern strikes never sufficient set forth discrimination. Division affirmed judgments court, holding that:
[t]he [trial] properly denied defendant’s applications made pursuant Kentucky (476 [1986]). Viewing selection whole, conclude defendant did meet his burden step *13 one inquiry. Defendant did not produce “evidence sufficient permit trial judge draw an inference discrimination ha[d] occurred” exercise ( Johnson California , 545 170 [2005]). While numerical may suffice, did warrant inference discrimination. [24]
After New York Appeals denied Carmichael leave appeal after United States denied petition writ certiorari , Carmichael filed motion vacate judgment conviction grounds he received ineffective assistance counsel. Justice Roger S. Hayes denied motion. Carmichael appealed Justice Hayes’s order Division, First *14 Department, which affirmed denial. The New York Appeals denied Carmichael leave appeal.
Thereafter, Carmichael filed petition for a writ habeas corpus District Court. He raised two claims: (1) selection process violated his rights set forth Batson and its progeny, and (2) he received ineffective assistance counsel because attorney lacked knowledge standard establishing prima facie under New York law. On April 2016, declined recommendations magistrate judge granted Carmichael’s petition. reviewed Appellate Division’s
judgment affirming state trial court’s denial challenge it last reasoned state ‐ court decision address claim. It then concluded Division unreasonably applied its progeny affirmed state court’s finding Carmichael did make out showing used *15 challenges a racially discriminatory manner. According the District Court, of discriminatory of so abundant—for example, State “struck twice number of black jurors than one would expect, and two ‐ thirds three ‐ quarters of jurors under consideration” —that no choice but conclude “that Appellate Division [had] applied progeny unreasonable manner.” Having determined Division erred affirming court’s finding, did reach ineffective assistance ‐ ‐ counsel claim. timely filed a notice appeal as right granted State’s application for a stay pending appeal.
DISCUSSION
I. Standard Review We review de novo a district court’s order granting a petition writ habeas corpus Section Title Code, amended AEDPA, prohibits federal courts from granting petition writ corpus basis claim adjudicated merits proceeding “unless *16 adjudication [of claim] resulted a decision (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by Supreme Court United States,’ or (2) ‘based on unreasonable determination facts light presented court proceeding.’” In case, are concerned only with first two enumerated bases granting relief.
The Supreme has instructed section 2254(d)(1)’s “contrary to” “unreasonable application of” clauses have independent meaning. A state court decision “contrary . . clearly established Federal law, determined by Supreme Court” when “the state court arrives conclusion opposite reached [the Supreme Court] on question law if state decides differently than [the Supreme Court] has set materially indistinguishable facts.” An “unreasonable application” Supreme precedent, other hand, occurs “identifies correct governing legal principle from [the Court’s] decisions but unreasonably applies principle facts prisoner’s case.” here *17 concluded that Division applied precedent facts in “an unreasonable manner.” [41]
To merit federal habeas relief under “unreasonable application” prong section 2254(d)(1), petitioner “must show state court’s ruling claim being presented federal court so lacking justification there error well understood comprehended existing law beyond any possibility fairminded disagreement.” [42] In other words, federal court may issue writ habeas corpus “simply court concludes independent judgment relevant state ‐ court decision applied clearly established federal law erroneously incorrectly. Rather, application must also be unreasonable .” [43] In determining whether particular state application is “reasonable” under circumstances presented, “a must guided level specificity relevant precedent’s holding.” [44] When applicable rule “more general,” courts *18 will have “more leeway . . . reaching outcomes ‐ ‐ case determinations.” [45]
Ultimately, represents “highly deferential standard for evaluating ‐ rulings, which demands state ‐ decisions given benefit doubt.” [46]
II. The Batson Standard Supreme precedent relevant here is, course,
Batson v. Kentucky In Batson , established “a three ‐ step burden ‐ shifting framework evidentiary inquiry into whether peremptory challenge race based.” [47] In first step, objecting party must set forth showing “that circumstances give rise inference member venire struck her race.” [48] If objecting party makes requisite showing, “the burden shifts [party striking potential juror] come forward with neutral explanation” challenge. [49] Finally, if party *19 striking juror tenders a “neutral explanation,” trial has “the duty determine if [objecting party] has established purposeful discrimination.” [50]
An objecting party can establish prima facie case of discrimination “by offering wide variety evidence, so long sum proffered facts gives ‘rise an inference discriminatory purpose.’” [51] For example, in Batson , Supreme explained “a ‘pattern’ strikes against jurors included particular venire might give rise an inference discrimination.” [52] In addition, “the prosecutor’s questions statements during voir dire examination exercising may support refute inference discriminatory purpose.” [53] As have occasion note past, has “provided more particularized view what constitutes prima facie showing discrimination under Batson .” We have held, however, statistical alone may, some circumstances, suffice establish *20 discrimination during jury selection. Ultimately, the has expressed confidence in the ability of judges to able determine whether “the circumstances concerning the prosecutor’s of creates prima facie case discrimination against [ ] jurors [from protected class].”
III. Application specific issue appeal concerns first step framework. In granting Carmichael writ corpus held it unreasonable Appellate
Division conclude failed make prima facie showing discrimination given high percentage members venire removed during jury selection. On appeal, contends failed give Appellate Division’s ruling level deference required AEDPA. We agree. While statistical evidence alone may, some circumstances, suffice establish discrimination during selection, Division did not apply progeny an unreasonable manner concluded that, circumstances presented, statistical did warrant inference discrimination.
*21 Carmichael made four separate Batson applications during selection process. He based each his applications on numerical alone, i.e. number peremptory used against black members venire compared to total population blacks venire. trial court denied each application on basis that failed to make a prima facie showing racial discrimination. In denying Carmichael’s fourth final challenge, state trial court declared “the statistical analysis itself does not . . . create requiring us go on step two . . .”
Carmichael’s argument appeal focuses almost entirely contention trial court incorrectly held him heightened evidentiary standard concluded “the statistical basis sufficient alone raise discriminatory free challenge under New York law.” Indeed, concluded trial acted “contrary to” clearly established precedent denying applications because applied New York law way increased evidentiary burden at step one framework. However, Division *22 considered Carmichael’s Batson challenge on the merits affirmed the trial court’s denial, the District rightly based consideration habeas petition on whether the Appellate Division’s ruling “contrary to, involved an unreasonable application of, clearly established Federal law.” For that reason, our review concerns only Court’s conclusion that Appellate Division applied unreasonably it affirmed trial court’s ruling.
On direct appeal conviction, Appellate Division held “did not meet burden step one [ ] inquiry” he “did not produce evidence sufficient permit trial judge draw an inference discrimination ha[d] occurred exercise challenges.” It noted “numerical may suffice,” but concluded “ it did not warrant inference discrimination.” correctly gave Appellate Division’s ruling “benefit doubt” concluding did apply law “contrary to” precedent when, contrast state court, Division treated *23 numerical evidence capable of satisfying step one of the framework. [66] Nevertheless, District held the Appellate Division “applied its progeny in an unreasonable manner” concluded numerical presented by did not warrant inference of discrimination. We disagree.
Out of approximately individuals considered for jury only eight were black. And of those eight, State removed six from venire with peremptory challenges. As noted, eight black potential jurors accounted for percent total number individuals questioned during selection who were not removed cause. Yet, used six its twenty one black venirepersons, close percent available strikes, remove percent them from potential jury.
The first step framework, which Division charged with applying case, is *24 paradigmatic “general standard.” [69] Courts must rely on their own judgment experience to determine whether the objecting party has established a prima facie showing “that the circumstances give rise inference that a member of the venire struck because or her race.” [70] For reason, we must afford Division’s ruling “more leeway” on habeas review. [71]
As have previously explained, “[c]ases involving successful challenges exclusion rates have typically included patterns in which members racial group are completely almost completely excluded from participating jury.” [72] Whether 75 percent exclusion rate at issue here meets high *25 threshold is a matter on which “fairminded jurists could disagree.” [73] For that reason alone, Court’s conclusion that Appellate Division’s ruling was an “unreasonable” application of Batson and its progeny warrants vacatur. [74]
That said, it bears noting that there was other evidence record supporting Division’s reasonable conclusion that prosecutor’s 75 percent exclusion rate did not warrant an inference discrimination. For example, during his third attempt at a Batson challenge, counsel admitted to court that he did not “see any potential basis . . other than numbers” his Batson challenge. [75] In addition, although defendants any *26 race may assert Batson challenges, it is not entirely irrelevant that himself was not black. Nor was there any indication the record at the time the Batson challenges that racial sympathy antipathy would play any role his trial. Finally, two black venirepersons ultimately were seated jury, which (as the District noted) represented percent all sworn jurors—one to three percentage points higher than percentage blacks venire. Although explained why it did not find these countervailing factors persuasive, rational person considering all “relevant circumstances” presented could reasonably conclude there insufficient evidence discrimination.
*27 Had we been presiding over selection in first instance, we might very well have concluded made out a showing of race discrimination. [79] However, as have occasion observe before, fact numerical evidence may have permitted an inference of discrimination does establish a contrary conclusion must be unreasonable application of its progeny. AEDPA establishes a “highly deferential standard evaluating state rulings:” a state court’s error must “beyond any possibility fairminded disagreement” if is warrant reversal on habeas petition federal court. Deference courts is especially important reviewing claims predicated violation of first step of framework progeny *28 provide state courts with limited guidance on what constitutes discrimination.
The Appellate Division’s conclusion there was insufficient discrimination simply unreasonable under circumstances presented. District Court erroneously applied too stringent standard habeas review. Accordingly, these facts, we are required vacate District Court’s Order granting writ habeas corpus
CONCLUSION
To summarize: we hold District incorrectly applied standard evaluating court’s rulings set forth AEDPA concluded Division’s order affirming denial challenge “unreasonable application” precedent.
For reasons set out above, we VACATE Court’s April Order granting writ corpus REMAND cause such further proceedings may appropriate consistent with Opinion.
[*] Judge Jane A. Restani, United States International Trade, sitting designation.
[1] Chappius F. Supp. 3d (S.D.N.Y. 2016).
[2] jurisdiction hear Carmichael’s habeas petition Carmichael convicted court within geographic boundary Southern New York. See 28 U.S.C. § 2241(d) (“Where application writ corpus made person custody under judgment sentence State court State which contains two more Federal judicial districts, application may filed district . . . within which held which convicted sentenced him . . .”).
[3] People v. Carmichael , 73 A.D.3d 622 (1st Dep’t 2010) (affirming conviction direct appeal); see also People v. Carmichael N.Y.3d (2011) (denying Carmichael leave appeal), cert. denied sub nom. Carmichael v. New York S. Ct. (2011) (Mem.).
[4] People v. Carmichael A.D.3d (1st Dep’t 2014) (affirming denial motion vacate judgment conviction); see also People N.Y.3d (2014) (denying leave appeal Division’s denial motion vacate judgment conviction).
[5] (1986).
[6] Chappius, No. Civ. (KPF)(AJP), WL *1 (S.D.N.Y. July 2015).
[7] F. Supp. 3d. 90–93.
[8] U.S.C. § 2254(d).
[9] A grand New York County filed indictment against charging him with various narcotics offenses.
[10] A party raises “ challenge” he she believes opposing party has struck potential juror from venire based impermissible factors such potential juror’s race. See Galarza v. Keane 635–36 (2d Cir. 2001) (describing three part test courts determine “whether party exercised challenge discriminatory manner” set forth Kentucky (1986)).
[11] Joint Appendix (“JA”) 181–82.
[12] Id.
[13] Although Ms. Boyd’s name appears as “Bode” transcript voir dire, parties refer her “Boyd” their briefs appeal.
[14] JA 322–23.
[15] Cf. Vill. Freeport Barrella 602–06 (2d Cir. 2016) (discussing confusing term “Hispanic” identify individual’s race).
[16] JA
[17] Id. 325.
[18] Id. 327.
[19] Id.
[20] Id.
[21] JA 425.
[22] Id.
[23] At sentencing, Justice Straus noted seeking maximum consecutive sentences each three counts second degree criminal sale controlled substance, while defense counsel seeking minimum concurrent sentence eight years. Justice Straus ultimately sentenced concurrent seventeen year terms imprisonment, part, long criminal history.
[24] Carmichael A.D.3d at 622.
[25] Carmichael N.Y.3d 797.
[26] S. Ct. 199.
[27] See A.D.3d
[28] Id.
[29] Id.
[30] N.Y.3d
[31] F. Supp. 3d (citing Johnson Williams S. Ct. n.1 (2013) (suggesting federal court charged with examining conviction should review last reasoned state decision address asserted grounds relief)).
[32] Id. 90–93.
[33] Id.
[34] Id.
[35] Overton Newton (2d Cir. 2002).
[36] Id. (quoting U.S.C. § 2254(d)).
[37] U.S.C. § 2254(d)(1).
[38] Williams Taylor 404–05 (2000).
[39] Id. 412–13.
[40] Id.
[41] Carmichael, F. Supp. 3d
[42] Harrington v. Richter U.S. 86, (2011).
[43] Williams (emphasis added).
[44] Contreras Artus F.3d (2d Cir. 2015); see also Fuentes v. T. Griffin (2d Cir. 2016).
[45] Yarborough v. Alvarado , 541 U.S. 652, 664 (2004).
[46] Cullen v. Pinholster , U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, U.S. (2002) ( per curiam)).
[47] McKinney Artuz F.3d (2d Cir. 2003); see , U.S. at 96–98.
[48] Overton 276; see U.S. 96.
[49]
[50] Id. at 98.
[51] Johnson California U.S. (2005) (quoting , U.S. at 94); see U.S. (“In deciding whether defendant has made requisite showing, should consider all relevant circumstances.”).
[52] 97.
[53] Id.
[54] Overton
[55] See id
[56] 97.
[57] F. Supp. 3d. 88.
[58] See Overton
[59] JA 426.
[60] Id.
[61] F. Supp. 3d 84; see (explaining “a ‘pattern’ strikes against jurors included particular venire might give rise inference discrimination”).
[62] U.S.C. § 2254(d).
[63] See Clark Perez (2d Cir. 2008) (“The looks last decision rendering judgment petitioner’s federal claim.”).
[64] A.D.3d (internal quotation marks omitted).
[65] Id. (emphasis added).
[66] See Pinholster 181.
[67] F. Supp. 3d
[68] parties dispute whether one potential jurors removed defense counsel, Ms. Velarde, black. We agree with “it not necessary determine Ms. Velarde’s race order resolve [Carmichael’s] Petition.” Id. n.4. Accordingly, purposes opinion, adopt version facts do include Ms. Velarde our calculation venirepersons.
[69] Cf. Rosario v. Ercole , 601 F.3d 123 (2d Cir. 2010) (characterizing holding Strickland v. Washington , U.S. (1984) a “general standard” purposes habeas review “its application specific case requires ‘a substantial element judgment’ part court” (quoting Alvarado , U.S. at 664)).
[70] Overton F.3d 276; see U.S. (“We have confidence trial judges, experienced supervising voir dire, will able decide if circumstances concerning prosecutor’s creates case discrimination against jurors.”).
[71] Alvarado (explaining habeas court reviews trial decision, court should afford trial court “more leeway . . reaching outcomes by ‐ case determinations” if rule being applied “more general”).
[72] Jones West (2d Cir. 2009). term “exclusion rate” refers percentage members particular racial group one party strikes from venire. See id.
[73] Richter U.S. (quoting Alvarado , U.S. at 664).
[74] In his reply brief submitted Court, clarified that his claim was based State’s “exclusion rate,” not “challenge rate.” However, even if claim based State’s “challenge rate”—“the percentage a party’s total strikes used against a cognizable racial group,” Jones F.3d 98—the fact that State’s “challenge rate” nearly double percentage blacks venire would permit find made prima facie showing race discrimination, see United States v. Alvarado F.2d (2d Cir. 1991), but would require reach conclusion, see Sorto Herbert (2d Cir. 2007) (“[I]t is one thing conclude pattern strikes is discrimination; very different thing hold contrary conclusion would an unreasonable application Batson. ”).
[75] JA 328; see (recognizing “the prosecutor ʹ s questions statements during voir dire examination exercising may support refute inference discriminatory purpose” (emphasis added)).
[76] S ee Powers Ohio U.S. (1991) (“The emphasis racial identity between defendant excused prospective juror is not inconsistent with our holding today race is irrelevant to defendant’s standing object discriminatory use peremptory challenges.”).
[77] While true “[a] prosecutor may avoid obligation provide race neutral explanations what appears statistically significant pattern racial challenges simply forgoing opportunity all against minorities,” Alvarado fact two venirepersons were seated is, itself admitted, “compelling” evidence supporting Division’s conclusion there no racial discrimination, F. Supp. 3d 89–90.
[78] See 96–97 (“In deciding whether defendant has made requisite showing, should consider all relevant circumstances .” (emphasis added)).
[79] It is, however, important note State’s percent exclusion rate based small sample size: removal six out eight venirepersons. As has observed context Title VII discrimination claims, “[c]onsiderations such small sample size may, course, detract from value [statistical] evidence.” Int’l Bhd. Teamsters v. United States , U.S. 339, n.20 (1977); see also Mayor Philadelphia Educ. Equal. League U.S. 620–21 (1974) (noting, context discrimination claim brought under Equal Protection Clause, district properly skeptical statistical derived from small sample size).
[80] See Sorto 174.
[81] Pinholster U.S. 181.
[82] Richter
[83] See Alvarado 664; Overton