OPINION AND ORDER
On December 10, 2007, Petitioner Brian Carmichael was convicted in the Supreme Court of New York, New York County, of three counts of second-degree sale of a controlled substance, for which he is now serving a seventeen-year sentence. On December 19, 2014, Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in this Court (the “Petition”). In sum, the Petition argues that: (i) Petitioner’s conviction was obtained in violation of Batson v. Kentucky,
BACKGROUND
The Report provides a thorough factual and procedural history of this case. (Report 2-18). As a result, this Court will only recount the portion of this history that is most relevant here: the conduct of the parties during jury selection.
Petitioner was charged in the Supreme Court of New York, New York County, with multiple drug crimes.' (Petition 2-3). On September 17, 2007, Justice Robert Straus began selecting a jury to hear Petitioner’s case. (See T. 1-2). The Court gave each side 20 peremptories that could be used to strike prospective members of the twelve-person jury. (T. 169). The Court also gave each party six peremptories that could be used to strike prospective alternates. (See T. 416).
The jury was selected from three separate panels, each of which contained 26 prospective jurors. (See T. 1-423). After the trial court and the parties questioned the prospective jurors on the first panel, the court asked whether the prosecutor wished to exercise any peremptory challenges against the first twelve individuals on that panel. (T. 171, 173). The prosecutor exercised five challenges. (Id. at 173). Then, the court asked defense counsel whether he wished to strike any of the remaining individuals in seats 1 through 12. (See id.). Defense counsel struck three people. (Id.).
When the court turned to the individuals in seats 25 and 26 of the first panel—Ms. Velarde and Mr. Sweeny—the prosecutor declined to exercise a peremptory challenge. (T. 183). Defense counsel, however, struck both prospective jurors. (Id.). The court later suggested that one of these individuals (Ms. Velarde) might be African-American, but defense counsel insisted that she was Hispanic. (Id. at 321-23).
Once the parties finished discussing the jurors in the first panel, the court asked whether they wished to withdraw any of their peremptory challenges. (T. 184). The prosecutor withdrew his challenge against the individual in seat 6 and defense counsel withdrew his challenge against the individual in seat 20, on the condition that these jurors would serve as alternates; neither individual was African-American. (Id.).
The court ■ proceeded to fill a second panel of 26 individuals. (T. 233-34). After these prospective jurors were questioned, the court struck the person in the first seat for cause, and asked , the parties whether they wished, to exercise peremptory challenges against anyone in seats 2 through 9. (T. 266, 311-12). The prosecutor struck one prospective juror and defense counsel struck six more. (Id. at 312).
Then, the court asked whether the parties wished to challenge any of the individuals in seats 10 through 16. (T. 312). Both the prosecutor and defense counsel exercised two peremptory challenges' against members of this group. (Id. at 314-15). Notably, however, neither attorney struck Ms. Bode (in seat number 10), who was African-American. (See id. at 314-15, 320).
Next, the court considered the prospective jurors in seats 17 through 21. (T. 315). The court struck one of these individuals for cause, and then asked whether the prosecutor wished to exercise any peremptory challenges. (Id. at 315, 320). The prosecutor stuck two people, including Ms. Grant (in seat number 21), who was African-American. (Id. at 320-21). In response, defense counsel renewed his Batson objection. (Id.). Defense counsel observed that
[although [the prosecutor] ... allowed Ms. Bode to remain on the jury, the lone black juror selected so far, he has challenged Ms. Grant[,] who is an African American juror.
So I believe out of the four African American jurors we have considered on the panel[,] [the prosecutor] has challenged three of them.
(Id.). Once again, the court concluded that Petitioner had not stated a prima facie case of Batson discrimination, and asked whether defense counsel wished to 'Strike any of the prospective jurors under consideration. (See id. at 323-23a). Defense counsel struck one individual. (Id. at 323a).
The trial court filled a third panel of prospective jurors, and then asked the parties to consider the individuals in seats 1 through 3. (T. 413). The prosecutor struck the juror in the first seat, but the parties accepted the individuals in the second and third seats. (Id.). The juror in seat 3, Ms. Duggins, was African-American. (Id. at 420).
At this point, the court asked the parties to consider prospective jurors one at a time. (See T. 413-21). The prosecutor struck the person in seat 4, and the person in seat. 5 was excused on consent of the parties; the person in seat 6 became the last juror. (Id. at 413-16).
The court then turned to the task of selecting alternates. (T. 416). The prosecutor struck three potential alternates, two of whom were African-American. (Id. at 416-20). As a result, defense counsel raised a fourth Batson challenge, explaining:
It seems again that [the prosecutor] is exercising his challenges to exclude African Americans. I do note that as we proceeded with selection he did not challenge Ms. Duggins who was the sixth in my view African American that we have considered ..., but when we got to the alternates he challenged Ms. Sanders a black female and now he’s also challenging Mr. Pratt who is a male black, so I see a clear pattern of challenging African Americans, your Honor. I make my Batson challenge on that basis. Four of the six we have considered have been challenged. We have been through three panels so approximately 210 have come into this courtroom. Only considered—-we have considered in total eight African Americans and six of those have been challenged by [the prosecutor] in my view.
(Id. at 420). For a final time, the court rejected counsel’s Batson claim, without requiring the prosecutor to state the reasons for any of his peremptory strikes on the record. (Id).
After the court determined that there had been no Batson violation, the parties selected the man in seat number 16 as the fifth and final alternate. (T. 421). Thus, the court did not consider any of the individuals in seats 17 through 26. (See id. at 421-23).
DISCUSSION
A. Applicable Law
1. The Standard of Review
a. Reviewing the Report and Recommendations of a Magistrate Judge
A court may accept, reject, or modify, in whole or in part, the findings or
b. Reviewing State Court Decisions Under the Antiterrorism and Effective Death Penalty Act
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a federal court cannot grant a petition for a writ of habeas corpus based on a claim that was “adjudicated on the .merits in State court proceedings” unless the state court’s decision: (i) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (ii) “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). This is a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster,
Federal law is “clearly established” when it is expressed in “the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions.” Howes v. Fields, - U.S. -,
When a federal court reviews a state court’s factual determinations, those decisions “shall be presumed to be correct,” and that presumption can only be rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also McKinney v. Artuz,
2. The Batson Framework
In Batson, the Supreme Court held that, under the Equal Protection Clause, it is impermissible for a prosecutor to exercise peremptory challenges against potential jurors “solely on account of their race.”
Courts follow a three-step procedure to determine whether a prosecutor has used a peremptory strike to exclude jurors with a particular racial or ethnic background. First, courts consider whether a defendant has established a “prima facie case” of discrimination “by showing that the totality of the relevant facts” supports an inference that the prosecutor acted with a “discriminatory purpose.” Id. at 93-94,
B. Analysis
Because Petitioner timely objected to the. legal conclusions reflected in the Report, this Court will review those conclusions de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Male Juvenile,
1. The Trial Court Acted Contrary to Clearly Established Federal Law When It Determined That Petitioner Had Not Established a Prima Facie Case of Batson Discrimination
The only case that the trial court cited in the course of its Batson analysis was People v. Brown,
The prosecutor in Brown I used seven of his first eight peremptory challenges to strike African-American members of the venire. Brown I,
[T]he People’s removal of seven African-Americans through the exercise of eight peremptory challenges was inadequate, without more, to require the trial court to find a prima facie showing of discrimination. After defendant raised her Batson challenge during the second round of voir dire, the Judge stated that, by his count, ninepotential jurors in the first panel and six in the second panel appeared to be African-American and as such the People had challenged 7 of the 15 African-Americans in the venire. Further, four of the seven sworn jurors were African-American.
Defendant was explicitly invited by the trial court to articulate any facts and circumstances that would support a prima facie showing of discrimination. Instead of making “a record comparing Caucasians accepted with similarly situated African-Americans challenged, or by establishing objective facts indicating that the prosecutor has challenged members of a particular racial, group who might be expected to favor the prosecution because of their backgrounds” ([People v.] Bolling, 79 N.Y.2d [317] at 324,582 N.Y.S.2d 950 ,591 N.E.2d 1136 [(1992)]), defense counsel responded that certain persons excused by prosecution per-emptories had no prior jury service or had attended college and, thus, gave no indication that they could not be “fair.”
Based on the numbers and arguments presented, the trial court ruled that it did not find a discriminatory pattern. No further Batson objection was raised during the remainder of voir dire proceedings. Upon this record, we conclude that defendant’s numerical argument was unsupported by factual assertions or comparisons that would serve as a basis for a prima facie case of impermissible discrimination (see [People v.] Jenkins, 84 NY.2d [1001] at 1003,622 N.Y.S.2d 509 ,646 N.E.2d 811 [ (1994) ]; Steele,79 N.Y.2d at 325 ,582 N.Y.S.2d 950 ,591 N.E.2d 1136 ).
Brown I,
There are two ways to interpret the Brown I decision, one of which is consistent with federal constitutional law and one of which is not. First, the decision might be read to observe that one particular statistic—the percentage of strikes used against African-American members of the venire (or any other racial or ethnic group)—is not particularly persuasive evidence of discrimination when it is considered in isolation. Brown I,
There is, however, a second, more troubling interpretation of Brown I. According to this second interpretation, Brown I does not simply make an observation about the persuasive power of a particular statistic; it establishes a presumption that “numerical” information is insufficient to satisfy the defendant’s burden at step one of the Batson inquiry unless it is supplemented with non-numerical information. Brown I,
If Brown I creates a presumption that numerical evidence—by itself—is insufficient to support a prima facie case of discrimination, then it is “contrary to ... clearly established federal law,” as articulated by the Supreme Court. 28 U.S.C. § 2254(d); cf. Truesdale v. Sabourin,
The Report suggests that the constitutional problems with the second reading of Broum I are of less concern because the Second Circuit has not adopted this reading of the case. (See Report 30). After the New York Court of Appeals decided Brown I, the defendant filed a petition for a writ of habeas corpus in federal court, and the petition was denied. Brown v. Alexander,
Crucially, however, the fact that the Second Circuit adopted a constitutional reading of the Broum I decision does not mean that New York state courts have adopted the same reading. New York courts are not bound by Second Circuit interpretations of state case law. See, e.g., People v. Kin Kan,
Such a presumption would be particularly inappropriate in this case, as the trial court applied an unconstitutional construction of the Brown I opinion. In the course of making his Batson challenges, Petitioner’s attorney did not simply rely on the fact that the prosecutor used six of his 21 peremptories to strike African-American jurors. Cf. Brown I,
2. The Appellate Division Did Not Cure the Trial Court’s Error
Having determined that the trial court acted contrary to clearly established federal law, this Court must determine whether
a. This Court Must Presume That the Appellate Division Applied the Correct Legal Standard When It Rejected Petitioner’s Batson Arguments
The Appellate Division’s Bat-son analysis was limited to the following paragraph:
The court properly denied defendant’s applications made pursuant to Batson v. Kentucky,476 U.S. 79 ,106 S.Ct. 1712 ,90 L.Ed.2d 69 [1986]. Viewing jury selection as a whole, we conclude that defendant did not meet his burden at step one of the inquiry. Defendant did not produce “evidence sufficient to permit the trial judge to draw an inference that discrimination ha[d] occurred” in the exercise of peremptory challenges (Johnson v. California,545 U.S. 162 , 170,125 S.Ct. 2410 ,162 L.Ed.2d 129 [2005]). While numerical evidence may suffice, in this case it did not warrant an inference of discrimination.
People v. Carmichael,
b. The Appellate Division Applied Federal Law in an Unreasonable Manner When It Rejected Petitioner’s Final Batson Argument
Assuming, as the Court must, that the Appellate Division applied the .correct legal standard to resolve the Batson issue, the remaining issue is whether it was reasonable for the Appellate Division to conclude that Petitioner was not entitled to relief. Petitioner does not dispute that, for each of his four Batson challenges, his trial counsel relied solely on numerical information to support his allegation that the prosecutor was using peremptory challenges in a discriminatory manner. More specifically, counsel relied on the number of African-American individuals in the venire, the number of non-African-American individuals in the venire, and the number of African-American individuals challenged by the prosecutor. (See T. 181, 320, 323b, 420). Consequently, this numerical information was the only evidence that was properly before the trial court and the Appellate Division as they decided whether Petitioner had established a prima facie case of discrimination. See People v. Calas,
Considering only the relevant numerical information, it was reasonable for the Appellate Division to uphold the trial court’s rulings on Petitioner’s first three Batson objections. All of these objections were lodged during the middle of voir dire, and state courts are given wide latitude to wait until the end of jury selection in order to determine whether a defendant has established a prima facie case of discrimination. See Brown II,
By contrast, it was unreasonable for the Appellate Division to uphold the trial court’s ruling on Petitioner’s fourth Batson objection, which was raised at the very end of jury selection. At that point, the trial court had the following data to consider: Over the course of the jury selection process, the trial court had questioned 68 potential jurors.
Moreover, there is nothing apparent from the record that could explain the prosecutor’s strikes against African-American individuals. Cf. United States v. Stephens,
It is true that the statistical evidence in this case is similar to the statistical evidence in Overton, where the Second Circuit held that it was reasonable for the state court to deny the petitioner’s Batson challenge without requiring the prosecutor to place race-neutral reasons for his strike on the record. See generally. Overton,
However, the Overton Court’s decision turned on the fact that defense counsel raised his Batson objection in the middle of jury selection, and did not renew it after all the jurors and alternates had been chosen.
Because [the Batson challenge was not renewed], the trial judge never confronted, and the trial record does not reveal, what the statistics would have shown at the conclusion of jury selection. If those statistics sufficiently established the inference that challenges were based on race, the court could then have implemented the Bat-son process to ensure that impermissible challenges would not be allowed. If, on the other hand, the statistics at the conclusion failed to support a sufficient inference, there would be no need to engage in the process. We cannot say, on this record, that the trial judge’s refusal to implement Bat-son’s process for testing each questioned challenge midway in the process was an unreasonable application of the Batson requirements.
Id. at 279-80. In this case, however, the record contains ample statistical information regarding the use of peremptory challenges over the entire jury selection process. Consequently, this Court is in a position to say what the Overton Court could not: statistical information from the second half of jury selection supports— rather than dispels—an inference that the prosecutor’s peremptory strikes were racially motivated. (See, e.g., T. 416-20 (at the tail end of jury selection, the prosecutor used two of his three peremptory strikes against prospective alternates to remove African-Americans)). Based on the complete set of statistical information presented to the trial court, it was unreasonable for the Appellate Division to conclude that Petitioner had not established a pri-ma facie case of discrimination.
The Report articulates four arguments in support of its contrary conclusion. Each of them finds some support in the record and the relevant case law, but, individually and collectively, they are ultimately unavailing. First, the Report suggests that Petitioner’s Batson challenge turns on the
This Court agrees that, in many cases where courts have found that a prosecutor’s exclusion rate—by itself—-supported a prim a facie case of discrimination, the exclusion rate was very high. See Jones v. West,
Second, the Report contends that, while “ ‘statistical disparities are to be examined,’ courts must also consider ‘any other relevant circumstances’” that could support or dispel an inference of discrimination. (Report 34 (quoting Butler v. Fischer,
Third, the Report notes, as one relevant consideration, that Petitioner is white. (Report 35). The Supreme Court has recognized that “[r]acial identity” between the defendant and the individuals who are excused from jury service can be one consideration that supports an inference of discrimination. Powers v. Ohio,
Finally, the Report suggests that it was reasonable for the Appellate Division to conclude that Petitioner had not established a prima facie case of discrimination because “two African-American jurors were seated on the jury.” (Report 35). Because two African-American individuals were seated, the racial composition of the jury reflected the racial composition of the venire: 17 percent of sworn jurors (and 12
To be clear, this is a compelling point. Ultimately, however, neither the'presence of African-American individuals on the jury nor the symmetry between the racial composition of the jury and the venire is dispositive. As noted earlier, a single improper strike would have violated Petitioner’s constitutional rights. What is more, the Second Circuit has recognized 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.” Alvarado,
Similarly, under Batson and its progeny, a prosecutor may not mask or to cure the discriminatory use of peremptory challenges by seating just enough members of a cognizable group to achieve a racial balance between the jury and the venire. See Batson,
Here, such other evidence was abundant: the prosecutor struck twice the number of black jurors than one would expect, and two-thirds to three-quarters of the black jurors under consideration. There is absolutely nothing in the record to explain this phenomenon. Confronted with this information, any reasonable court would have felt compelled, at the very least, to guess why the prosecutor behaved as he did. But the Batson framework was designed to avoid such “needless and imperfect speculation,” by asking prosecutors to perform the “simple” task of placing race-neutral reasons for peremptory strikes on the record. Johnson,
c. The Error in This Case Warrants Reversal
Ordinarily, when a federal habeas court determines that a state court applied clearly established federal law in an unreasonable way, the federal court must determine whether the state court’s error was harmless. See Nappi v. Yelich,
This Court concludes, contrary to the Report (see Report 26), that Batson errors still qualify as structural defects. See Galarza v. Keane,
Further, the Supreme Court’s recent decision in Davis v. Ayala, - U.S. -,
On appeal, the defendant argued that “the trial court committed reversible error by excluding the defense from part of the Batson hearing.” Davis, - U.S. -,
After the state supreme court denied his appeal, the defendant filed a petition for a writ of habeas corpus, and the Ninth Circuit granted relief. Davis, - U.S. -,
Significantly, however, Davis was fundamentally a case about the presence of counsel. The Supreme Court held that excluding defense counsel from a portion of a Batson hearing could reasonably be considered harmless because there was no real chance that defense counsel could have identified any Batson error. The Supreme Court never suggested that, had any Batson error occurred, the error would have been harmless.
Here, both the trial court and the Appellate Division contravened Batson by holding that, when Petitioner raised his fourth and final Batson challenge at the end of jury selection, there was no need to proceed to step two of the Batson inquiry.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is granted, and this case is remanded to the Supreme Court of New York, New York County, for proceedings consistent with this Order. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.
SO ORDERED.
. In fact, after the trial court and the Appellate Division rendered their decisions in this case, the New York Court of Appeals effectively demurred when given an opportunity to place the Second Circuit's saving gloss on the Brown I opinion. See People v. Hecker,
. These individuals included the 26 prospective jurors on the first panel, the 26 prospective jurors on the second panel, and the first 16 prospective jurors on the third panel.
. The parties dispute whether one of the jurors removed by defense counsel—Ms. Ve-larde—was African-American. (Compare Pet, Br. 6, with Resp. Br. 29). Ultimately, this Court believes that it is not necessary to determine Ms. Velarde's race in order to resolve this Petition.
. To the contrary, many of the stricken African-American jurors had ties to the law enforcement community. For example, the prosecutor struck: (i) Ms. Boiken, whose aunt was a lieutenant in the New .York City Police Department (T. 107-08, 180); (ii) Ms. Hamilton, who said her "best friend” and her best friend’s parents worked as corrections officers (id. at 101-02, 180); (iii) Ms. Grant, who noted that three friends and a brother-in-law worked as corrections officers (id. at 248; 320); and (iv) Ms. Simmons, whose uncle was a retired FBI agent (id. at 250, 323b). However, because defense counsel did not bring these facts to the attention of the trial judge, this Court has not considered them in its analysis.
. Alternatively, Petitioner contends that he has rebutted the Appellate Division’s “factual determination that no prima facie case of discrimination had been established under Bat-
However, if a court progresses to step three of the Batson inquiry, the court must make a purely factual finding regarding the motive of the attorney who struck a disproportionate number of minority jurors. See Miller-El v. Cockrell,537 U.S. 322 , 340,123 S.Ct 1029 ,154 L.Ed.2d 931 (2003). On habeas review, such a factual finding may be rebutted by clear and convincing evidence. See id.
. Given the Court’s resolution of Petitioner’s first argument, it declines to address, as moot, Petitioner’s claims of ineffective representation by trial counsel.