of four this meant that a single peremptory strike at the outset of jury selection was capable of effectively removing all african americans from the jury pool unique at earliest opportunity and without asking a single question prosecution immediately struck that potential juror mr devon where in contrast that same prosecutor went on that day in the next to ask non african americans attention jurors as many as one thousand five hundred and sixteen or even twenty questions about themselves there was preceded by the judge asking questions of the jurors and the right that's correct the judge walks through it what seemed to be a standard series of screen questions including one about the american legion and other subjects and then turned over to prosecutors and the defense for examination and what we learned from the fact that the prosecutor didn't ask any further questions here we know that from this record when this prosecutor did care about tension sources are biased her  prosecution use only one of their peremptory challenge after asking that jer eleven questions when defense counsel presented a detailed batson challenge the state trial judge rejected it out of hand without an explanation appellate court later affirmed that judgment on the basis of a single circumstance rather than the totality of the circumstances and to this day nearly eleven years after trial no reason has ever been given for striking mr where this was an unreasonable application of supreme court precedent under at least two important and distinct ways st that's and requires a judgment to be based on these are talented circumstances even those factors specifically highlighted in batson sel to the prosecution's selective print three strikes disproportionately worked to remove african americans from the jury pool and three this prosecutor inexplicably deviated from her consistent practice of detail questioning when it was mr w record that there were questionnaires that were given to jurors and they had information on them and counsel was given them and and counsel in questioning refer to juror occupations for example numerous times and so they did come in with knowledge some knowledge of one african american of those thirty one but they were to balance a lot i didn't quite understand if you have the name or did they have the names prior to trial date of the year they did have those questionnaires but we don't actually know what was on the questionnaires because they're not part of the record here so we don't know for sure exactly what they knew but there were there was obviously prior knowledge because there was questionnaires passed out i'm not sure if it was that day or any time before that so going back to work that's an argument how do you tell in court properly considered totality circumstances here it would have been forced to conclude that mr brown established a private place a case of discrimination and if it actually went through that analysis that brief but how do we know the race how did we know the race at least the people we know that from from defense counsel's detail batson challenge and you can look at pages nine to sixteen of our blue brief for all that information he was the only african american struck to ask questions those were all part of the record and all right ok well see no further questions i'd like to reserve the rain or i'm trying to bottle certainly mr evidence of discriminatory a crime of face or case of discriminatory intent but contrary to his position the totality of the facts about cordier in this case provide no evidence of a discriminatory purpose other than the fact that the state happens to exercise one peremptory challenge against an african american when your person disher conceded in the state court that he could identify no pattern to the state's use of peremptory challenges here indeed the state only used to c one against an african american video person and one against a white video person and while it is true that that meant that he had used fifty percent of his printer challenges against african american near  persons this court has held in similar cases where we have a very low statistical number of peremptory challenges an african american veneer people that battle alone is not sufficient to establish crime aphasia evidence of discriminatory intent  the record does not indicate why the nd african american man didn't end up on the jury he but we do know from the record that the state did not use a peremptory challenge to exclude him and while this did produce an all white jury it can't be said that after america the proportion only under represented on the jury because only three percent of the veneer was african american there is no fair cross section challenge race here three percent is low but in a county like champagne there's only ten percent african american it's not so low that you wouldn't expect to see it just as a matter of that just gets once every ten to twenty cases so statistically speaking there's  not enough to establish prima facia evidence of discriminatory purpose to the state's use of a peremptory challenge against where the petitioner points to the fact that the prosecutor used this strike without asking additional sometimes counsel knows after the judge's questions or even after the questionnaire that this is just not someone they want on their jury and a complimentary challenges counsel can use those for any non discriminatory purpose if they decide that this is just not someone that they want on their jury to petition or points to counsel's silence here but where is the answers to the judge questions a lie any inference of discrimination that could be drawn from that silence because where was the only vinnie or person who had been to the scene of the crime and  petitioner points to another juror that she was familiar with the american legion hall but unlike where she hadn't been in the parking lot where the murder occurred and so in the only way that really matters from the judge's questioning she doesn't actually provide a comparative juror at all  nor is it telling that where testified that he could be impartial despite his familiarity with the crime scene that's true in practically every case involving peremptory challenges if he hadn't testified that he could be impartial he would have been struck for cause  so no inference can be drawn from where says money that he could be impartial regarding discriminatory purpose and contrary to petitioners position consideration  st this court has held that even after johnson where a nondiscriminatory reason for exercising peremptory challenge is so apparent from the record that it ally's any inference of discriminatory intent it's still relevant at the  of discriminatory intent for petitioner to satisfy his burden of showing a crime aphasia case that the printer challenges exercise with discriminatory purpose and it certainly wasn't objectively on reasonable for the state court to come to that same conclusion if the court disagrees with that analysis the proper remedy here would be to remand for an evidentiary hearing on the bass and claim petitioner argues that this court should go ahead and order a new trial granting he vs relief but of course even if the court were to find that the state court's decision was an unreasonable application of batson or contrary to johnson it still can only grant t b s relief after finding an actual constitutional violation and the court has always given the state the opportunity when it does so in a case johnson if you consider where is responses to the judge's questions about his familiarity with the american legion hall at the st stage but arguing that the state doesn't get the opportunity to raise this appar basis for the printer he challenge in further proceedings so again in some there's not evidence in the totality of the circumstances surrounding her dear to us to establish prima facia evidence of discriminatory example of why there was a johnson problem in this case what mr ware actually said at what year was that he had been on the outside not inside the american legion that's it he was not asked any further questions there was no further development of that issue if you look at page there's no way to know which side he would have favored if he had no idea what his actual knowledge was of the american legion that needed to still be explored and on that point the supreme court in very clear in flowers quoting the miller all cases that the says would not make sense unless we looked at all the questions are asked to all different jurors and that's also one reason why we bring up juror juror west as well as jitters gomes and others were asked a number of questions can be taken out of this case the supreme court's case and flowers went through all of the different circumstances that backdrop so that's why i asked the question of how you knew and it's based on a visual observation of yours or other people are black or not it was based on what defense counsel knew about the case and as you're pointing out it we don't exactly know what it was but the trial judge didn't dispute those facts he didn't say that that's wrong or there's something wrong about it unfortunately we don't