NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3098

____________

ALBERT C. HAIRSTON,

 Appellant

v.

ROY L. HENDRICKS; ATTORNEY GENERAL

OF THE STATE OF NEW JERSEY

____________

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 2-99-cv-05225)

District Judge: Honorable Katharine S. Hayden

____________

Argued March 6, 2014

Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.

(Filed: September 3, 2014)

Alison Brill, Esq. [Argued]

Office of Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, NJ 08609

Richard Coughlin, Esq.

Office of Federal Public Defender

800-840 Cooper Street

Suite 350

Camden, NJ 08102

Attorneys for Appellant
2

Sara B. Liebman, Esq. [Argued]

Union County Office of Prosecutor

County Administration Building

32 Rahway Avenue

Elizabeth, NJ 07202

Attorneys for Defendant-Appellees

____________

OPINION

____________

HARDIMAN, Circuit Judge.

Albert Hairston appeals the District Court’s order denying his petition for writ of 

habeas corpus, in which he alleged a violation of Batson v. Kentucky, 476 U.S. 79 (1986).

The District Court, applying the deferential standard of review established in the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, held 

that Hairston failed to show that the state court’s decision was contrary to, or involved an 

unreasonable application of, Batson. We will affirm. 

I

Unlike most habeas defendants, Hairston does not assert his innocence; he admits 

to shooting two co-workers, one fatally, and claims intoxication as a defense. The New 

Jersey state court provided a thorough and detailed account of the facts, see State v. 

Hairston, No. A-4203-91T4 (N.J. Super. Ct. App. Div. Feb. 21, 1995) (slip op.), which 

the District Court’s opinion recounted as follows: 
3

Hairston worked at a bakery in Long Branch, New Jersey, along 

with Susan Kerestes and Susan Modoski, the victims of the crimes for

which Hairston was tried and convicted. Kerestes and Modoski shared a

house together in Kenilworth, New Jersey. Over time, they developed a 

friendship with Hairston and would occasionally drive him home or 

socialize after work. 

On December 23, 1989, Hairston called Kerestes and told her his 

holiday plans with his girlfriend had not worked out. He asked if he could 

stay with Kerestes and Modoski for the Christmas weekend. After 

conferring with Modoski, Kerestes told Hairston that he could stay with 

them. The women picked him up at the bakery at about 4 p.m. and drove 

him to their home. Hairston stayed on the living room couch for the next 

two nights. On Christmas morning, Kerestes and Modoski woke early to 

attend brunch at Kerestes’ parents’ house. Before they left, they told 

Hairston what they had planned for the day, and that Modoski’s father had 

invited him to Christmas dinner. 

Kerestes and Modoski left around 10:00 a.m. and returned home 

around 1:30 p.m. As they entered through the back door, Modoski stopped 

at the refrigerator for a drink while Kerestes continued walking towards the 

dining room. She saw clothes scattered on the floor and assumed that 

Hairston was in the shower. Then he appeared in the hallway and said, 

“Oh, I meant to tell you ladies I’m not going.” According to the trial 

testimony of Kerestes, who survived the events of the next minutes, 

Hairston then shot Modoski, turned, and began firing at Kerestes. She was 

hit by a number of shots and was propelled backwards until she fell to the 

floor of the hallway. 

Hairston stopped firing, turned, and walked into the kitchen. 

Kerestes heard him fire another shot, presumably at Modoski. When 

Kerestes tried to stand, using a door handle for support, Hairston returned 

to the hallway and shot at her again. She fell back to the floor and Hairston 

stood over her. When he fired at her again, she turned her head and the 

bullet struck the floor next to her. She later described Hairston as being 

“very focused looking straight at her” when he fired that shot. 

Kerestes managed to get to her feet, reach a telephone, and call her 

parents, yelling into the phone for them to call for help. Hairston left the 
4

house. An alert went out, and a short time later, a patrolman in the 

neighboring town of Roselle Park observed and detained Hairston, who was 

walking across a dirt lot at a quick pace with blood stains on his pants and 

shoes. After other officers arrived, Hairston was subdued and placed under 

arrest. He carried $21.61 in change, a two-dollar bill, and a key in his front 

pants pockets and four twenty-dollar bills in his sock. He claimed that the 

money was his and that he had a habit of putting money in his socks. The 

subsequent police investigation indicated that Hairston had stolen this 

money from Kerestes and Modoski’s house: Hairston’s fingerprints were 

found on a jar in the house where the victims had kept money, including at 

the time four twenty-dollar bills, change, and a number of two-dollar bills. 

At trial Hairston testified that he received the money from an electrical job 

he had performed prior to the weekend in question.

An officer searching the crime scene near the house found 

Hairston’s blood-stained denim jacket with a box of bullets and a 

photograph taken from the house in one of the pockets. Another officer 

found two pistols in nearby shrubbery. Kerestes confirmed that she and 

Modoski owned these pistols and that they were the guns that Hairston used 

to shoot them. Hairston’s fingerprints were found on one of the pistols. 

Modoski died as a result of the gunshot wounds. Kerestes survived 

and testified for the State at Hairston’s trial. 

Hairston gave the police conflicting accounts of what happened. At 

times he admitted that he might have shot the victims, while at other times 

he denied committing the crimes. When he testified in his defense, he said 

he had been drinking heavily the entire weekend, and that he was very 

drunk on Christmas day―so drunk that he was hallucinating and thought 

that the victims were three African-American men who were demanding 

money for drugs he had bought in New York. He claimed that all he 

remembered about the shooting was seeing Modoski lying on the floor 

while Kerestes was screaming at him to get out of the house.

Hairston v. Hendrick, No. Civ. A. 99-5225 (D.N.J. July 27, 2012) (internal citations 

omitted). 
5

Hairston was charged in state court with first-degree murder and the prosecution 

sought the death penalty. Hairston pleaded not guilty and was tried before a jury in the 

fall of 1991. In part because of the high stakes and racial dimension of the trial, voir dire

took several months and involved hundreds of potential jurors. Each prospective juror 

completed a two-part, 19-page questionnaire. Part I contained five questions pertaining to 

the juror’s background, education, and potential biases; Part II asked five questions about 

the juror’s views on the death penalty. After administering the questionnaire, the trial 

court and parties met with each juror individually, asking questions similar to those in the 

questionnaire. It took 27 days to select the final pool of 52 eligible jurors.

The state exercised ten of its twelve peremptory challenges; seven of the ten were 

used to strike African-Americans. Hairston’s counsel moved for a mistrial pursuant to 

Batson and State v. Gilmore, 511 A.2d 1150 (N.J. 1986),1alleging racial discrimination.

After hearing the prosecution’s explanations for exercising its peremptory challenges, as 

well as defense counsel’s rebuttal, the trial court denied the Batson motion.

Soon thereafter, the jury, which included three African-Americans, was seated. 

After a thirteen-day trial, the jury convicted Hairston on all counts but did not impose the 

 

1 The New Jersey state counterpart to Batson, Gilmore enunciated a similar threestep test to establish unconstitutional discrimination in the use of peremptory challenges. 

Gilmore, 103 A.2d at 1157.
6

death penalty. The trial court sentenced Hairston to life imprisonment with forty years’ 

parole ineligibility.

Hairston appealed to the New Jersey Superior Court, Appellate Division, raising, 

inter alia, the Batson claim. The Appellate Division affirmed, stating: “After hearing 

argument by both sides, the trial judge denied defendant’s motion finding that the State 

had put forth valid reasons for the exercise of its challenges . . . . We hold that the [trial] 

judge’s findings were sufficiently grounded in the record.” A116-17; State v. Hairston, 

A4203-91T4 (N.J. App. Div. Feb. 21, 1995) (Hairston II). Hairston appealed to the New 

Jersey Supreme Court, which denied certification. 658 A.2d 728 (N.J. 1995) (Hairston 

III). 

In 1997, Hairston petitioned the same New Jersey trial court for post-conviction 

relief, again raising the Batson claim. A125-31 (Hairston IV). The trial court declared the 

Batson issue moot because it was already resolved on the merits. A131; see N.J. Ct. R. 

3:22-5 (barring a petitioner for post-conviction relief from presenting a claim that has 

been previously adjudicated). Hairston appealed this decision to the New Jersey Superior 

Court, Appellate Division, which affirmed the trial court’s denial of post-conviction 

relief. State v. Hairston, No. A4659-96T4 (N.J. Super. Ct. App. Div. Aug. 31, 1998) 

(Hairston V). The New Jersey Supreme Court again denied certification. State v. 

Hairston, 731 A.2d 46 (N.J. 1999) (Hairston VI).
7

In November 1999, having exhausted his state remedies, Hairston filed a pro se 

petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District 

Court for the District of New Jersey. Again, he raised Batson claims along with three 

other grounds for relief. In February 2000, the District Court dismissed the petition for 

failure to file within AEDPA’s one-year limitation period. See 28 U.S.C. § 2244(d)(1). 

Hairston moved to reinstate his petition, arguing that it was timely because the one-year 

limitation period began to run on April 24, 1996, AEDPA’s effective date, and was tolled 

while his petition was pending until April 30, 1999, the date the New Jersey Supreme 

Court denied certification. Therefore, he argued, the one-year limitation period began 

running on April 30, 1999, and his petition, filed November 9, 1999, was within the oneyear limitation period. The District Court agreed and reinstated his petition on March 7, 

2000.

Over the next twelve years, Hairston filed pro se motions and wrote letters to the 

District Court requesting an answer to his petition for habeas relief. On June 17, 2002, 

Hairston sent a letter to the court inquiring about the case and received a response from 

Roy Hendrick, Attorney General of New Jersey.2 On September 2, 2003, Hairston filed a 

motion to compel the state to answer his habeas petition. The District Court granted the 

motion to compel on December 1, 2003. The state’s answer to the petition is missing 

 

2 This letter is missing from the record. Many of the state court files were purged 

in 2009, and parts of the District Court record are also, for reasons unknown, unavailable. 
8

from the record. Over the next nine years, Hairston wrote eight more letters to the 

District Court inquiring about the status of the case. 

On July 9, 2012, the District Court denied Hairston’s § 2254 petition and request 

for a certificate of appealability relying on the record from the state courts; it did not hold 

an evidentiary hearing. Hairston v. Hendricks, No. Civ. A. 99-5225 (D.N.J. July 27, 

2012) (unpublished). Hairston timely appealed and we issued a certificate of appealability 

for the Batson claim only. We appointed counsel for Hairston. 

II3

Because the District Court “did not hold an evidentiary hearing and engage in 

independent factfinding . . . our review of its final judgment is plenary.” Hardcastle v. 

Horn, 368 F.3d 246, 254 (3d Cir. 2004) (internal citation and quotation marks omitted). 

Therefore, we will apply “the same standard [of review] that the District Court was 

required to apply.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (internal citation 

omitted). 

AEDPA applies to Hairston’s petition, which was filed on November 8, 1999. 28 

U.S.C. § 2254. Under AEDPA, we review the state court’s determinations on the merits 

only to ascertain whether the court reached a decision that was “contrary to, or involved 

 

3 The District Court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction 

under 28 U.S.C. § 2253.
9

an unreasonable application of, clearly established Federal law, as determined by the 

Supreme Court . . . [or] was based on an unreasonable determination of the facts.” 28 

U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (internal 

quotation marks omitted); Bond v. Beard, 539 F.3d 256, 263 (3d Cir. 2008). This is a 

high bar, since a state court’s findings are “presumed to be correct,” 28 U.S.C. § 

2254(e)(1), and we may grant habeas relief only if “the state court decision . . . resulted in 

an outcome that cannot reasonably be justified under existing Supreme Court precedent.” 

Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004). 

AEDPA deference is due only if the state court has adjudicated the issue on the 

merits; if not, we exercise plenary review. See 28 U.S.C. § 2254(e)(1); Holloway v. Horn, 

355 F.3d 707, 718 (3d Cir. 2004) (“We have interpreted § 2254’s ‘adjudication on the 

merits’ language to mean that when . . . the state court has not reached the merits of a 

claim thereafter presented to a federal habeas court, the deferential standards provided by 

AEDPA . . . do not apply.”) (internal citations and quotation marks omitted). 

We review the “last reasoned state-court opinion,” Ylst v. Nunnemaker, 501 U.S. 

797, 803-04 (1991), which in this case is Hairston II, the New Jersey Appellate 

Division’s decision on direct appeal.4 Therefore, the applicable standard of review hinges 

 

4 The Supreme Court “reconfirm[ed]” in Harrington v. Richter, 131 S. Ct. 770, 

785 (2011), that “[w]hen a federal claim has been presented to a state court and the state 

court has denied relief, it may be presumed that the state court adjudicated the claim on 

the merits in the absence of any indication or state-law procedural principles to the 
10

on whether the Hairston II court properly adjudicated the Batson claim on the merits. 28 

U.S.C. § 2254(d); Richter, 131 S. Ct. at 780.

B

Batson established “a three-step inquiry for determining the constitutionality of 

challenged peremptory strikes.” Hardcastle, 368 F.3d at 255 (citing Riley v. Taylor, 277 

F.3d 261, 275 (3d Cir. 2001)). 

First, the trial court must determine whether the defendant has made a 

prima facie showing that the prosecutor exercised a peremptory challenge 

on the basis of race. Second, if the showing is made, the burden shifts to the 

prosecutor to present a race-neutral explanation for striking the juror in 

question. Although the prosecutor must present a comprehensible reason, 

“[t]he second step of this process does not demand an explanation that is 

persuasive or even plausible”; so long as the reason is not inherently 

discriminatory, it suffices. Third, the court must then determine whether the 

defendant has carried his burden of proving purposeful discrimination. This 

final step involves evaluating “the persuasiveness of the justification” 

proffered by the prosecutor, but “the ultimate burden of persuasion rests 

with, and never shifts from, the opponent of the strike.”

Rice v. Collins, 546 U.S. 333, 338 (2006) (internal citations omitted).

A Batson claim has been adjudicated on the merits when all three steps of the 

analysis have been reached. Bond v. Beard, 539 F.3d 256, 264 (3d Cir. 2008) (“Failure to 

 

contrary.” Id. at 784-85. However, the presumption “may be overcome when there is 

reason to think another explanation for the state court’s decision is more likely”—such as

a dismissal of the claim on procedural grounds. Id. at 785, 787 (internal citations 

omitted). In this appeal, the presumption of adjudication does not apply to the state court 

decisions on post-conviction review (Hairston IV-V) because the Batson issue was 

procedurally barred under New Jersey law.
11

make a step-three finding . . . would render the state court’s decision either ‘contrary to’ 

or an ‘unreasonable application’ of Batson . . . and we would not apply AEDPA 

deference.”) (citing Hardcastle, 368 F.3d at 259). Because the Hairston II court 

“essentially incorporated” the trial court’s reasoning, see Bond, 539 F.3d at 269, we will 

examine both courts’ adjudications of the Batson claim.

III

Jury selection in Hairston’s trial was a painstaking affair, taking several months 

and involving hundreds of potential jurors. During this process, seven of the state’s ten

peremptory challenges were used to strike African-Americans. Defense counsel moved 

for a mistrial pursuant to Batson and Gilmore, alleging that the prosecution exercised its 

challenges on the basis of race. The trial court found that Hairston had succeeded in 

making a prima facie case of discrimination. The prosecution then proceeded to explain 

its decisions to strike each of the seven excused African-American jurors. 

The first excused juror “struggled with the idea of imposing the death penalty” and 

believed that “alcohol and drugs make you do things that you wouldn’t do.” A66-67. This 

led the prosecution to believe she would be amenable to Hairston’s intoxication defense. 

The second excused juror showed up on the wrong day and looked uninterested 

and even “pained by the process.” A68-69. Noting the fact that the juror “went to the 

Fashion Institute of Technology,” the prosecutor stated: “I know we sometimes make 

generalizations, but it’s been some of my experience that people in that field tend to be 
12

more liberal people.” A68. The prosecutor also believed she lacked the “mental upkeep” 

required to understand a complex trial. A68-69. The juror indicated that she was opposed 

to the death penalty “unless the crime was against innocent children,” and “[only] if she 

was convinced that there was no rehabilitation.” A69.

The third excused juror said he would impose the death penalty only for a 

premeditated murder, and seemed amenable to imposing a 30-year sentence in this case. 

He also stated that “the more alcohol people drink, the more they are affected,” which led 

the prosecution to believe he would be sympathetic to the intoxication defense. A71-72. 

Finally, the prosecution noted that he had not disclosed a prior disorderly-person 

conviction, which counsel believed rendered him untrustworthy.

The fourth juror believed people could drink so much that they become unaware 

of their own actions, and appeared to the prosecution as if “she absolutely [did] not want 

to be [there].” A72. Regarding the death penalty, she stated that “there are always 

extended [sic] circumstances,” suggesting that she would be prone to finding mitigating 

factors at the penalty phase. A73.

The fifth juror was excused because he had a graduate degree in behavioral 

sciences and worked in the alcoholism field for 23 years, leading prosecutors to believe 

he would be favorably disposed to the intoxication defense.

The sixth juror spoke of “blackouts” from drinking, and, in response to the 

prosecution’s hypothetical involving the perpetrator of a murder-robbery, stated “I’m not 
13

certain. The guy may be innocent.” A77-78. This led the prosecution to believe that she 

would “never execute.” A77-78.

The seventh juror’s husband was an alcoholic and attended Alcoholics 

Anonymous meetings herself. She believed that her brother, who was incarcerated at the 

time, had not been treated fairly by the criminal justice system. In addition, her nephew 

had been recently charged with dealing drugs in a nearby town, a case that may have 

been handled by the same prosecutor’s office. This led the prosecution to believe that she 

might not be able to give their side a “fair hearing.” A78. She also expressed ambivalence 

about imposing the death penalty. 

After the prosecutor articulated these explanations, the trial court turned to defense 

counsel and asked if he had any other comments to make in response.

THE COURT: Counsel, any response?

[DEFENSE COUNSEL]: I’d like to have some time to prepare an adequate 

response, your Honor. We’ve talked about 7 jurors right now. 

THE COURT: What do you – by proper response you [sic] going to seek to argue 

that he was reasonable or unreasonable on each one of these? 

[DEFENSE COUNSEL]: Oh absolutely.

THE COURT: Well, I don’t think that’s absolutely necessary, truthfully. He has to 

put forth an argument that he believes will justify his exercise of challenges; that 

doesn’t mean that you have a right to respond to each and every statement he 

made based upon what he says. You disagree with it so be it, but we’re not going 

to take the time for you to sit down and prepare a step by step rebuttal to this stuff. 
14

A81. Defense counsel responded that the State’s proffered explanations were “vague, 

unexplainable reasons” and argued that the stricken jurors’ answers had not been very 

different from those of the remaining, sitting jurors. A81-82. He pointed to one white 

juror who was an alcoholic and had been through Alcoholics Anonymous three times, yet 

was not excused. He argued that the prosecution had mischaracterized statements the 

stricken jurors had made, and that many of the potential jurors excused for being averse 

to the death penalty had actually expressed “average” support for the death penalty. At 

various points during defense counsel’s rebuttal, the trial court attempted to cut him off, 

stating: “[W]e’re not going to argue everybody who’s on this jury as against the people 

that are off this jury, we will never finish the case that way.” A82. “I don’t want you to 

go into every sitting juror here, comparing them to people who have been excused. 

Confine your comments to those people who have been excused you think wrongfully 

please.” A89. 

Defense counsel responded to the trial court by pointing out that Batson and 

Gilmore actually require courts to consider comparable facts about sitting jurors in order 

to determine whether the prosecution’s stated reasons were pretextual. Still, the trial 

court insisted that defense counsel limit his discussion to those jurors who were 
15

dismissed.5 Accordingly, defense counsel confined his rebuttal to the following points: 

(1) the first juror was presented as weak on the death penalty, but her support for the 

death penalty was average for the pool of jurors, including the remaining jurors. (2) The 

second juror, a college graduate, was presented as intellectually incapable of 

understanding the law yet was more educated than several sitting jurors. (3) The third 

juror was never asked about his disorderly-person conviction, so he did not fail to 

disclose it. Moreover, he had expressed that if an alcoholic had an opportunity to get help 

and did not, then he would readily give the death penalty. (4) The fourth juror’s views on 

alcoholism would not have trumped his otherwise strongly pro-death penalty stance. (5) 

The fifth juror was excused partially for her answer to the “reality question” of “could 

you do it?” but a white male whose answer to the same question was more problematic 

for the prosecution remained on the jury. (6) The sixth juror had clearly stated that

“drugs or alcohol are not an excuse” for criminal conduct. (7) Despite the seventh juror’s 

experience with alcoholism, she stated that alcohol makes people do things they have 

within them, and strongly supported the death penalty, expressing concern over the 

expense of keeping such a perpetrator in prison.

At the conclusion of defense counsel’s rebuttal, the trial judge stated: 

 

5 Fourteen years later, the Supreme Court held that “side-by-side comparisons” of 

stricken black jurors and sitting white jurors can be “powerful” evidence of 

discrimination in a Batson determination. Miller–El v. Dretke, 545 U.S. 231, 241 (2005).
16

Each one of these people took an hour and a half to two hours to qualify 

when we did the voir dire. It . . . is possible . . . to pull out in that hour and a 

half anything . . . to support your view. . . . I find the State has put forth 

valid reasons for the exercise of these challenges. That the defense doesn’t 

concur is not surprising. Of course, each side has a very distinct point of 

view in this case, in all cases, but the defense does not have a right . . . to 

put . . . himself into [the] prosecutor’s shoes [to] determine what challenges 

in their view were valid.

[The] Prosecutor set forth on the record reasons for excusing each one of 

these people relating to views about the death penalty, reasons about use of 

alcohol, reasons involving family members in crime, and those reasons I 

find to be valid and sufficient in the record. Therefore the defense request 

for a mistrial is denied.

A91-92 (emphasis added). After another comment from defense counsel, the trial court 

repeated its position, stating: “All the State needs to do it’s done. It [has] set forth reasons 

which I find to be valid for the exercise of his challenge.” A94. 

The Appellate Division (Hairston II) first found that Batson’s first two steps were 

satisfied: Hairston had made a prima facie case of discrimination, and the prosecution had 

presented race-neutral explanations for each of the peremptory challenges used to strike 

African-American prospective jurors. A114-17. It then concluded: 

After hearing argument by both sides, the trial judge denied defendant’s 

motion finding that the State had put forth valid reasons for the exercise of 

its challenges . . . . We hold that the [trial] judge’s findings were 

sufficiently grounded in the record and that his denial of a mistrial 

constituted a reasonable exercise of his discretion. The State carried its 

burden by articulating clear and reasonably specific explanations of its 

legitimate reasons for exercising each of the peremptory challenges.

A116-17 (emphases added) (internal citations and quotation marks omitted). 
17

The parties do not dispute that the first two steps of Batson were reached. At issue, 

then, is whether the Appellate Division—which incorporated the reasoning of the trial 

court—reached Batson’s third step to determine whether Hairston had carried his burden 

of proving purposeful discrimination, i.e., “that it is more likely than not that the 

prosecutor struck at least one juror because of race.” Bond, 539 F.3d at 264 (internal 

citation omitted). “At step three, the trial judge must make a finding regarding the 

[prosecutor’s] motivation.” Id. (internal citation and quotation marks omitted). 

Unfortunately, this is a case where “[t]he state courts repeatedly failed to identify 

the three steps of the Batson analysis explicitly. This renders our task harder on review, 

as we must attempt to discern what those courts did in fact perform at each step.” Bond, 

539 F.3d at 268. The record here, as in Bond, “gives serious cause for concern that the 

state courts did not reach the third step of the Batson analysis.” Id. In Bond, we were 

troubled that the trial court had indicated that it

believed that it could stop after the prosecutor satisfied the second step of 

the Batson analysis by stating a race-neutral explanation for a strike. The 

voir dire transcript never explicitly clarifies whether, in accepting 

explanations to be race-neutral, the trial court or the Pennsylvania Supreme 

Court believed that the prosecutor truly had acted in a race-neutral fashion 

(satisfying step three of the Batson analysis), or merely that the stated 

explanations were race-neutral (at step two).

Id. We were also concerned that the trial court had stated, as the trial court stated here,

that it was “not going to try and get into the [prosecutor’s] mind” and further suggested 

that it only needed “some objective statement that’s racially neutral.” Id. (internal 
18

citations omitted). Nevertheless, after reviewing the state court record closely, we 

concluded in Bond that the state court had, in fact, reached step three: 

The Pennsylvania Supreme Court essentially incorporated the reasoning of 

the trial court . . . . It described the trial court as accepting the prosecutor's 

explanations as “legitimate and race neutral,” and referred to the trial 

court's findings “as to the legitimacy of the race neutral responses offered in 

this case.” The emphasis on legitimacy demonstrates that the Supreme 

Court considered the third step of the Batson analysis. Had it stopped at the 

second step, it merely would have inquired into the existence of “race 

neutral” explanations or responses. But it also described the legitimacy of 

those “race neutral” explanations. It considered, in other words, whether the 

prosecutor had told the truth when he offered race-neutral explanations. It 

concluded that he had done so. This amounts to a determination on the 

merits at the third step of the Batson analysis. 

Id. at 269. 

Here, as in Bond, we are concerned to the extent that the Appellate Division 

implied that the Batson analysis was over once “[t]he State carried its burden by 

articulating clear and reasonably specific explanations” of its peremptory challenges.

A117. Scrutiny of the trial court’s ruling from the bench and the Appellate Division’s 

analysis of the claim, however, shows that neither the trial court nor the Appellate 

Division stopped at step two. Although the Supreme Court had declined in Batson “to 

formulate the particular procedures to be followed upon a defendant’s timely objections 

to a prosecutor’s challenges,” it did instruct that it is the trial court’s “duty to determine if 

the defendant has established purposeful discrimination.” 476 U.S. at 98, 99. And the 

Supreme Court reiterated that “‘a finding of intentional discrimination is a finding of 
19

fact’ entitled to . . . great deference.” Id. at 98 & n.21 (quoting Anderson v. Bessemer 

City, 470 U.S. 564, 573 (1985)). Consistent with this instruction, the trial judge heard 

argument from both sides about the strikes. Defense counsel made arguments in rebuttal, 

and then prompted the trial court to consider these arguments, stating: 

This is not a case of accepting that the prosecutor has a—valid reasons. 

You’ve heard the reasons. Now the court’s got to make a determination if 

they’re valid or not. The only way I think we can do that is to, to reflect 

that against the people who were not excused . . . .

A91 (emphasis added). The trial court then declared: “[The] Prosecutor set forth on the 

record reasons for excusing each [stricken juror] . . . and those reasons I find to be valid 

and sufficient in the record. A92 (emphasis added). In other words, the trial court made a 

finding that the reasons proffered by the prosecutor, who had conducted voir dire before 

the judge for 27 days, were credible. 

The Appellate Division recognized that the trial judge had proceeded to step three 

in the Batson analysis. It noted that the trial court did not simply accept the prosecution’s 

reasons as race-neutral without evaluating their credibility. Rather, the Appellate Division 

pointed out that the trial court had heard argument from “both sides.” A116. In fact, the 

record shows the trial court gave defense counsel multiple—though not unlimited—

opportunities to rebut the prosecution’s proffered race-neutral explanations. The 

Appellate Division then concluded that the trial judge had made findings, and held that 

“the [trial] judge’s findings were sufficiently grounded in the record.” A117 (emphasis 
20

added). The focus on the trial judge’s findings demonstrates that the state courts reached 

the third step of the Batson analysis. Moreover, the phrase “sufficiently grounded in the 

record” evidences a consideration of all of the facts and arguments presented. This is 

sufficient to establish a step three finding. See Bond, 539 F.3d at 267 (finding that step 

three was reached when the trial court stated: “Reviewing the totality of the 

circumstances, there is no showing of intentional discrimination.”); see also Hardcastle, 

368 F.3d at 259 (“[A] judge considering a Batson challenge is not required to comment 

explicitly on every piece of evidence in the record. However, some engagement with the 

evidence considered is necessary as part of step three of the Batson inquiry . . . .”).

Obviously, an implicit step-three finding such as the one presented here requires 

us to engage in analysis that would not be necessary had the trial court explicitly adverted 

to each step. In Hairston’s case, however, the Batson motion was made during jury 

selection—in “live combat,” as the District Court put it—and the trial court was able to 

hear arguments from both sides and make credibility determinations. A17, 19 

(“Deference must be paid to the trial judge, who had witnessed the jurors during voir dire 

and was able from his own experience of the question-and-answer to gauge credibility 

when the prosecutor gave his reasons.”). The dissent believes that the trial judge was not 

equipped to make the necessary findings because it did not permit the defense to fully 

present its case. We conclude that a trial judge who presided over 27 days of voir dire 

conducted by the same counsel was well equipped to make a finding about whether he 
21

believed the reasons given by the prosecutor for exercising the state’s strike were a 

pretext for discrimination. Moreover, by referencing both sides’ arguments and the full 

record, the Appellate Division demonstrated that it had considered the validity of the 

race-neutral explanations offered by the prosecution. This is a step-three finding, so we 

apply the deferential AEDPA standard of review. Bond, 539 F.3d at 269 (citing Taylor v. 

Horn, 504 F.3d 416, 433 (3d Cir. 2007) (explaining that AEDPA deference applies to 

implicit as well as explicit factual findings)).6

V

As in so many habeas cases, the standard of review is outcome-determinative in 

this appeal. AEDPA “reflects the view that habeas corpus is a guard against extreme 

malfunctions in the state criminal justice systems, not a substitute for ordinary error 

 

6 Hairston also argues that the Batson claim was not adjudicated on the merits

because the state courts exclusively discussed the Gilmore standard and made only 

passing reference to Batson. See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013) 

(establishing a presumption of adjudication on the merits of the federal claim when the 

state-law rule is “at least as protective as the federal standard”). The Batson and Gilmore 

tests are nearly identical, except that the Gilmore standard sets a higher threshold at step 

one, requiring a showing of a “substantial likelihood” of discrimination, see Johnson v. 

California, 545 U.S. 162, 172 (2005), whereas Batson simply requires a statement of 

facts that creates an “inference of discriminatory purpose” at step one. Batson, 476 U.S. 

at 94; see also State v. Osorio, 973 A.2d 365, 376-77 (N.J. 2009) (confirming that step 

one of Batson was less onerous than its Gilmore counterpart).

Here, the state court found that Hairston cleared step one; only step three was at 

issue. Therefore, on these facts, the Batson standard was not less protective than the state 

standard, and the presumption of adjudication applies. Williams, 133 S. Ct. at 1096.
22

correction through appeal.” Richter, 131 S.Ct. at 786 (quotation omitted). The Supreme 

Court has stated that AEDPA “‘imposes a highly deferential standard for evaluating statecourt rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’” 

Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (internal citation omitted). 

Applying AEDPA’s deferential standard of review, we “ask whether it is possible 

fairminded jurists could disagree that those arguments or theories are inconsistent with 

the holding in a prior decision of [the Supreme] Court.” Id. Only if the petitioner 

demonstrates that the state court decision “was so lacking in justification” as to present 

error “beyond any possibility for fairminded disagreement” may we grant habeas relief. 

Id. at 786-87. 

Hairston fails to meet this high threshold. The question here is not whether the 

state court correctly decided the Batson issue but whether there is any reasonable 

argument to be made that Hairston did not succeed in establishing purposeful 

discrimination. We hold that there was. Although defense counsel’s rebuttal raised valid 

questions, it fell short of compelling the conclusion that the prosecution harbored racially 

discriminatory intent. Accordingly, we will defer to the Appellate Division’s finding that 

the prosecution’s exercise of its peremptory challenges was constitutional and affirm the 

order of the District Court.
1

RENDELL, Circuit Judge, dissenting:

While I recognize that AEDPA “‘imposes a highly deferential standard for 

evaluating state-court rulings’ and ‘demands that state court decisions be given the 

benefit of the doubt,’” Felkner v. Jackson, 131 S. Ct. 1305, 1308 (2011) (quoting Renico 

v. Lett, 559 U.S. 766, 772 (2010)), I disagree with the majority’s conclusion that the state 

court engaged in an objectively reasonable application of step three of the Batson inquiry 

on direct appeal. The record of both the state trial and appellate court proceedings reveal 

that both courts ended their analysis at step two. Thus, the Batson claim was never fully 

adjudicated on the merits. Where this error occurs in the state courts, our precedent 

dictates that we should conduct the step three analysis ourselves and determine from the 

voir dire transcripts whether the strikes were pretextual. See, e.g., Hardcastle v. Horn, 

368 F.3d 246, 262 (3d Cir. 2004). If that is not possible, habeas should be granted. See 

Simmons v. Beyer, 44 F.3d 1160, 1168 (3d Cir. 1995). I do not vote to grant habeas relief 

in this case lightly, but given our inability to reconstruct all that occurred in voir dire,1

and given the questions raised by the portion of the record that we do have, I do not 

hesitate to urge that habeas relief should be afforded to Mr. Hairston. 

 

1

Jury voir dire was conducted over several months. Prospective jurors filled out a twopart, 19-page questionnaire. Some jurors were excused as early as July 1991 and the 

remainder were interviewed individually by the trial court and counsel beginning in 

September 1991. As the majority notes, it took approximately 27 days to select the final 

pool of 52 eligible jurors. Of the 43 jurors who were seated in court on the day the 

peremptory strikes were exercised, 10 were African American. Of the 10 peremptory 

strikes the prosecutor used, 7 were against African Americans. 

Unfortunately, the vast majority of the records of voir dire have been destroyed. 

(See App. 945-47.) We have the voir dire transcripts for only five impaneled jurors and 

one of the seven stricken African American jurors (Andrew Bryant). The races of the 

impaneled jurors whose voir dire testimony we have is not discernible from the record. 
2

I. 

A.

It is worth elaborating upon the analysis required in the Batson three-step inquiry 

in order to parse out the difference between steps two and three. After a defendant 

establishes a prima facie case of purposeful discrimination at step one, at step two, “the 

burden shifts to the State to come forward with a neutral explanation for challenging 

black jurors.” Batson v. Kentucky, 476 U.S. 79, 97 (1986). The Batson Court held that the 

“neutral explanation” should be “related to the particular case to be tried” and should not 

merely be an affirmation of the prosecutor’s good faith. Id. at 98. Only if the trial court 

accepts the prosecutor’s explanation at step two to be “facially valid[],” will it proceed to 

step three. Hernandez v. New York, 500 U.S. 352, 360 (1991). 

At step three, “the trial court . . . [has] the duty to determine if the defendant has 

established purposeful discrimination.” Batson, 476 U.S. at 98. “In deciding if the 

defendant has carried his burden of persuasion, a court must undertake ‘a sensitive 

inquiry into such circumstantial and direct evidence of intent as may be available.’” Id. at 

93 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 

252, 266 (1977)). Though the Supreme Court in Batson declined “to formulate particular 

procedures to be followed,” id. at 99, in performing the inquiry at each step, it notably 

drew upon Title VII jurisprudence to describe the burden shifting framework applicable 

in a Batson challenge. The Court stated, “[o]ur decisions concerning ‘disparate treatment’ 

under Title VII of the Civil Rights Act of 1964 have explained the operation of prima 

facie burden of proof rules. The party alleging that he has been the victim of intentional 
3

discrimination carries the ultimate burden of persuasion.” id. at 94 n.18 (citing 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community 

Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); United States Postal Serv. Bd. of 

Governors v. Aikens, 460 U.S. 711 (1983)). 

In McDonnell Douglas, the Supreme Court established the three-step burden 

shifting framework applicable in an employment discrimination case under Title VII. 

First, the employee must make out a prima facie case of discrimination. 411 U.S. at 802. 

The burden then shifts to the employer to present a nondiscriminatory reason for the 

adverse employment action the employee has suffered. Id. Finally, the employee must 

demonstrate that the reason given by the employer is pretextual. Id. at 804. In Burdine, 

the Court explained that an employee could meet his burden by “persuading the court that 

a discriminatory reason more likely motivated the employer or . . . by showing that the 

employer’s proffered explanation is unworthy of credence.” 450 U.S. at 256. The 

McDonnell Douglas Court noted that particularly relevant at the third step would be 

evidence that employees similarly situated to the plaintiff, but of a different race, did not 

suffer adverse employment action. 411 U.S. at 804 (“Especially relevant to [] a showing 

[of pretext] would be evidence that white employees involved in acts against [the 

employer] of comparable seriousness . . . were nevertheless retained or rehired.”). 

Although the Batson Court did not explicitly elaborate upon the analysis required 

at step three, by pointing to the McDonnell Douglas burden shifting framework, the 

Court made clear that a Batson challenger has an analogous burden to show that opposing 
4

counsel’s justifications for the challenged peremptory strikes are pretextual.2 Once a 

defendant is given “a full and fair opportunity to demonstrate that” the reasons offered by 

the prosecutor for his use of peremptory strikes “were in fact a coverup for a racially 

discriminatory decision,” McDonnell Douglas, 411 U.S. at 805, the trial court “must 

decide which party’s explanation of the [prosecutor’s] motivation it believes.” Aikens, 

460 U.S. at 716. In other words, the trial court must make a finding of fact as to the 

prosecutor’s true intentions. Difficult as making such a finding may be, the Supreme 

Court explained in Aikens, another Title VII case cited in Batson, “[t]he law often obliges 

finders of fact to inquire into a person’s state of mind,” id. at 716, by comparing the 

treatment of the plaintiff with the treatment of others. 

B. 

Similarly, at step three of Batson, it is the exercise of comparing that is key. Here, 

it is abundantly clear that both the state trial and appellate courts failed to reach step 

three. The majority relies primarily upon Bond v. Beard, 539 F.3d 256 (3d Cir. 2008), in 

asserting that the state courts reached step three of Batson. In Bond, we found that the 

trial court reached the necessary step three conclusion when it stated: “Reviewing the 

totality of the circumstances, there is no showing of intentional discrimination by the 

prosecutor in the jury selection process and defendants are not entitled to a new trial on 

that basis.” 539 F.3d at 267 (citations omitted). We explained:

 

2

Just as side by side comparisons between black and white employees are the most 

powerful evidence in a Title VII case, side by side comparisons between black and white 

jury venire panelists are the most powerful evidence in a Batson challenge. The Supreme 

Court later reinforced the utility of side by side comparisons of stricken and impaneled 

jurors at step three of the Batson inquiry in Miller-El v. Dretke, 545 U.S. 231, 241 (2005).
5

Here, the trial court does more than conclude that the prosecutor offered a 

race-neutral explanation for a strike; it concludes that Bond did not meet his 

burden of showing that purposeful racial discrimination, not the proffered 

explanation, motivated the prosecutor’s conduct. This step-three conclusion 

indicates that the trial court indeed did understand the steps of a Batson

analysis. 

Id. at 268-69. 

In Bond, it was clear that the trial court made a determination as to whether the 

defendant had met his ultimate burden of showing intentional discrimination. Here, the 

trial court made no such finding. Rather, instead, the trial judge robbed defense counsel 

of the opportunity to carry his burden at step three, stating that he did not “have a right” 

to put “himself into [the] prosecutor’s shoes,” (App. 92) and critique the prosecutor’s 

treatment of other jurors. Furthermore, the court suggested that a step three determination 

was impossible because, “[a]fter an hour and a half interview of anybody it is possible for 

either side to conclude that a segment supports their position.” (App. 94.) As the majority 

notes, it was exactly this kind of language in Bond that gave us serious pause. See Bond, 

539 F.3d at 268 (noting that trial court’s statement that it was “not going to try and get 

into [the prosecutor’s] mind” implied that court believed it could stop analysis after 

prosecutor satisfied step two); Majority Op. at 17. 

By stating that “[a]ll the State needs to do it’s done” (App. 94) and that the 

prosecutor’s reasons for his strikes were “valid and sufficient in the record,” (App. 92) 

the trial judge merely performed the step two inquiry.3 At step two, the prosecutor carries 

 

3 The majority fails to note the context in which the trial court made the statement that the 

prosecutor’s reasons were “valid and sufficient in the record.” (App 92.) Here, context is 

key. Immediately before stating this conclusion, the trial court said: 
6

the burden to present justifications for the challenged strikes and the relevant question for 

the trial judge is whether the given justifications are “facially valid.” Hernandez, 500 

U.S. at 360. The issue at step three is whether the prosecutor’s reasons “relating to views 

about the death penalty, reasons about use of alcohol, [and] reasons involving family 

members in crime,” were pretextual. (App. 92.)

Had the trial judge permitted defense counsel to make, and had the judge actually 

considered, the necessary side by side comparisons between seated white and excused 

black jurors that defense counsel urged he should be allowed to present, the judge would 

have been at least equipped to determine if intentional discrimination was at play. For 

example, while the prosecutor could meet his burden at step two by stating that he had 

exercised a strike against a black juror because of the juror’s views on capital 

punishment, the judge could have found this reason to be pretextual at step three if white 

jurors with similar views on capital punishment were, nevertheless, seated. Instead, 

 

Each one of these people took an hour and a half to two hours to qualify 

when we did the voir dire. It is . . . possible really to pull out in that hour 

and a half anything . . . to support your view. Gilmore requires that if 

there’s a showing, that the State must come forward with reasons as to why 

it used its challenges. . . . I do find now the State has put forth valid reasons 

for the exercise of these challenges. That the defense doesn’t concur is not 

surprising. Of course each side has a distinct point of view of . . . this case, 

in all cases, but the defense does not have a right I don’t believe to put its 

own place – put himself into [the] prosecutor’s shoes [to] determine what 

challenges in their view were valid, invalid. 

(App. 91-92.) The trial court thus indicated that it is impossible to uncover a prosecutor’s 

true motivations for his strikes, even though this is precisely a trial judge’s task at step 

three of Batson. I, therefore, cannot agree with the majority that the trial court’s finding 

that the prosecutor’s reasons were “valid and sufficient in the record” had anything to do 

with an evaluation of the credibility of the reasons given. See Majority Op. at 19.
7

however, the trial judge here effectively ruled that defense counsel did not have the right 

to challenge the credibility of the prosecutor’s proffered reasons by drawing comparisons 

once the judge found them to be race neutral at step two. While defense counsel was able 

to sneak some comparisons between seated and excused jurors into the record in spite of 

the judge’s instructions, the judge made it clear that he was not interested in, and would 

not consider, these comparisons.4

Simply acknowledging that the prosecutor has satisfied his burden at step two 

cannot constitute a determination as to whether the defendant has shown purposeful 

discrimination; otherwise, step three would be superfluous. Here, the trial judge not only 

failed to comment on the credibility of the explanations offered by the prosecutor but also 

indicated that he believed it would be impossible to discern from the record whether or 

not there had been intentional discrimination. Therefore, the trial judge omitted the third 

step of the Batson inquiry.

The Appellate Division committed the same error in failing to evaluate the 

credibility of the prosecutor’s proffered explanations. The majority acknowledges that the 

Appellate Division “essentially incorporated,” Majority Op. at 16 (quoting Bond, 539 

F.3d at 269), the trial court’s reasoning in its Batson determination, yet the majority is 

 

4 Similarly, it is irrelevant that the Batson motion was made during jury selection – in 

“live combat,” as the District Court and majority note. The fact that the trial judge 

presided over 27 days of voir dire and may have been “equipped to make a finding about 

whether he believed the reasons given by the prosecutor for exercising the state’s strike,” 

does not mean that he actually made such a credibility determination. Here, we have no 

reason to think that he did since he suggested that such a determination would be 

impossible. Moreover, the length of the voir dire proceedings in this case actually 

indicates that it was highly improbable that the trial judge was able to recall the true 

responses of a prospective juror without reviewing the record and refreshing his memory. 
8

satisfied with the Appellate Division’s analysis because the Appellate Division concluded 

that the trial court had only accepted the prosecutor’s proffered explanations as “valid” 

and “legitimate,” “[a]fter hearing argument by both sides.” (App. 116-17); see Majority 

Op. at 19. The Appellate Division further stated that the trial court’s finding of validity 

was “sufficiently grounded in the record.” (App. 117.) The majority fails to note, 

however, that the “finding” made by the trial court and affirmed by the Appellate 

Division was only that the prosecutor had satisfied his burden at step two. Indeed, at the 

end of its analysis of the peremptory strikes, the Appellate Division quoted directly from 

Batson’s step two: “The State carried its burden by articulating ‘clear and reasonably 

specific’ explanations of its ‘legitimate reasons’ for exercising each of the peremptory 

challenges.” (App. 117 (quoting Batson, 476 U.S. at 98 n.20) (additional citations 

omitted).) As previously explained, in Batson, the Supreme Court held that a prosecutor’s 

“neutral explanation” should be “related to the particular case to be tried” and should not 

merely be an affirmation of the prosecutor’s good faith. Id. at 98. The footnote in Batson

quoted by the Appellate Division was merely a clarification of the prosecutor’s burden at 

step two.5Indeed, the Supreme Court has since explained exactly what was meant by this 

footnote: 

 

5

In full, the footnote reads:

The Court of Appeals for the Second Circuit observed in McCray v. 

Abrams, that “[t]here are any number of bases” on which a prosecutor 

reasonably may believe that it is desirable to strike a juror who is not 

excusable for cause. As we explained in another context, however, the 

prosecutor must give a “clear and reasonably specific” explanation of his 

“legitimate reasons” for exercising the challenges. 
9

This warning was meant to refute the notion that a prosecutor could satisfy 

his burden of production by merely denying that he had a discriminatory 

motive or by merely affirming his good faith. What it means by a 

‘legitimate reason’ is not a reason that makes sense, but a reason that does 

not deny equal protection. 

Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam). The Court explained that only at 

the third step does the question of whether or not a reason “makes sense” come into play: 

“It is not until the third step that the persuasiveness of the justification becomes relevantthe step in which the trial court determines whether the opponent of the strike has carried 

his burden of proving purposeful discrimination.” Id. at 768. 

Thus a court must find a prosecutor’s justification to be “legitimate,” “valid,” and 

“sufficiently grounded in the record” before it may even proceed to step three. Only “then 

will [the trial court] have the duty to determine if the defendant has established 

purposeful discrimination.” Batson, 476 U.S. at 98. Here, the statement by the Appellate 

Division that the prosecutor had provided “legitimate reasons” for his challenges only 

meant that he had provided race neutral reasons actually “related to the particular case to 

be tried,” id., not that those reasons were truthful or genuine.6

 

Batson, 476 U.S. at 98 n.20 (citations omitted). 

6

I note that in Bond, we concluded that the use of the word “legitimate” conveyed a step 

three determination. But there, the state appellate court reasoned as follows: “[b]ased 

upon our review of the record we find no reason to disturb the findings of the trial court 

as to the legitimacy of the race neutral responses.” 539 F.3d at 268 (internal quotation 

marks omitted). We held that, “[t]he emphasis on legitimacy demonstrates that the 

[Pennsylvania] Supreme Court considered the third step of the Batson analysis. Had it 

stopped at the second step, it merely would have inquired into the existence of ‘race 

neutral’ explanations or responses.” Id. at 269. 
10

Where state courts have omitted step three, we have not hesitated to conduct de 

novo review. In Hardcastle v. Horn, 368 F.3d 246 (3d Cir. 2004), the Pennsylvania 

Supreme Court reviewed Hardcastle’s challenge to the prosecutor’s use of peremptory 

strikes on direct appeal in light of the intervening change in law announced in Batson. 

The court independently combed through the records of voir dire to determine if there 

were possible race-neutral bases for the challenged peremptory strikes. Id. at 252. After 

coming up with potential justifications for each strike, the court “concluded that 

Hardcastle failed to establish a prima facie case of improper use of peremptory 

challenges under Batson.” Id. at 253. On appeal of the district court’s grant of 

Hardcastle’s habeas petition and under AEDPA, we agreed with the district court that the 

state court had failed to properly engage in step one but held that the court’s decision to 

proceed with step two “moot[ed] the issue of whether Hardcastle made a sufficient 

showing at step one.” Id. at 256. Thus we proceeded to review the state court’s findings 

 

The use of the word “legitimate” in Bond, however, is distinguishable in three 

ways. First, it is clear that in Bond, the word “legitimate” referred to the truthfulness of 

the prosecutor’s reasons rather than whether or not the proffered reasons were actually 

race neutral because the appellate court commented on the “legitimacy of the race neutral 

responses,” (emphasis added) rather than on whether the prosecutor had offered 

“legitimate reasons.” Second, as previously noted, in Hairston II, the appellate court was 

actually quoting directly from a footnote in Batson describing the prosecutor’s burden at 

step two. Finally, in Bond, it was possible for the appellate court to say that the trial court 

had actually made findings as to the credibility of the prosecutor’s explanations because 

the trial court had stated that, “[r]eviewing the totality of the circumstances, there is no 

showing of intentional discrimination by the prosecutor in the jury selection process.” 

539 F.3d at 267 (citations omitted). In other words, the trial court had actually made a 

step three determination to which the appellate court could defer. Here, the trial court did 

no such thing. 
11

at the remaining steps and determined that the state court had completely omitted step 

three. We explained:

“[A] judge considering a Batson challenge is not required to comment 

explicitly on every piece of evidence in the record.” However, “some 

engagement with the evidence considered is necessary as part of step three 

of the Batson inquiry,” and this requires “something more than a terse, 

abrupt comment that the prosecutor has satisfied Batson.”

Id. at 259 (quoting Riley v. Taylor, 277 F.3d 261, 290-91 (3d Cir. 2001)). Then, quoting 

the district court, we stated that the state court’s decision “does not indicate that the court 

engaged in any analysis or consideration of the credibility of the potential justifications it 

had proffered. Rather, the court’s decision reads as if the court accepted the justifications 

at face value.” Id. We therefore held that there was no step three determination to which 

we could defer and remanded the case to the district court for an evidentiary hearing and 

de novo review of Hardcastle’s Batson claim. Id. We are now faced with a substantially 

similar situation in which the trial and appellate courts made no effort to evaluate “the 

credibility of the potential justifications” proffered. Id. Indeed, here, the trial court 

blocked defense counsel’s efforts to mount a credibility challenge. This is the crux of step 

three. In the absence of any analysis of the credibility of the prosecutor’s proffered 

justifications for his strikes, there is no step three determination to which we can defer. 

As such, AEDPA deference does not apply to the Appellate Division’s decision and, 

ideally, step three analysis of Hairston’s Batson claim should be conducted de novo. 

II.
12

Here, however, it is not possible to conduct a step three analysis based on the 

available trial records. Without all of the voir dire transcripts, we cannot determine 

whether or not the prosecutor’s justifications were pretextual. For example, even though 

we have the full voir dire transcript of Mr. Bryant, it is impossible to determine whether 

the prosecutor’s proffered justification for striking Mr. Bryant was pretextual because 

defense counsel was improperly cut off by the trial judge when he attempted to make the 

side by side comparisons between Mr. Bryant and impaneled jurors that are the hallmark 

of step three. Although defense counsel was still able to draw some comparisons on the 

record that could indicate pretext on the part of the prosecutor, we are missing relevant 

voir dire testimony of potential jurors and are left with defense counsel’s 

characterizations of what was said. These characterizations alone should give us serious 

pause.

Specifically, the prosecutor asserted that he had exercised a peremptory strike 

against Mr. Bryant because Mr. Bryant had worked to rehabilitate drug users and 

alcoholics, and therefore would be sympathetic to Mr. Hairston. Defense counsel noted, 

however, that the prosecutor had failed to use a strike against Denise Jones, who was 

married to an alcoholic, and against Michael Pidgeon, who had enrolled in Alcoholics 

Anonymous three times. If defense counsel’s descriptions of Ms. Jones’s and Mr. 

Pidgeon’s personal histories are true, this raises questions as to whether the prosecutor 

acted for the race-neutral reasons stated. 

These questions are compounded by the prosecutor’s misrepresentation of the 

record in offering justifications for his strike. The prosecutor told the trial judge that Mr. 
13

Bryant had said that he had a graduate degree in sociology and had written a dissertation 

on “the relationship between people.” (App. 74.) The prosecutor stated that when he 

asked for clarification regarding Mr. Bryant’s dissertation, he received no response. From 

the voir dire transcripts, however, it is clear that the prosecutor never asked Mr. Bryant to 

explain the subject of his thesis, but that Mr. Bryant did so anyway when questioned by 

defense counsel. The prosecution’s claim that it was confused as to what Mr. Bryant 

wrote his dissertation on is, therefore, belied by the record. In Miller-El v. Dretke, the 

Supreme Court indicated that failing to inquire during voir dire on an issue of alleged 

importance suggests pretext for discrimination. 545 U.S. at 241. Here, there is some 

evidence that the prosecutor’s justifications for striking Mr. Bryant were pretextual, but 

without further evidence corroborating defense counsel’s assertions regarding Ms. Jones 

and Mr. Pidgeon, we cannot conclusively determine whether the prosecutor purposefully 

discriminated against African Americans in striking Mr. Bryant from the jury panel. 

III.

We have held that where reconstruction of the record is not possible, “the 

prejudice stemming from our inability to review [a Batson] claim is not fairly borne by 

[the defendant].” Simmons, 44 F.3d at 1168. The appropriate remedy, therefore, is to 

grant Hairston’s habeas petition, give the state an opportunity to retry him, and specify 

the time period within which the state must retry or release him. See id. at 1171. I, thus, 

respectfully dissent from the majority’s opinion affirming the District Court’s denial of 

Hairston’s habeas petition.