In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-3172 

CHARMELL BROWN, 

Petitioner-Appellant, 

v.

ALEX JONES, Acting Warden, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Central District of Illinois. 

No. 17-2212 — Sue E. Myerscough, Judge. 

____________________ 

ARGUED SEPTEMBER 24, 2020 — OCTOBER 21, 2020 

____________________ 

Before EASTERBROOK, MANION, and KANNE, Circuit Judges. 

KANNE, Circuit Judge. When selecting jurors for Charmell 

Brown’s murder trial in Illinois state court, the prosecution 

struck venireperson Devon Ware who had been to the crime 

scene. As it happens, Ware is also African American. In his 

petition for habeas relief now before us, Brown argues that 

the prosecution struck Ware on the basis of his race and that 

the Illinois Appellate Court unreasonably applied Batson v. 
2 No. 19-3172 

Kentucky, 476 U.S. 79 (1986), when holding otherwise in 

Brown’s direct appeal. 

The court made no such error. It correctly noted the prosecution’s apparent reason for striking Ware—that he had been 

to the crime scene—and found no circumstances giving rise 

to an inference that the prosecution engaged in racial discrimination. We therefore affirm the district court’s decision denying Brown’s petition for a writ of habeas corpus. 

I. BACKGROUND

In 2008, a jury convicted Charmell Brown of three counts 

of first-degree murder and one count of aggravated battery 

with a firearm for shooting three people outside of the American Legion building in Champaign, Illinois. The court sentenced Brown to 90 years’ imprisonment. Since his sentencing, Brown has filed two postconviction motions, a direct appeal, and the petition for federal habeas relief now before us. 

Brown’s only remaining claim is that the Illinois Appellate 

Court unreasonably applied Batson when reviewing his claim 

that the prosecutor in his case struck potential juror Devon 

Ware because of Ware’s race. 

Ware was one of two African Americans in the sixty-person venire gathered for Brown’s trial. The clerk called Ware 

as a potential juror in the first panel of four venirepersons. The 

court then asked the panel general questions regarding their 

fitness as jurors. One question inquired whether anyone was 

familiar with the American Legion where Brown’s crime took 

place. Ware said yes, and the other three venirepersons said 

no. The court followed up and asked Ware if he had visited 

the Legion. Ware answered, “Been on the outside. Not inside.” But he denied that his familiarity with the American 
No. 19-3172 3

Legion would affect his service as a juror. The court then tendered questioning to the prosecutor, who immediately requested that Ware be excused. The court obliged. 

Brown objected that Ware’s excusal violated Batson. The 

court overruled the objection and found that Ware was 

“properly excused” because Brown failed to make “a prima 

facie case that a discriminatory practice was being conducted 

by the State.” The court thus did not ask the prosecution to 

provide “a race neutral explanation” for its strike. 

Brown raised this issue before the trial court again in his 

post-trial motions. Once more, the trial court denied the

claim. The court explained that Ware, “unlike every other juror that was questioned,” had been to the American Legion, 

and therefore Brown failed to establish a prima facie Batson 

case. 

On direct appeal, Brown raised his Batson issue a third 

time, but the Illinois Appellate Court rejected it. The court 

noted the relevant factors for establishing a prima facie Batson

case, considered the record pertaining to Brown’s voir dire 

proceedings, and determined that the trial court did not 

clearly err in ruling that Brown failed to establish a prima facie case of racial discrimination in the jury selection process. 

To support this conclusion, the court explained that there was 

no evidence of a pattern of striking African Americans from 

the jury or of a disproportionate number of strikes used 

against African Americans and that the other factors “were 

unremarkable in the overall context of this case.” The court 

further noted that Ware meaningfully distinguished himself 

from the other potential jurors by stating that he was familiar 

with the crime scene. Brown petitioned for leave to appeal the 
4 No. 19-3172 

court’s decision, but the Illinois Supreme Court denied his request. 

Brown then sought federal habeas relief. The district court 

denied Brown’s habeas petition but granted a certificate of appealability on the Batson issue. The district court noted that 

the prosecutor struck one of two African-American venirepersons but held that Brown “must do more than point to the fact 

that the prosecutor exercised a peremptory strike on an African American venireperson to establish a prima facie case.” 

Brown now appeals the district court’s decision. 

II. ANALYSIS

Brown seeks habeas relief under 28 U.S.C. § 2254 as 

amended by the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”). Federal courts may only grant habeas 

relief under AEDPA if a state court’s last reasoned opinion on 

a defendant’s claim (1) was contrary to, or relied on an unreasonable application of, clearly established federal law or 

(2) rested on an unreasonable factual determination. 28 U.S.C. 

§ 2254(d)(1)–(2). 

A state court’s decision relies on an “unreasonable application of clearly established federal law” if it identifies the 

correct legal rule but applies the rule in an objectively unreasonable way. Bynum v. Lemmon, 560 F.3d 678, 683 (7th Cir. 

2009). Regarding factual determinations, a petitioner “bears 

the burden of rebutting the state court’s factual findings ‘by 

clear and convincing evidence,’” and “a state-court factual determination is not unreasonable merely because the federal 

habeas court would have reached a different conclusion.” 

Burt v. Titlow, 571 U.S. 12, 18 (2013) (first quoting 28 U.S.C. 
No. 19-3172 5

§ 2254(e)(1); and then quoting Wood v. Allen, 558 U.S. 290, 301 

(2010)). 

This standard “erects a formidable barrier to federal habeas relief.” Id. at 19. AEDPA requires “a state prisoner [to] 

show that the state court’s ruling on the claim being presented 

in federal court was so lacking in justification that there was 

an error ... beyond any possibility for fairminded disagreement.” Id. at 19–20 (alterations in original) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). 

In this case, Brown contends that he is entitled to habeas 

relief because the Illinois Appellate Court unreasonably applied Batson and based its decision on unreasonable factual 

determinations. In response, the State argues that Brown’s petition is untimely and meritless. We disagree with the State’s 

timeliness argument but agree that Brown’s petition is meritless. 

A. The State waived its timeliness argument. 

AEDPA imposes a one-year statute of limitations. 28 

U.S.C. § 2244(d)(1). But this limitations period is not jurisdictional. See Wood v. Milyard, 566 U.S. 463, 474 (2012). A state 

respondent may waive the defense by “expressing its clear 

and accurate understanding of [a] timeliness issue” yet “deliberately steer[ing] the District Court away from the question 

and towards the merits of [the] petition.” Id. And a federal appellate “court is not at liberty ... to bypass, override, or excuse 

a State’s deliberate waiver of a limitations defense.” Id. at 466. 

For example, in Wood, “the State twice informed the District 

Court that it ‘w[ould] not challenge, but [is] not conceding’ 

the timeliness of [the] petition.” Id. at 474 (second alteration 

in original). The Supreme Court held that the court of appeals 
6 No. 19-3172 

was therefore required to reach the merits of the petition rather than decide the case on timeliness grounds. Id. 

Much like the state respondent in Wood, the State in this 

case waived its statute of limitations defense. Initially, the 

State did file a motion to dismiss arguing that Brown’s petition was untimely. But after the court set an evidentiary hearing on timeliness and appointed counsel to represent Brown, 

the State asked the court to set a briefing schedule on the merits of the petition instead. The State informed the court that 

“consideration of the merits and any procedural bars to the 

claims raised in the instant petition may be more efficient than 

continued litigation of [Brown’s] equitable tolling argument.” 

This was textbook waiver. The state “express[ed] its clear 

and accurate understanding of [a] timeliness issue” yet “deliberately steered the District Court away from the question 

and towards the merits of [Brown’s] petition.” Id. And the district court acknowledged as much by deciding the merits of 

this case. We too will therefore consider the merits of Brown’s 

petition. 

B. The Illinois Appellate Court reasonably applied Batson. 

“In Batson, the Supreme Court established a three-step 

framework for determining whether [a] prosecut[or] violated 

[a] defendant’s Equal Protection rights by exercising peremptory challenges in a racially discriminatory manner.” Bennett

v. Gaetz, 592 F.3d 786, 791 (7th Cir. 2010). 

First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference 

of discriminatory purpose.” Second, if the defendant establishes a 

prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” ... . Third, the trial court must evaluate the plausibility of the prosecution’s reasons, in light of all of 
No. 19-3172 7

the surrounding circumstances, to decide whether the defendant 

has proved purposeful discrimination. 

Id. (citations omitted) (quoting Batson, 476 U.S. at 94, 98). 

This case turns on Batson’s first step—the prima facie case. 

“[A] defendant may establish a prima facie case by offering a 

wide variety of evidence that raises a mere inference of a discriminatory purpose.” Id. (citing Johnson v. California, 545 U.S. 

162, 169 (2005); United States v. Stephens, 421 F.3d 503, 512 (7th 

Cir. 2005)). For example, a defendant may establish a prima 

facie Batson case by offering proof of a pattern of strikes 

against African Americans or showing that the prosecutor’s 

questions and statements during voir dire support an inference of discrimination. See Flowers v. Mississippi, 139 S. Ct. 

2228, 2246 (2019); Batson, 476 U.S. at 96–97. 

“The burden at this stage is light.” Bennett, 592 F.3d at 791. 

A challenger must only point to “circumstances raising a suspicion that discrimination occurred.” Franklin v. Sims, 538 

F.3d 661, 665 (7th Cir. 2008). Nevertheless, “the prima facie 

burden is an essential part of the Batson framework, and trial 

courts may justifiably demand that defendants carry this burden before requiring prosecutors to engage in the difficult 

task of articulating their instinctive reasons for peremptorily 

striking a juror.” Bennett, 592 F.3d at 791 (7th Cir. 2010) (citing 

Miller-El v. Drekte, 545 U.S. 231, 267–68 (2005) (Breyer, J., concurring)). 

In this case, the Illinois Appellate Court applied Batson 

correctly. To start, the court identified the wide swath of factors to consider in determining whether a defendant has 

made a prima facie Batson claim. Then the court found that, in 

Brown’s case, there “was no evidence of any pattern of striking African-Americans from the jury, nor was there any 
8 No. 19-3172 

evidence of a disproportionate number of strikes used against 

African-Americans,” and “[t]he facts pertaining to the other 

factors were unremarkable in the overall context of this case.” 

Brown takes issue with this analysis on three grounds, but 

none prevails. First, Brown argues that the Illinois Appellate 

Court failed to consider (1) that, because only two members 

of the venire were African American, striking Ware dramatically increased the chance that no African Americans would 

serve on Brown’s jury and (2) that the prosecutor’s decision 

not to question Ware before excusing him differed from the 

prosecutor’s treatment of other venirepersons. 

This argument is not persuasive because the Illinois Appellate Court did consider these circumstances and correctly 

noted that they “were unremarkable in the overall context of 

this case.” Though striking Ware decreased the chance that 

African Americans would serve on Brown’s jury, that merely 

highlighted a minor anomaly in the venire. It did not shed any 

light on the prosecutor’s strike. Moreover, the prosecutor’s 

decision to ask more questions of other jurors was unremarkable because Ware distinguished himself by stating that he 

had been to the crime scene. 

Second, Brown argues that the Illinois Appellate Court improperly considered that Ware was familiar with the crime 

scene to explain the prosecution’s strike. Courts considering 

Batson claims at the prima facie stage may consider “apparent” reasons for a strike. See Stephens, 421 F.3d at 515 (“[I]n 

considering ‘all relevant circumstances,’ courts may consider 

distinctions such as [a venireperson’s] attorney status in determining whether the inference of discrimination is demonstrated.”). This “normally works to the government’s advantage, showing that a seemingly discriminatory pattern of 
No. 19-3172 9

peremptories is readily explained by factors apparent in the 

record.” Id. (citing Mahaffey v. Page, 162 F.3d 481, 483 n.1 (7th 

Cir. 1998); Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996); 

Capers v. Singletary, 989 F.2d 442, 446 (11th Cir. 1993)). But the 

Supreme Court has made clear that the persuasiveness of a 

Batson challenge is to be determined at the third Batson stage, 

not the first, and has rejected efforts by courts to supply reasons for questionable strikes. Miller-El, 545 U.S. at 252. An inquiry into apparent reasons is thus “relevant only insofar as 

the strikes are so clearly attributable to that apparent, nondiscriminatory reason that there is no longer any suspicion, 

or inference, of discrimination.” Franklin, 538 F.3d at 665 

(quoting Stephens, 421 F.3d at 516). 

Here, the Illinois Appellate Court was not unreasonable in 

considering Ware’s history with the crime scene as an apparent reason for his excusal—just the opposite. Ware’s statement that he, unlike any other jurors,1 had been to the crime 

scene was a highly relevant circumstance for the court to consider. And the prosecutor’s strike was “clearly attributable” to 

that circumstance because the prosecutor used the strike immediately upon learning of it. 

Third, Brown argues that the Illinois Appellate Court imposed too high of a burden at the prima facie stage. For the 

reasons already stated, this is incorrect. The court reasonably 

determined that the circumstances of Ware’s excuse did not 

1 Brown notes that another juror, who was not stricken, stated that she 

knew the address of the American Legion. This comparator juror does not 

reveal anything about the strike used against Ware because she, unlike 

Ware, had not been to the scene of the crime. 
10 No. 19-3172 

“rais[e] a suspicion that discrimination occurred.” Id. (quoting Stephens, 421 F.3d at 512). 

In sum, we see nothing unreasonable—much less any error beyond the possibility for fairminded disagreement—in 

the Illinois Appellate Court’s application of Batson. Brown is 

therefore not entitled to habeas relief on this ground. 

C. The Illinois Appellate Court’s decision did not rest on any 

unreasonable factual determinations. 

Brown argues that the Illinois Appellate Court relied on 

the unreasonable factual determination that the prosecution 

in fact did not strike Ware because of his race. Brown leans 

heavily on the trial court’s statement that Ware was “properly 

excused” and the Illinois Appellate Court’s affirmance of that 

purported “finding.” 

There are several issues with this argument. First, the trial 

court made clear that Ware was “properly excused” because 

Brown did not establish a prima facie Batson case. The trial 

court never purported to determine any facts about his excuse. Second, the Illinois Appellate Court did not reiterate this 

“finding” when reviewing the trial court’s decision. The Illinois Appellate Court made clear that it only held that the trial 

court did not err insofar as it found that Brown failed to establish a prima facie Batson case. For those reasons, the Illinois 

Appellate Court did not rely on the allegedly unreasonable 

“factual finding” that Brown complains of. 

III. CONCLUSION

We AFFIRM the decision of the district court.