RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0132p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ANTHONY BRAXTON,

 Petitioner-Appellee,

v.

RICHARD GANSHEIMER, Warden,

 Respondent-Appellant.

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No. 07-3387

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 04-00170—Lesley Brooks Wells, District Judge.

Argued: September 8, 2008

Decided and Filed: April 2, 2009 

Before: BOGGS, Chief Judge; GIBBONS and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Michael Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Chad A. Readler, JONES DAY, Columbus, Ohio, for

Appellee. ON BRIEF: Michael Scott Criss, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellant. Chad A. Readler, JONES DAY, Columbus,

Ohio, for Appellee. Anthony Braxton, Cleveland, Ohio, pro se.

_________________

OPINION

_________________

GRIFFIN, Circuit Judge. Respondent Richard Gansheimer, Warden, appeals the

order of the district court granting petitioner Anthony Braxton, an Ohio state prisoner, a

conditional writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis of Braxton’s

claim that the prosecution’s exercise of a peremptory challenge during jury selection at his

state court trial was racially discriminatory in violation of the Equal Protection Clause and

Batson v. Kentucky, 476 U.S. 79 (1986). In granting the writ, the district court held that the

1
No. 07-3387 Braxton v. Gansheimer Page 2

Ohio courts’ decisions denying Braxton’s Batson challenge was an unreasonable application

of clearly established federal law and was based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding, entitling Braxton to

relief under 28 U.S.C. § 2254(d)(1) and (2). For the reasons stated below, we reverse the

judgment of the district court and remand the case with instructions to dismiss Braxton’s

habeas petition. 

I.

On November 19, 2001, Anthony Braxton was convicted by a jury in the Court of

Common Pleas, Cuyahoga County, Ohio, on one count of felonious assault upon a police

officer in violation of OHIO REV.CODE ANN. § 2903.11; one count of failure to comply with

an order or signal of a police officer, contrary to OHIO REV.CODE ANN. § 2921.331; and one

count of receiving stolen property in violation of OHIO REV.CODE ANN. § 2913.51. Braxton

and the victim, a police officer whom he allegedly assaulted, are both African-American

males. 

During voir dire, defense counsel objected unsuccessfully to the prosecution’s use

of two of its four peremptory challenges to remove two African-American jurors from the

panel. Three of the twenty-member prospective panel were African Americans. The

prosecutor used his first peremptory challenge to excuse Juror No. 8, a retired AfricanAmerican female who had worked for the public defender’s office for fifteen years. The

prosecutor also excused Juror No. 14, an African-American male, after questioning him

about his seeming inattentiveness and demeanor: 

[PROSECUTOR]: Are you off this week? Are you able to take the week

off? Is that a hardship for you especially? 

JUROR NO. 14: No, it’s not. 

[PROSECUTOR]: When you got your subpoena for jury service, what was

going through your mind? 

JUROR NO. 14: Why me? 

[PROSECUTOR]: Why me? Did anybody in this room when they got their

jury service think all right? You were excited? 

* * *
No. 07-3387 Braxton v. Gansheimer Page 3

[PROSECUTOR]: And one of the reasons I ask you, [Juror No. 14],

because you are a very laid back person or you are kind of exuding the fact

you might not want to be here. Just to be honest. By body language. Now,

I don’t know. It could be you’re laid back and you are kind of paying

attention. And so I just have to ask, would you rather not be here on this

case? 

JUROR NO. 14: You know, I have no problem. I served before. 

[PROSECUTOR]: And believe me, nobody wants to be here. I’m not

trying to pick on you. 

JUROR NO. 14: I understand. 

[PROSECUTOR]: We have to pick a jury that’s fair for the State and fair

for the defendant and so, if I see someone I think – I’m not just picking on

you, hey, maybe he doesn’t want to be here. You know I want to ask, okay?

So you are saying you will be all right? 

JUROR NO. 14: No problem. 

[PROSECUTOR]: Okay. Do you have anything else for me, sir? 

JUROR NO. 14: No. 

When the prosecutor exercised his peremptory challenges to excuse Juror No. 8 and

Juror No. 14, defense counsel objected and moved for a mistrial, maintaining that the

prosecutor’s challenges regarding these two jurors violated the Equal Protection Clause and

Batson, which preclude peremptory challenges on the basis of race. At the ensuing bench

conference, defense counsel asserted that the prosecution had “shown a pattern” by

challenging both African-American jurors and “remov[ing] 100 percent of potential black

jury panel members.” Defense counsel argued that, as a result, “only one other [AfricanAmerican juror] remain[ed] at the end of the line and we are not likely to even reach her.”

The trial court then asked the prosecutor to elaborate on his reasons for excusing the

two jurors. The prosecutor explained that he excused Juror No. 8 because she worked for

the public defender’s office for fifteen years and her employment there “worried” the State;

thus, the prosecutor believed she would be better suited for a civil-action jury panel. The

prosecutor perceived Juror No. 14 as being disinterested in serving on the jury: 

With regards to [Juror No. 14], he sat there the entire time with his arms

crossed and his head bent over, and his hand – he showed no interest in

being in here. I specifically questioned him about his body language, and

he even said he didn’t want to be here. So, I am not going to have someone
No. 07-3387 Braxton v. Gansheimer Page 4

sit on a jury that for the last two hours didn’t listen to anything, had no

intention of actually paying attention and then even when I asked him, he

said he didn’t want to be here. It’s got nothing to do with race. 

With regards to [the third African-American prospective juror], who is juror

number 20, there is a potential if she gets on this panel and I can tell you

right now we have no problem with her as well, the lone black juror. 

We also want to note our objection for the record because we know that’s

why we objected before. We knew he [defense counsel] was planning on

getting rid of four white people as well. There is a reverse Batson. There’s

case law on that, and that’s why we noted our continuing objection as well.

And I suspect that’s why he actually put it on initially because he knew both

African American jurors were not suitable for this jury regardless of the

race. One was a public defender. One hadn’t paid attention at all. He knew

we were kicking them off, and I specifically asked the guy about it. 

Defense counsel objected to the prosecutor’s explanation, and the following colloquy

occurred between counsel and the court: 

[DEFENSE COUNSEL]: Judge, as it relates to [Juror No. 8], she was

retired I think she said nine years ago from the Public Defender’s Office.

And she had also worked for Legal Aid. Now, working for Legal Aide [sic]

or the Public Defender’s Office for nine years after you terminate your

employment, then that is most extraordinary. 

I also point out as it relates to Mr. Smoot [Juror No. 14], right now as we sit

here, juror number 14 is seated in the jury, he’s turned around, his arms are

folded, right at the moment his head is down. Your Honor, that does not

disqualify him. 

[PROSECUTOR]: What is he talking about? 

[THE COURT]: [Defense counsel], I agree with you, that does not

disqualify a person from serving as a juror, but [the prosecutor] is attempting

to present a nondiscriminatory reason for the reason he exercised his

peremptory. 

[DEFENSE COUNSEL]: Your Honor, in terms of what he’s just indicated,

neither one of them are sufficient bases to satisfy our Batson objection. We

again move for a mistrial. 

[THE COURT]: I disagree with your reasoning. I think they are sufficient

bases to satisfy the standard of Batson. I will overrule your objection and

overrule your request for a mistrial. 

The trial proceeded with a jury panel composed of all white jurors. The remaining

African-American juror – Juror No. 20 – was seated as an alternate. The jury found Braxton
No. 07-3387 Braxton v. Gansheimer Page 5

guilty as charged on all counts, and the court later imposed a sentence of six years of

imprisonment. 

In his direct appeal, Braxton raised six claims, including his assertion that the

prosecution’s peremptory challenges of Jurors Nos. 8 and 14 violated Batson. See State v.

Braxton, No. 80663, 2002 WL 31123906 (Ohio Ct. App., Sept. 26, 2002). The Ohio Court

of Appeals affirmed Braxton’s convictions, finding all of his assignments of error to be

without merit. Id. With regard to the Batson claim, the court, after accurately reciting the

governing legal principles, found no purposeful discrimination under the circumstances: 

In the instant case, the defense sought a mistrial based on the fact that the

State removed two black jurors. When pressed for an explanation as to the

grounds for the peremptory challenge, the State explained that one of the

jurors worked at the public defender’s office for 15 years. According to the

State, the second juror indicated by his body language during voir dire “arms

crossed and head bent over” that he did not desire to sit on the case. The

prosecutor concluded that such an individual would not be attentive. 

* * * 

In the case at bar, the trial court, after appropriate inquiry, rejected the

notion that the prosecutor’s challenge rested on perceived stereotypical

assumptions or the intention of excluding African-American jurors. Nothing

in the prosecutor’s explanation showed that he chose to exclude jurors on the

basis of race. 

Id. at *3. Affording substantial deference to the trial judge’s assessment of credibility and

demeanor, the court of appeals concluded that “Braxton failed to make a prima facie case of

purposeful discrimination, the prosecutor provided a bona fide race-neutral explanation for

the challenge, and the court’s determination was not clearly erroneous.” Id. 

Upon further appeal and reiteration of his Batson claim, the Supreme Court of Ohio

issued an order denying leave to appeal and dismissing the appeal “as not involving any

substantial constitutional question.” State v. Braxton, 783 N.E.2d 521 (Ohio 2003)

(unpublished table decision). 

Braxton thereafter filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in federal district court, averring, inter alia, Batson error with regard to Juror No.
No. 07-3387 Braxton v. Gansheimer Page 6

1

As the district court accurately noted, “[a]lthough Mr. Braxton asserts both of the prosecutor’s

peremptory challenges as a basis of his petition, the thrust of [his] argument focuses on Juror No. 14.”

2

The district court adopted in part and rejected in part the Report and Recommendation (“R&R”)

of the magistrate judge, who advised that Braxton’s habeas petition should be denied on all grounds. The

district court agreed with the R&R that Braxton’s claims unrelated to the Batson issue were procedurally

defaulted and dismissed those claims. The court also denied Braxton’s motions for summary and

declaratory judgment. However, the court disagreed with the R&R that Braxton’s Batson claim pertaining

to Juror No. 14 did not merit relief. 

14.1 Ultimately, on March 1, 2007, after referral of the matter to a magistrate judge, the

district court issued an Opinion and Order granting Braxton a conditional writ of habeas

corpus on his Equal Protection claim.2 Reviewing the case under the applicable

standards of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254(d), the district court held that 

the evidence is clear and convincing that the prosecutor’s stated

justifications for excusing Juror No. 14 were a pretext for discrimination.

The trial court failed to address the blatant inconsistency between the

juror’s actual response and the prosecutor’s claims in Batson inquiry, and

the appellate court unreasonably determined that the trial court did not

err. Additionally, the appellate court made an unreasonable application

of Batson in finding that Mr. Braxton did not satisfy his prima facie case

when such matter had become moot. 

The district court therefore ordered Braxton’s state court convictions and sentences to

be vacated, unless the State of Ohio commenced a new trial against him within 120 days

of entry of the judgment. This timely appeal by respondent Gansheimer followed. 

II.

We review the district court’s legal conclusions in habeas proceedings de novo

and its findings of fact for clear error. Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir.

2008). AEDPA supplies the narrow parameters of federal habeas review of state court

proceedings, providing that an application for a writ of habeas corpus shall not be

granted with respect to any claim that was adjudicated on the merits in state court

proceedings unless adjudication of the claim: 

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 
No. 07-3387 Braxton v. Gansheimer Page 7

(2) resulted in a decision that 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); Harris, 526 F.3d at 909-10. 

Under the “unreasonable application” clause of § 2254(d)(1), habeas relief is

available if “the state court identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that principle to the facts of the

prisoner’s case,” or if a “state court decision either unreasonably extends or

unreasonably refuses to extend a legal principle from the Supreme Court precedent to

a new context.” Harris, 526 F.3d at 909 (citations omitted). “[T]he central inquiry is

whether the state court decision was objectively unreasonable and not simply erroneous

or incorrect.” Id. at 910 (internal quotation marks omitted). Thus, “a reviewing court

must be careful not to substitute its own judgment for that of the state court by equating

the more stringent standard of ‘objectively unreasonable’ with the more lax standard of

‘clear error.’” Id.

With respect to § 2254(d)(2), “[f]actual determinations by state courts are

presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and

a decision adjudicated on the merits in a state court and based on a factual determination

will not be overturned on factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322,

340 (2003). 

Braxton’s Batson claim presents a mixed question of law and fact and

“necessarily focuses on the reasonableness of the decisions of the state courts – that is,

whether those decisions constituted an unreasonable application of Supreme Court

precedent.” Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003). See also Railey v.

Webb, 540 F.3d 393, 397 (6th Cir. 2008) (“Mixed questions of law and fact are reviewed

under the ‘unreasonable application’ prong of the AEDPA.”). However, “the question

of ‘whether a prosecutor intended to discriminate on the basis of race in challenging

potential jurors is, as Batson recognized, a question of historical fact.’” Lancaster, 324

F.3d at 429 (quoting Hernandez v. New York, 500 U.S. 352, 367 (1991)). “Under
No. 07-3387 Braxton v. Gansheimer Page 8

AEDPA, primary or historical facts found by state courts are presumed correct and are

rebuttable only by clear and convincing evidence.” Id. at 429 (citations and internal

quotation marks omitted). Thus, while a district court’s ruling on a Batson claim

presented on direct appeal is entitled to great deference and should not be disturbed

unless it is clearly erroneous, “the standard must be modified in the context of a § 2254

petition to give credence to § 2254(e)(1)’s requirement that facts found by a state court

be presumed correct unless the petitioner rebuts this presumption by clear and

convincing evidence.” Id. at 429 n.1. 

The Equal Protection Clause precludes a party from using a peremptory

challenge to exclude members of the jury venire on account of their race. Batson, 476

U.S. at 89. Batson involves a tripartite burden-shifting inquiry. Hernandez, 500 U.S.

at 358. First, the party opposing the peremptory challenge must make a prima facie

showing of racial discrimination. Id. If such a case is established, the burden shifts to

the defending party to articulate a race-neutral explanation for striking the juror in

question. Id. at 358-59. The party’s reason for its decision to dismiss a juror is “neutral”

if “it is based on something other than the race of the juror” and, absent “discriminatory

intent inherent in the explanation,” the reason should be deemed race-neutral. United

States v. Jackson, 347 F.3d 598, 606 (6th Cir. 2003). “This non-racial explanation ‘need

not be particularly persuasive, or even plausible, so long as it is neutral.’” McCurdy v.

Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001), overruled in part on other

grounds by Barnes v. Wright, 449 F.3d 709, 718-20 (6th Cir. 2006) (quoting United

States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999)). “[B]ody language and demeanor

are permissible race-neutral justifications for the exercise of a peremptory [challenge].”

McCurdy, 240 F.3d at 521 (citing United States v. Changco, 1 F.3d 837, 840 (9th Cir.

1993)); see also United States v. Forrest, 402 F.3d 678, 687 (6th Cir. 2005) (holding that

the prosecution’s articulated reason for exercising a peremptory challenge – the juror’s

“extreme negative reaction” to being called for jury duty – was a permissible raceneutral justification in the absence of proof that this reason was pretextual). Indeed,

“[t]he fact that a prosecutor’s reasons may be founded on nothing more than a trial

lawyer’s instincts about a prospective juror does not diminish the scope of acceptable
No. 07-3387 Braxton v. Gansheimer Page 9

invocation of peremptory challenges, so long as they are the actual reasons for the

prosecutor’s actions.” United States v. Power, 881 F.2d 733, 740 (9th Cir. 1989)

(citation omitted). 

Once the defending party proffers a race-neutral reason, the challenging party,

who always bears the ultimate burden of persuasion, must show that the explanation is

merely a pretext for a racial motivation. McCurdy, 240 F.3d at 521. Based on the

parties’ submissions, the trial court must ascertain whether the claimant has

demonstrated purposeful discrimination. Id.; Hernandez, 500 U.S. at 359. “In making

this determination, the court presumes that the facially valid reasons proffered by the

[party exercising the peremptory] are true.” Lancaster, 324 F.3d at 433. “[T]he critical

question in determining whether a [defendant] has proved purposeful discrimination . . .

is the persuasiveness of the prosecutor’s justification for his peremptory strike.” MillerEl, 537 U.S. at 338-39. In other words, “the issue comes down to whether the trial court

finds the prosecutor’s race-neutral explanations to be credible.” Id. at 339. “Credibility

can be measured by, among other factors, the prosecutor’s demeanor; by how

reasonable, or how improbable, the explanations are; and by whether the proffered

rationale has some basis in accepted trial strategy.” Id. “Great deference” to a trial

court’s findings on the issue of discriminatory intent “makes particular sense” because

[t]here will seldom be much evidence bearing on that issue, and the best

evidence often will be the demeanor of the attorney who exercises the

challenge. As with the state of mind of a juror, evaluation of the

prosecutor’s state of mind based on demeanor and credibility lies

“peculiarly within a trial judge’s province.”

Hernandez, 500 U.S. at 364-65 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).

Thus, “in the absence of exceptional circumstances, we would defer to state-court factual

findings . . . .” Id. at 366 (emphasis added). 
No. 07-3387 Braxton v. Gansheimer Page 10

III.

In the present case, the district court faulted the state courts’ application of

Batson to the circumstances and concluded that Braxton was entitled to habeas relief

under both the legal and factual standards of § 2254(d). The district court determined

that the state trial court skipped the first step of the Batson inquiry – the prima facie

showing – and immediately looked to the prosecution to articulate a nondiscriminatory

explanation for its peremptory challenges. Accordingly, the district court concluded that

“the state appellate court erred when it concluded that Mr. Braxton failed to make such

a [prima facie] showing.” 

Next, the district court determined that, instead of analyzing the persuasiveness

of the prosecution’s nondiscriminatory justification, both the state trial and appellate

courts “glossed over” the third step of the Batson inquiry. The district court found that

the trial court “offered no explanation for its ruling other than its conclusion that it

disagreed with Mr. Braxton’s position,” and the state appellate court, in turn,

“conclusively presumed that there was no discriminatory intent because a race-neutral

explanation was tendered.” The district court concluded that “by failing to address this

third step, neither the trial court nor the appellate court made a reasonable application

of federal law as set forth in Batson.” 

Finally, from a factual standpoint, the district court found that “the evidence is

clear and convincing that the prosecutor’s stated justifications for excusing Juror No. 14

were a pretext for discrimination.” The court explained: 

The prosecutor relied on Juror No. 14’s body language and, more

importantly, on what he described as Juror No. 14’s statements that “he

didn’t want to be here.” Both the state trial and appellate courts ignored

the fact that Juror No. 14 never made these statements. A review of the

prosecution’s voir dire examination of Juror No. 14 reveals that the

prosecutor went to great length to entice this juror into conceding that he

had no interest in serving on this jury. Yet, despite this prodding, Juror

No. 14 stood firm in his responses that he had no problems with jury

service. The prosecutor tried, unsuccessfully, to put words in Juror No.

14’s mouth. Given this blatant inconsistency between the prosecutor’s

stated “justification” and Juror No. 14’s actual statements as recorded,
No. 07-3387 Braxton v. Gansheimer Page 11

the state courts’ rulings were based on an unreasonable determination of

the facts in light of the evidence presented in the state court proceeding.

* * *

[T]he prosecutor did not justify his peremptory challenges solely on Juror

No. 14’s body language, which he could have, but instead emphasized to

the court incorrectly that Juror No. 14 voiced opposition to jury service.

The Court finds as the tipping point in this close analysis the fact that the

prosecutor misquoted Juror No. 14 twice as having said he did not want

to be there when in fact Juror No. 14 said exactly the opposite. This

blatant inconsistency between what the prosecutor argued and what the

record demonstrates undermines the prosecutor’s stated reasons for

excusing Juror No. 14 and therefore exposes his pretext for racial

discrimination. 

In this appeal, respondent first argues that the district court erred in holding that

the state courts unreasonably applied clearly established Supreme Court precedent to the

facts of the case. Respondent points out that once Braxton raised the Batson challenge,

the state trial court held a bench conference during which, in conformity with Batson,

defense counsel was permitted to state his prima facie case, the prosecutor was then

allowed to set forth race-neutral reasons for striking Juror No. 14, and the trial court

weighed the parties’ arguments before making its determination that Braxton did not

prove purposeful discrimination. Respondent contends that thereafter, the state appellate

court properly applied the three-part Batson test in affirming the trial court. Thus,

according to respondent, the record illustrates that the trial court’s adjudication of the

Batson issue was both correct and reasonable. We agree, reiterating the important

principle that “a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).

As the district court correctly noted, the state trial court did not rule expressly on

whether Braxton established a prima facie case of discrimination and looked

immediately to the prosecution to articulate a neutral reason for its peremptory

challenges. In such circumstances, “[o]nce a prosecutor has offered a race-neutral

explanation for the peremptory challenges and the trial court has ruled on the ultimate
No. 07-3387 Braxton v. Gansheimer Page 12

question of intentional discrimination, the preliminary issue of whether the defendant

had made a prima facie showing becomes moot.” Hernandez, 500 U.S. at 359.

Consequently, the district court determined that the Ohio Court of Appeals erred when

it addressed this moot issue on appeal and concluded that “Braxton failed to make a

prima facie case of purposeful discrimination.” Braxton, 2002 WL 31123906 at *3.

However, we conclude that the Ohio Court of Appeals’ application of Batson and

Hernandez was neither erroneous nor unreasonable because the appellate court did not

rely solely upon the moot issue in rejecting Braxton’s Batson claim. Cf. Lancaster, 324

F.3d at 435 (“[B]ecause the trial court here had ruled on the ultimate question under

Batson – whether Petitioner had established intentional discrimination – when it

concluded that Petitioner had not demonstrated that the reasons for the strike of [a juror]

proffered by the prosecution were pretextual, the Michigan Court of Appeals acted

unreasonably under Supreme Court precedent set out in Hernandez when it rested its

holding on an issue that had become moot” and found that the petitioner had not made

out a prima facie showing of discrimination) (emphasis added). Rather, the Ohio Court

of Appeals appropriately analyzed the Batson issue by addressing its second and third

components and concluding that “the prosecutor provided a bona fide race-neutral

explanation for the challenge, and the court’s determination was not clearly erroneous.”

Braxton, 2002 WL 31123906 at *3. By means of this alternative holding, the appellate

court resolved the dispositive issue of purposeful discrimination. In doing so, it properly

and reasonably applied Batson and Hernandez. 

The question remains whether the state courts properly evaluated the

prosecution’s race-neutral explanation for the peremptory strike of Juror No. 14 under

the third prong of Batson, or whether, as the district court determined, the courts gave

this critical step short shrift. 

“In the typical peremptory challenge inquiry, the decisive question will be

whether counsel’s race-neutral explanation for a peremptory challenge should be

believed.” Hernandez, 500 U.S. at 365. At this stage, a trial court has “the duty to

determine if the defendant has established purposeful discrimination.” Batson, 476 U.S.
No. 07-3387 Braxton v. Gansheimer Page 13

3

Braxton does not dispute that “[t]he prosecutor’s explanation [that Juror No. 14 was

disinterested] satisfied the minimal burden of [the second] stage in the analysis,” i.e., that the state’s

justification “need not be particularly persuasive, or even plausible, so long as it is neutral.” McCurdy, 240 F.3d at 521 (quoting Harris, 192 F.3d at 586). 

at 98. In giving effect to this duty, we have opined that “when the purported race-neutral

justification is predicated on subjective explanations like body language or demeanor,”

an “on-the-record analysis of each of the elements of a Batson challenge is especially

important.” McCurdy, 240 F.3d at 521. In McCurdy, we held that “because the district

court did not merely credit the explanation of [the defendant], but itself found that [the

juror] was passive and disinterested, . . . [the plaintiff] has not demonstrated that the

district court clearly erred in dismissing his Batson challenge.” Id. Cf. Smulls v. Roper,

535 F.3d 853, 860-61 (8th Cir. 2008) (noting that the Supreme Court has eschewed a

formalistic approach to fact finding under Batson in holding that the state court’s failure

to make detailed fact findings following a Batson challenge was not an unreasonable

application of clearly established federal law under § 2254(d)(1)). 

In the present case, when the totality of the circumstances are considered, the

record reflects that the trial court, albeit in abbreviated fashion, adequately and

reasonably conveyed its decision that the prosecution’s race-neutral, demeanor-based

justification for the peremptory strike of Juror No. 14 was credible and that Braxton

failed to carry his burden on the ultimate issue of purposeful discrimination. In doing

so, the trial court adhered to the Batson three-step inquiry and neither conflated the steps,

see, e.g., United States v. Kimbrel, 532 F.3d 461 (6th Cir. 2008), nor restricted counsel

in their respective arguments.3

 Likewise, the state court of appeals, after articulating the

requisite tripartite burden-shifting Batson framework, obviously reviewed the trial

transcript, acknowledged the prosecution’s assertion that Juror No. 14’s body language

(“arms crossed and head bent over”) indicated disinterest, noted that “the trial court,

after appropriate inquiry, rejected the notion that the prosecutor’s challenge [was

pretextual],” and finally, concluded independently that “[n]othing in the prosecutor’s

explanation showed that he chose to exclude jurors on the basis of race.” Braxton, 2002

WL 31123906 at *3. In the absence of clearly established Supreme Court authority

requiring further elaboration, we conclude that the district court erred in holding that the
No. 07-3387 Braxton v. Gansheimer Page 14

state courts ran afoul of Batson and its progeny and misapplied this precedent in an

objectively unreasonable manner under § 2254(d)(1). Cf. Purkett v. Elem, 514 U.S. 765,

766, 769-70 (1995) (holding that a federal court failed to adequately defer to the state

trial court’s factual finding of no racial motive, even though the trial court rejected the

Batson objection “without explanation”). 

The district court’s erroneous determination that the state courts unreasonably

applied Batson by “gloss[ing] over” the third step is inextricably intertwined with its

conclusion that the state courts’ denials of Braxton’s Batson challenge were based on an

unreasonable determination of the facts in light of the evidence presented at trial,

contrary to § 2254(d)(2). The district court held that the prosecution’s

mischaracterization of Juror No. 14’s voir dire responses in the course of justifying its

peremptory challenge “undermine[d] the prosecutor’s stated reasons for excusing Juror

No. 14 and therefore expose[d] his pretext for racial discrimination.” By allegedly

“ignor[ing]” this “blatant inconsistency between what the prosecutor argued and what

the record demonstrates,” the district court determined that the state courts based their

rulings on an unreasonable determination of the facts. 

We hold that the district court usurped the fact-finding functions of the trial court

and failed to accord the trial court the “great deference” to which it was entitled in

judging the credibility and demeanor of the juror and the prosecutor. Moreover, the

district court itself misapplied Batson by failing to place the ultimate burden on Braxton

to demonstrate that the prosecutor engaged in purposeful discrimination in striking Juror

No. 14. 

Our conclusion that the district court overstepped its bounds is confirmed by the

Supreme Court’s decision in Rice v. Collins, 546 U.S. 333 (2006), in which the Court

overturned the Ninth Circuit Court of Appeals’ determination that the state trial court

unreasonably credited the prosecutor’s demeanor-based justification to exclude an

African-American juror. In our decision in Harris, we summarized Rice as follows: 

In [Rice], when the defendant opposed the prosecution’s exercise of a

peremptory challenge against juror 16, the prosecution explained that it
No. 07-3387 Braxton v. Gansheimer Page 15

disqualified her because she had rolled her eyes in response to a question

from the court, was young and possibly too tolerant of drug crimes, and

lacked sufficient connections to the community. The trial court [which

did not observe the complained-of demeanor] subsequently affirmed the

prosecution’s race-neutral reasons. 

During the defendant’s habeas appeal before the Ninth Circuit, however,

that court disagreed with the trial court’s credibility determination and

found it factually unreasonable to accept the prosecution’s justifications

based on juror 16’s demeanor and youth. Conducting its own review of

the underlying facts, the Ninth Circuit found the prosecutor lacking in

credibility because she had previously referred to another juror as

“young” despite that juror’s status as a grandmother, had attempted

impermissibly to employ gender as a race-neutral basis for striking juror

16, and had claimed juror 16 would be too lenient toward a drug crime

even though juror 16 expressed an affirmative belief that the crime at

issue should be illegal. After assessing the Ninth Circuit’s reasons for

doubting the prosecutor’s credibility, the Supreme Court disagreed that

the trial court’s factual findings were unreasonable. At most, the

Supreme Court explained, “the trial court had reason to question the

prosecutor’s credibility regarding [j]uror 16’s alleged improper

demeanor,” but this does not translate into the “conclusion that the trial

court had no permissible alternative but to reject the prosecutor’s raceneutral justifications.” Overall, the Supreme Court reversed the Ninth

Circuit’s decision because the court “attempt[ed] to use a set of

debatable inferences to set aside the conclusion reached by the state

court [in violation of] AEDPA’s requirements for granting a writ of

habeas corpus.” 

Harris, 526 F.3d at 911 (citations omitted, emphasis added). 

Thus, where “[r]easonable minds reviewing the record might disagree about the

prosecutor’s credibility, . . . habeas review . . . does not suffice to supersede the trial

court’s credibility determination.” Rice, 546 U.S. at 341-42 (emphasis added). Cf.

Uttecht v. Brown, 127 S. Ct. 2218, 2224 (2007) (according deference to the state trial

court’s decision to excuse a prospective juror for cause in a death penalty case). 

Respondent concedes that the prosecutor mischaracterized Juror No. 14’s voir

dire responses when he represented to the trial court that the juror “said he didn’t want

to be here.” However, here, as in Rice, the district court improperly relied upon

debatable inferences to reverse the state courts’ Batson decision by presuming
No. 07-3387 Braxton v. Gansheimer Page 16

4

On appeal, Braxton argues that his trial counsel was referring not to Mr. Smoot but to the juror

who would have replaced him when he was excused. The record does not indicate whether Mr. Smoot left

his place as Juror No. 14 before the side-bar conference began. In any event, Braxton’s counsel was

pointing out that the prosecution’s attempt to prove Juror No. 14’s disinterest by reference to his body

language was not credible, indicating that Juror No. 14’s demeanor was the basis for the prosecutor’s

peremptory strike. 

subjectively that “the prosecution’s justification for excusing Juror No. 14 is based

primarily on statements Juror No. 14 never uttered,” and by focusing an inordinate

amount of attention on the misstatement while ignoring the prosecutor’s other raceneutral reason for the strike – the disinterest demonstrated by Juror No. 14’s body

language and demeanor – that was accepted by the trial court. As the record shows, the

trial court’s factual determination was not unreasonable. 

The prosecutor stated during the Batson hearing:

With regards to [Juror No. 14], he sat there the entire time with his arms

crossed and his head bent over, and his hand – he showed no interest in

being in here. I specifically questioned him about his body language, and

he even said he didn’t want to be here. So, I am not going to have

someone sit on a jury that for the last two hours didn’t listen to anything,

had no intention of actually paying attention and then even when I asked

him, he said he didn’t want to be here. It’s got nothing to do with race.

Later, the prosecutor again argued to the trial court that Juror No. 14 “hadn’t paid

attention at all.” In fact, the record indicates that during active voir dire, well before the

prosecutor had to justify his peremptory strike during the bench conference, he remarked

to Juror No. 14 that he was concerned about his demeanor: 

You are [either] a very laid back person or you are kind of exuding the

fact you might not want to be here. Just to be honest. By body language.

Now I don’t know. It could be you’re laid back and you are kind of

paying attention. 

Defense counsel even confirmed, perhaps inadvertently, the prosecutor’s

observations when, during the bench conference, he called attention to the fact that “as

it relates to Mr. Smoot [Juror No. 14], right now as we sit here, juror number 14 is seated

in the jury, he’s turned around, his arms are folded, right at the moment his head is

down.”4

 Moreover, Juror No. 14’s terse responses during voir dire – “Why me?” and
No. 07-3387 Braxton v. Gansheimer Page 17

5

On appeal, petitioner points out the prosecutor’s comment during voir dire when, in introducing

himself to the jurors, he joked about the challenges of jury service and observed, “I have two children.

The children’s ages are three and a year and a half. Like you, they’re sleeping . . . .” Petitioner suggests

that “[w]hen the prosecutor jokes with the potential jurors about them ‘sleeping’ during voir dire, it is odd

that the prosecutor would then challenge a juror for his purported disinterested demeanor.” However, we

cannot glean any discriminatory intent from this comment, which appears to be simply an effort at

“breaking the ice.” 

“[n]o problem” – were at best non-committal, but hardly enthusiastic and not, as the

district court found, “exactly the opposite” of what the prosecutor attributed to the juror.

In holding that the prosecutor’s stated reason was not persuasive, and granting

relief on that basis alone, the district court erred in failing to shift the burden back to

Braxton to prove purposeful racial discrimination. In United States v. Tucker, 90 F.3d

1135, 1142 (6th Cir. 1996), we held that the district court did not clearly err in finding

that the defendant failed to show that the peremptory strike of a Latino juror deemed

“too unintelligent and disinterested” to serve was intentionally discriminatory, where the

defense failed to introduce any evidence in opposition to the explanation. We noted that

“[t]he defense might have demonstrated that the articulated reasons were in fact a pretext

by showing, for example, that the prosecution had not challenged equally unintelligent

or disinterested jurors of other races.” Id. “It is well established that a Batson violation

may be shown by disparate treatment of white and minority jurors . . . .” United States

v. Torres-Ramos, 536 F.3d 542, 559 (6th Cir. 2008). In this case, however, defense

counsel made no such comparisons and, in fact, the prosecutor indicated that he had no

problem with Juror No. 20 (the alternate).5

 

Given the record before us, we conclude that the district court – like the Ninth

Circuit in Rice – “assigned the [misstatements] more weight than [they] can bear” where

the prosecutor provided another “permissible and plausible race-neutral reason[]” and

Braxton “provide[d] no argument why this portion of the colloquy demonstrates that a

reasonable factfinder must conclude the prosecutor lied about the [negative demeanor]

and struck [the juror] based on [his] race.” Rice, 546 U.S. at 340-41. There is no

evidence that the state courts relied upon the prosecutor’s misstatement in denying the
No. 07-3387 Braxton v. Gansheimer Page 18

6

While the district court supposes that the state courts “ignored” or overlooked the misstatement,

and therefore rendered a decision based on an unreasonable determination of the facts, it is equally possible

– and the cold transcript does reveal – that the state courts may have, alternatively, purposefully “ignored”

the misstatements precisely because they were inaccurate. 

Batson challenge;6 conversely, the state courts clearly credited the prosecutor’s raceneutral reason – Juror No. 14’s demeanor – in rejecting it. 

Thus, while the prosecutor’s misstatement regarding Juror No. 14’s responses

may furnish a reason to question whether the prosecutor’s motivation for the peremptory

strike was pretextual, it does not compel such a conclusion. Under these circumstances,

the district court erred in failing to defer to the trial court as the best judge of the

prosecutor’s and the juror’s credibility. It further erred in concluding, under AEDPA,

that Braxton presented the “clear and convincing evidence” necessary to rebut the

presumption of correctness afforded to the Ohio courts’ factual determinations.

Finally, Braxton relies upon the Supreme Court’s recent decision in Snyder v.

Louisiana, 128 S. Ct. 1203 (2008), and argues that this case highlights the deficiencies

in the state courts’ findings. In Snyder, a state capital murder case, the prosecution

eliminated all five of the prospective African-American jurors who remained on the

thirty-six member venire following challenges for cause. The Supreme Court focused

on the defendant’s Batson challenge to one of these jurors and refused to presume that

the trial court credited the prosecution’s two distinct race-neutral reasons for the

peremptory strike – that the juror looked nervous and had work-related time constraints

– because the trial court simply “allow[ed] the challenge without explanation.” Snyder,

128 S. Ct. at 1209. Although the Court adhered to the highly deferential standard of

review originally enunciated in Hernandez, id. at 1208, it nonetheless concluded that the

trial court committed clear error in rejecting the petitioner’s Batson objection: 

[D]eference is especially appropriate where a trial judge has made a

finding that an attorney credibly relied on demeanor in exercising a

strike. Here, however, the record does not show that the trial judge

actually made a determination concerning [the juror’s] demeanor. The

trial judge was given two explanations for the strike. Rather than

making a specific finding on the record concerning [the juror’s]

demeanor, the trial judge simply allowed the challenge without
No. 07-3387 Braxton v. Gansheimer Page 19

explanation. It is possible that the judge did not have any impression one

way or the other concerning [the juror’s] demeanor. [The juror] was not

challenged until the day after he was questioned, and by that time dozens

of other jurors had been questioned. Thus, the trial judge may not have

recalled [the juror’s] demeanor. Or, the trial judge may have found it

unnecessary to consider [the juror’s] demeanor, instead basing his ruling

completely on the second proffered justification for the strike. For these

reasons, we cannot presume that the trial judge credited the prosecutor’s

assertion that [the juror] was nervous. 

Id. at 1209. 

A determinative factor in the Court’s holding was its conclusion that the

prosecution’s second reason proffered for the strike – the juror’s student-teaching

obligations – was “suspicious,” “implausible,” and “pretextual” given the brevity of the

trial, the juror’s lessened concern upon his advisor’s assurances that any interruption

would not cause a problem, and the fact that similarly situated white jurors with more

onerous conflicts were not challenged. Id. at 1211-12. Consequently, the Court

concluded that “in light of the circumstances here – including [the] absence of anything

in the record showing that the trial judge credited the claim that [the juror] was nervous,

the prosecution’s description of both of its proffered explanations as ‘main concern[s],’

and the adverse inference [arising from the pretextual work-related reason] – the record

does not show that the prosecution would have pre-emptively challenged [the juror]

based on his nervousness alone.” Id. at 1212 (citation omitted). 

Snyder is readily distinguishable from the present case. Here, we are not left to

speculate regarding the basis for the trial court’s Batson ruling. As we have concluded,

the trial court made the requisite findings and credited the prosecution’s race-neutral

concern with Juror No. 14’s disinterested demeanor as the basis for denying Braxton’s

Batson challenge. The record substantiates the state courts’ acceptance of this proffered

reason. Juror No. 14’s demeanor “can credibly be said to have exhibited the basis for

the strike attributed to the juror by the prosecutor.” Id. at 1208. Because Braxton has

failed to present clear and convincing evidence to the contrary, we conclude that the

Ohio courts’ Batson ruling did not constitute an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings under § 2254(d)(2). In
No. 07-3387 Braxton v. Gansheimer Page 20

the absence of exceptional circumstances, we will leave interpretation of the nuances of

demeanor to the trial court. This is not an exceptional case. 

IV.

For the reasons stated above, we conclude that the district court erred in granting

Braxton a conditional writ of habeas corpus under 28 U.S.C. § 2254. We therefore

reverse the judgment of the district court and remand the case with instructions to

dismiss Braxton’s habeas petition.