In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4018

NANCY R. LAMON,

Petitioner-Appellant,

v.

ANA M. BOATWRIGHT,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04-C-873—Rudolph T. Randa, Chief Judge.

____________

ARGUED SEPTEMBER 22, 2006—DECIDED NOVEMBER 8, 2006

____________

Before POSNER, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Three years ago, in a 4-3 decision

on direct review, the Wisconsin Supreme Court rejected

Nancy Lamon’s claim that the state violated the rule

announced in Batson v. Kentucky when it exercised a

peremptory challenge against the only black member of

the venire summoned to sit as potential jurors at her trial

on a state charge of armed robbery. Before the supreme

court turned her down, the same claim was rejected by both

the state trial judge in Rock County, Wisconsin, and the

Wisconsin Court of Appeals. Accordingly, Lamon’s claim has

been rejected, and her robbery conviction affirmed, by all

three levels of the Wisconsin judicial system.
2 No. 05-4018

Having exhausted her state remedies, Lamon moved to

federal court where her petition for habeas corpus met with

a similar lack of success. Chief Judge Rudolph T. Randa of

the United States District Court for the Eastern District of

Wisconsin rejected her claim in 2005. Lamon now appeals

that decision to us, but given the present posture of the

case—a collateral review subject to the stringent limitations

of AEDPA where we are not free to simply pick sides

between the Wisconsin Supreme Court majority and

dissenting opinions—we conclude that her losing streak

must continue.

The facts of Ms. Lamon’s case are simple, and not really

important to the issue she presents to us. But to put the

case in perspective, here is what it was all about: Lehman

Jones (who like Lamon is an African-American) was driving

home one night when Lamon flagged him down and asked

to be taken to a telephone; while together in the car, and

with Lamon pointing an object at his side that he thought

was a gun, Jones surrendered his wallet; Lamon then left

the car and retreated to a car being driven by

an accomplice. Armed robbery charges against her (as a

repeat offender) were issued a few days later.

During the jury selection process, the prosecutor exercised

a peremptory strike against Dondre Bell, a resident of

Beloit, Wisconsin, without questioning him individually.

Lamon challenged the strike under Batson v. Kentucky, 476

U.S. 79 (1986), and the judge held a hearing in chambers.

The judge assumed Lamon had established a prima facie

case of discrimination because Bell was the only black

member of the venire. Accordingly, the judge asked the

prosecutor to explain her strike.

The prosecutor responded that she doubted Bell’s veracity. She explained that her office prosecuted many Beloit

residents named Bell and that a computer check

the previous day revealed numerous police contacts at Bell’s
No. 05-4018 3

address, including one in which a “Mrs. Bell” reported that

her husband had stolen her car to support his drug habit.

And, the prosecutor continued, Bell did not respond affirmatively when she asked if any relative or close friend had

been convicted of a crime or been a victim of crime. This,

she said, caused her to doubt Bell’s credibility. Her suspicions increased, she explained, because Bell simply wrote

“varies” on a questionnaire form that asked him to detail

his employment over the past 5 years.

Lamon responded that “Bell” is a common name and that

it was unknown how long Dondre Bell was living at his

current address. It followed, Lamon insisted, that the

prosecutor should have individually questioned Bell about

her concerns before striking him. Lamon then asked the

judge to individually question Bell before ruling on her

Batson objection. The judge asked the prosecutor why

she had not questioned Bell, and she iterated her concern that Bell would not have been forthright and also

stated that she did not want to “single him out.” The

judge declined to question Bell and concluded, “Well, I think

the State has made its case and it does have just cause for

the strike.”

After Lamon was convicted, as we said, her appellate

claims (including several besides her Batson argument)

were denied, first by the trial court, next by the Wisconsin

Court of Appeals, State v. Lamon, 646 N.W.2d 854 (Wis. Ct.

App. 2002) (per curiam), and finally by the Wisconsin

Supreme Court. State v. Lamon, 664 N.W.2d 607 (Wis.

2003).

The Wisconsin Supreme Court rejected Lamon’s contention that the trial judge was not in a position to adequately

assess the prosecutor’s credibility since she had not questioned Bell individually before exercising her strike and the

judge was unwilling to question Bell himself before ruling

on the issue. The court correctly explained that Batson
4 No. 05-4018

outlines a three-step process for determining if a peremptory strike violates the Equal Protection Clause: (1) the

defendant must establish a prima facie case that the strike

was racially motivated, (2) the burden then shifts to the

prosecutor to come forward with a race-neutral reason for

the strike, and (3) the trial judge must assess the credibility

of the explanation and determine whether purposeful

discrimination has been established. Id. at 615-16 (citing

Batson, 476 U.S. at 96-98). Applying this test to Lamon’s

case, the court concluded that the trial judge’s ruling,

although quite skimpy, sufficiently showed that he assessed

the prosecutor’s credibility and not merely, as the dissent

contended, whether the prosecutor’s explanation was raceneutral. Id. at 624; see id. at 639-40 (Bradley, J., dissenting). The court held that more elaborate findings were not

required. Id. at 624 (citing Miller-El v. Cockrell, 537 U.S.

322, 347 (2003) (hereafter Miller-El I ) (“We adhere to the

proposition that a state court need not make detailed

findings addressing all the evidence before it.”)). The

court then held that the trial judge’s finding of no discriminatory intent was not clearly erroneous. As the

court explained, it is counsel’s credibility that the trial judge

must assess, and while it might have been helpful for the

judge to have heard Bell’s responses to questioning by the

prosecutor before the strike was exercised, under the

totality of the circumstances, that was not necessary. Id. at

620-21 (citing Hernandez v. New York, 500 U.S. 352, 365

(1991)). The court reasoned that the entire record, including

the results of the computer check and Bell’s answer to the

employment history question on the questionnaire, supported the trial judge’s decision to credit the prosecutor’s

facially nondiscriminatory reasons for exercising the strike

as she did. Id. at 627-28.

Three justices dissented in two opinions. All three joined

in parts I and II of Chief Justice Shirley S. Abramson’s

dissent, which argued that the trial judge failed to fulfill his
No. 05-4018 5

duty, under Batson’s third step, to assess the credibility of

the prosecutor’s explanation and to include detailed findings in the ruling itself. Id. at 628-35 (Abrahamson, C.J.,

dissenting); id. at 39-40 (Bradley, J., dissenting). Going

further than the other two dissenters, the chief justice also

argued that generating a police report on Bell’s address was

itself evidence of discrimination, and that the trial judge

had a duty to inquire, sua sponte, whether the prosecutor

conducted similar background investigations on white

members of the venire. Id. at 635-39. The court itself

answered this last point by noting that the burden of

persuasion lay with Lamon, who did not pursue this inquiry

at the Batson hearing. (Id. at 628 n.13.) (At oral argument

before us, Lamon conceded that the trial court had no such

duty.)

In this appeal, Lamon argues that: (1) it is impossible

to discern from the trial judge’s brief ruling whether he ever

evaluated the prosecutor’s credibility—and the truthfulness

of her explanation for her strike—as required under

Batson’s third step, (2) even if the trial judge made a

determination as to the prosecutor’s credibility, his conclusion should be disregarded because he ruled without questioning Bell individually, and (3) the trial judge

erred in his factual finding that the strike was not discriminatory. To prevail on these arguments, Lamon bears a

heavy burden. She must show that the adjudication of her

claim by the Wisconsin Supreme Court “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,” 28

U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” Id. § 2254(d)(2); see also Rice

v. Collins, 126 S. Ct. 969, 974 (2006). In other words, she

must establish not only that the court was wrong, but that

it applied Supreme Court precedent in an “objectively
6 No. 05-4018

unreasonable manner,” Brown v. Payton, 544 U.S. 133, 141

(2005), that fell “well outside the boundaries of permissible

differences of opinion.” See Hardaway v. Young, 302 F.3d

757, 762 (7th Cir. 2002). Although Lamon directly attacks

the trial judge’s Batson ruling, we evaluate the decision of

the last state court to rule on the merits of a prisoner’s

claim, Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006),

here the opinion of the Wisconsin Supreme Court. As a

result, Lamon can prevail only if the Wisconsin Supreme

Court unreasonably applied precedent from the Supreme

Court of the United States in upholding the trial judge’s

decision.

We start with the trial judge’s ruling. Lamon argues,

echoing the dissenters, that the Wisconsin Supreme Court

erred because, in her view, the trial judge’s terse ruling

casts doubt on whether he ever assessed the credibility

of the prosecutor and her explanation as Batson’s third step

requires. But we can infer from the record that the trial

judge engaged in the step-three inquiry: the court observed

the prosecutor give her explanation, asked her several

follow-up questions that were aimed at testing her credibility, allowed Lamon the opportunity to respond, and then

ruled. Although it is certainly good practice to explain why

a proffered explanation has been found credible, we cannot

conclude that the Wisconsin Supreme Court unreasonably

applied clearly established Supreme Court precedent in

declining to require anything further of the trial judge in

this case. In fact, the court expressly noted the Supreme

Court’s pronouncement that “a state court need not make

detailed findings addressing all the evidence before it” so

long as the relevant inquiry is undertaken. Lamon, 664

N.W.2d at 780-81, (citing Miller-El I, 537 U.S. at 347).

Next we consider the process engaged in by the trial judge

in deciding to credit the prosecutor’s reasons for striking

Bell from the jury pool. Lamon argues that she was denied

a complete Batson hearing because the judge did not
No. 05-4018 7

personally question Bell. She asserts that the judge failed

to follow the mandate set forth in Miller-El v. Dretke, 125 S.

Ct. 2317, 2325 (2005) (hereafter Miller-El II ), which

instructs trial judges to consider “all relevant circumstances” at the third step of the Batson analysis.

Although we agree that a trial judge must analyze the

relevant evidence before determining if a prosecutor’s raceneutral explanation is credible, see Coulter v. Gilmore, 155

F.3d 912, 921 (7th Cir. 1998), Lamon incorrectly assumes

that Bell’s responses to questions posed by the judge after

the strike would have proven relevant to the inquiry.

Lamon’s attorney explained that he “questioned the

factual accuracy of [the prosecutor’s] reasons” and “wanted

to use [Bell’s] answers to prove his point,” but he aims at

the wrong target. The relevant question during the third

step of the Batson inquiry is whether a strike was racially

motivated. Hernandez v. New York, 500 U.S. 352, 365

(1991); Williams v. Chrans, 957 F.2d 487, 491 (7th Cir.

1992). It follows that Batson and its progeny direct trial

judges to assess the honesty—not the accuracy—of a

proffered race-neutral explanation. See Purkett v. Elm, 514

U.S. 765, 789 (1995) (per curiam) (admonishing lower court

for focusing on the “reasonableness of the asserted nonracial

motive . . . rather than the genuineness of the motive”

(emphasis in original)); United States v. George, 363 F.3d

666, 674 (7th Cir. 2004) (explaining that under Batson “the

government’s proffered reason for the strike need not be

particularly persuasive, or even based on quantifiable data,

so long as it is not pretextual”); United States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000) (“[T]he ultimate inquiry for the judge is not whether counsel’s reason is

suspect, or weak, or irrational, but whether counsel is

telling the truth in his or her assertion that the challenge

is not race-based.”).

Reflecting the limited nature of the inquiry, the procedures required in assessing counsel’s motive are limited as
8 No. 05-4018

well. In Batson the Court expressly declined to mandate

“particular procedures.” Batson, 476 U.S. at 99. Since

then the Court has explained that observing the “demeanor

of the attorney” will often provide the “best evidence” of

purposeful discrimination. See Hernandez, 500 U.S. at 365.

In that vein, there certainly does not exist any “clearly

established” Supreme Court precedent suggesting that a

party has the right to call stricken panelists as witnesses

and question them during a Batson hearing. Rather, we

have held that Batson does not require the use of evidentiary proceedings which would be unlikely to produce

evidence bearing on counsel’s credibility. See Williams, 957

F.2d at 491. In fact, in Williams we affirmed the denial

of the defendant’s request to question a stricken panelist—the same request that Lamon made—because it “would

not have been probative of whether . . . the prosecution

sought to exclude [the panelist] on the basis of race.” Id.

Here, likewise, Lamon had the opportunity to discredit

the prosecutor, and questioning Bell would not have further

divulged whether the prosecutor sincerely doubted his

veracity. After all, the prosecutor’s concerns were based on

Bell’s silence. And even if questioning Bell revealed that he

was unrelated to the Bell family that the prosecutor had in

mind, that fact would not have shed light on whether the

prosecutor honestly believed that Dondre Bell was a member

of that family. As we said, the law is clear that it is the

honesty of the prosecutor’s explanation—and that

alone—which a trial judge must assess at the third step of

the Batson analysis. Accordingly, we cannot say that the

Wisconsin Supreme Court unreasonably applied federal law

when it held that the trial judge conducted an adequate,

although minimal and not a model to be followed, step-three

inquiry into Lamon’s Batson claim.

Lastly, we consider whether the trial court erred in

finding that the strike was not discriminatory. Citing
No. 05-4018 9

Miller-El II, Lamon contends that the prosecutor’s failure

to individually question Bell is itself evidence of discrimination. But on collateral review, state-court factual findings

are presumed correct; the petitioner has the burden of

rebutting the presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Rice, 126 S. Ct. at

974. Lamon has not met this burden. This case is nothing

like Miller-El II where a side-by-side comparison of the voir

dire testimony revealed that the prosecutor’s reasons for

striking black panelists applied with equal force to white

panelists who were selected as jurors, Miller-El II, 125 S.

Ct. at 2325-26, leading the Court to conclude that the

prosecutor’s explanation “reeks of afterthought.” Id. at

2328. Much to the contrary, the check run on Bell’s address

along with the vague answer given to the prior employment

question rendered credible to the trial judge the prosecutor’s honest, even if possibly mistaken, belief that Bell

would not have answered additional questions honestly.

Accordingly, we AFFIRM the district court’s denial of

Lamon’s petition for a writ of habeas corpus.
10 No. 05-4018

ROVNER, Circuit Judge, dissenting. The majority “cannot

say that the Wisconsin Supreme Court unreasonably

applied federal law when it held that the trial judge

conducted an adequate, although minimal and not a

model to be followed, step-three inquiry into Lamon’s

Batson claim.” Supra, at 8-9. But on this record, there is no

indication that the trial court ever engaged in any stepthree analysis under Batson. Because the trial court

engaged in no step-three analysis, I believe that the

Wisconsin Supreme Court unreasonably applied federal law

and I therefore respectfully dissent.

The trial court said precious little on the Batson issue, so

little that it is worth repeating. As the parties began to

strike jurors, defense counsel asked to be heard in chambers. The court began the hearing by asking defense

counsel, “What’s the problem?” Tr. at 24. Counsel then

lodged his Batson challenge. Addressing the prosecutor, the

court verified that the juror in question was the only black

juror on the panel. Tr. at 25. The court then stated, “And as

I recall you did not even ask him any individual questions.

Do you have some reason for the strike?” Tr. at 25. The

prosecutor offered her reasons, citing among other things,

the report on police contacts at the juror’s address. The

court asked the clerk to mark the report as an exhibit. Tr.

at 25-26. After the prosecutor offered an additional reason

for the strike, the court solicited a response from defense

counsel. Lamon’s lawyer noted that the stricken juror had

a common last name, and that the prosecutor could have

questioned him individually if she truly was concerned that

he was a member of the family listed in the police report.

Tr. at 25-28. The prosecutor then noted her concern that the

juror “was not responding to the questions on voir dire and

was not being completely forthright and honest.” Tr. at 28.

The court asked, “Specifically what questions are you

referring to, counsel?” Tr. at 28. The prosecutor noted that

juror Bell failed to raise his hand in response to her ques-
No. 05-4018 11

tion regarding whether any relatives or close friends had

been a victim of a crime. Tr. at 29. Defense counsel again

noted that the prosecutor could have questioned juror Bell

about her concerns but did not. Counsel then asked the

court to voir dire juror Bell before allowing the strike. Tr. at

29. The court then asked the prosecutor, “Any particular

reason, Mrs. Bollendorf, why you didn’t make specific

inquiry as to the juror as to some of these matters?” Tr. at

29. She replied that she did not think the juror would be

any more forthcoming when questioned individually

and that she did not wish to appear to be singling him

out. The court then ruled, “Well, I think the State has made

its case and it does have just cause for the strike.” Tr. at 29-

30.

To sum up the trial court’s entire Batson analysis:

Step one: “What’s the problem?” “[T]he only black juror

is the one in question.”

Step two: “Do you have some reason for the strike?”

“Any particular reason . . . why you didn’t make specific

inquiry as to the juror as to some of these matters?”

“Well, I think the State has made its case . . . ”

Step three: “. . . and it does have just cause for the

strike.”

At step one, a defendant must make out a prima facie

case of discriminatory jury selection. Miller-El v. Dretke,

545 U.S. 231, 239, 125 S. Ct. 2317, 2324 (2005). Given that

the State used its first peremptory challenge to strike the

sole African-American venireperson, the trial court assumed

the prima facie case was shown, and the State did not object

to that assumption.

At step two, the burden shifts to the prosecution to

come forward with a neutral explanation for challenging

jurors within an arguably targeted class, in this case,

African-American members of the jury pool. After the
12 No. 05-4018

prosecutor offered her reasons, the court found that “the

State has made its case.” Miller-El, 545 U.S. at 239, 125

S. Ct. at 2324.

At step three of the analysis, “the trial court then will

have the duty to determine if the defendant has established

purposeful discrimination.” Miller-El, 545 U.S. at 239, 125

S. Ct. at 2325. But instead of determining whether the

defendant established purposeful discrimination, the court

said that the State “does have just cause for the strike.”

This is not a step-three analysis; it is a statement that indicates ignorance on the part of the trial court regarding

its duty at that stage of the proceedings. The burden at this

step belongs to the defendant, not the State. And “just

cause” is a phrase that courts use when analyzing strikes

for cause, not peremptory strikes. Nowhere does the

court acknowledge its duty at step three. Nowhere does

the court actually indicate that it has determined whether purposeful discrimination has taken place. In other

words, there is no step-three analysis at all, and the court’s

comments indicated only utter confusion about the Batson

analysis. In the complete absence of any step-three analysis, it was unreasonable for the Wisconsin Supreme Court

to find a “minimal and not a model to be followed, stepthree inquiry.” The analysis was not minimal; it was nonexistent. And it was not a model because, if any analysis

occurred, it is invisible in the record.

Had the trial court conducted a step-three analysis, it

might have noticed, as the Supreme Court did in Miller-El

that the “State’s failure to engage in any meaningful voir

dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is

a sham and a pretext for discrimination.” Miller-El, 545

U.S. at 246, 125 S. Ct. at 2328 (quoting Ex parte Travis, 776

So. 2d 874, 881 (Ala. 2000)). The prosecutor’s repeated

refusal to question juror Bell about her concerns was

evidence that her race-neutral reasons for the strike were
No. 05-4018 13

a sham. Had the trial court engaged in a step-three analysis, it could have compared juror Bell to the white jurors

selected for the panel so that it could determine whether

the prosecutor ran criminal background checks on any of

them, whether they lived in high crime neighborhoods, and

whether they had questionable work histories, all reasons

the prosecutor used to strike juror Bell. It is especially

ironic that the majority distinguishes Miller-El on the

grounds that we have no side-by-side comparison of the voir

dire testimony revealing whether the prosecutor’s reasons

for striking black panelists applied with equal force to white

panelists who were selected as jurors. There is a simple

reason we have no such comparison: the trial court engaged

in no step-three analysis where such a comparison could be

made. It is a patently unreasonable application of federal

law to allow the Wisconsin courts to redefine Batson as a

two-step test.

I therefore respectfully dissent.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-8-06