Pursuant to Rule 43(c)(2) of the Federal Rules of *

Appellate Procedure, Chairman George B. Alexander and Attorney

General Andrew Cuomo are automatically substituted for former

Chairman Brion D. Travis and former Attorney General Eliot

Spitzer, respectively, as respondents in this case.

 The Honorable J. Garvan Murtha, of the United States **

District Court for the District of Vermont, sitting by

designation.

07-1780-pr

Brown v. Alexander

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2007

4 (Argued: April 16, 2008 Decided: September 22, 2008)

5 Docket No. 07-1780-pr

6 -------------------------------------

7 TARKISHA BROWN,

8 Petitioner-Appellant,

9 - v -

10 GEORGE B. ALEXANDER, Chairman, New York State Division of Parole,

11 ANDREW CUOMO, Attorney General of the State of New York,

12 Respondents-Appellees.*

13 -------------------------------------

14 Before: WINTER and SACK, Circuit Judges, and MURTHA, District

15 Judge.**

16 Appeal from a judgment of the United States District

17 Court for the Southern District of New York (Jed S. Rakoff,

18 Judge) denying Tarkisha Brown's petition for a writ of habeas

19 corpus pursuant to 28 U.S.C. § 2254. The petitioner asserts that

20 the New York state courts unreasonably applied Batson v.

21 Kentucky, 476 U.S. 79 (1986), in concluding that she had not
2

1 presented a prima facie case of race discrimination with respect

2 to jury selection at her criminal trial in state court.

3 Affirmed.

4 JEFFREY J. RESETARITS, Shearman &

5 Sterling LLP (Seth M. Kean, of counsel),

6 New York, NY, for Petitioner-Appellant.

7 RAFAEL A. CURBELO, Assistant District

8 Attorney (Robert T. Johnson, Bronx

9 County District Attorney, Joseph N.

10 Ferdenzi, Nancy D. Killian, Assistant

11 District Attorneys, of counsel), Bronx,

12 NY, for Respondents-Appellees.

13 SACK, Circuit Judge:

14 Petitioner-Appellant Tarkisha Brown appeals from a

15 judgment entered on March 30, 2007, in the United States District

16 Court for the Southern District of New York (Jed S. Rakoff,

17 Judge) denying her petition for a writ of habeas corpus pursuant

18 to 28 U.S.C. § 2254. She asserts that the state trial court

19 unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), when

20 it ruled that she had not made out a prima facie case of race

21 discrimination in jury selection during her state criminal-trial,

22 and that the Appellate Division, First Department, People v.

23 Brown, 276 A.D.2d 429, 715 N.Y.S.2d 18 (1st Dep't 2000), and the

24 New York Court of Appeals, People v. Brown, 97 N.Y.2d 500, 507,

25 769 N.E.2d 1266, 1271, 743 N.Y.S.2d 374, 379 (2002), unreasonably

26 applied Batson when they affirmed the trial court's decision. We

27 conclude that because the New York courts reasonably determined

28 that Brown had not made out a prima facie case, her

29 post-conviction detention was not unlawful.
 Each party was permitted fifteen peremptory challenges, 1

based on the charges brought against Brown. N.Y. C.P.L.R.

§ 270.25(2)(b). 

3

1 BACKGROUND

2 In November 1997, a grand jury in Bronx County, New

3 York, returned a three-count indictment against the petitioner. 

4 It included one count of criminal sale of a controlled substance

5 in or near school grounds in violation of N.Y. Penal Law

6 § 220.44(2). Voir dire of the jury took place in Supreme Court,

7 Bronx County, before Justice Robert H. Straus, on January 6 and

8 7, 1999. 

9 Jury selection was conducted using the "jury box

10 system" provided by N.Y. C.P.L.R. § 270.15. Under the version

11 that Justice Straus employed, a group of sixteen prospective

12 jurors is randomly selected from the venire and interviewed. 

13 After the court has struck jurors for cause, the parties are

14 permitted to examine the first twelve prospective jurors (i.e., a

15 sufficient number to complete the jury). The State, and then the

16 defendant, are allowed to exercise challenges for cause. 

17 Following the court's ruling on those challenges, the parties are

18 afforded the opportunity to exercise one or more of the

19 peremptory challenges allotted to them. The remaining jurors 1

20 from the original group of twelve are seated. The parties are

21 then permitted to consider as many remaining jurors from the

22 group of sixteen as would be necessary to fill the jury (e.g., if

23 ten jurors are seated after consideration of the first twelve
4

1 jurors, two more are taken under consideration). If a full jury

2 is not seated from the first group of sixteen, a new group of

3 sixteen prospective jurors is selected and the process is

4 repeated until a sufficient number of jurors and alternates is

5 seated. See generally People v. Webb, 187 Misc. 2d 451, 452-54,

6 722 N.Y.S.2d 349, 350-51 (Sup. Ct. Kings County 2001).

7 During the first round of voir dire for the

8 petitioner's trial, the court selected a group of sixteen

9 prospective jurors at random, and discharged one of them for

10 cause. The court then permitted the parties to consider the

11 first twelve of the fifteen remaining prospective jurors. 

12 Neither the State nor the petitioner exercised any challenges for

13 cause. The State exercised five peremptory challenges, however,

14 four of them against prospective jurors who were black. The

15 petitioner exercised two peremptory challenges against

16 prospective jurors whose race is not identified in the record.

17 The five remaining persons were accepted to serve on the jury. 

18 The court then considered the next three prospective

19 jurors. The State sought to challenge one of them for cause, but

20 after objection by the petitioner, the court denied the

21 challenge. In response, the State used a peremptory challenge to

22 strike this same prospective juror, who was black. The

23 petitioner did not exercise any peremptory or for-cause

24 challenges against the remaining two prospective jurors. They

25 were then accepted to serve. 
 Counsel was mistaken. At the point that she raised her 2

Batson claim, the State had exercised eight peremptory

challenges, seven of them against black members of the venire. 

5

1 A second group of sixteen prospective jurors was then

2 selected at random. After questioning, the court discharged four

3 of them for cause and selected four additional prospective jurors

4 as replacements. After questioning of the replacement jurors,

5 one was discharged by the court for cause, again leaving fifteen

6 prospective jurors in the box. The court considered the first

7 five of them. Neither the State nor the petitioner challenged

8 any of them for cause. The State exercised two peremptory

9 challenges, however, both against prospective jurors who were

10 black. 

11 The petitioner then, for the first and only time,

12 asserted a Batson challenge:

13 Judge, I'm going to raise a Batson challenge

14 against the prosecutor. I mean he never even

15 asked Mr. Harley [one of the two black

16 potential jurors just challenged] a question.

17 I'm just looking here, he's exercised nine

18 challenges, eight of them have been for

19 African Americans if I'm not wrong. I might

20 be wrong but I don't think I'm wrong.[2]

21 We had some jurors yesterday he never spoke

22 to; no jury experience, nothing against

23 police officers and they were gone too.

24 I can't help but discern a pattern here. 

25 Maybe I'm wrong. I would need some further

26 information before I could be dissuaded from

27 the fact that they're being eliminated here

28 by use of peremptory challenge because of

29 their color.
6

1 Transcript of Proceedings at 252, People v. Brown, No. 6815/97

2 (Sup. Ct. Bronx County Jan. 7, 1999). 

3 The court responded:

4 [B]y my figures in the first group in the

5 jury box there were nine people that appeared

6 to me to be of African American descent and

7 in this group there are six more, that's 15

8 and by my count he challenged 7 out of the

9 15. That's the count I have.

10 But beyond that the law requires for the

11 Court to consider the challenge that there

12 must be a rather specific objection with the

13 utilization of facts and other relevant

14 circumstances to create an inference of

15 exclusion of a cognizable group.

16 Certainly African Americans are a cognizable

17 group and certainly under certain

18 circumstances a percentage of strikes can

19 cause a court to find a pattern.

20 Id. at 252-53.

21 The petitioner's counsel interjected a lengthy

22 explanation as to why four of the stricken jurors could have been

23 fair. The trial court, apparently surprised, responded: "Wait

24 just a minute. In the first group you're really concerned with

25 four African American jurors peremptorily challenged[?]" Id. at

26 255. Counsel responded in the affirmative. Counsel then

27 referred to further details about the stricken jurors. 

28 After counsel had finished, the trial court responded,

29 Well, based on what you've said up to this

30 point and what you have pointed out up to

31 this point I'm not going to require the

32 People to offer an explanation for their

33 peremptory challenges. You can renew the

34 application later [and] we'll see where the

35 challenges go from this point on . . . . 
7

1 Id. at 256-57. Counsel for the petitioner again stated that the

2 "jury selection [wa]s not fair." Id. at 257. The judge

3 responded, "I understand that, but based on right up to this

4 point I do not find a pattern of purposeful exclusion that's

5 sufficient to raise an inference of discrimination based on the

6 numbers." Id.

7 The State then sought to make clear on the record that

8 of the seven jurors chosen, three were black women. The court

9 acknowledged the statistic, but said, "It doesn't matter how many

10 sworn jurors [there are.] [I]t's not determinative[.] [I]t's

11 not dispositive. . . . [A] Batson challenge can be made even as

12 to one juror but I don't find the pattern." Id. at 258.

13 The remainder of voir dire moved along briskly. The

14 State exercised one additional peremptory challenge, that to an

15 alternate juror; the petitioner exercised four. Neither party

16 challenged any jurors for cause. The final five members of the

17 jury were selected, as were three alternates. The race, color,

18 or ethnicity of these jurors is not reflected in the record. 

19 The petitioner never renewed her Batson challenge.

20 The jury ultimately found the petitioner guilty of

21 criminal sale of a controlled substance in or near school grounds

22 under N.Y. Penal Law § 220.44(2). Based on that verdict, the

23 trial court rendered judgment on February 4, 1999, and sentenced

24 the petitioner to an indeterminate prison term of two to six

25 years. The petitioner appealed her conviction on evidentiary
 The evidentiary question, which was considered by the 3

Appellate Division, and later the Court of Appeals, is not before

us.

8

1 grounds, and also challenged the trial court's denial of her 3

2 Batson claim.

3 On October 26, 2000, the Appellate Division, First

4 Department, unanimously affirmed the petitioner's judgment of

5 conviction. People v. Brown, 276 A.D.2d 429, 715 N.Y.S.2d 18

6 (1st Dep't 2000). The defendant -- the petitioner here -- moved

7 for leave to appeal the Appellate Division's decision to the New

8 York Court of Appeals. The motion was granted. People v. Brown,

9 96 N.Y.2d 826, 754 N.E.2d 206, 729 N.Y.S.2d 446 (2001) (Kaye,

10 C.J.).

11 On March 19, 2002, the New York Court of Appeals

12 affirmed the order of the Appellate Division. People v. Brown,

13 97 N.Y.2d 500, 507, 769 N.E.2d 1266, 1271, 743 N.Y.S.2d 374, 379

14 (2002). As to the Batson issue, the Court of Appeals concluded,

15 "[D]efendant's reliance on the People's removal of seven

16 African-Americans through the exercise of eight peremptory

17 challenges was inadequate, without more, to require the trial

18 court to find a prima facie showing of discrimination." Id. at

19 508, 769 N.E.2d at 1271, 743 N.Y.S.2d at 379.

20 The petitioner then applied for a writ of habeas corpus

21 pursuant to 28 U.S.C. § 2254 in the United States District Court

22 for the Southern District of New York. She claimed that the

23 state trial court had unreasonably applied Batson when it ruled
9

1 that she had not made out a prima facie case, and that the

2 Appellate Division and Court of Appeals unreasonably applied

3 Batson in affirming the trial court's decision. 

4 In a report and recommendation dated January 12, 2007,

5 United States Magistrate Judge Michael H. Dolinger concluded that

6 the state courts had not unreasonably applied Batson in finding

7 that the petitioner had failed to make out a prima facie case. 

8 Judge Dolinger therefore recommended that Brown's petition for a

9 writ of habeas corpus be denied. In an Order dated March 28,

10 2007, the district court (Jed S. Rakoff, Judge) adopted the

11 recommendation to dismiss the petition but grant a certificate of

12 appealability under 28 U.S.C. § 2253(c)(1). 

13 The petitioner, now on parole, appeals.

14 DISCUSSION

15 I. Standard of Review

16 "We review a district court's ruling on a petition for

17 a writ of habeas corpus de novo." Overton v. Newton, 295 F.3d

18 270, 275 (2d Cir. 2002).

19 Pursuant to 28 U.S.C. § 2254(d), as amended by the

20 Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L.

21 No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), a writ of habeas

22 corpus may not issue for any claim adjudicated on the merits by a

23 state court unless the state-court decision was "contrary to, or

24 involved an unreasonable application of, clearly established

25 Federal law, as determined by the Supreme Court of the United

26 States," id. § 2254(d)(1), or was "based on an unreasonable
10

1 determination of the facts in light of the evidence presented" in

2 state court, id. § 2254(d)(2).

3 Under section 2254(d)(1), the statutory phrase "clearly

4 established Federal law, as determined by the Supreme Court of

5 the United States," 28 U.S.C. § 2254(d)(1), refers to "the

6 holdings, as opposed to the dicta, of [the Supreme] Court's

7 decisions as of the time of the relevant state-court decision." 

8 Williams v. Taylor, 529 U.S. 362, 412 (2000); Overton, 295 F.3d

9 at 275-76 (quoting Williams). A state-court decision is

10 "contrary to" clearly established federal law as determined by

11 the Supreme Court if the state court's conclusion on a question

12 of law is "opposite" to that of the Supreme Court or if the state

13 court decides a case differently than the Supreme Court's

14 decision "on a set of materially indistinguishable facts." 

15 Williams, 529 U.S. at 413 (2000); Overton, 295 F.3d at 275

16 (quoting Williams). A state-court decision "involves an

17 unreasonable application of" clearly established federal law as

18 determined by the Supreme Court if it "identifies the correct

19 governing legal principle from [the Supreme Court's] decisions

20 but unreasonably applies that principle to the particular facts

21 of [a] prisoner's case." Williams, 529 U.S. at 413; Overton, 295

22 F.3d at 275 (quoting Williams). "An unreasonable application of

23 federal law is different from an incorrect or erroneous

24 application of federal law." Williams, 529 U.S. at 412; Overton,

25 295 F.3d at 277 (quoting Williams). Interpreting Williams, and

26 by extension section 2254(d)(1), we have observed that the
11

1 "unreasonable application" standard "falls somewhere between

2 merely erroneous and unreasonable to all reasonable jurists." 

3 Id. at 277 (internal quotation marks and citation omitted). 

4 Although "[s]ome increment of incorrectness beyond error is

5 required, . . . the increment need not be great; otherwise habeas

6 relief would be limited to state court decisions so far off the

7 mark as to suggest judicial incompetence." Id. (internal

8 quotation marks and citation omitted).

9 Finally, under section 2254(d)(2), a state court's

10 findings of fact are "presumed to be correct." The habeas

11 petitioner bears the burden of "rebutting the presumption of

12 correctness by clear and convincing evidence." 28 U.S.C.

13 § 2254(e); see Overton, 295 F.3d at 275 (quoting section

14 2254(e)).

15 II. Clearly Established Federal Law: 

16 Batson and Its Progeny

17 Batson v. Kentucky, 476 U.S. 79 (1986), established a

18 three-step burden-shifting mechanism for evaluating allegations

19 of race discrimination during jury selection at a criminal trial. 

20 At the first stage of the inquiry, the defendant must establish a

21 "prima facie" case "by showing that the totality of the relevant

22 facts gives rise to an inference of discriminatory purpose." Id.

23 at 93-94. Once the defendant has made out such a prima facie

24 case, the burden shifts to the State to provide a race-neutral

25 explanation for its peremptory strikes. Id. at 97. Finally, the

26 trial court must determine whether the defendant has established
12

1 purposeful discrimination, id., in which case the selection

2 process was a violation of the Equal Protection Clause of the

3 Fourteenth Amendment.

4 The Supreme Court did not establish a bright-line rule

5 for what constitutes such a prima facie case. Instead, the Court

6 instructed trial judges to consider whether "all relevant

7 circumstances" and facts before them give rise to an inference of

8 discrimination. Id. at 96-97. Batson did indicate that a

9 pattern of strikes against African-American jurors may give rise

10 to such an inference, and that the prosecutor's questions and

11 statements might also support or refute such an inference. Id.

12 at 97. Ultimately, though, Batson left substantial discretion in

13 the hands of the trial court, expressing "confidence that trial

14 judges, experienced in supervising voir dire, w[ould] be able to

15 decide if the circumstances concerning the prosecutor's use of

16 peremptory challenges create[d] a prima facie case of

17 discrimination against black jurors." Id.

18 The Supreme Court recently reiterated that it "did not

19 intend the first step [in the Batson inquiry] to be . . . 

20 onerous." Johnson v. California, 545 U.S. 162, 170 (2005). "[A]

21 prima facie case of discrimination can be made out by offering a

22 wide variety of evidence, so long as the sum of the proffered

23 facts gives 'rise to an inference of discriminatory purpose.'" 

24 Id. at 169 (quoting Batson, 476 U.S. at 94) (footnote omitted). 

25 The Court also restated the principle that a defendant is not
13

1 "require[d]" to "prove[] discrimination" at the prima facie

2 stage. Id. at 169-70.

3 This court has put a further gloss on what constitutes

4 a prima facie case under Batson, and what constitutes an

5 unreasonable application of Batson and its progeny. We have

6 noted that "under Batson and its progeny, striking even a single

7 juror for a discriminatory purpose is unconstitutional." Walker

8 v. Girdich, 410 F.3d 120, 123 (2d Cir. 2005). And we have said

9 that we have "no doubt that statistics, alone and without more,

10 can, in appropriate circumstances, be sufficient to establish the

11 requisite prima facie showing." Overton, 295 F.3d at 278-79 (2d

12 Cir. 2002); see also Tankleff v. Senkowski, 135 F.3d 235, 249 (2d

13 Cir. 1998) ("[T]he fact that the government tried to strike the

14 only three blacks who were on the panel constitutes a

15 sufficiently dramatic pattern of actions to make out a prima

16 facie case."). We have made clear, however, that "[o]nly a rate

17 of minority challenges significantly higher than the minority

18 percentage of the venire would support a statistical inference of

19 discrimination." United States v. Alvarado, 923 F.2d 253, 255-56

20 (2d Cir. 1991) (finding that "a challenge rate nearly twice the

21 likely minority percentage of the venire strongly supports a

22 prima facie case under Batson"). We have also required that

23 statistical arguments be based on a well-developed factual

24 record. Such a record

25 would likely include evidence such as the

26 composition of the venire, the adversary's

27 use of peremptory challenges, the race of the
14

1 potential jurors stricken, and a clear

2 indication as to which strikes were

3 challenged when and on what ground, and which

4 strikes were cited to the trial court as

5 evidence of a discriminatory intent.

6 Sorto v. Herbert, 497 F.3d 163, 171-72 (2d Cir. 2007).

7 Although we have embraced the use of statistics, we

8 have also indicated that, in every case, "an assessment of the

9 sufficiency of a prima facie showing in the Batson analysis

10 should take into consideration 'all relevant circumstances'

11 including, but not restricted to, the 'pattern' of strikes." 

12 Harris v. Kuhlmann, 346 F.3d 330, 345 (2d Cir. 2003). This

13 comports with our understanding that "Batson must be read as not

14 only prohibiting certain specific actions, but also as creating a

15 broad standard or principle that the courts must, in reason,

16 follow." Overton, 295 F.3d at 278.

17 "The discrimination condemned by Batson need not be as

18 extensive as numerically possible." Alvarado, 923 F.2d at 256. 

19 "A prosecutor may not avoid the Batson obligation to provide

20 race-neutral explanations for what appears to be a statistically

21 significant pattern of racial peremptory challenges simply by

22 forgoing the opportunity to use all of his challenges against

23 minorities." Id. Thus, while the presence of one or more black

24 jurors "might tend to rebut an inference [drawn by the trial

25 court in connection with the defendant's attempt to establish a

26 prima facie case] that the prosecutor used his peremptory strikes

27 in a discriminatory manner, . . . this fact alone [i]s [not]
15

1 sufficient to refute an otherwise-appropriate inference [of

2 discrimination]." Harris, 346 F.3d at 346.

3 III. The New York State Court Decisions.

4 Based on principles established by Batson and its

5 progeny, and by AEDPA and the case law interpreting it, we agree

6 with the conclusion of the district court that a writ of habeas

7 corpus was not warranted here. The state-court decisions were

8 not "contrary to, [and did not] involve[] an unreasonable

9 application of[] clearly established Federal law, as determined

10 by the Supreme Court of the United States," id. § 2254(d)(1), nor

11 were they "based on an unreasonable determination of the facts in

12 light of the evidence presented" in the trial court, id.

13 § 2254(d)(2).

14 According to the trial court, at the time the

15 petitioner raised her Batson claim, the totality of the relevant

16 facts did not give rise to an inference of discrimination. The

17 court "d[id] not [at that time] find a pattern of purposeful

18 exclusion . . . sufficient to raise an inference of

19 discrimination based on the numbers." Transcript of Proceedings

20 at 257, People v. Brown, No. 6815/97 (Sup. Ct. Bronx County Jan.

21 7, 1999). The trial court's conclusion in this regard hinged

22 primarily on the fact that the Batson challenge was lodged

23 relatively early in the jury selection process. The court

24 stated:

25 [B]ased on what [the defendant] said up to

26 this point and what you have pointed out up

27 to this point I'm not going to require the
16

1 People to offer an explanation for their

2 peremptory challenges. You can renew the

3 application later [and] we'll see where the

4 challenges go from this point on.

5 Id. We have "held, on habeas review, that a state court does not

6 act unreasonably where it denies a Batson challenge early in the

7 jury selection process." Sorto, 497 F.3d at 170. It is not

8 ordinarily unreasonable for a state court to conclude that a

9 petitioner has not made out a prima facie case when she raises a

10 Batson challenge "before jury selection [i]s completed and before

11 the . . . facts [a]re even fully established on the record." 

12 Overton, 295 F.3d at 279. "The need to examine statistical

13 disparities may commend a wait-and-see approach," Sorto, 497 F.3d

14 at 170, and the trial court's "wait-and-see approach" here was

15 not unreasonable.

16 The Appellate Division affirmed the trial court's

17 Batson ruling principally on the grounds that the "[d]efendant's

18 statistical claim regarding the prosecutor's allegedly

19 disproportionate use of peremptory strikes was insufficient to

20 support a prima facie showing of purposeful discrimination,

21 particularly in light of the racial makeup of the panel of

22 prospective jurors." People v. Brown, 276 A.D.2d 429, 429-30,

23 715 N.Y.S.2d 18, 19 (1st Dep't 2000). It was not unreasonable

24 for the Appellate Division to conclude that at the time

25 petitioner moved under Batson for the State to articulate a race26 neutral explanation for its peremptory challenges, the "rate of

27 minority challenges [was not] significantly higher than the
17

1 minority percentage of the venire [thereby] support[ing] a

2 statistical inference of discrimination." Alvarado, 923 F.2d at

3 255-56. And it was not unreasonable for the Appellate Division

4 to conclude that the record before the trial court at the time of

5 the challenge did not contain sufficient "evidence of a

6 discriminatory intent" to justify the burden-shifting

7 contemplated by Batson. Sorto, 497 F.3d at 171-72.

8 This is not to say that statistics alone can never

9 establish a prima facie Batson claim prior to the completion of

10 jury selection. There are likely circumstances in which the

11 numbers of minority members struck, seated, and on the venire

12 would justify Batson's burden-shifting long before the last juror

13 was seated. Nor do we mean to suggest that the petitioner here

14 could not have established a prima facie case on a complete

15 record in this case following a proper motion in the light of

16 that record. A defendant may establish a prima facie case in any

17 number of ways, the burden of establishing such a case is not

18 onerous, and Batson left the trial court with substantial

19 discretion to determine whether such a case was made. But here,

20 petitioner's Batson challenge was denied as premature, she failed

21 to renew the motion, and the status of jury selection at the time

22 of the challenge did not insure that the statistics would

23 establish a prima facie case irrespective of what happened during

24 the jury selection process thereafter.

25 For the foregoing reasons, we conclude that the

26 decision that a prima facie case had not been made out under
18

1 Batson at the time the Batson claim was asserted was not

2 "contrary to, [n]or [did it] involve[] an unreasonable

3 application of, clearly established Federal law, as determined by

4 the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1),

5 nor was it "based on an unreasonable determination of the facts

6 in light of the evidence presented" in state court, id.

7 § 2254(d)(2).

8 The New York Court of Appeals affirmed. For the

9 foregoing reasons, under the circumstances presented, that

10 decision does not provide a basis for habeas relief in the

11 federal courts.

12 We pause to note, nonetheless, that the Court of

13 Appeals, in rejecting the petitioner's argument, commented:

14 Defendant was explicitly invited by the trial

15 court to articulate any facts and

16 circumstances that would support a prima

17 facie showing of discrimination. Instead of

18 making a record comparing Caucasians accepted

19 with similarly situated African-Americans

20 challenged, or by establishing objective

21 facts indicating that the prosecutor has

22 challenged members of a particular racial

23 group who might be expected to favor the

24 prosecution because of their backgrounds,

25 defense counsel responded that certain

26 persons excused by prosecution peremptories

27 had no prior jury service or had attended

28 college and, thus, gave no indication that

29 they could not be 'fair.' Based on the

30 numbers and arguments presented, the trial

31 court ruled that it did not find a

32 discriminatory pattern. No further Batson

33 objection was raised during the remainder of

34 voir dire proceedings. Upon this record, we

35 conclude that defendant's numerical argument

36 was unsupported by factual assertions or

37 comparisons that would serve as a basis for a
19

1 prima facie case of impermissible

2 discrimination.

3 Brown, 97 N.Y.2d at 508, 769 N.E.2d at 1271-72, 743 N.Y.S.2d at

4 380 (emphasis added; citations and internal quotation marks

5 omitted).

6 We find the emphasized language in the court's opinion

7 somewhat puzzling. It seems, at least at first blush, to be at

8 odds with the Supreme Court's instruction that under Batson, "a

9 prima facie case of discrimination can be made out by offering a

10 wide variety of evidence, so long as the sum of the proffered

11 facts gives rise to an inference of discriminatory purpose," 

12 Johnson, 545 U.S. at 170. The Supreme Court has not, for

13 example, required that Batson challengers compare jurors struck

14 with jurors seated, nor has it required that they show that

15 jurors struck would have favored the prosecution.

16 But upon closer examination, we read the paragraph in

17 question not to impose specific requirements on persons making

18 Batson challenges. Instead, we think, it provides examples of

19 evidence that "would [have] serve[d] as a basis for a prima facie

20 case of impermissible discrimination" had it been offered. 

21 Brown, 97 N.Y.2d at 508, 769 N.E.2d at 1272, 743 N.Y.S.2d at 380. 

22 Thus understood, there is nothing in the statement that is

23 contrary to clearly established federal law.

24 In any event, Supreme Court, Bronx County, the

25 Appellate Division, and the Court of Appeals, all reached the

26 conclusion that the petitioner had failed to make out a prima
20

1 facie case of race discrimination under Batson. We agree with

2 the district court that under the principles of both Batson and

3 AEDPA, that conclusion will not support the grant of a habeas

4 corpus petition. We therefore affirm the judgment of the

5 district court denying the application for such a writ.

6 CONCLUSION

7 For the foregoing reasons, the judgment of the district

8 court is affirmed.