In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3262

ALLEN J. BENNETT,

Petitioner-Appellant,

v.

DONALD GAETZ, Warden,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 07 C 1975—George W. Lindberg, Judge.

ARGUED OCTOBER 28, 2009—DECIDED JANUARY 21, 2010

Before RIPPLE, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. An Illinois jury convicted Allen

Bennett for possession of a stolen vehicle. In this habeas

corpus petition under 28 U.S.C. § 2254, Bennett, an AfricanAmerican, raises a claim under Batson v. Kentucky, 476

U.S. 79 (1986), of racial discrimination during the

selection of that jury.

At the beginning of jury selection for Bennett’s trial,

the jury venire consisted of two fourteen-person panels,
2 No. 08-3262

which together had five African-Americans. When examining the first panel, the prosecution used two peremptory

challenges to exclude two African-Americans. Bennett,

who represented himself at trial, used peremptories

against six members of this first panel, including a third

African-American. When examining the second panel, the

prosecution used two of its remaining five peremptories

to exclude two white jurors. The trial court then

dismissed a fourth African-American for cause based on

his criminal history. That left one of the original five

African-Americans on the venire as a prospective juror.

This individual did not serve on Bennett’s jury but was

seated as an alternate.

At the end of jury selection, Bennett raised a Batson

challenge based on the prosecution’s use of peremptories

against African-Americans. The trial court rejected the

challenge, finding that Bennett failed to make out a prima

facie case of racial discrimination under Batson. Because

Bennett failed to establish his prima facie case, the trial

court did not proceed to the next step under Batson to

require the prosecution to offer race-neutral reasons for

its peremptories.

The jury convicted Bennett of aggravated possession of

a stolen motor vehicle and possession of a stolen motor

vehicle, and Bennett was sentenced to fifteen years of

imprisonment. Bennett appealed his conviction to the

Illinois Appellate Court, which also rejected his Batson

claim. In its order affirming the conviction, the court cited

the Batson standard and then applied the seven-factor test

established by the Illinois Supreme Court in People v.
No. 08-3262 3

Williams, 670 N.E.2d 638 (Ill. 1996), to determine whether

Bennett had made out a prima facie case under Batson. The

court acknowledged that the prosecution used two of its

four peremptories, or 50%, to exclude African-Americans,

which supported a prima facie case of discrimination.

Against this factor, however, the court weighed

several circumstances that negated an inference of racial

discrimination. One African-American was excused by

Bennett and another was excused for cause, lowering

the total number of African-Americans available to sit

on the jury to only three. The prosecution also used only

four of its seven available peremptories, rather than

exhausting its peremptories to exclude all African-Americans on the venire. The final, retained African-American

served as an alternate juror.

The Illinois Appellate Court also noted that none of

the prosecution’s questions during voir dire suggested

racial animus. Finally, the court reasoned that the two

African-Americans excluded by the prosecution shared

a common characteristic other than their race; unlike

the jurors accepted by the prosecution, these jurors

were crime victims.

The Illinois Supreme Court denied Bennett’s petition

for leave to appeal, and the Illinois courts denied his

petition for post-conviction relief. Bennett then filed a

pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254 in federal district court. In addition to

his Batson claim, Bennett’s petition asserted that the

admission of “other crimes” evidence denied him a fair

trial; that the state trial judge’s appointment of trial
4 No. 08-3262

counsel violated Bennett’s right to counsel; and that the

indictment was duplicitous and void. On June 23, 2008,

the district court denied Bennett’s habeas petition, concluding that the Illinois Appellate Court did not unreasonably apply Batson. The court also concluded that

Bennett’s evidentiary claim was not cognizable in federal

habeas proceedings and that Bennett had procedurally

defaulted his right to counsel and indictment claims.

On July 3, 2008, the State filed a “motion to reconsider”

under Fed. R. Civ. P. 59(e), in which the State argued

that the district court erred in holding that Bennett’s right

to counsel and indictment claims were procedurally

defaulted. The motion requested that the State be

allowed to respond to those claims on the merits. On

July 9, the court denied the State’s motion on the

ground that it did “not object to the result of the court’s

June 23, 2008 order denying Bennett’s motion for a writ

of habeas corpus,” but rather “improperly [took] issue

with the reasoning underlying the court’s decision.”

On July 21, Bennett filed his own motion for the court

to reconsider its procedural default analysis or, alternatively, grant him leave to file a notice of appeal. The

court denied Bennett’s motion on July 24 and declined

to issue a certificate of appealability (“COA”). Bennett

followed up on August 4 with a “motion to file late

notice of appeal,” and this court subsequently issued a

COA on Bennett’s Batson claim. The COA also directed

the parties to address whether Bennett’s appeal was

timely, and specifically, whether Bennett complied with

Fed. R. App. P. 4(a)(1)(A) by filing a notice of appeal within

thirty days of the district court’s order.
No. 08-3262 5

We begin our analysis with the issue of whether

Bennett’s appeal was timely, a threshold question that goes

to our appellate jurisdiction. Under Fed. R. App. P.

4(a)(1)(A), an appellant in a civil case must file his notice

of appeal “within 30 days after the judgment or order

appealed from is entered.” Here, the district court entered

its order denying Bennett’s habeas petition on June 23,

2008, but Bennett didn’t file his “motion to file late notice

of appeal” until August 4 of that year. So in order to

establish that his appeal is timely, Bennett must identify

some earlier filing that served as a sufficient notice of

appeal.

Fortunately, Bennett’s July 21 motion, titled “Motion to

Reconsider or in the Alternative Motion for Leave to

File Notice of Appeal and Request for Leave to Appeal in

Forma Pauperis,” qualified as a timely notice of appeal. The

final page of this motion contained a separately captioned

“Notice of Appeal,” in which Bennett requested the

Seventh Circuit to review the district court’s denial of

his habeas petition. This request satisfied the requirements of a valid notice of appeal, which are (1) identification of the party taking the appeal; (2) designation of the

judgment or order being appealed; and (3) identification

of the court to which the appeal is taken. Smith v. Grams,

565 F.3d 1037, 1041 (7th Cir. 2009) (citing Fed. R. App. P.

3(c)(1)). The parties agree, as do we, that Bennett’s July 21

motion was valid under these criteria, especially since

this court construes a pro se litigant’s filings liberally.

See id. at 1041-42 (construing a pro se habeas petitioner’s

letter as a timely notice of appeal even though it

incorrectly named the Supreme Court, rather than the

Seventh Circuit, as the reviewing court).
6 No. 08-3262

The parties argue in the alternative that the State’s

July 3 motion to reconsider tolled Bennett’s thirty-day

window to appeal until July 9, when the district court

denied the motion. Under this theory, Bennett’s August 4

“motion to file late notice of appeal” was within thirty

days of the district court’s July 9 judgment and therefore

timely. We need not address this argument in light of our

conclusion that Bennett’s earlier July 21 motion, which

was unquestionably timely, served as a sufficient notice

of appeal.

Turning to the merits of Bennett’s habeas petition, our

review is constrained by the highly deferential standard

prescribed by the Antiterrorism and Effective Death

Penalty Act, 28 U.S.C. § 2254(d)(1), for evaluating statecourt decisions. We may grant habeas relief only if the

Illinois courts’ adjudication of Bennett’s claim “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” Id. A state court’s

decision is “unreasonable” within the meaning of

§ 2254(d)(1) only if it is “so erroneous as to be objectively unreasonable” and “well outside the boundaries

of permissible differences of opinion.” Emerson v. Shaw,

575 F.3d 680, 684 (7th Cir. 2009) (quotations omitted). Here,

we must decide whether the Illinois Appellate Court

unreasonably applied Supreme Court precedent in upholding the trial court’s determination that Bennett

failed to establish a prima facie case of racial discrimination under Batson. See Franklin v. Sims, 538 F.3d 661, 664

(7th Cir. 2008).
No. 08-3262 7

In Batson, the Supreme Court established a three-step

framework for determining whether the prosecution

violated the defendant’s Equal Protection rights by exercising peremptory challenges in a racially discriminatory

manner. First, the defendant must make out a prima facie

case “by showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.”

Batson, 476 U.S. at 94. Second, if the defendant establishes

a prima facie case, the “burden shifts to the State to

explain adequately the racial exclusion” by offering

permissible, race-neutral reasons for the peremptories.

Id. Third, the trial court must evaluate the plausibility of the prosecution’s reasons, in light of all of the

surrounding circumstances, to decide whether the defendant has proved purposeful discrimination. Id. at 98;

see also Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005).

The focus of this case is Batson’s first step, requiring us to

examine whether Bennett put forth enough evidence to

establish a prima facie case of racial discrimination.

The burden at this stage is light, and a defendant may

establish a prima facie case by offering a wide variety of

evidence that raises a mere inference of a discriminatory

purpose. Johnson v. California, 545 U.S. 162, 169 (2005); see

also United States v. Stephens, 421 F.3d 503, 512 (7th Cir.

2005) (“[T]he burden at the prima facie stage is low . . . .”).

Still, though light, the prima facie burden is an essential

part of the Batson framework, and trial courts may justifiably demand that defendants carry this burden before

requiring prosecutors to engage in the difficult task of

articulating their instinctive reasons for peremptorily

striking a juror. Cf. Miller-El, 545 U.S. at 267-68 (Breyer, J.,

concurring).
8 No. 08-3262

We do not believe that the Illinois Appellate Court

unreasonably determined that Bennett failed to make

out his prima facie case. The only real evidence of discrimination that Bennett offers is that the prosecution

used two of its four peremptories, or 50%, against AfricanAmericans, who comprised just five of the twenty-eight

venire members, or 18%. But it is difficult to draw significance from this disparity, given the relatively small

numbers of African-American prospective jurors and

peremptory challenges in this case. Cf. id. at 240-41 (characterizing the prosecution’s use of peremptories to strike

ten of eleven African-Americans as “remarkable”);

Johnson, 545 U.S. at 164, 173 (finding a prima facie

showing where the prosecution excluded all three

eligible African-Americans); Batson, 476 U.S. at 83 (describing the prosecution’s use of peremptories to exclude

all four eligible African-Americans). Further, the

treatment of the three African-Americans who were not

excluded by the prosecution undercuts an inference of

racial discrimination. Bennett peremptorily struck one

of these prospective jurors, the parties agreed to remove

the second for cause, and the third sat as an alternate juror.

The Illinois Appellate Court also appropriately considered the fact that the prosecution did not exhaust its

seven available peremptories to exclude all AfricanAmerican prospective jurors; rather, it used only four of

those peremptories, two against African-Americans and

two against whites. See Franklin, 538 F.3d at 666

(approving the Illinois Appellate Court’s reliance on the

prosecution’s use of two of seven peremptories to strike

only two of four African-Americans). And finally, as the
No. 08-3262 9

state court observed, the prosecution did not ask suspicious questions to the two excluded African-American

jurors that would support an inference of racial discrimination. Cf. Miller-El, 545 U.S. at 255-63 (describing the prosecution’s posing of questions to African-American venire

members designed to elicit disqualifying answers). In

the absence of more evidence of discriminatory purpose,

we cannot say that the Illinois Appellate Court unreasonably concluded that Bennett failed to make out a

prima facie case under Batson.

Of course, it would not have been unreasonable for

the state court to reach the opposite conclusion. The

prosecution did use a disproportionate percentage of its

peremptories against African-Americans, and no AfricanAmerican ultimately served on Bennett’s twelveperson jury. It is also a little troubling that the Illinois

Appellate Court seemingly attempted to find a common,

non-racial trait among the excluded AfricanAmerican jurors that might justify the prosecution’s

peremptories—namely, that these jurors were crime

victims. In Johnson, the Supreme Court admonished that

courts should not imagine plausible reasons for

peremptories at the prima facie stage, “when a direct

answer can be obtained by asking [the prosecutor] a

simple question” at the second Batson stage. Johnson, 545

U.S. at 172. As we cautioned in Franklin, the Illinois Appellate Court’s reliance on common juror characteristics

that could explain the prosecution’s peremptories “risked

collapsing all three of Batson’s steps into the prima facie

inquiry.” Franklin, 538 F.3d at 666.
10 No. 08-3262

Also troubling is that, under the facts of this case, the

jurors’ experience with crime seems an implausible

reason for the peremptories. Although the two AfricanAmericans struck by the prosecution testified that they

had been crime victims, so too did at least four nonAfrican-Americans who ultimately served as jurors. Based

on this side-by-side comparison between excluded and

non-excluded jurors, the prosecution would have been

hard-pressed to credibly assert the jurors’ experience

with crime as a race-neutral reason had the trial court

proceeded to Batson’s second stage. See Miller-El, 545

U.S. at 241.

Importantly, though, the prosecution never tried to

use the African-Americans jurors’ experience with crime

as a basis for excluding them, and the trial court didn’t

rely on this juror trait in concluding that Bennett failed

to make out his prima facie case under Batson. So as in

Franklin, we may discount the Illinois Appellate Court’s

erroneous reliance on this trait as a small part of the

court’s overall analysis. Franklin, 538 F.3d at 666. Because

that analysis primarily relied on several appropriate

factors weighing against an inference of racial discrimination, we cannot say that the state court’s application

of Batson was “unreasonable” within the meaning

of 28 U.S.C. § 2254(d)(1). For that reason, we AFFIRM

the district court’s judgment denying Bennett’s habeas

petition.

1-21-10