Braxton v. Gansheimer ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ANTHONY BRAXTON,
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Petitioner-Appellee,
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No. 07-3387
v.
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Respondent-Appellant. -
RICHARD GANSHEIMER, Warden,
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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.
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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.
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OPINION
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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
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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 African-
American 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 [African-
American 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
14. 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
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.
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
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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 race-
neutral 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.” Miller-
El, 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.
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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
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).
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 race-
neutral 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
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 race-
neutral 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
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.
No. 07-3387 Braxton v. Gansheimer Page 17
“[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
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.”
No. 07-3387 Braxton v. Gansheimer Page 18
Batson challenge;6 conversely, the state courts clearly credited the prosecutor’s race-
neutral 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
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.
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.