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United States v. Lighty

United States District Court, D. Maryland

August 12, 2016

UNITED STATES OF AMERICA
v.
KENNETH JAMAL LIGHTY Petitioner-Defendant. UNITED STATES OF AMERICA
v.
JAMES EVERETT FLOOD, III Petitioner-Defendant. Civil Nos. PJM 12-3065, PJM 11-3563

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Kenneth Jamal Lighty and James Everett Flood, III (“Petitioners”) have filed separate Motions to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, but in a joint Amended Motion to Vacate are allied as to one claim--viz. they assert that they should be granted relief on the ground the Government used its peremptory strikes at trial in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 171, 290 L.Ed.2d 69 (1986) and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Am. Mot. Vacate, ECF No. 451. For the reasons that follow, the Court will DENY the Amended Motion to Vacate as to Petitioners’ claims brought pursuant to Batson-J.E.B, reserving for a later time consideration of the other grounds for relief raised in Petitioners’ respective Section 2255 Motions.[1]

         I. Procedural Background

         A federal grand jury indicted Lighty and Flood (along with co-defendant Lorenzo Wilson) on five counts of criminal activity: kidnapping, aiding and abetting; conspiracy to kidnap, aiding and abetting; and three counts of use of a handgun during a crime of violence, aiding and abetting. The Government filed a notice of intent to seek the death penalty with respect to Lighty only. In the guilt phase of that trial, Lighty and Flood were tried together, and a petit jury found them both guilty on all counts.

         At the close of penalty phase in Lighty’s case, which began a few weeks later after its finding of guilt, the jury returned a verdict of death.

         The Court thereafter sentenced Lighty to death on the conviction of kidnapping resulting in death, to life imprisonment on the conviction of conspiracy to kidnap, and to three consecutive sentences totaling 55 years on the three firearms convictions. See Judgment and Order, Mar. 10, 2006, ECF No. 248; Judgment and Commitment Order, Mar. 10, 2006, ECF No. 249. Flood received life imprisonment and consecutive sentences of ten years, twenty-five years, twenty-five years, and five years on the same respective counts. See Judgment and Commitment Order, Jan. 13, 2006, ECF No. 234.

         The Fourth Circuit affirmed the convictions and sentences of both Petitioners on appeal, see United States v. Lighty, 616 F.3d 321 (4th Cir. 2010), and the U.S. Supreme Court denied the petitions of both for writs of certiorari. See Lighty v. United States, 132 S.Ct. 451 (2011); Flood v. United States, 131 S.Ct. 846 (2010).

         In their original Motions to Vacate, Set Aside, or Correct Sentence and for New Trial Pursuant to 28 U.S.C. § 2255, ECF Nos. 434 and 396, Lighty and Flood allege, among other things, that the Government used its peremptory strikes at trial in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 171, 290 L.Ed.2d 69 (1986) and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Lighty makes his Batson-J.E.B. claim as a denial of his “rights to due process, a fair trial, a fair and impartial jury and to be free from cruel and unusual punishment, ” and of his equal protection rights, as well as through two collateral ineffective assistance of counsel claims involving both trial and appellate counsel. Flood raises his claim collaterally, as one of ineffective assistance of counsel based on his trial counsel’s failure to raise the Batson-J.E.B. challenge.

         Because both Motions raise Batson-J.E.B. claims, the Court determined that it would consider the claims together, separately from Lighty’s and Flood’s other Section 2255 claims. See Letter Order, October 23, 2012, ECF No. 436. As a lead-in to their Motions, the Court granted Lighty’s Consent Motion for Access to Juror Strike Lists, ECF No. 446, as a result of which counsel for both Petitioners and the Government had an opportunity to review those lists in a conference room of the Court. After counsel reviewed the Strike Lists, they submitted a joint proposed schedule for further briefing, which the Court approved. In its Scheduling Order, ECF No. 449, the Court permitted Lighty to file an Amended Motion to Vacate and a Motion for Discovery as to the Batson-J.E.B. Claims, and permitted Flood to join in the Motion for Discovery.

         The Court’s briefing schedule indicated that the issue of discovery with respect to the Batson-J.E.B. claims would be briefed and decided first. Accordingly, on December 20, 2012, Lighty and Flood filed a Joint Motion for Discovery Regarding the Allegations of Impermissible Discrimination in Jury Selection. ECF No. 453. On the same day, Lighty filed an Amended Motion to Vacate, ECF No. 451, and Flood filed his own Motion to Amend, seeking to adopt as his own Lighty’s Amended Motion to Vacate. ECF No. 455. The Court granted Flood’s Motion to Amend on May 30, 2013. ECF No. 476.

         Thereafter, the Court held a hearing on the Joint Motion for Discovery and ordered supplemental briefing. Lighty and Flood filed a supplemental brief; the Government filed none. The Court then held a second hearing on the Joint Motion, and took the matter under advisement. Following the second hearing, Lighty and Flood submitted yet another brief, ECF No. 501; again the Government filed none.

         On October 30, 2014, the Court issued a Memorandum Opinion and Order denying the Joint Motion for Discovery. Memo. Op. and Order, ECF Nos. 508, 509. The Court noted that a habeas petitioner may be granted discovery if good cause is shown: i.e., if the petitioner makes specific allegations that give reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief. See Memo. Op. at 6, ECF No. 508 (citing Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997)). The Court reasoned that whether a petitioner has shown good cause necessarily involves to a considerable extent an inquiry into the merits of the claim, and proceeded to analyze whether Petitioners in this case had procedurally defaulted on their claims. The Court concluded that Petitioners had procedurally defaulted as to any direct Batson-J.E.B. claim because they had failed to raise it at trial or on appeal. The Court recognized, however, that the Batson-J.E.B. claim could still be raised as an ineffective assistance of counsel claim not subject to procedural default, and that a successful claim for ineffective assistance of counsel could establish “cause” to overcome the procedural default. See Id. at 10.

         While the Court reserved deciding whether the performance of Petitioners’ counsel, at trial or on appeal, fell below an objective standard of reasonableness, nevertheless, upon preliminary review for purposes of the Joint Motion for Discovery, the Court concluded that it did not. See Id. at 11. The Court determined that Petitioners’ proffered evidence fell short of demonstrating ineffective assistance of counsel such that--even if facts were further developed in discovery--Petitioners would still not be entitled to relief. In particular, the Court concluded that Petitioners’ juror strike statistics, juror-to-juror comparisons, and allegations of a history of discriminatory strikes by the same prosecutors in one other case in this Court failed to satisfy the requirement of “specific allegations” justifying entitlement to relief. See id. at 13-16. The Court, however, allowed that it would undertake a more detailed review of the record when it addressed the merits of Petitioners’ Batson-J.E.B. claim, and granted the parties leave to submit further briefing on the issue.

         The parties consented to a briefing schedule, and on December 15, 2014 Petitioners filed a Memorandum of Points and Authorities summarizing evidence and argument contained in their voluminous prior briefing. Pet’rs’ Br., ECF No. 513. On March 11, 2015, the Government advised the Court that it did not intend to file a response to the Petitioners’ latest briefing, and would instead rely upon its previous responses in the case. ECF No. 520.

         II. Procedural Posture

         The Court begins by considering the procedural posture of the Batson-J.E.B. claims, which Petitioners argue arise in two forms: (A) a Batson-J.E.B. claim that is procedurally defaulted, as to which Petitioners seek to establish cause to set aside the default by showing that counsel was ineffective for failing to make the Batson-J.E.B. challenge, and (B) an ineffective assistance of counsel claim on the merits, based on counsel’s failure to make the Batson-J.E.B. challenge. See Pet’rs’ Br. at 4 & n.3, ECF No. 513.

         Accordingly, under either approach, the Court must determine whether Petitioners’ counsel rendered constitutionally ineffective assistance by failing to challenge the Government’s peremptory strikes under Batson-J.E.B.

         A. Procedurally Defaulted Batson-J.E.B. Claim

         Petitioners’ claim in this regard is that the Government unconstitutionally exercised its peremptory challenges against female venire persons on the basis of their gender and their race. See Am. Mot. Vacate at 7, ECF No. 451; Pet’rs’ Br. at 2-3, ECF No. 513.

         As the Court noted in its opinion dated October 30, 2014, the Batson-J.E.B. claim was not raised at trial or on direct appeal, and is therefore procedurally defaulted. A claim which could have been but was not made on a petitioner’s direct appeal may not be raised in a Section 2255 petition unless there is demonstrable cause for the petitioner’s failure to raise the claim at an earlier time, and unless actual prejudice is shown to have resulted from the alleged error. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). “The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Petitioners argue, and the Government does not dispute, that if Petitioners can establish that trial counsel rendered constitutionally ineffective assistance of counsel by failing to make a Batson-J.E.B. challenge to the Government’s peremptory strikes at trial, they will have established cause to excuse their procedural default. See Pet’rs’ Br. at 4, ECF No. 513; Gov’t Resp. Opp’n at 7, ECF No. 466; see also Hollis v. Davis, 941 F.2d 1471, 1476-78 (11th Cir. 1991) (holding that because trial counsel rendered constitutionally ineffective assistance, there was cause for petitioner’s procedural default of his claim raised under 28 U.S.C. § 2254(b) that African-American jurors were systematically excluded from the venire).

         But, again, even assuming that can Petitioners establish cause for their procedural default through a successful ineffective assistance of counsel claim, their direct Batson-J.E.B. claim will still be procedurally defaulted unless they can also show actual prejudice as a result of the government’s allegedly unconstitutional exercise of its peremptory challenges against female venire persons on the basis of their gender and their race.

         B. Ineffective Assistance of Counsel - Standard of Review

         To establish cause for the procedural default, as well as for their substantive ineffective assistance of counsel claim, Petitioners first submit that counsel rendered constitutionally defective assistance by failing to challenge at trial or on appeal the Government’s use of peremptory strikes to exclude women from Petitioners’ jury on the basis of both their gender and race. See Am. Mot. Vacate at 5, 54, ECF No. 451; Pet’rs’ Br. at 4-5, 4 n.3, 33 n.7. Because they have a meritorious Batson-J.E.B. claim, say Petitioners, counsel’s failure to raise that claim both fell below an objective standard of reasonableness and prejudiced them. See id. The Government counters that because there were no meritorious Batson-J.E.B. claims to be made, Petitioners cannot satisfy either of the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Gov’t Resp. Opp’n at 23, ECF No. 466.

         Ineffective assistance of counsel claims are governed by the familiar two-part test first elucidated by the Supreme Court in Strickland:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. at 2064.

         These two elements are frequently referred to as the “performance” and “prejudice” components. Fields v. Attorney Gen. of State of Md., 956 F.2d 1290, 1297 (4th Cir. 1992). As to the performance prong, counsel’s performance is measured for reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. For example, counsel are not ineffective for failing to anticipate changes in the law or for failing to pursue constitutional claims they reasonably believe to be of questionable merit. See Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995). On the prejudice prong, in the present case there are two possibilities as to what “prejudice” could refer to: (1) that the final outcome of the trial would have been different but for the failure of counsel to raise the Batson-J.E.B. challenge, or (2) that the trial court would have sustained a Batson-J.E.B. challenge, had one been raised at the appropriate time.

         Since a petitioner bears the burden of proving both Strickland elements, he fails to satisfy his overall burden if he fails as to prove either. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. As a result, the Court may properly begin its analysis with either the performance or the prejudice prong.

         Considering first, then, the prejudice prong: the Court concludes that if it finds that-had a Batson-J.E.B. claim been raised at trial-there is a reasonable probability it would have been successful, then the prejudice component of Strickland will have been satisfied. Petitioners need not demonstrate a reasonable probability that the final outcome of the trial would have been different in order to satisfy the prejudice prong.

         The Court reaches this conclusion based on the following analysis:[2]

         Generally speaking, under Strickland, in order to satisfy the prejudice prong, Petitioners must show that there was a “reasonable probability” that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. However, in the context of a Batson-J.E.B. challenge that was never raised, it has not yet been established, in the Fourth Circuit at least, exactly which “result[s] of the proceeding” would have to be different in order to satisfy the prejudice prong.

         There are at least two possibilities:

         The first is that the “result of the proceeding” may refer to the result of the Batson-J.E.B. challenge itself. In the present context, Petitioners would need only show that there is a “reasonable probability” that, but for counsel’s failure to make a Batson-J.E.B. challenge, the Batson-J.E.B. challenge would have been successful. This approach has been endorsed by three federal Courts of Appeal.

         In Carrera v. Ayers, the Ninth Circuit held that in evaluating likelihood of success of the petitioner’s hypothetical objection under a state law analogue to Batson, the petitioner had the burden under Strickland to show a “reasonable probability” that he would have prevailed on such a claim. See 699 F.3d 1104, 1107-08 (9th Cir. 2012); see also Doe v. Ayers, 782 F.3d 425, 432-33 (9th Cir. 2015) (holding that petitioner has the burden to demonstrate prejudice by showing that there is a reasonable probability that the state law Batson analogue that counsel failed to raise at trial would have prevailed); Mitcham v. Davis, 103 F.Supp.3d 1091, 1108-09 (N.D. Cal. 2015) (applying Carrera and finding a reasonable probability that petitioner would have prevailed on a challenge under the state law Batson analogue, had his counsel raised it at trial).

         In Eagle v. Linahan, the Eleventh Circuit considered whether the failure of appellate counsel to raise a Batson claim resulted in prejudice: “To determine whether the failure to raise a claim on appeal resulted in prejudice, we review the merits of the omitted claim. If we conclude that the omitted claim would have had a reasonable probability of success, then counsel’s performance was necessarily prejudicial because it affected the outcome of the appeal.” 279 F.3d 926, 943 (11th Cir. 2001) (internal citations omitted). The Eleventh Circuit concluded that had the Batson claim been presented on appeal, the state supreme court would “in all probability” have opted to grant the petitioner a new trial. See Id. The Eleventh Circuit so concluded based on its earlier analysis that the petitioner--by the state trial judge’s own admission--had established that the prosecution had struck jurors based on race, and that trial judge had erred in declining to find a Batson violation on that basis. See Id. at 941-42.

         In Drain v. Woods, the Sixth Circuit affirmed the district court’s finding that, but for the state trial counsel’s failure to suggest the proper remedy for a Batson violation recognized by the trial court during voir dire, there was a “substantial probability” that the state trial court would have implemented the proper remedy by ordering a new panel of jurors. See 595 F. App’x 558, 583 (6th Cir. 2014).[3]

         In sum, cases from the Ninth, Eleventh, and Sixth Circuits suggest that the “result of the proceeding” under Strickland refers to the reasonable probability that had the Batson-J.E.B. claim been raised, it would have been successful.

         The second possibility is that the “result of the proceeding, ” under Strickland, means that but for counsel’s failure to raise a Batson-J.E.B. claim, the “result” of the entire proceeding would have been different. Put another way, under this approach a petitioner whose counsel had failed to raise a Batson-J.E.B. challenge could only show the requisite prejudice under Strickland if it could be shown that there was a reasonable probability that, but for the failure to raise the Batson-J.E.B. claim, the petitioner would not have been convicted, or would have been convicted of a lesser charge. This approach was taken by a different panel of the Eleventh Circuit in Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995), which concluded that the use of racially discriminatory peremptory strikes by the prosecutor’s office violated Swain v. Alabama (Batson’s predecessor), and that the performance of petitioner’s counsel was constitutionally deficient. See Id. at 1360-62 (citing Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). Nevertheless, the Jackson panel concluded that there was not a reasonable probability that, but for counsels’ errors, the result of the proceeding would have been different. This was because “[t]he jury's verdict . . . was substantially supported by the evidence” and because “[n]othing in the record indicate[d] that a racially balanced jury would have been more likely to acquit or convict of a lesser charge than was the all-white jury in this case.” See Id. at 1362.

         Even so, as this Court signaled in its prior opinion denying discovery in the present case, it was and is not inclined to agree with the Jackson panel’s approach. Indeed, the panel of the Eleventh Circuit in Eagle specifically criticized the Jackson panel:

[W]e are troubled by the practical implication of that requirement when the alleged deficient performance is failure to raise a Batson-type claim at trial or on appeal. How can a petitioner ever demonstrate that the racial make-up of the jury that convicted him affected its verdict? Furthermore, in requiring a petitioner to make such a showing, we are asking that he convince us of the very conclusion that Batson prohibits: that the race of jurors affects their thinking as jurors . . . . [H]ow can a court, in attempting to give force to the Equal Protection Clause, ask a habeas corpus petitioner to prove, or itself conclude, that the bare factor of juror race, standing alone, affected the outcome of his trial?

Eagle, 279 F.3d at 943 n.22. While these comments by the Eagle panel may have been dicta, the panel did suggest that where counsel’s constitutionally ineffective representation lets stand a structural error, such as a Batson violation, that infects the entire trial with an unconstitutional taint, the court should not require the defendant to prove actual prejudice in the final outcome of his trial. See id.; see also Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310, 1316 (11th Cir. 2003) (finding a reasonable probability that, had trial counsel preserved Batson challenges for appeal, a state appeals court would deem harmless error review inapplicable to such Batson challenges).

         The approach of the Eagle case to the prejudice under Strickland is further supported by the view, adopted by some circuits, that a direct Batson claim constitutes a structural error, which is exempt from the harmless-error rule and requires automatic reversal. Indeed, the Supreme Court has stated that discrimination in grand jury selection is a structural error not subject to harmless error analysis. See Vasquez v. Hillery, 474 U.S. 254, 261-63, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). This is precisely the approach taken by the Sixth Circuit in Drain, which held that “[b]ecause a Batson violation constitutes a structural error, the failure to object and to remedy the error constitutes error per se. Where counsel’s ineffective representation lets stand a structural error that infects the entire trial with an unconstitutional taint, there is no question that Petitioner and our system of justice suffered prejudice.” 595 F. App’x at 583; see also Davis, 103 F.Supp.3d at 1119-20.

         The Fourth Circuit, which has not yet considered the issue, has nonetheless “eschew[ed] harmless error analysis” with respect to a direct Batson claim, noting that several other circuits have so held.[4] See United States v. Legrand, 483 F. App’x 771, 777, n.2 (4th Cir. 2012) (citing Winston v. Boatwright, 649 F.3d 618, 627-28 (7th Cir. 2011); Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005); Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); Ford v. Norris, 67 F.3d 162, 170-71 (8th Cir. 1995); United States v. Thompson, 827 F.2d 1254, 1261 (9th Cir. 1987)). The Fourth Circuit has also suggested that for structural errors, prejudice may be presumed for the purpose of a Strickland ineffective assistance counsel claim. See Bell v. Jarvis, 236 F.3d 149, 165 (4th Cir. 2000) (en banc) (citing McGurk v. Stenberg, 163 F.3d 470, 473 (8th Cir. 1998)).

         The Court adopts the Carrera/Eagle/Drain approach and rejects the Jackson approach. Accordingly, Petitioners need only show that there is a “reasonable probability” that, but for counsel’s failure to make a Batson-J.E.B. challenge at trial, the Batson-J.E.B. challenge would have been successful. If Petitioners make such a showing, they will have established prejudice for purposes of Strickland. Petitioners need not show that, but for counsel’s failure to make a Batson-J.E.B. challenge at trial, they would not have been convicted, or would have been convicted of a lesser charge.[5]

         III. Prejudice Prong: Batson-J.E.B. Claim

         To determine whether Petitioners have shown a “reasonable probability” for purposes of prejudice under Strickland that Petitioners’ Batson-J.E.B. challenge would have been successful had counsel asserted the challenge, the Court reviews the “essential elements” of a Batson-J.E.B. challenge.

         The three-step burden-shifting inquiry of a Batson-J.E.B. challenge is well-established: (1) the defendant must first make a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of the prospective juror’s membership in a cognizable group, in this case women and African-American women in particular, (2) the prosecutor must then present a gender- and race-neutral explanation for striking the juror in question, and (3) the court must then determine whether the defendant has proven purposeful discrimination. Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016) (citing Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)).

         It is unconstitutional to strike “even a single prospective juror for a discriminatory purpose.” Foster, 136 S.Ct. at 1747 (citing Snyder, 552 U.S. at 478, 128 S.Ct. 1203) (internal quotation marks omitted). While Batson-J.E.B. challenges were originally limited to discrimination claims regarding one’s own race or gender, they have been expanded to allow defendants who are of a different cognizable group than the stricken jurors to establish a prima facie case. See Powers v. Ohio, 499 U.S. 400, 406, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that racial identity between the objecting defendant and the excluded jurors does not constitute a relevant precondition for a Batson challenge).

         In Step One of a Batson-J.E.B. challenge, a defendant satisfies his initial burden of demonstrating a prima facie case of discrimination by showing that: (1) the defendant was a member of a cognizable group, (2) the prosecution exercised peremptory challenges to remove from the venire members of the defendant’s gender or race, and (3) other relevant facts and circumstances are present that give rise to an inference of discrimination. Batson, 476 U.S. at 96, 106 S.Ct. 1712; J.E.B., 511 U.S. at 144-45, 114 S.Ct. 1419; see United States v. Joe, 928 F.2d 99, 102 (4th Cir. 1991). Because Lighty and Flood do not allege that members of their own gender, i.e. men, were improperly stricken from their jury, they must show that other relevant facts and circumstances give rise to an inference of discrimination against women. See Higgs v. United States, 711 F.Supp.2d 479, 503-04 (D. Md. 2010).

         Once a defendant has established a prima facie case in Step One, the court proceeds to Step Two: at this stage the burden of production shifts to the prosecutor to present a gender-neutral explanation for striking the juror in question. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). Although the prosecutor “must present a comprehensible reason, ‘[t]he second step of this process does not demand an explanation that is persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.” Rice, 546 U.S. at 338, 126 S.Ct. 969 (alteration in original) (quoting Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam)).

         Petitioners submit that because the Government voluntarily proffered reasons for all its strikes through a declaration submitted by one of the Government’s trial attorneys, Gov’t Resp. Opp’n, Ex. 1, Johnston Decl., ECF No. 466-1, the Court should assume that Petitioners have met their burden of establishing a prima facie case of discrimination at Step One, and should proceed directly to Step Three of the Batson-J.E.B. inquiry.[6] Petitioners find support for this argument in Supreme Court and Fourth Circuit cases holding that when the prosecution voluntarily proffers racially neutral reasons for peremptory strikes, it is unnecessary to determine whether the defendant has actually demonstrated a prima facie case. See, e.g., United States v. Dinkins, 691 F.3d 358, 380 n.17 (4th Cir. 2012); United States v. McMillon, 14 F.3d 948, 952 (4th Cir. 1994); cf. Davis v. Baltimore Gas & Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998) (raising Batson claim in employment discrimination civil jury trial) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The Court notes, however, that each of the cases cited by Petitioners appears to have involved the prosecution’s voluntary proffer of the reasons for its strikes at the time of the trial court’s Batson hearing itself, rather than--as here-- the prosecution’s voluntary proffer of the reasons for its strikes in the form of an affidavit from a trial attorney authored some seven years after the peremptory strikes at issue should have taken place. Even so, the Court is not aware of any authority that would preclude skipping Batson Step One in the particular procedural posture of this case, and the Government has offered no argument why it should not do so. Accordingly, the Court assumes without deciding that the Petitioners have actually demonstrated a prima facie case of discrimination at Batson Step One, and since the Government has provided what it believes is a neutral explanation for its strikes, the Court proceeds directly to Batson Step Three.

         At Step Three of the Batson-J.E.B. inquiry, the court determines whether the defendant has carried his burden of proving purposeful discrimination. Rice, 546 U.S. at 338, 126 S.Ct. 969 (citing Batson, 476 U.S. at 98, 106 S.Ct. at 1724). While this final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike, ” which is to say, the defendant. Id. (quoting Purkett, 514 U.S. at 768, 115 S.Ct. 1769). The Fourth Circuit has held that this final step is “but a part of the larger inquiry by the court into whether the defendant has advanced evidence that meets its burden of proving that the prosecutor’s strike was animated by a prohibited motivation.” United States v. McMillon, 14 F.3d 948, 952 n.3 (4th Cir. 1994). Indeed, “simply showing that the reasons advanced are pretextual does not automatically compel a finding of intentional discrimination (although under the proper facts such a showing can be sufficient).” Id. (emphasis in original). Instead, the petitioner must show, “through all relevant circumstances, that the prosecutor intentionally exercised his strike because of racial [or other prohibited] concern.” Id.

         In Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Miller-El II), the Supreme Court identified six indicia of discrimination relevant to this determination: Where prosecutors: (1) struck a high percentage of venirepersons on the basis of their being part of a cognizable group; (2) proffered reasons for striking the members of the cognizable group that applied equally to venirepersons who were not members of the cognizable group; (3) repeatedly “shuffled” potential jurors when confronted with eligible venirepersons who were part of the cognizable group; (4) used different scripts depending on whether the venirepersons were part of the cognizable group; (5) made written notes about the venirepersons being part of the cognizable group; and (6) were part of an office with a systematic policy of discrimination.

         Petitioners submit that in this case the Government impermissibly discriminated against prospective female jurors and African-American women in particular. They cite to three general types of evidence in support of their Batson-J.E.B. claim that track the indicia of discrimination highlighted in Miller-El II: (1) statistical evidence relating to the prosecutors’ strikes; (2) purported historical evidence of discrimination (implying a systematic policy of discrimination); and (3) juror-to juror comparisons.[7] Petitioners assert that the Government struck Jurors 1, 83, 90, 117 and 124 based on their gender (female), and that the Government struck Jurors 83, 90, 117 and 124 based on their race and gender (African-American and female). Pet’rs’ Br. at 5, 33, ECF No. 513. Juror 1 was a white woman. Jurors 83, 90, 117 and 124 were African-American women. The Court reviews each alleged indicium of discrimination in turn.

         A. Statistical Evidence

         In selecting the jury in this case, the Court employed its usual method, what is known as the “struck jury-blind strike” method. Under this method, the Court conducted voir dire on the venire as a whole by asking questions submitted by and previously discussed with counsel and allowing counsel to ask follow-up questions at the bench-during which time potential jurors were challenged and excused for cause.[8] Then, as to those jurors who remained in the venire, rather than alternating peremptory strikes against individuals summoned into the jury box, each party, on separately distributed jury lists simultaneously and without disclosing them to the opposition, marked with an “x” the names of the prospective jurors they wished to strike. Counsel then presented their lists of peremptory challenges to the courtroom deputy. This meant that the parties might exercise a peremptory challenge against the same juror. See George S. Cardona & Angela J. Davis, Inside the Box, 31 L.A. Lawyer 25, 26, 28 (Oct. 2008).

         Under this method, if a party does not exercise all its allotted peremptory challenges or if counsel strike the same juror, the Court will be left with more than the number of jurors necessary to compose the petit jury as well as the alternate juror group. Accordingly, the Court must select a method for selecting the petit jury and alternates from the remaining members of the array. Courts generally apply one of two methods. First, the petit jury of twelve and the six alternates may be randomly drawn from the remaining array as a whole. Second, the entire array may be numbered from the start, with the result that the petit jury of twelve will be empaneled in numerical order beginning with the remaining juror with the lowest (or, for the sake of variation, the highest) juror number, until the next eleven venirepersons in upward (or downward) numerical sequence are seated, followed by-in this case-six alternates consisting of the next six jurors in numerical order. See Id. at 28. In the present case, counsel were advised by the Court in advance of jury selection and received no objection that the first eighteen “clean names, ”-i.e. those venirepersons remaining after the challenges for cause and peremptory strikes had been exercised-would be seated, the first twelve as jurors, the next six as alternates.[9]

         Each potential juror had been assigned a juror number in advance by the Jury Commissioner’s office. Beginning on September 6, 2005 and continuing until September 27, 2005, the Court conducted in person voir dire, dismissing some potential jurors by agreement of counsel or for cause. The pool from which the final jury was selected consisted of 64 qualified venirepersons.[10] On September 27, 2005, the parties exercised their peremptory challenges, according to the procedure outlined above. Counsel for each side were given twenty peremptory strikes with respect to the “pool” of the first 52 qualified venirepersons (Jurors 1 through 211), and three additional strikes for the venirepersons in the “pool” of fourteen alternates (Jurors 220 through 344). But the Court reiterated that it would seat the first eighteen “clean, ” i.e. unstruck, names. See Sept. 27, 2005 Tr. 26:25-27:2. In other words, once the twelve members of the petit jury were selected, the next six non-struck venirepersons would be seated as alternates, regardless of whether or not they were in the “pool” of 52 petit jurors (Jurors 1 through 211) or the “pool” of fourteen alternate jurors (Jurors 220 through 344).

         The first 52 jurors consisted of 29 men and 23 women. The Government exercised 19 of its 20 strikes to exclude 4 men and 15 women. As a result of the Government’s strikes, and before factoring in Petitioners’ strikes, the jury pool consisted of of 25 men and 8 women-- including one African-American woman and one Asian woman. Petitioners struck 11 men (one of whom was also struck by the Government) and 9 women (2 of whom were also struck by the Government).

         The 12 jurors in the alternate jury pool consisted of 7 women and 5 men. The Government exercised all three of its strikes to exclude three women from the alternate pool. As a result of the Government’s strikes, and before factoring in Petitioners’ strikes, the alternate pool consisted of four women and five men. Petitioners struck two women and one man from the alternate pool.

         After the Court received the parties’ strikes, the Court empaneled the jury and alternates. The final jury consisted of 11 men and 1 woman. Of the men on the jury, six were white, four were African-American, and one man’s race was identified as “other.” The female juror was Asian. The six alternates were all men, four of whom were white, and two of whom were African-American.

         Courts have identified several types of statistical disparities that may support an inference of discrimination. In Miller-El I and Miller-El II, the Supreme Court highlighted three such disparities: (1) the percentage of members of the cognizable group serving on the jury, (2) the percentage of the prosecution’s strikes exercised against the cognizable group, and (3) the percentage of members of the cognizable group in the venire excluded by reason of the prosecution’s strikes. Miller-El v. Cockrell, 537 U.S. 322, 330-32, 342, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (noting that 10 of the prosecutors’ 14 peremptory strikes were used against African-Americans, when African-Americans represented 11 out of 42 eligible venirepersons); see Miller II, 545 U.S. at 240-41, 125 S.Ct. 2317 (describing as “remarkable” that among the 11 eligible black members of a 42 member eligible venire, only one served; and that the prosecutors’ peremptory strikes resulted in the exclusion 91% of the eligible African- American venire persons); accord Aspen v. Bissonnette, 480 F.3d 571, 577 (1st Cir. 2007) (collecting cases holding that “relevant numeric evidence” includes a comparison of the percentage of a group’s representation in the venire to its representation on the jury, the percentage of strikes directed against members of a particular group, and the percentage of a particular group removed from the venire by the challenged strikes).

         Petitioners argue that the jury composition itself suggests that the Government struck female jurors and African-American female jurors for a discriminatory purpose. The panel of 64 qualified jurors was 47% women and 17% African-American women. Pet’rs’ Br. at 7, 33-34, ECF No. 513. Petitioners’ jury consisted of eleven men and one woman. The ...


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