Love

*716 MEMORANDUM **

Alfrederick Love appeals the district court’s denial of his petition for writ of habeas corpus, arguing that the trial court erred when it overruled his objection to the prosecution’s use of a peremptory challenge to remove the only available African-American member of the jury pool.

1. Under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), a challenge to a peremptory strike is evaluated in three steps. First, the defendant must make a prima facie showing that the prosecutor exercised the peremptory challenge because of race. Id. at 96-97 , 106 S.Ct. 1712 . Second, if the defendant makes such a showing, the burden shifts to the prosecutor to come forward with a race-neutral explanation for the challenge. Id. at 97 , 106 S.Ct. 1712 . Third, the court must determine whether “the defendant has established purposeful discrimination.” Id. at 98 , 106 S.Ct. 1712 .

Where the “prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v.…

dissenting:

In this case we owe not only the usual high amount of AEDPA deference to a state court’s findings, 28 U.S.C. § 2254 (d)(2); Rice v. Collins, 546 U.S. 333 , 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006), but also an extra measure of deference for a Batson-related evaluation of credibility, Hernandez v. New York, 500 U.S. 352, 364 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991). Applying those standards of review, on de novo review (which I agree is required here) I would affirm the decision of the district court and, therefore, respectfully dissent.

Of the 20 jurors who were struck using peremptory challenges, 11 were struck by the prosecutor. Of those 11, one was black and 10 were not. Three of the 11, including the only black potential juror *719 who remained in the jury pool after potential jurors had been excused for hardship, were either “eligibility workers” or worked at a social security office. No juror on the final jury worked as an eligibility worker, social worker, or social security worker.

Accordingly, the prosecutor’s relevant explanation — that he did not want social workers or eligibility workers to sit on the jury (presumably because of their expected…