Volume 36
Fall 2009
Rutgers Law Record
RUTGERS LAW RECORD
The Internet Journal of Rutgers School of Law | Newark
www.lawrecord.com
Volume 36
Emerging Trends in Criminal Procedure
Fall 2009
Batson Revisited:
Discriminatory Venue Transfer and the Scope of Supreme Court Precedent
Kevin Duffy∗
A. Introduction
Since 1986, the Supreme Court has recognized that prosecutors are prohibited from
employing peremptory challenges to exclude would-be jurors on the basis of their race.1 In Batson v.
Kentucky, a seven-member majority of the Court held that such “purposeful racial discrimination”
constitutes an impermissible violation of a defendant’s “right to equal protection.”2
Twenty-two years after Batson, Gordon House asked the Tenth Circuit Court of Appeals to
find that Batson stands for the general proposition that the Equal Protection Clause (“EPC”) applies
to all stages of a criminal proceeding.3 House, a member of the Navajo nation, proffered the
argument that the trial court’s transfer of venue effectively excluded all members of his race from his
venire and thus “ran afoul of the Supreme Court’s Batson decision.”4
In denying House’s habeas petition, the Tenth Circuit concluded that Batson did not
constitute “clearly established law” on the issue of the EPC’s application to venue transfers.5
Relying heavily on the Supreme Court’s recent decision in Carey v. Musladin6, which the Tenth Circuit
interpreted as a “noticeably more restrictive” rule for determinations of “clearly established federal
law,”7 the Court concluded that the issue before it was an “open question” under Supreme Court
∗
Kevin Duffy is the Senior Articles Editor of the Rutgers Law Record. He received a B.S. from Emerson College, and
is presently a May 2010 J.D. candidate at Rutgers School of Law - Newark.
1 Batson v. Kentucky, 476 U.S. 79 (1986).
2 Id. at 86.
3 House v. Hatch, 527 F.3d 1010 (10th Cir. 2008).
4 Id. at 1020.
5 Id. at 1022.
6 Carey v. Musladin, 549 U.S. 70 (2006).
7 House, 527 F.3d at 1016.
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jurisprudence.8 As such, habeas relief was unavailable under the mandate of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).9
This note posits that Batson should be interpreted in a broader scope than that afforded by
the Tenth Circuit. This note will demonstrate that Musladin did not require the House Court to
employ such an improperly narrow interpretation to the general principle established in Batson.
B. The Scope of Batson
On the first day of James Batson’s trial on charges of burglary and receipt of stolen goods,
the prosecutor employed his preemptory challenges to remove the only four black jurors from an
otherwise white jury.10 After defense counsel moved to discharge the jury on the grounds that this
removal violated Batson’s rights under the Sixth and Fourteenth Amendments, the judge stated that
parties had the right to “strike anybody they want to” and denied the motion.11 Batson was
convicted on both counts and, on appeal, the Supreme Court of Kentucky affirmed. Applying Swain
v. Alabama,12 the court determined that Batson had failed to demonstrate the “systematic exclusion”
of jurors necessary to prevail on an equal protection claim.13
In reversing, the Supreme Court rejected the evidentiary burden imposed on the defendant
under the Swain framework, and concluded instead that a defendant should be permitted to
demonstrate purposeful discriminatory preemptive challenges on the facts of his case alone.14
Writing for the Court, Justice Powell noted the Court’s “unceasing efforts to eradicate racial
discrimination in the procedures used to select the venire from which individual jurors are drawn.”15
Such discrimination inflicts harm not only on the defendant, reasoned the Court, but on the entire
community.16 Purposefully discriminatory selective procedures “undermine public confidence in the
fairness of our system of justice,”17 and as such, “public respect for our criminal justice system and
the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service
because of his race.”18 The Court concluded that the State’s privilege to exercise preemptory
challenges must be “subject to the commands of the Equal Protection Clause.”19
The Batson decision articulated a burden-shifting process for claims of discriminatory venire
selection.
To establish such a case, the defendant first must show that he is a member of a
cognizable racial group, and that the prosecutor has exercised peremptory challenges
8
Id. at 1021.
28 U.S.C. § 2254(d)(1) (2006).
10 Batson, 476 U.S. at 82-83.
11 Id. at 83.
12 Swain v. Alabama, 380 U.S. 202, 224. (1965). In Swain, the Court held that a defendant claiming purposeful
discrimination in the use of preemptory challenges would be required to show that the system itself was “being
perverted” in the manner alleged.
13 Batson, 476 U.S. at 83-84.
14 Id. at 95.
15 Id. at 85.
16 Id. at 87.
17 Id.
18 Id. at 99.
19 Id. at 89.
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to remove from the venire members of the defendant’s race. Second, the defendant
is entitled to rely on the fact, as to which there can be no dispute, that peremptory
challenges constitute a jury selection practice that permits “those to discriminate who
are of a mind to discriminate.” Finally, the defendant must show that these facts and
any other relevant circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of their race.20
Upon this requisite showing, “the burden shifts to the State to come forward with a neutral
explanation for challenging black jurors.”21 The Court specifically rejected the State of Kentucky’s
argument that its holding would “create serious administrative difficulties.”22
In separate concurring opinions, Justice White and Justice Marshall looked ahead to the
application of Batson in the lower courts. “Much litigation will be required to spell out the contours
of the Court’s equal protection holding today,” observed Justice White.23 Justice Marshall articulated
his concern that Batson would not go far enough toward “end[ing] the racial discrimination that
peremptories inject into the jury-selection process.”24 For that reason, Justice Marshall urged
complete elimination of the preemptory challenge system.25
In dissent, Chief Justice Burger and Justice Rehnquist criticized the majority’s rejection of
Swain26 and defended the preemptory challenge as an “essential” tool “in use without scrutiny into its
basis for nearly as long as juries have existed.”27 The equal protection analysis employed by the
majority, argued the dissenters, “is simply inapplicable to peremptory challenges exercised in any
particular case.”28 Taken to its inevitable conclusion, the dissent argued, Batson created a probability
that every peremptory challenge could be objected to on the basis that, because it excluded a
venireman who had some characteristic not shared by the remaining members of the venire,
it constituted a “classification” subject to equal protection scrutiny.29
C. The Venue Transfers of House v. Hatch
On Christmas Eve 1992, while driving the wrong way on Interstate 20 in New Mexico,
Gordon House collided head-on with another vehicle.30 The accident resulted in the death of
Melanie Cravens and her three daughters and serious injury to Melanie’s husband, Paul Cravens.31
House, a member of the Navajo nation and the director of a counseling center for Indian teens,32
admitted to consuming seven and one-half beers and his blood-alcohol concentration was measured
20
Id. at 96 (citation omitted).
Id. at 97.
22 Id. at 99.
23 Id. at 102.
24 Id. at 102-103.
25 Id. at 103.
26 Id. at 112.
27 Id. at 119-120.
28 Id. at 123.
29 Id. at 124.
30 House, 527 F.3d at 1013.
31 Id.
32 ‘Bright Star’ of Navajo Nation Gets Prison Term in Fatal Crash, N.Y. TIMES, July 26, 1995, at 17.
21
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at 0.18%.33 Owing in part to the tragic nature of the crime and in part to hurtful stereotypes relating
to Indians and drinking problems, New Mexico’s subsequent prosecution of House triggered
significant attention in the media and “polarized the community.”34 The announcement by the
district attorney that the State planned to charge House with first-degree, depraved-mind murder
sparked allegations of racial bias.35 The first-degree charges were eventually dropped, however, and
the final ten counts against House consisted of vehicular homicide and grave bodily injury charges
premised on DWI and reckless driving theories.36
In light of the surrounding publicity, the trial court in Bernalillo County granted House’s
unopposed motion for transfer of venue from Bernalillo to Taos County.37 When the Taos County
jury deadlocked on all counts but for the misdemeanor DWI charge, the State moved for venue
transfer.38 The Taos County court denied this motion, and following a second trial, a new Taos
County jury again deadlocked on the vehicular homicide charges.39 The State moved again for venue
transfer, and the court acceded, transferring House’s case to Dona Ana County.40 Whereas the adult
Native American population in Taos County was 6.5% at the time, the corresponding demographic
in Dona Ana County was 0.8%.41 The Dona Ana jury convicted House on all charges.42 The
prosecution of Gordon House marked the first time in New Mexico history that an individual was
tried three times on the same charges.43
D. Venue Transfer within the Scope of Batson
In asking the Tenth Circuit to apply the Equal Protection Clause to venue transfers, House
was asking the court to recognize that Batson should stand for the principle that the EPC “applies to
all stages of a criminal proceeding.”44 House’s contention was that the State had utilized venue
transfer procedure “offensively” against him by selecting a venue “largely devoid of Native
Americans.”45 As this section will demonstrate, there are a number of compelling reasons to
conclude that venue transfer is in fact within the scope of the Batson holding.
First, though proffering different arguments on the issue at hand, each of the Batson opinions
discussed above share one crucial commonality. Each recognized that Batson would stand for an
equal protection principal broader than the literal holding of the case. While Batson dealt specifically
with the use of peremptory challenges, the majority’s language spoke more broadly of eradicating
discrimination in the “procedures used to select the venire.”46 Justice White’s concurring opinion
33
House, 527 F.3d at 1013.
Repeat Trials of Navajo in Fatal Crash Polarize New Mexico Residents, N.Y. TIMES, April 22, 1995, at 6.
35 House, 527 F.3d at 1013.
36 Id at 1013-14.
37 Id at 1013.
38 Id.
39 Id.
40 Id. at 1014.
41 Id. at 1027.
42 Id. at 1014.
43 ‘Bright Star’ of Navajo Nation Gets Prison Term in Fatal Crash, N.Y. TIMES, July 26, 1995, at 6.
44 House, 527 F.3d at 1020.
45 State v. House, 978 P.2d 967, 991 (N.M. 1999).
46 Batson, 476 U.S. at 85. While this language is concededly not a component of the Batson Court’s actual holding, it is
nonetheless dictum describing the Supreme Court’s general goal in its jury discrimination jurisprudence. As such, it is
instructive in the consideration of the proper scope of the Batson holding.
34
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expressly acknowledged that the full “contours” of the Batson principle would not be found within
the pages of the opinion itself, but would instead require further litigation.47 Finally, while Batson
dealt specifically with the manifestation of racial discrimination, the dissent anticipated application of
the Batson holding to different types of discrimination including that based on gender, religious
affiliation, or mental capacity.48
Second, to accept the argument that venue transfer falls within the general scope of Batson
requires only that venue transfer be categorized as a “procedure[] used to select the venire from
which individual jurors are drawn.”49 Some procedures involved in the selection of the venire take
place long before the first day of trial. These procedures include the initial random selection of
prospective jurors, the actual process of summoning prospective jurors, and the process whereby
jurors may be excused after demonstrating sufficient hardships.50 Of course, since the pool of
prospective jurors will consist of the residents of the specific geographic location in which the trial
will convene,51 the very first procedure that will affect the selection of the venire is the determination
of venue. Further, it is not difficult to imagine how this procedure could be contravened for racially
discriminatory effect.52 It is thus apparent that subjecting venue transfer to the commands of the
EPC would be entirely consistent with Batson’s goal of eradicating racial discrimination from the
procedures of jury selection.
Finally, the principle that prosecutors should not be permitted to utilize venue transfer to
circumvent Batson and “accomplish the same result by another means” was recognized by Justice
Marshall in Mallett v. Missouri.53 Although the majority of the Court voted to deny certiorari, Justice
Marshall’s dissent made a clear and compelling case for including venue transfer within the scope of
Batson.54 In Mallet, the murder trial of an African-American defendant was transferred from Perry
County, with an African-American population of approximately 6.6%, to Schuyler County, where
that population was approximately .06%.55 In applying Batson to these facts, Justice Marshall found
that a “prima facie case of purposeful discrimination” had been demonstrated.56 Consistent with
Batson guidelines, Justice Marshall concluded that the case required “an examination of the trial
court’s justification for transferring venue in a manner that discriminated against potential AfroAmerican jurors.”57
E. The AEDPA, Williams, and the Musladin Rule
The Antiterrorism and Effective Death Penalty Act of 1996 was enacted by the 104th
Congress as legislation intended “[t]o deter terrorism, provide justice for victims, provide for an
effective death penalty, and other purposes.”58 Title I of the AEDPA, entitled “Habeas Corpus
47
Id. at 102.
Id. at 105-06.
49 Id. at 85.
50 See generally 28 U.S.C. § 1863 (2006).
51 28 U.S.C. § 1863(b)(3).
52 For instance, in House, while the motivations of the prosecutors who requested a transfer out of Taos County are not
known, it is certainly conceivable that they hoped to decrease the number of Native Americans in the venire.
53 Mallett v. Missouri, 494 U.S. 1009, 1009 (1990) (Marshall, J., dissenting).
54 Id.
55 Id.
56 Id. at 1010.
57 Id. at 1011.
58 110 Stat. 1219.
48
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Reform,” establishes new guidelines controlling the circumstances under which applications for
writs of habeas corpus are to be granted.59 Writs of habeas corpus entitle both state and federal
prisoners to challenge their convictions and thus serve as safeguards against unlawful
imprisonment.60 The AEDPA provision applicable to Gordon House’s application for habeas relief
states:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
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.61
As a result of this language, the Supreme Court was soon required to address the issue of what
qualifies as “clearly established Federal law.”
In Williams v. Taylor, the Supreme Court held that the Virginia Supreme Court’s
determination that the defendant’s right to effective assistance of counsel had not been violated
constituted a “decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law.”62 Justice Stevens announced the judgment of the Court, but his primary
discussion of the AEDPA failed to command a majority.63 In Justice Stevens’ view, the scope of
federal courts’ jurisdictional grant to provide habeas relief “remains the same” following the
enactment of the AEDPA.64 Justice O’Connor, however, wrote for the majority of the Court in
rejecting this view on the basis that it gives “no effect whatsoever” to the amendments introduced
under the AEDPA.65 In the majority’s view, these amendments represented a clear intent on the
part of Congress to achieve “habeas reform.”66 On the specific question of the proper meaning of
the phrase, “clearly established Federal law, as determined by the Supreme Court,” Justice O’Connor
opined that this phrase “refers to the holdings, as opposed to the dicta, of this Court’s decisions.”67
Six years later, in Carey v. Musladin, the Supreme Court was presented with the issue of
whether a criminal defendant was denied a fair trial by the courtroom presence of members of the
victim’s family wearing buttons displaying the victim’s image.68 The Court of Appeals for the Ninth
Circuit held that the defendant was entitled to a writ of habeas corpus under the AEDPA.69 This
holding was based on the Ninth Circuit’s conclusion that the state court’s application of a test for
inherent prejudice that differed from a test articulated by the Supreme Court was “contrary to, or
59
Id.
Deborah L. Stahlkopf, A Dark Day for Habeas Corpus: Successive Petitions Under the AntiTerrorism and Effective Death Penalty
Act of 1996, 40 ARIZ. L. REV. 1115, 1118-19 (1998).
61 28 U.S.C. § 2254(d)(1) (2006).
62 Williams v. Taylor, 529 U.S. 362, 398-99 (2000).
63 See id. at 367.
64 Id. at 375.
65 Id. at 403 (O’Connor, J. concurring).
66 Id. at 404.
67 Id. at 412.
68 Musladin, 594 U.S. 70.
69 Id. at 73-74.
60
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involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.”70 Reversing the Ninth Circuit, the Musladin Court cited Justice
O’Connor’s explanation of “clearly established Federal law” from the Williams opinion.71 Since the
Court had never specifically addressed “a claim that such private-actor courtroom conduct was so
inherently prejudicial that it deprived a defendant of a fair trial,” it could not be said that the state
court’s application of federal law was unreasonable.72
In a concurring opinion, Justice Stevens criticized the application of Justice O’Connor’s
“ironic dictum” in regard to “clearly established Federal law:”73
Because I am persuaded that Justice O’Connor’s dictum about dicta represents an
incorrect interpretation of [the AEDPA’s] text, and because its repetition today is
wholly unnecessary, I do not join the Court’s opinion.
Virtually every one of the Court’s opinions announcing a new application of a
constitutional principal contains some explanatory language that is intended to
provide guidance to lawyers and judges in future cases. 74
Justice Stevens’s sentiments were echoed somewhat in Justice Kennedy’s concurring opinion, which
noted that the, “AEDPA does not require state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied.”75
This language by Justice Kennedy was cited the following year in Panetti v. Quaterman, where
a majority of the Court took a significant step in softening the rigid rule that Musladin seemed to
create.76 In Panetti, the Court held that although it had never articulated a “precise standard”77 for
state-court competency proceedings, the procedures employed by the state court to determine
competency nonetheless violated the “controlling standard” created by the Court.78 In regard to the
AEDPA, the Court explained that the, “statute recognizes . . . that even a general standard may be
applied in an unreasonable manner.”79 Justice Thomas, the author of Musladin, dissented along with
Chief Justice Roberts and Justices Alito and Scalia.80 The dissent sharply criticized the majority for
“cobbl[ing] together stray language” from the Court’s decision in Ford v. Wainright81 in support of its
conclusion that the state court’s competency proceedings constituted an unreasonable application of
federal law.82
F. Application of Batson to Venue Transfer within the Musladin Rule
70
Id.
Id. at 74-75.
72 Id. at 76.
73 Id. at 78 (Stevens, J. concurring).
74 Id. at 78-79 (citations omitted).
75 Id. at 81 (Kennedy, J. concurring) (citations omitted).
76 Pannetti v. Quaterman, 51 U.S. 930 (2007).
77 Id. at 957.
78 Id. at 953.
79 Id.
80 Id. at 962.
81 Ford v. Wainright, 477 U.S. 399 (1986).
82 Pannetti, 551 U.S. 930 at 980.
71
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In order to satisfy Musladin, the Tenth Circuit needed only to conclude that it is well-settled
precedent that the EPC applies to all stages of a criminal trial. Proceeding from that point, the court
could have considered whether the trial court’s transfer of venue to Dona Ana County constituted a
purposeful exclusion of Native Americans from Gordon House’s jury in violation of Batson. If it
did, then the Supreme Court of New Mexico’s conclusion to the contrary would represent an
unreasonable application of federal law and thus entitle Gordon House to federal habeas relief under
the provisions of the AEDPA. This general approach to the Musladin rule has already been taken by
the Sixth, Seventh, and Ninth Circuits. While the ultimate fate of this approach is still unclear, the
chronology is instructive.
In 2006, the Seventh Circuit granted Joseph Van Patten’s petition for habeas relief based on
a finding that the Wisconsin Supreme Court had unreasonably applied Supreme Court precedent
regarding the right to counsel.83 Specifically, the Seventh Circuit held that Van Patten’s counsel’s
appearance via speakerphone at a critical hearing created a “presumption of prejudice” as analyzed
under United States v. Cronic.84 The State filed a petition for certiorari, and the Supreme Court
decided Musladin while this petition was still pending.85 The Supreme Court remanded the case back
to the Seventh Circuit for further consideration in light of Musladin and the Seventh Circuit
reinstated its opinion granting habeas relief.86 The Seventh Circuit concluded that “nothing in
Musladin” required a reversal of its earlier opinion because a defendant’s right to effective legal
counsel is not “an open constitutional question.”87
Three months later, the Ninth Circuit took the same approach in Smith v. Patrick.88 The
Ninth Circuit granted Shirley Ree Smith’s habeas petition in 2006 based on its conclusion that the
California Court of Appeals’ affirmance of her conviction constituted an unreasonable application of
applicable Supreme Court precedent.89 The State appealed, and as in Van Patten, the Supreme Court
decided Musladin while the appeal was pending. When the Supreme Court remanded to the Ninth
Circuit for reconsideration in light of Musladin, the Ninth Circuit concluded that its earlier decision
was “unaffected by Musladin.”90 The court relied on the Supreme Court’s holding in Panetti as well as
the Seventh Circuit’s holding in Van Patten to conclude that the Supreme Court does not interpret
the AEDPA “to require a Supreme Court decision to be factually identical to the case in issue before
habeas can be granted.”91
The following year, however, the Supreme Court reversed the Seventh Circuit’s
reinstatement of habeas relief in Van Patten on the basis that no Supreme Court decision had
“squarely address[ed] the issue” of counsel’s participation by speaker phone as “denial of counsel.”92
The Court’s decision in Van Patten prompted the California prosecutors to immediately petition the
Ninth Circuit for panel and en banc rehearing of its decision in Smith v. Patrick.93 The Ninth Circuit
83
Van Patten v. Deppisch, 434 F.3d 1038, 1046 (9th Cir. 2006).
Id. at 1045.
85 Van Patten v. Endicott, 489 F.3d 827, 828 (9th Cir. 2007)
86 Id.
87 Id.
88 Smith v. Patrick, 508 F.3d 1256 (9th Cir. 2007).
89 Id. at 1257.
90 Id.
91 Id. at 1259.
92 Wright v. Van Patten, 522 U.S. 120 (2008).
93 Smith v. Patrick, 508 F.3d 900, 900 (9th Cir. 2008).
84
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denied the petition, however, finding that nothing in the Supreme Court’s Van Patten decision
affected its earlier ruling.94
In Spisak v. Hudson, the Sixth Circuit revisited a prior grant of habeas relief in light of
Musladin and determined that the new rule did not require reversal of its prior holding.95 In 2006,
prior to the Supreme Court’s holding in Musladin, the Sixth Circuit granted partial habeas relief to
Frank Spisak after finding that his conviction “resulted from an unreasonable application of federal
law as announced by the Supreme Court.”96 Specifically, the Sixth Circuit concluded that the state
court’s holding in regard to the ineffective assistance of Spisak’s counsel and improper jury
instructions were inconsistent with Supreme Court jurisprudence in those areas.97 The Supreme
Court granted certiorari in 2007 and remanded the case to the Sixth Circuit “for further
consideration in light of Carey v. Musladin.”98 Upon remand, however, the Sixth Circuit determined
that Musladin was readily distinguishable from the case before it because the principle of federal law
applied in Spisak was “well-settled Supreme Court precedent regarding ineffective assistance of
counsel at the sentencing phase of trials.”99 Relying partly on Panetti, the Sixth Circuit reasoned as
follows:
. . . [T]he fact that the Supreme Court has not squarely addressed a situation involving a counsel’s
deficient performance during closing arguments of the mitigation phase of a trial or the specific type
of instruction given here does not preclude this Court’s finding that the state court unreasonably
applied federal law.100
The court thus reinstated its previous opinion in the matter.101
These cases demonstrate that the full implications of the Musladin rule remain unclear, and
more importantly for the purposes of this note, that the Tenth Circuit had a viable alternative
approach to avoiding Musladin’s constraints in determining whether venue transfer is within the
scope of Batson.
G. Conclusion
In sum, the Supreme Court’s decision in Batson v. Kentucky marked a milestone in the pursuit
of equal protection in criminal trials but it did not mark an end to that pursuit. As Justice White
correctly acknowledged in his concurring opinion, the full contours of the Batson holding would
require further litigation before being fully understood.102 In House v. Hatch, the Tenth Circuit was
presented with the opportunity to consider whether the protection Batson presently affords to the
process of venire selection should be afforded to venue transfers as well.103 In turning down this
opportunity based on an arguably flawed understanding of the Supreme Court’s holding in Musladin,
the Tenth Circuit left the work of Batson regretfully unfinished.
94
Id. at 901.
Spisak v. Hudson, No. 03-4034, slip op. at 4 (6th Cir. April 11, 2008).
96 Id. at 7-8.
97 Id.
98 Id. at 1.
99 Id. at 6.
100 Id. at 7.
101 Id. at 11.
102 Batson, 476 U.S. at 102.
103 House, 527 F.3d at 1020.
95
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