In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3262

A LLEN J. B ENNETT,
                                                Petitioner-Appellant,
                                  v.

D ONALD G AETZ, Warden,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 07 C 1975—George W. Lindberg, Judge.



   A RGUED O CTOBER 28, 2009—D ECIDED JANUARY 21, 2010




  Before R IPPLE, W ILLIAMS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. An Illinois jury convicted Allen
Bennett for possession of a stolen vehicle. In this habeas
corpus petition under 28 U.S.C. § 2254, Bennett, an African-
American, raises a claim under Batson v. Kentucky, 

(1986), of racial discrimination during the
selection of that jury.
  At the beginning of jury selection for Bennett’s trial,
the jury venire consisted of two fourteen-person panels,
2                                               No. 08-3262

which together had five African-Americans. When exam-
ining the first panel, the prosecution used two peremptory
challenges to exclude two African-Americans. Bennett,
who represented himself at trial, used peremptories
against six members of this first panel, including a third
African-American. When examining the second panel, the
prosecution used two of its remaining five peremptories
to exclude two white jurors. The trial court then
dismissed a fourth African-American for cause based on
his criminal history. That left one of the original five
African-Americans on the venire as a prospective juror.
This individual did not serve on Bennett’s jury but was
seated as an alternate.
   At the end of jury selection, Bennett raised a Batson
challenge based on the prosecution’s use of peremptories
against African-Americans. The trial court rejected the
challenge, finding that Bennett failed to make out a prima
facie case of racial discrimination under Batson. Because
Bennett failed to establish his prima facie case, the trial
court did not proceed to the next step under Batson to
require the prosecution to offer race-neutral reasons for
its peremptories.
   The jury convicted Bennett of aggravated possession of
a stolen motor vehicle and possession of a stolen motor
vehicle, and Bennett was sentenced to fifteen years of
imprisonment. Bennett appealed his conviction to the
Illinois Appellate Court, which also rejected his Batson
claim. In its order affirming the conviction, the court cited
the Batson standard and then applied the seven-factor test
established by the Illinois Supreme Court in People v.
No. 08-3262                                             3

Williams, 

(Ill. 1996), to determine whether
Bennett had made out a prima facie case under Batson. The
court acknowledged that the prosecution used two of its
four peremptories, or 50%, to exclude African-Americans,
which supported a prima facie case of discrimination.
Against this factor, however, the court weighed
several circumstances that negated an inference of racial
discrimination. One African-American was excused by
Bennett and another was excused for cause, lowering
the total number of African-Americans available to sit
on the jury to only three. The prosecution also used only
four of its seven available peremptories, rather than
exhausting its peremptories to exclude all African-Ameri-
cans on the venire. The final, retained African-American
served as an alternate juror.
  The Illinois Appellate Court also noted that none of
the prosecution’s questions during voir dire suggested
racial animus. Finally, the court reasoned that the two
African-Americans excluded by the prosecution shared
a common characteristic other than their race; unlike
the jurors accepted by the prosecution, these jurors
were crime victims.
  The Illinois Supreme Court denied Bennett’s petition
for leave to appeal, and the Illinois courts denied his
petition for post-conviction relief. Bennett then filed a
pro se petition for a writ of habeas corpus under 28
U.S.C. § 2254 in federal district court. In addition to
his Batson claim, Bennett’s petition asserted that the
admission of “other crimes” evidence denied him a fair
trial; that the state trial judge’s appointment of trial
4                                                No. 08-3262

counsel violated Bennett’s right to counsel; and that the
indictment was duplicitous and void. On June 23, 2008,
the district court denied Bennett’s habeas petition, con-
cluding that the Illinois Appellate Court did not unrea-
sonably apply Batson. The court also concluded that
Bennett’s evidentiary claim was not cognizable in federal
habeas proceedings and that Bennett had procedurally
defaulted his right to counsel and indictment claims.
  On July 3, 2008, the State filed a “motion to reconsider”
under Fed. R. Civ. P. 59(e), in which the State argued
that the district court erred in holding that Bennett’s right
to counsel and indictment claims were procedurally
defaulted. The motion requested that the State be
allowed to respond to those claims on the merits. On
July 9, the court denied the State’s motion on the
ground that it did “not object to the result of the court’s
June 23, 2008 order denying Bennett’s motion for a writ
of habeas corpus,” but rather “improperly [took] issue
with the reasoning underlying the court’s decision.”
  On July 21, Bennett filed his own motion for the court
to reconsider its procedural default analysis or, alterna-
tively, grant him leave to file a notice of appeal. The
court denied Bennett’s motion on July 24 and declined
to issue a certificate of appealability (“COA”). Bennett
followed up on August 4 with a “motion to file late
notice of appeal,” and this court subsequently issued a
COA on Bennett’s Batson claim. The COA also directed
the parties to address whether Bennett’s appeal was
timely, and specifically, whether Bennett complied with
Fed. R. App. P. 4(a)(1)(A) by filing a notice of appeal within
thirty days of the district court’s order.
No. 08-3262                                                5

   We begin our analysis with the issue of whether
Bennett’s appeal was timely, a threshold question that goes
to our appellate jurisdiction. Under Fed. R. App. P.
4(a)(1)(A), an appellant in a civil case must file his notice
of appeal “within 30 days after the judgment or order
appealed from is entered.” Here, the district court entered
its order denying Bennett’s habeas petition on June 23,
2008, but Bennett didn’t file his “motion to file late notice
of appeal” until August 4 of that year. So in order to
establish that his appeal is timely, Bennett must identify
some earlier filing that served as a sufficient notice of
appeal.
  Fortunately, Bennett’s July 21 motion, titled “Motion to
Reconsider or in the Alternative Motion for Leave to
File Notice of Appeal and Request for Leave to Appeal in
Forma Pauperis,” qualified as a timely notice of appeal. The
final page of this motion contained a separately captioned
“Notice of Appeal,” in which Bennett requested the
Seventh Circuit to review the district court’s denial of
his habeas petition. This request satisfied the require-
ments of a valid notice of appeal, which are (1) identifica-
tion of the party taking the appeal; (2) designation of the
judgment or order being appealed; and (3) identification
of the court to which the appeal is taken. Smith v. Grams,

, 1041 (7th Cir. 2009) (citing Fed. R. App. P.
3(c)(1)). The parties agree, as do we, that Bennett’s July 21
motion was valid under these criteria, especially since
this court construes a pro se litigant’s filings liberally.
See 

(construing a pro se habeas petitioner’s
letter as a timely notice of appeal even though it
incorrectly named the Supreme Court, rather than the
Seventh Circuit, as the reviewing court).
6                                               No. 08-3262

  The parties argue in the alternative that the State’s
July 3 motion to reconsider tolled Bennett’s thirty-day
window to appeal until July 9, when the district court
denied the motion. Under this theory, Bennett’s August 4
“motion to file late notice of appeal” was within thirty
days of the district court’s July 9 judgment and therefore
timely. We need not address this argument in light of our
conclusion that Bennett’s earlier July 21 motion, which
was unquestionably timely, served as a sufficient notice
of appeal.
   Turning to the merits of Bennett’s habeas petition, our
review is constrained by the highly deferential standard
prescribed by the Antiterrorism and Effective Death
Penalty Act, 28 U.S.C. § 2254(d)(1), for evaluating state-
court decisions. We may grant habeas relief only if the
Illinois courts’ adjudication of Bennett’s claim “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 

court’s
decision is “unreasonable” within the meaning of
§ 2254(d)(1) only if it is “so erroneous as to be objec-
tively unreasonable” and “well outside the boundaries
of permissible differences of opinion.” Emerson v. Shaw,

, 684 (7th Cir. 2009) (quotations omitted). Here,
we must decide whether the Illinois Appellate Court
unreasonably applied Supreme Court precedent in up-
holding the trial court’s determination that Bennett
failed to establish a prima facie case of racial discrimina-
tion under Batson. See Franklin v. Sims, 

, 664
(7th Cir. 2008).
No. 08-3262                                                   7

  In Batson, the Supreme Court established a three-step
framework for determining whether the prosecution
violated the defendant’s Equal Protection rights by exer-
cising peremptory challenges in a racially discriminatory
manner. First, the defendant must make out a prima facie
case “by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.”

. Second, if the defendant establishes
a prima facie case, the “burden shifts to the State to
explain adequately the racial exclusion” by offering
permissible, race-neutral reasons for the peremptories.

trial court must evaluate the plausi-
bility of the prosecution’s reasons, in light of all of the
surrounding circumstances, to decide whether the defen-
dant has proved purposeful discrimination. 

see also Miller-El v. Dretke, 

, 251-52 (2005).
  The focus of this case is Batson’s first step, requiring us to
examine whether Bennett put forth enough evidence to
establish a prima facie case of racial discrimination.
The burden at this stage is light, and a defendant may
establish a prima facie case by offering a wide variety of
evidence that raises a mere inference of a discriminatory
purpose. Johnson v. California, 

, 169 (2005); see
also United States v. Stephens, 

, 512 (7th Cir.
2005) (“[T]he burden at the prima facie stage is low . . . .”).
Still, though light, the prima facie burden is an essential
part of the Batson framework, and trial courts may justifi-
ably demand that defendants carry this burden before
requiring prosecutors to engage in the difficult task of
articulating their instinctive reasons for peremptorily
striking a juror. Cf. 

(Breyer, J.,
concurring).
8                                                No. 08-3262

  We do not believe that the Illinois Appellate Court
unreasonably determined that Bennett failed to make
out his prima facie case. The only real evidence of dis-
crimination that Bennett offers is that the prosecution
used two of its four peremptories, or 50%, against African-
Americans, who comprised just five of the twenty-eight
venire members, or 18%. But it is difficult to draw signifi-
cance from this disparity, given the relatively small
numbers of African-American prospective jurors and
peremptory challenges in this case. Cf. 

(charac-
terizing the prosecution’s use of peremptories to strike
ten of eleven African-Americans as “remarkable”);

, 173 (finding a prima facie
showing where the prosecution excluded all three
eligible African-Americans); 

(de-
scribing the prosecution’s use of peremptories to exclude
all four eligible African-Americans). Further, the
treatment of the three African-Americans who were not
excluded by the prosecution undercuts an inference of
racial discrimination. Bennett peremptorily struck one
of these prospective jurors, the parties agreed to remove
the second for cause, and the third sat as an alternate juror.
  The Illinois Appellate Court also appropriately con-
sidered the fact that the prosecution did not exhaust its
seven available peremptories to exclude all African-
American prospective jurors; rather, it used only four of
those peremptories, two against African-Americans and
two against whites. See 

(approving the Illinois Appellate Court’s reliance on the
prosecution’s use of two of seven peremptories to strike
only two of four African-Americans). And finally, as the
No. 08-3262                                                 9

state court observed, the prosecution did not ask suspi-
cious questions to the two excluded African-American
jurors that would support an inference of racial discrimina-
tion. Cf. 

(describing the prose-
cution’s posing of questions to African-American venire
members designed to elicit disqualifying answers). In
the absence of more evidence of discriminatory purpose,
we cannot say that the Illinois Appellate Court unrea-
sonably concluded that Bennett failed to make out a
prima facie case under Batson.
  Of course, it would not have been unreasonable for
the state court to reach the opposite conclusion. The
prosecution did use a disproportionate percentage of its
peremptories against African-Americans, and no African-
American ultimately served on Bennett’s twelve-
person jury. It is also a little troubling that the Illinois
Appellate Court seemingly attempted to find a common,
non-racial trait am ong the ex clud ed A frican-
American jurors that might justify the prosecution’s
peremptories—namely, that these jurors were crime
victims. In Johnson, the Supreme Court admonished that
courts should not imagine plausible reasons for
peremptories at the prima facie stage, “when a direct
answer can be obtained by asking [the prosecutor] a
simple question” at the second Batson stage. 

. As we cautioned in Franklin, the Illinois Appel-
late Court’s reliance on common juror characteristics
that could explain the prosecution’s peremptories “risked
collapsing all three of Batson’s steps into the prima facie
inquiry.” 

.
10                                              No. 08-3262

  Also troubling is that, under the facts of this case, the
jurors’ experience with crime seems an implausible
reason for the peremptories. Although the two African-
Americans struck by the prosecution testified that they
had been crime victims, so too did at least four non-
African-Americans who ultimately served as jurors. Based
on this side-by-side comparison between excluded and
non-excluded jurors, the prosecution would have been
hard-pressed to credibly assert the jurors’ experience
with crime as a race-neutral reason had the trial court
proceeded to Batson’s second stage. See 

.
  Importantly, though, the prosecution never tried to
use the African-Americans jurors’ experience with crime
as a basis for excluding them, and the trial court didn’t
rely on this juror trait in concluding that Bennett failed
to make out his prima facie case under Batson. So as in
Franklin, we may discount the Illinois Appellate Court’s
erroneous reliance on this trait as a small part of the
court’s overall analysis. 

. Because
that analysis primarily relied on several appropriate
factors weighing against an inference of racial discrim-
ination, we cannot say that the state court’s application
of Batson was “unreasonable” within the meaning
of 28 U.S.C. § 2254(d)(1). For that reason, we A FFIRM
the district court’s judgment denying Bennett’s habeas
petition.



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