James Douglas Clausell v. Lydell Sherrer

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-4606
___________
JAMES DOUGLAS CLAUSELL,
Appellant,
v.
LYDELL SHERRER; THE ATTORNEY GENERAL OF
THE STATE OF NEW JERSEY
______________
Appeal from the United States District Court
for the District of New Jersey
(No. 04-cv-03857)
District Court Judge: Honorable Noel L. Hillman
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 09, 2009
___________
Before: AMBRO, GARTH and ROTH, Circuit Judges.
(Opinion Filed: February 5, 2010)

-- 1 of 23 --

-2-
Mary Gibbons, Esquire
600 Mule Road, #16
Toms River, New Jersey 08757
Counsel for Appellant
Robert D. Bernardi, Esquire
Jennifer B. Paszkiewicz, Esquire
Burlington County Prosecutor’s Office
49 Rancocas Road
Mount Holly, New Jersey 08060
Counsel for Appellees
___________
OPINION
___________
GARTH, Circuit Judge:
Appellant James Douglas Clausell appeals for a new trial
from the order of the United States District Court for the District
of New Jersey which denied his 28 U.S.C. § 2254 petition for
writ of habeas corpus. Clausell claims that his counsel was
constitutionally ineffective in failing to object to the
prosecutor’s peremptory challenges to Afro-American and/or
Hispanic venirepersons. We will affirm.
I.

-- 2 of 23 --

1Appellant Clausell is an Afro-American, as was
Atwood.
2Because the sole issue before us on appeal arises from
the jury selection at Clausell’s 1995 retrial, we supply only a
basic procedural history of the case up until that point.
3The New Jersey law in effect in 1996 distinguished
between the crimes of first-degree murder and first-degree
capital murder. A person was guilty of first-degree murder if he
was found to have “purposely or knowingly caused death or
participated in one of number of crimes during the commission
-3-
On October 31, 1984, the Burlington County Grand Jury
indicted Clausell for first degree capital murder of Edward Louis
Atwood. 1 At the ensuing trial, a jury convicted Clausell of, inter
alia, first-degree capital murder, in violation of N.J.S.A. §§
2C:11-3(a)(1)&(2). 2 During the penalty phase of the trial,
Clausell was sentenced to death pursuant to N.J.S.A. 2C:11-3(c).
Clausell appealed to the New Jersey Supreme Court, and in
1990 Clausell’s conviction was reversed and the case was
remanded for a new trial.
In October 1995, jury selection commenced for
Clausell’s retrial. During the process of jury selection, Clausell
did not object to the prosecutor’s use of peremptory challenges
to excuse five of the eight Afro-American and/or Hispanic
members of the venire.
Clausell was retried from December 4, 1995, to January
19, 1996. At the conclusion of the trial, the jury found Clausell
guilty of, inter alia, first-degree murder. 3 He was sentenced to

-- 3 of 23 --

of which death resulted.” State v. Ramseur, 524 A.2d 188, 203
(1987) (citing N.J.S.A. 2C:11-3(a)(1)-(3)). Defendants
convicted of first-degree murder were sentenced to a prison
term of at least thirty years without parole. Id. In contrast, a
person was guilty of first-degree capital murder only if “he has
been found guilty of purposeful and knowing murder and
committed the murder by his own hand or paid someone else to
do so.” Id. Defendants convicted of first-degree capital murder
“face either death or at least a thirty-year term of imprisonment
without parole, depending on the outcome of the sentencing
proceeding.” Id. (citing N.J.S.A. 2C:11-3(c) (repealed 2007)).
-4-
life imprisonment with a thirty-year parole disqualifier.
Clausell appealed his conviction and sentence, but did not
raise any claims regarding the prosecutor’s use of peremptory
challenges during jury selection. On April 1, 1999, the New
Jersey Superior Court, Appellate Division, denied his appeal.
Clausell thereafter filed a pro se petition for post-conviction
relief on September 24, 1999, wherein he alleged for the first
time that he was denied his Sixth and Fourteenth Amendment
rights to effective assistance of counsel “by his attorneys [sic] .
. . [f]ailure to object to [sic] Batson violation . . . .” App. at 172.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court
held that “racially discriminatory exercise of peremptory
challenges by a prosecutor is a violation of the Equal Protection
Clause . . . .” Jones v. Ryan, 987 F.2d 960, 965 (3d Cir. 1993).
On April 11, 2002, the New Jersey Superior Court denied
Clausell’s petition for post-conviction relief. Clausell appealed,
and the New Jersey Superior Court, Appellate Division,
affirmed the denial of Clausell’s petition in a decision dated
December 10, 2003. The New Jersey Supreme Court denied
certification on April 26, 2004.
Clausell then filed a petition for writ of habeas corpus to

-- 4 of 23 --

-5-
the United States District Court for the District of New Jersey
pursuant to 28 U.S.C. § 2254, wherein he raised, inter alia, the
claim that his constitutional rights were violated as a result of
his trial counsel’s failure to raise a Batson objection in response
to the State’s use of peremptory challenges during jury selection
for his retrial. The District Court denied Clausell’s petition.
Clausell v. Sherrer, 2006 WL 2846283 (D.N.J. Sept. 29, 2006).
Clausell subsequently submitted a request to this Court
for a certificate of appealability under 28 U.S.C. § 2253(c)(1),
which was granted with respect to two independent claims—(1)
a substantive Batson claim; and (2) a Sixth Amendment
ineffective assistance of counsel claim premised upon the failure
of Clausell’s counsel to raise a Batson objection. Order,
Clausell v. Sherrer, No. 06-4606 (3d Cir. Apr. 5, 2007).
II.
In Batson, the Supreme Court reaffirmed the fundamental
principle that “racial discrimination in jury selection offends the
Equal Protection Clause,” 476 U.S. at 85, and further held that
“a defendant may establish a prima facie case of purposeful
discrimination in selection of the petit jury solely on evidence
concerning the prosecutor’s exercise of peremptory challenges
at the defendant’s trial.” Id. at 96. The Court then addressed the
now-familiar three-step analysis guiding trial courts’
constitutional review of peremptory challenges, which places
the initial burden on the defendant to come forward with a prima
facie case indicating discriminatory purpose by the prosecution
in the exercise of its challenges, id. at 96-97, then shifts the
burden to the prosecution, which must supply race-neutral
explanations for its challenges, id. at 97, and finally tasks the
court with the duty of “determin[ing] if the defendant has
established purposeful discrimination.” Id. at 98.
While Batson discussed the analysis of a defendant’s
objection to the prosecution’s use of peremptory challenges, the
Court expressly “decline[d] . . . to formulate particular

-- 5 of 23 --

-6-
procedures to be followed upon a defendant’s timely objection
to a prosecutor’s challenges,” id. at 99 (emphasis added),
explaining that “[i]n light of the variety of jury selection
practices followed in our state and federal trial courts, we make
no attempt to instruct these courts how best to implement our
holding today.” Id. at 99 n.24.
Just a few months after Batson was issued, the New
Jersey Supreme Court, in State v. Gilmore, 511 A.2d 1150
(1986), accepted the implicit invitation to “spell out the contours
of [Batson’s] Equal Protection holding,” Batson, 479 U.S. at 103
(White, J., concurring), and proceeded to “formulate the
procedures to be followed by trial courts when a defendant
alleges that a prosecutor is improperly using peremptory
challenges,” Gilmore, 511 A.2d at 1163. Though the Gilmore
court expressly “base[d] [its] decision on the New Jersey
Constitution, which protects fundamental rights independently
of the United States Constitution,” id. at 1157, it clearly
intended its holding to conform to the parameters set forth in
Batson. See id. (“We observe that under Batson’s interpretation
of the Equal Protection Clause of the Fourteenth Amendment .
. . the United States Constitution would compel the result that
we reach on independent state grounds.”). Gilmore effectively
added flesh to the framework discussed in Batson by setting
forth the precise standards applicable to each step of the
analysis. Id. at 1164-67.
Of particular significance to the instant case is Gilmore’s
discussion of the first step of the analysis, which states that, in
order to establish a prima facie claim, “[t]he defendant . . . must
show that there is a substantial likelihood that the peremptory
challenges resulting in the exclusion were based on assumptions
about group bias rather than any indication of situation-specific
bias.” Id. at 1164 (emphasis added). The “substantial
likelihood” standard for establishing a prima facie claim
remained controlling law in New Jersey for more than two
decades, and had been in place for nine years at the time of

-- 6 of 23 --

4The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. Because the District Court ruled on
Clausell’s habeas petition without conducting an evidentiary
hearing, we conduct a plenary review. McMullen v. Tennis, 562
F.3d 231, 236 (3d Cir. 2009).
-7-
Clausell’s 1995 retrial.
In 2009, nearly twenty-three years to the day after it
decided Gilmore, the New Jersey Supreme Court acknowledged
in State v. Osorio, 973 A.2d 365 (2009), that the “substantial
likelihood” standard set forth in Gilmore as the threshold for
establishing a prima facie claim of improper race-based
peremptory challenges by the prosecution was in tension with
the Supreme Court’s holding in Batson. 973 A.2d at 375-76.
Taking its cue from Johnson v. California, 545 U.S. 162 (2005),
where the Supreme Court clarified that “a defendant satisfies the
requirements of Batson’s first step by producing evidence
sufficient to permit the trial judge to draw an inference that
discrimination has occurred,” id. at 170 (emphasis added), the
New Jersey Supreme Court in Osorio modified Gilmore’s
“substantial likelihood” standard to the less-onerous “inference”
standard announced in Johnson. Osorio, 973 A.2d at 375-76.
Having supplied the relevant jurisprudential backdrop,
we direct our attention to Clausell’s claims.4
III.
As an initial matter, we can dispose of Clausell’s
substantive Batson claim, because in failing to raise an objection
at trial to the prosecutor’s use of peremptory challenges,
Clausell forfeited his right to raise a Batson claim on appeal.
See Lewis v. Horn, 581 F.3d 92, 102 (3d Cir. 2009) (citing Abu
Jamal v. Horn, 520 F.3d 272, 284 (3d Cir. 2008), vacated on
other grounds sub nom. Beard v. Abu Jamal, ___ S.Ct. ___,

-- 7 of 23 --

-8-
2010 WL 154862 (2010)). Accord Batson, 476 U.S. at 100
(specifically noting that defendant made a “timely” objection);
Gilmore, 511 A.2d at 1164 (“As a threshold matter, we
emphasize that the defendant must timely object to the
prosecution’s use of peremptory challenges – during or at the
end of the jury selection, but before the petit jury is sworn. This
requirement will facilitate the development of as complete a
record of the circumstances as is feasible, as well as enabling the
trial court to make a fairer determination.”).
IV.
We now turn to Clausell’s Sixth Amendment claim for
ineffective assistance of counsel. Clausell makes no secret of
the fact that the ineffective assistance claim is his primary claim
on appeal, stating in his brief that he is “not asking for
consideration of the substantive Batson claim, but rather, the
Sixth Amendment claim based on ineffective assistance of
counsel.” Appellant’s Reply Brief at 29, Clausell v. Sherrer,
No. 06-4606 (3d Cir. Oct. 13, 2009). This conforms with the
contents of Clausell’s petition for post-conviction relief, where
he raised an ineffective assistance claim premised upon his
counsel’s failure to raise a Batson objection, but did not raise an
independent Batson claim. See App. at 171-72.
In order to obtain habeas relief from the New Jersey
Superior Court’s denial of his ineffective assistance claim,
Clausell must satisfy the standards set forth by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2241 et seq. McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir.
2009). AEDPA provides that, where, as here,
a habeas petitioner’s claim was adjudicated on the
merits in state court, the petition may not be
granted unless the state court decision was
contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United

-- 8 of 23 --

5Although Clausell, in his petition for post-conviction
relief, grounded his ineffective assistance claim regarding his
counsel’s failure to object to the prosecution’s use of
peremptory challenges upon Batson, which articulates a
defendant’s rights vis-á-vis race-based peremptory challenges
-9-
States or was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding. Under the
§ 2254 standard, a district court is bound to
presume that the state court’s factual findings are
correct, with the burden on the petitioner to rebut
those findings by clear and convincing evidence.
Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009) (quoting
28 U.S.C. §§ 2254(d) & (e)(1)) (internal citations and quotation
marks omitted).
A state court decision “fails the ‘contrary to’ prong of
AEDPA if the state court reaches a conclusion opposite to the
Supreme Court's own conclusion on a question of law or decides
the case differently where the Supreme Court was confronted by
a set of materially indistinguishable facts.” McMullen, 526 F.3d
at 236. “Similarly, a state court ruling is considered an
‘unreasonable application’ if the state court unreasonably
applies the correct legal rule to the particular facts, unreasonably
extends a legal principle to a new context, or unreasonably
refuses to extend the principle to a new context where it should
apply.” Id.
In denying Clausell’s ineffective assistance claim, the
New Jersey Superior Court concluded that the evidence
submitted by Clausell—namely, the fact that the prosecutor used
peremptory challenges to strike five of the eight Afro-American
and/or Hispanic members of the venire—would not have
succeeded in satisfying Gilmore’s “substantial likelihood”
threshold for establishing a prima facie claim. 5 App. at 190.

-- 9 of 23 --

under the U.S. Constitution, see App. at 172, the New Jersey
Superior Court evaluated his claim through the lens of Gilmore,
which rested upon the rights provided by the New Jersey
Constitution. See Gilmore, 511 A.2d at 1157. This is not
surprising, given that New Jersey courts viewed the protection
provided by Gilmore pursuant to the New Jersey Constitution
as not only equal to, but in fact greater than, that provided by
the U.S. Constitution under Batson. See Gilmore, 511 A.2d at
1157 (“We previously have construed our state constitution as
providing greater protection to our citizens’ individual rights
than accorded them under the federal constitution. We do so
here as well.”); accord State v. Fuller, 862 A.2d 1130, 1141-42
(2004).
6Clausell points out that a self-prepared chart he
submitted in state court not only identifies the races of the jurors
who were struck, but also the racial composition of the entire
venire. He concedes that there is no record evidence
substantiating his assertions of the racial composition of the
venire, or that of the venirepersons who were struck by the
State. Clausell relied only upon his memory of the jury
selection process—which had occurred almost six years
earlier—to identify the races of the venirepersons. Under the
circumstances, we can find no error by Clausell’s counsel in
failing to object to the prosecution’s use of peremptory
challenges, given that such an objection would have been
judicially futile and overruled, as it did not meet Gilmore’s
-10-
The court noted that “[t]his statistic alone does not prove that
the strikes were discriminatory in nature,” and thus, “[w]ithout
further proof of this claim[,] . . . the argument fails.” Id. The
court reasoned that since Clausell failed to assert sufficient
evidence to establish a prima facie claim under the prevailing
Gilmore standard, ipso facto his trial counsel was not ineffective
in failing to raise what would have been a meritless claim.6

-- 10 of 23 --

demanding “substantial likelihood” standard, which was firmly
entrenched in New Jersey’s jurisprudence at the time of
Clausell’s re-trial.
-11-
We find this logic sound. “The Sixth Amendment
entitles criminal defendants to the effective assistance of counsel
– that is, representation that does not fall below an objective
standard of reasonableness in light of prevailing professional
norms.” Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 16
(2009) (per curiam) (quoting Strickland v. Washington, 466
U.S. 668, 686 (1984)) (quotation marks omitted). The
“prevailing professional norms” standard is temporally sensitive,
determined in each instance by “the professional norms
prevailing when the [allegedly ineffective] representation took
place.” Id. (citing Strickland, 466 U.S. at 688) (emphasis
added). In addition, a court evaluating an ineffective assistance
claim must do so “[i]n light of the variety of circumstances
faced by defense counsel and the range of legitimate decisions
regarding how best to represent a criminal defendant”; thus “the
performance inquiry necessarily turns on whether counsel’s
assistance was reasonable considering all of the circumstances.”
Wong v. Belmontes, ___ U.S. ___, 130 S.Ct. 383, 384 (2009)
(per curiam) (quoting Strickland, 466 U.S. at 688-89) (quotation
marks and alteration omitted). Moreover, “[t]he benchmark for
judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686. Finally, it bears noting
that “[a]t all points, judicial scrutiny of counsel’s performance
must be highly deferential.” Wong, 130 S.Ct. at 384-85
(quoting Strickland, 466 U.S. at 689) (quotation marks and
alteration omitted).
At the 1995 retrial, when Clausell was allegedly the
victim of ineffective representation, the governing and
controlling law in New Jersey regarding the standard for

-- 11 of 23 --

-12-
asserting a prima facie claim of improper peremptory challenges
by the prosecutor was the “substantial likelihood” standard
prescribed by the New Jersey Supreme Court in Gilmore. An
objection by Clausell’s counsel in the face of that
standard—when all Clausell could show was the unadorned fact
that five out of eight Afro-American and/or Hispanic
venirepersons had been excused by peremptory
challenges—would have been rejected by all courts and thus
utterly futile, given the precedent set by Gilmore.
Was Clausell’s counsel reasonable in not objecting to the
prosecutor’s use of peremptory challenges, given the lack of
evidence pointing to prejudice, juxtaposed with Gilmore’s
demanding “substantial likelihood” standard? Pursuant to the
Gilmore precedent, we can confidently answer this question in
the affirmative.
Thus, our “effort[s] . . . to eliminate the distorting effects
of hindsight to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at that time,” Strickland, 466 U.S. at 689, lead us to
conclude that the failure of Clausell’s trial counsel to raise what
would have been a rejected Batson objection under the
prevailing law in New Jersey at that time does not “fall[] below
an objective standard of reasonableness, given the particular
circumstances of the case at hand.” Hodge v. U.S., 554 F.3d
372, 379 (3d Cir. 2009) (quoting Strickland v. Washington, 466
U.S. 668, 688 (1984)) (quotation marks omitted). Clausell’s
ineffective assistance claim fails to meet the first prong of the
Strickland standard—i.e., to show that the assistance of counsel
was deficient.
V.
In evaluating Clausell’s Sixth Amendment claim pursuant
to the guidelines set forth in AEDPA, our inquiry is limited to
determining whether the state court reasonably applied
established federal law regarding Sixth Amendment ineffective

-- 12 of 23 --

-13-
assistance claims—which, we conclude, it did. The New Jersey
Superior Court’s reasoning in denying Clausell’s Sixth
Amendment ineffective assistance claim was neither contrary to,
nor an unreasonable application of, clearly established federal
law as determined by the Supreme Court, nor was it based on an
unreasonable determination of the facts in light of the evidence
presented. We will therefore affirm the District Court’s denial
of Clausell’s petition for habeas relief on his Sixth Amendment
ineffective assistance claim. Weeks v. Angelone, 528 U.S. 225,
237 (2000).
VI.
The District Court correctly denied Clausell’s substantive
Batson claim and his Sixth Amendment ineffective assistance
claim, and we will affirm its judgment.
James D. Clausell v. Lydell Sherrer
No. 06-4606
AMBRO, Circuit Judge, concurring
I agree with my colleagues that Clausell has forfeited
his substantive Batson claim by failing to raise a
contemporaneous objection at trial. Abu-Jamal v. Horn, 520

-- 13 of 23 --

7 Although the venire initially had 50 potential jurors,
three were excused by the trial court before the parties began
exercising their peremptory strikes.
-14-
F.3d 272 (3d Cir. 2008), vacated on other grounds sub nom.
Beard v. Abu-Jamal, ___ S.Ct. ___, 2010 WL 154862 (2010).
While I would also affirm the dismissal of Clausell’s
ineffective-assistance-of-counsel claim, I would do so on
narrower grounds, and write separately to address another
matter, not necessary to the outcome of this case, that I
nonetheless deem of concern.
In state post-conviction review proceedings, Clausell
submitted a self-prepared chart purporting to identify the
racial composition of the venire from his 1995 retrial.
Clausell’s chart reflects that (1) the venire consisted of 47
individuals,7 eight of whom were minorities (five African-
Americans and three Hispanics); (2) one African-American

-- 14 of 23 --

8 According to Clausell’s chart, his own counsel struck
the third Hispanic venireperson, and the State used its remaining
6 peremptory strikes against white venirepersons.
9 As we explained in Abu-Jamal, “[t]he strike rate is
computed by comparing the number of peremptory strikes the
prosecutor used to remove black potential jurors with the
prosecutor’s total number of peremptory strikes exercised. This
statistical computation differs from the ‘exclusion rate,’ which
is calculated by comparing the percentage of exercised
challenges used against black potential jurors with the
percentage of black potential jurors known to be in the venire.”
Id. at 290.
-15-
and one white venireperson were excused by the trial court;
and (3) out of 11 peremptory challenges, the State used three
against the four remaining African-American venirepersons,
and two against the three Hispanic venirepersons.8 On appeal,
Clausell emphasizes that his chart reveals a “strike rate” of
45%, and an “exclusion rate” of 71%.9 Accordingly, he
argues that trial counsel could have made out a prima facie
Batson claim based on a “pattern” of strikes, which, as our
Court recently explained, requires evidence of “both the strike

-- 15 of 23 --

-16-
rate and the racial composition of the venire.” Id. at 290.
Trial counsel’s failure to raise a Batson challenge based on
these statistics—resulting in the failure to trigger the three-
step Batson inquiry—is the basis of Clausell’s ineffective-
assistance-of-counsel claim.
Clausell concedes, however, that the trial record itself
does not indicate the racial composition of the venire or the
races of the venirepersons who were struck by the State.
Lacking any record evidence to corroborate Clausell’s chart,
we cannot rely on it or the racial makeup it purports to
disclose, as it is apparently based solely on his memory of
jury selection in a trial that occurred six years prior. See
Lewis v. Horn, 581 F.3d 92, 104 (3d Cir. 2009) (petitioner’s
allegations that the prosecutor “exercised eight peremptory
strikes against African American potential jurors and four

-- 16 of 23 --

-17-
against white potential jurors,” and that he was “tried . . . by
an all-white jury,” failed to establish a prima facie Batson
claim, where petitioner “d[id] not cite to any record support,
nor d[id] he offer other support outside the record, to
substantiate [his] bare allegation[s]”); Abu-Jamal, 520 F.3d at
291–92 & n.18 (although record showed that prosecution used
10 out of 15 peremptory strikes to remove black
venirepersons, “[t]here [was] no factual finding at any level of
adjudication, nor evidence from which to determine the racial
composition . . . of the entire venire—facts that would permit
the computation of the exclusion rate and would provide
important contextual markers to evaluate the strike rate”).
Because we cannot rely on Clausell’s allegations regarding
the racial composition of the venire, we need not reach the
question whether an objection based on statistics consistent
with his chart would have been sufficient to establish a prima

-- 17 of 23 --

10 I do not understand my colleagues to be holding that
evidence of a “pattern” of strikes against minority
venirepersons, without more, would have been insufficient as a
matter of law to establish a prima facie case under Gilmore.
Indeed, the Gilmore Court emphasized that determining whether
there is a “substantial likelihood” of group bias requires
-18-
facie Batson claim. That is, even under a less “demanding”
standard than that announced in State v. Gilmore, 511 A.2d
1150 (N.J. 1986), Maj. Op. at 10 n.5, Clausell’s allegations
are insufficient to show that trial counsel was deficient for
failing to raise a Batson objection.
Although they also discredit the reliability of
Clausell’s chart, id. at 10 n.6, my colleagues conclude that
Clausell’s ineffective-assistance-of-counsel claim fails
because a Batson challenge by trial counsel, based on the
“unadorned fact” that five out of eight minorities were struck,
“would have been rejected by all courts and thus utterly futile,
given the precedent set by Gilmore.” 10 Id. at 12. However, I

-- 18 of 23 --

consideration of “all relevant circumstances,” including whether
(1) the prosecutor struck “‘most or all of the members of [an]
identified group from the venire,’” or (2) the prosecutor used a
“‘disproportionate number’” of peremptory strikes against
members of that group. Gilmore, 511 A.2d at 1165 (quoting
People v. Wheeler, 583 P.2d 748, 764 (Cal. 1978)).
-19-
am troubled by portions of the majority opinion that could be
read to imply that Gilmore’s “substantial likelihood” standard
itself is not “contrary to, or . . . an unreasonable application
of,” Batson. 28 U.S.C. § 2254(d)(1).
My colleagues first suggest that the Supreme Court
only recently “clarified” in Johnson v. California, 545 U.S.
162 (2005), that a standard similar to Gilmore’s “substantial
likelihood” standard—i.e., California’s “more likely than not”
test—is inconsistent with Batson. Maj. Op. at 7. I have
doubts about this characterization of Johnson. Although the
Supreme Court reaffirmed in Johnson that “a defendant
satisfies the requirements of Batson’s first step by producing

-- 19 of 23 --

11 I note that Gilmore’s “substantial likelihood” standard
was “based on the reasoning in” People v. Wheeler, 583 P.2d
748 (Cal. 1978)—the California Supreme Court decision that
established the “more likely than not” standard the Supreme
Court rejected in Johnson. State v. Osorio, 973 A.2d 365, 376
(N.J. 2009) (“[T]he ‘more likely than not’ standard on which
Gilmore is premised is the very standard the Supreme Court of
the United States condemned as being ‘at odds with the prima
facie inquiry mandated by Batson.’”) (quoting Johnson, 545
U.S. at 173).
-20-
evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred,” 545 U.S. at 170
(emphasis added), the Batson Court itself used the term
“inference” to describe the requisite prima facie showing, and
held that a “pattern” of strikes against minority jurors “might
give rise to an inference of discrimination.” Batson v.
Kentucky, 476 U.S. 79, 97 (1986). Indeed, the Johnson Court
concluded that California’s “more likely than not” standard
found “no support” in Batson.11 Johnson, 545 U.S. at 169.
The Majority also appears to suggest that Gilmore is

-- 20 of 23 --

-21-
not contrary to Batson because Batson “decline[d] . . . to
formulate particular procedures to be followed upon a
defendant’s timely objection to a prosecutor’s challenges,”
Batson, 476 U.S. at 99, and the “substantial likelihood”
standard was New Jersey’s answer to the Batson Court’s
“implicit invitation.” Maj. Op. at 5–6. I do not read this
language from Batson as authorizing states to impose a more
onerous burden to establish a prima facie case, however.
Rather, the Batson Court seemed to be referring to the
“particular procedures” to be followed after a finding of
discrimination had been made. See Batson, 476 U.S. at 99
n.24 (“[W]e express no view on whether it is more
appropriate in a particular case, upon a finding of
discrimination . . . , for the trial court to discharge the venire
and select a new jury . . . , or to disallow the discriminatory
challenges and resume selection with the improperly

-- 21 of 23 --

-22-
challenged jurors reinstated on the venire.”) (internal citations
omitted). Indeed, the Supreme Court rejected a similar
argument in Johnson, reasoning that although states “have
flexibility in formulating appropriate procedures to comply
with Batson,” California’s “more likely than not” standard
was “an inappropriate yardstick by which to measure the
sufficiency of a prima facie case.” Johnson, 545 U.S. at 168;
but see id. at 173–74 (Thomas, J., dissenting) (arguing that
California’s “more likely than not” standard fell “comfortably
within its broad discretion to craft its own rules of criminal
procedure,” and arguing that Batson had “disclaimed any
intent to instruct state courts on how to implement its
holding”).
In any event, our Court has never addressed whether
the Gilmore “substantial likelihood” standard is contrary to or

-- 22 of 23 --

-23-
an unreasonable application of Batson, and we are not
required to answer that question in this case. With this
qualification, I join my colleagues in concluding that Clausell
has not met his burden under Strickland v. Washington, 466
U.S. 668 (1984), of showing that trial counsel was deficient
for failing to raise a Batson objection.

-- 23 of 23 --