Malcolm J. Sanders v. Michael Meisner

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 2, 2024
Decided September 23, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 23-1948
MALCOLM J. SANDERS,
Petitioner-Appellant,
v.
MICHAEL MEISNER,
Respondent-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 2:21-cv-229
J.P. Stadtmueller,
Judge.
O R D E R
On March 29, 2017, Malcolm Sanders was convicted by a jury in Wisconsin state
court of two counts of delivering heroin as a repeater and as a party to a crime. Sanders
appealed, arguing that the State’s use of peremptory challenges to remove the only two
black persons in the jury venire violated the Equal Protection Clause. The Wisconsin
Court of Appeals rejected that argument and affirmed his conviction, and the Wisconsin
Supreme Court denied review.
Sanders then filed a petition for habeas relief under 28 U.S.C. § 2254(d)(1), again
asserting his challenge to the exclusion of those potential jurors. The district court
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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denied his petition for habeas relief, and he now appeals that determination to this
court.
The state court explored at length the reason for the exercise of the peremptory
challenges in this case. Three prospective jurors, identified as Ms. R, Mr. O, and Mr. S.,
were excluded by the State because, in their responses during voir dire, they indicated
that past adverse incidents with law enforcement impacted their ability to impartially
weigh the evidence. See State v. Sanders, 933 N.W.2d 670, 672–75 (Wis. App. 2019). Ms. R
identified herself as a person who had a prior bad experience with law enforcement,
and responded in the affirmative when asked whether that prior experience with law
enforcement would affect her ability to be fair in the case. Id. at 672. She then stated that
she had an issue with the police, that she had been pulled over for driving in the wrong
area, and responded ”yes” when asked if, in evaluating testimony, she would believe
testimony to be less credible simply because the testimony was from a law enforcement
officer. Id. She subsequently affirmed that she could be fair overall, although even then
she expressed that she did not feel comfortable with it. Id. Another prospective juror,
Mr. O, initially responded that he could not be fair in the case, nor could he evaluate the
evidence in a fair way. Id. at 673. He explained that he had a “run-in when [he] was 16
with a cop” who “threatened to beat [his] head in,” and that as a result he just does not
trust them. Id. The judge discussed whether he could nevertheless be fair, stating he did
not think that Mr. O would suggest a jury should consist only of persons who have had
good experiences with the police. The judge then asked Mr. O whether there was any
reason to think he was any less likely to be fair to both sides than anyone else there, and
Mr. O stated “[p]ossibly. I’m just stuck in my ways right now.” Id. Finally, Mr. S also
identified himself as a person who had a prior bad experience with law enforcement.
When asked if he could listen to the evidence and evaluate it fairly, he stated “[honestly,
I’m not sure.” Id. He explained that based on being racially profiled in the past and
pulled over without just cause, he did not know how that would affect him in the case.
Finally, when asked if he would be able to return a guilty verdict if the evidence
satisfied him beyond a reasonable doubt that the defendant committed the crimes, he
responded “possibly.” Id. at 674. When pressed by the judge for a “yes” or “no”
response, he responded “yes.” Id.
As to each of those prospective jurors, the State exercised its peremptory
challenges. Mr. O is white, and Mr. S and Ms. R are black. When asked for the reason
for the peremptory strike of Mr. S and Ms. R, the prosecutor stated that “[b]oth of those
individuals expressed having prior bad experiences with the police, and although in the
end they indicated they could be fair, they were quite hesitant and seemed to express
feelings based upon their personal experiences of not trusting law enforcement and

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No. 23-1948 Page 3
maybe looking more skeptically at law enforcement testimony than other witnesses,
and that is the reason they were struck, which is also consistent with Mr. [O].” Id. at 676.
The court concluded that the State had provided a race-neutral reason for the exclusions
and that the explanation for the exclusions was legitimate and credible. On appeal, the
Wisconsin Court of Appeals affirmed that decision, citing numerous federal decisions
supporting its conclusion that “[b]ias against law enforcement and/or the criminal
justice system more generally is a legitimate and very understandable reason for the
State, when given the opportunity, to strike a potential juror.” Id. at 678.
It is well-established that, to succeed on a claim that the State’s use of
peremptory challenges was discriminatory in violation of the Equal Protection Clause,
the criminal defendant must demonstrate that the decision to strike the prospective
jurors was based on a racially discriminatory intent or purpose. Batson v. Kentucky, 476
U.S. 79, 96–97 (1986). To meet that burden, Sanders first would need to make a prima
facie showing that the prosecutor exercised the peremptory challenges based on race. Id.
at 96. If that burden was met, the prosecutor would have to provide a race-neutral
explanation for the challenges, and if the prosecutor did so, the court would determine
whether Sanders had met his burden of demonstrating purposeful discrimination. Id. at
97–98. The Wisconsin state court followed those procedures. Once Sanders argued that
the only two black prospective jurors had been eliminated, the court queried the
prosecutor as to the basis for those challenges and determined that the basis was non-
discriminatory.
On habeas review, Sanders has an even greater burden. It is not enough to argue
that the decision was wrong or that the Constitution should be interpreted more
broadly so as to protect against the use of the peremptory challenges that occurred here.
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), to obtain habeas
relief from his state court conviction, Sanders has to demonstrate that the state court’s
decision on the merits was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1); Brown v. Payton, 544 U.S. 133, 141 (2005). A state-court decision is contrary
to the Supreme Court’s clearly established precedents if it applies a rule that contradicts
Supreme Court law or if it confronts a set of facts materially indistinguishable from
those in a Supreme Court decision but reaches a different result. Payton, 544 U.S. at 141.
The relevant state court decision here is that of the Wisconsin Court of Appeals, which
was the last state court to rule on the merits because the Wisconsin Supreme Court
declined review. Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). Sanders asserts that
its decision was an unreasonable application of clearly-established constitutional law.

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Sanders asserts on appeal that the State exercised peremptory challenges against
the only two black persons on the venire based upon their seizure for “Driving While
Black.” He contends that eliminating them from the jury based upon that
discriminatory seizure constitutes a violation of the Equal Protection Clause. Notably,
he does not dispute that the prospective jurors challenged by the State had expressed
concerns with their ability to be fair and to weigh law enforcement testimony without
bias. He maintains, however, that where the source of the bias against law enforcement
is a discriminatory stop for “driving while black,” the subsequent use of the peremptory
challenge targets only black persons and therefore is also discriminatory.
That is a novel claim, and one not properly made in a habeas petition given the
restrictive AEDPA limitations on review. Sanders has not pointed to any case—and
certainly no clearly-established Supreme Court precedent—establishing that the State’s
exclusion of potential jurors who express animosity toward law enforcement officers
generally violates the Equal Protection Clause if that animosity stems from past
incidents with particular law enforcement officers that were discriminatory. He does
not even point to any case that establishes that the Equal Protection Clause requires a
court to consider whether a potential juror’s negative view of law enforcement is the
result of prior discrimination. We note that it is of course well-established that in the
situation of a discriminatory seizure, the victims of such discrimination could bring a
civil claim against the law enforcement officers alleging a violation of their
constitutional rights. But Sanders has no case support for his contention that the
prosecutors in a separate criminal trial cannot exercise peremptory challenges based on
the negative views of law enforcement occasioned by such past experiences,
particularly where the potential jurors express difficulty in fairly considering the
evidence in the case before them.
Sanders relies only on a Supreme Court case from 1879, Strauder v. West Virginia,
100 U.S. 303 (1879), arguing that it clearly establishes the law that black persons cannot
be prohibited from serving on juries because of their race. That is a proposition that is
not contested, and the prosecutor did not justify the use of the peremptory challenge
here by declaring that black persons can be excluded based on their race. Here, the
peremptory challenges were issued based on the responses to questions by three
prospective jurors as to their negative experiences with the police, and the impact of
those experiences on their ability to remain impartial. Two of the excluded persons are
black and one was white. As the district court properly recognized, courts have
repeatedly recognized that peremptory challenges may be used based on prospective
jurors’ reports of negative interactions with the police that impacts their ability to fairly
weigh the evidence. See United States v. Alqahtani, 73 F.4th 835, 847–48 (10th Cir. 2023),

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United States v. Carter, 111 F.3d 509, 512–13 (7th Cir. 1997). Even if Sanders believes that
we should reconsider those holdings in light of evidence that police interactions can be
based on racism, that argument cannot succeed in the context of a habeas action in light
of the AEDPA because it requires a change in the law and thus, by definition, he cannot
establish that the state court violated clearly-established law.
The decision of the district court is AFFIRMED.

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