Carew v. Morton

• Court: Court of Appeals for the Second Circuit
• Decided: August 13, 2025
• Docket: 23-7934
• Status: Published

Opinion

23-7934 Carew v. Morton

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2024 (Argued: January 27, 2025 Decided: August 13, 2025) Docket No. 23-7934

TERRANCE CAREW, Petitioner–Appellant,

v.

ROBERT MORTON, Respondent–Appellee.

Before: SACK, LYNCH, AND LOHIER, Circuit Judges. Petitioner-Appellant Terrance Carew, who is currently serving a fourteen- year sentence for attempted murder in the second degree and other offenses, filed a habeas petition in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 2254, seeking release from state custody. During jury selection for his trial in New York state court, Carew’s trial counsel objected that the prosecution’s use of its peremptory challenges was racially discriminatory in violation of Batson v. Kentucky, 476 U.S. 79 (1986). While the trial court appeared to agree that two of the peremptory challenges violated Batson, it was unable to retrieve the earlier-struck jurors because of an administrative error by the court. Carew’s trial counsel did not object to the court’s failure to impose a Batson remedy, and Carew was subsequently convicted on counts of attempted second-degree murder, attempted first-degree robbery, and second-degree criminal possession of a weapon. He was acquitted on two counts of attempted first-degree murder. The district court (Hector Gonzalez, Judge) denied Carew’s habeas petition, first concluding that Carew had “procedurally defaulted” on his Batson claim by No. 23-7934 Carew v. Morton

failing to object to the lack of a Batson remedy before the trial court. See Carew v. Morton, No. 20-CV-02480, 2023 WL 8258690 (E.D.N.Y. Nov. 29, 2023). Carew attempted to overcome that procedural default by demonstrating ineffective assistance of counsel based on his trial counsel’s failure to seek a Batson remedy. However, the district court concluded that Carew’s counsel did not render constitutionally ineffective assistance of counsel. On appeal, we conclude that Carew has failed to demonstrate ineffective assistance of counsel because he has not met his burden of showing that his trial counsel lacked strategic reasons for declining to seek a Batson remedy. We further decline to impose upon defense counsel a duty to seek Batson remedies at the expense of the strategic interests of their clients. We therefore AFFIRM the district court’s judgment. Judge Lohier concurs in a separate opinion. TAMMY E. LINN (Patricia Pazner, on the brief), Appellate Advocates, New York, NY, for Petitioner-Appellant Terrance Carew;

NANCY FITZPATRICK TALCOTT (John M. Castellano, on the brief), Assistant District Attorneys, for Melinda Katz, District Attorney for Queens County, Kew Gardens, NY, for Respondent-Appellee Robert Morton. SACK, Circuit Judge:

During jury selection for Petitioner-Appellant Terrance Carew’s criminal

trial in New York state court for attempted first-degree murder and related

offenses, Carew’s trial counsel lodged an objection that the prosecution’s use of

its peremptory challenges against several Black prospective jurors was racially

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discriminatory in violation of the Fourteenth Amendment of the United States

Constitution under Batson v. Kentucky, 476 U.S. 79 (1986). Although the trial

court appeared to grant two of Carew’s Batson challenges, the court had

erroneously already dismissed the two improperly stricken jurors, who were

therefore unable to serve on the jury. Carew’s counsel declined to seek an

alternative Batson remedy, and the case proceeded to trial. The jury ultimately

found Carew guilty of attempted murder in the second degree, attempted

robbery in the first degree, and criminal possession of a weapon in the second

degree, but not guilty of the more serious counts of attempted first-degree

murder.

Carew appealed his conviction to the New York state appellate court,

which concluded that although the trial court had found that a Batson violation

had occurred, it could not review whether the trial court erred in failing to

impose a remedy because Carew’s trial counsel had not contemporaneously

objected before the trial court. People v. Carew, 88 N.Y.S.3d 895, 896 (2d Dep’t

2018). The court also rejected Carew’s argument that he was denied

constitutionally effective assistance of counsel on its merits. Id. Judge Fahey of

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the New York Court of Appeals subsequently denied Carew leave to appeal. See

People v. Carew, 33 N.Y.3d 946 (2019).

Having exhausted his state remedies, Carew filed a federal habeas petition

pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern

District of New York against Respondent-Appellee Robert Morton,

Superintendent of the Downstate Correctional Facility. The district court (Hector

Gonzalez, Judge) denied Carew’s habeas petition. See Carew v. Morton, No. 20-

CV-02480, 2023 WL 8258690 (E.D.N.Y. Nov. 29, 2023). The court first observed

that Carew needed to demonstrate ineffective assistance of counsel to overcome

trial counsel’s failure to object to the lack of a Batson remedy in state trial court

(called a “procedural default,” in habeas jargon) and reach the Batson claim on

the merits. Id. at *4. The court concluded, however, that Carew had not shown

ineffective assistance of counsel and denied the habeas petition. Id. at *5–8.

We conclude that the district court properly denied Carew’s habeas

petition because Carew has not demonstrated that his trial counsel did not act

strategically in forgoing a Batson remedy and proceeding with the jury as

selected. We further decline to require defense counsel to seek a Batson remedy

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even when doing so might be disadvantageous to the defendant. We therefore

AFFIRM the district court’s order denying Carew’s petition for habeas relief.

BACKGROUND I. Offense Conduct Carew attempted to rob a man at a Queens housing development; when

the intended victim resisted, Carew fired a gun at him. After police arrived on

the scene and ordered Carew to drop his weapon, he fired several shots at the

officers. Three officers fired gunshots at Carew, one of which struck him in the

leg. Carew was subsequently indicted by a grand jury in Queens County on two

counts of attempted first-degree murder for shooting at two police officers, one

count of attempted second-degree murder for shooting at the victim, one count

of attempted first-degree robbery, and one count of second-degree criminal

possession of a weapon.

II. State-Court Trial Proceedings The case proceeded to trial before the Honorable Joel Blumenfeld, Justice

of the New York Supreme Court for Queens County. On October 1, 2015, the

court held jury selection; Herbert Kellner represented Carew. Two rounds of

jury selection were needed to choose twelve jurors and four alternates.

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In the first round, the prosecution used four peremptory challenges to

strike prospective jurors, and the defense used none. Of the four peremptory

challenges, the prosecution used two against prospective jurors, who, like Carew,

are Black men. The first prospective juror, “G.C.,” 1 stated during voir dire that

he served as a school safety officer, which he described as being part of “law

enforcement,” and that he had made arrests before. App’x at 38–39. The second,

“K.J.,” worked in medical billing and had a brother who was convicted of

weapons possession; he stated that he had no bad feelings toward police, the

prosecutor, or the court involved in his brother’s case, and that he could be fair

and impartial in rendering a verdict despite his brother’s conviction. Kellner did

not raise a Batson challenge to the prosecution’s use of its peremptory challenges

at this juncture, and the court dismissed the struck jurors.

Having selected twelve jurors for the petit jury, the court proceeded to

select four alternates. The prosecution used a peremptory challenge against

another Black male prospective juror, “C.C.,” who stated during voir dire that

that he did “community work” for a living and knew people in law enforcement

1 Out of respect for the prospective jurors’ privacy, we refer to them using only their initials. 6 No. 23-7934 Carew v. Morton

from his time serving in the Army. Id. at 217, 267. Here, however, Kellner

launched a Batson challenge, asking for a “race neutral reason with respect to [the

struck prospective juror].” Id. at 280. Kellner noted C.C. was “the third African

American that has been excluded.” Id. The court inquired whether Kellner was

asking solely about the last-struck juror, C.C., or about all three, to which Kellner

responded: “I would — there were 3. It’s a pattern here. . . . This is now the third

African American person that has been taken off and challenged by the

prosecutor.” Id. at 280–81.

Employing the framework for determining whether a Batson violation has

occurred, 2 the court asked the prosecution for race-neutral reasons for striking

2 “First, a trial court must decide whether the party challenging the strike has made a prima facie showing that the circumstances give rise to an inference that a member of the venire was struck because of his or her race. Such a prima facie case may be established, for example, by showing a pattern of strikes against minority prospective jurors.” Galarza v. Keane, 252 F.3d 630, 636 (2d Cir. 2001). Second, “[o]nce the defendant makes a prima facie showing [of purposeful discrimination], the burden shifts to the State to come forward with a neutral explanation for challenging [the stricken] jurors.” Batson, 476 U.S. at 97. This step “does not require the party to give an explanation that is persuasive or even plausible.” Galarza, 252 F.3d at 636. Third, if the government proffers a race-neutral explanation, “[t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination.” Batson, 476 U.S. at 98. Here, “the persuasiveness of the race-neutral explanation is relevant.” Galarza, 252 F.3d at 636. Throughout, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995). 7 No. 23-7934 Carew v. Morton

the three prospective jurors and also heard from Kellner. The court credited the

prosecution’s explanation for striking C.C.—that his “many dealings with []

community outreach” and his employment as a “community leader” might make

him “biased” with respect to the case—as “realistic.” Id. at 284–85. The court did

not comment on the prosecution’s explanation for striking K.J. Id. at 283–84.

However, the court found the prosecution’s race-neutral explanation for striking

G.C., the school safety officer, “problematic.” Id. at 283.

The court asked Kellner if he wanted G.C. seated as an alternate; Kellner

replied that he did. However, the court clerk stated that she had already sent the

earlier-struck jurors away, which she acknowledged as a mistake and “[her]

fault.” Id. at 285. The court then asked Kellner if he wanted K.J. seated; once

more, Kellner replied that he did. Again, however, the court clerk said that the

prospective juror was “gone.” Id. The court told the parties that the clerk “just

messed up” and stated: “I doubt that we will be able to get them back. Well, let’s

move on.” Id. at 286. Kellner did not lodge any objection to proceeding without

a Batson remedy.

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Jury selection concluded with four alternates being chosen. The first

alternate juror—whose position was the subject of the earlier Batson dispute—

eventually served on the twelve-person jury after a juror was excused.

On December 7, 2015, the jury found Carew not guilty of attempted first-

degree murder but convicted him of attempted murder in the second degree,

attempted robbery in the first degree, and criminal possession of a weapon in the

second degree. The court subsequently sentenced Carew to concurrent fourteen-

year terms of incarceration and five years of post-release supervision.

III. Direct Review Proceeding with new counsel, Carew directly appealed his conviction to

the Appellate Division of the New York Supreme Court, arguing, inter alia, that

his conviction violated Batson and that he was denied effective assistance of

counsel. The Appellate Division affirmed the trial court’s judgment. See Carew,

88 N.Y.S.3d at 895–96.

The Appellate Division first addressed Carew’s Batson argument.

Summarizing the trial-court proceedings, the court determined that the trial

court “granted the defendant’s challenge, made pursuant to Batson[], to the

prosecutor’s use of peremptory challenges for two potential jurors in the first

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round of jury selection.” Id. at 896 (internal citation omitted). However, the

court concluded that because “defense counsel did not request any alternative

remedy when it became apparent that the two potential jurors at issue had been

excused, and did not object when jury selection continued thereafter, the

defendant’s contention that the court erred in failing to impose any alternative

remedy is unpreserved for appellate review.” Id. The court determined that the

alleged error was “not so fundamental as to constitute a mode of proceedings

error exempting him from the rules of preservation” and “decline[d] to review

the defendant’s contention in the exercise of [its] interest of justice jurisdiction.”

Id.

The court next rejected Carew’s contention that he was denied effective

assistance of counsel, stating that its review of the entire record “establishes that

defense counsel provided meaningful representation” and Carew had “failed to

demonstrate the absence of strategic or other legitimate explanations for

counsel’s alleged shortcomings.” Id. (quotation marks omitted). The court

concluded that Carew’s other challenges were without merit. Id.

Carew subsequently sought leave to appeal to the New York Court of

Appeals, but the court denied leave. See Carew, 33 N.Y.3d 946.

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IV. Federal Habeas Petition Having exhausted his state remedies, Carew timely filed a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District

Court for the Eastern District of New York. The district court denied the petition.

See Carew, 2023 WL 8258690, at *1. The court concluded that, because Carew had

“procedurally defaulted” on his Batson claim by failing to object to the lack of a

Batson remedy before the trial court, he would need to show ineffective

assistance of his trial counsel to establish cause and prejudice to overcome that

procedural default. Id. at *3–4. However, the court concluded that Carew had

failed to demonstrate deficient performance of counsel and therefore denied his

habeas petition. Id. at *5–8. The district court granted a certificate of

appealability. Id. at *8. Carew’s timely appeal followed.

DISCUSSION On appeal, Carew argues that the district court erred in denying his

habeas petition. We “review [a] district court’s decision to grant or deny habeas

relief de novo.” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009). We begin by

discussing the habeas framework and Batson before turning to the merits of

Carew’s appeal.

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I. Federal Habeas Relief Under 28 U.S.C. § 2254 As amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254 authorizes federal courts to provide habeas corpus

relief to prisoners in state custody “only on the ground that [the prisoner] is in

custody in violation of the Constitution or laws or treaties of the United States.”

Id. § 2254(a). After a petitioner has “exhausted the remedies available in the

courts of the State”—as they generally must pursuant to AEDPA’s exhaustion

requirement, § 2254(b)(1)(A)—federal courts apply a deferential standard of

review commonly referred to as “AEDPA deference.” Under AEDPA deference,

a habeas writ shall not issue with “respect to any claim that was adjudicated on

the merits in State court proceedings” unless the state court adjudication

“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” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” Id. § 2254(d)(1)–(2).

Because of federal-state comity—i.e., affording states “an initial

opportunity to pass upon and correct alleged violations of prisoners’ federal

rights,” Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (quotation marks omitted)—and

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respect for the traditional responsibility of the states to enforce their own

criminal laws, the Supreme Court has “narrowly circumscribed” the “availability

of habeas relief” with several significant procedural rules, including “procedural

default,” id. at 375. Unlike the statutory exhaustion requirement, procedural

default is a judicially created, equitable doctrine “elaborated in the exercise of the

Court’s discretion.” Martinez v. Ryan, 566 U.S. 1, 13 (2012); see also Brown v.

Davenport, 596 U.S. 118, 132–33 (2022) (describing the Court’s exercise of its

equitable discretion). Under that doctrine, “federal courts generally decline to

hear any federal claim that was not presented to the state courts consistent with

the State’s own procedural rules.” Shinn, 596 U.S. at 378 (alteration adopted)

(quotation marks omitted). To determine whether a claim has been procedurally

defaulted, federal courts employ a two-part test, asking whether “(1) a state court

[has] declined to address [a prisoner’s federal] claims because the prisoner had

failed to meet a state procedural requirement,” and “(2) the state judgment rests

on independent and adequate state procedural grounds.” Maples v. Thomas, 565

U.S. 266, 280 (2012) (quotation marks omitted).

Here, the Appellate Division declined to consider Carew’s Batson claim on

its merits because, at trial, Carew’s counsel failed to object contemporaneously to

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the court’s failure to impose a Batson remedy. See Carew, 88 N.Y.S.3d at 895–96.

New York’s contemporaneous-objection rule serves as “a firmly established and

regularly followed New York procedural rule” that provides independent and

adequate grounds for barring federal habeas relief. Downs v. Lape, 657 F.3d 97,

104 (2d Cir. 2011). It is undisputed that Carew has procedurally defaulted on his

Batson claim. 3

A habeas petitioner may overcome procedural default by establishing

“cause and prejudice”: “cause for the default and actual prejudice as a result of

the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750

(1991). The Supreme Court has recognized that constitutionally ineffective

assistance of counsel, as defined by Strickland v. Washington, 466 U.S. 668 (1984),

can establish sufficient cause to overcome a procedural default. See Murray v.

Carrier, 477 U.S. 478, 488 (1986) (“Ineffective assistance of counsel, then, is cause

for a procedural default.”); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000)

(“[W]e have acknowledged that in certain circumstances counsel’s

ineffectiveness in failing properly to preserve the claim for review in state court

3 Through his direct appeal in state court, Carew has successfully exhausted his state remedies. 14 No. 23-7934 Carew v. Morton

will suffice [to establish cause to overcome a procedural default].”). Strickland, in

turn, outlines a two-part test for determining whether a criminal defendant was

deprived of constitutionally effective assistance of counsel, requiring the

defendant to demonstrate (1) deficient performance of his counsel and (2)

prejudice. Strickland, 466 U.S. at 687. We discuss the Strickland standard further

below.

Even if a habeas petitioner establishes ineffective assistance of counsel as

cause and prejudice sufficient to excuse his procedural default, 4 the petitioner’s

task is not done—he must also demonstrate the merits of his underlying federal

claim. See Tavarez v. Larkin, 814 F.3d 644, 650 (2d Cir. 2016) (assuming without

deciding that the petitioner could establish ineffective assistance of counsel as

cause to excuse procedural default but rejecting the underlying federal

constitutional claims on the merits). Thus, to succeed on his habeas petition,

4 While we ultimately do not reach the issue of prejudice, we assume for the purposes of this appeal that a showing of “prejudice” under Strickland suffices to show “prejudice” under the cause-and-prejudice standard needed to excuse procedural default. See, e.g., Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir. 2006) (“[I]f a habeas petitioner can meet the prejudice standard needed to establish ineffective assistance under Strickland, then the prejudice standard under the ‘cause and prejudice’ showing to excuse a procedural default is also met.”).

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Carew must prevail on two constitutional claims: 5 (1) his ineffective assistance of

counsel claim, see Aparicio v. Artuz, 269 F.3d 78, 99 n.10 (2d Cir. 2001) (stating that

ineffective assistance of counsel “can establish cause for a procedural default

only if it is itself a valid constitutional claim”), and (2) his underlying Batson

claim, see Tavarez, 814 F.3d at 650.

II. Batson In Batson, the Supreme Court held that the Fourteenth Amendment’s Equal

Protection Clause prohibits prosecutors from exercising peremptory challenges

against prospective jurors in a racially discriminatory manner. 476 U.S. at 89.

The Court explained that the “central concern” of the Fourteenth Amendment

“was to put an end to governmental discrimination on account of race,” and that

5 Carew confirmed at oral argument that his ineffective assistance of counsel claim is intended to show cause and prejudice to reach the procedurally defaulted Batson claim. See Oral Argument Recording at 2:28–:35. It would also be possible to allege ineffective assistance of counsel related to a Batson violation as an independent claim for habeas relief, rather than only as a vehicle for overcoming procedural default on the underlying Batson claim. Cf. Drain v. Woods, 595 F. App’x 558, 567 (6th Cir. 2014) (unpublished opinion) (declining to evaluate sua sponte ineffective assistance of counsel as a means to overcome a waived or forfeited procedural default defense and instead treating the Batson claim and the ineffective assistance claim related to a Batson violation as two distinct claims). However, as we discuss further below, it is an open question in this Circuit whether a federal habeas court should apply different standards of review to the state court’s rejection of an ineffective assistance of counsel claim on direct appeal depending on whether that claim is raised as cause and prejudice to excuse procedural default or as an independent, freestanding claim for relief. 16 No. 23-7934 Carew v. Morton

the “[e]xclusion of [B]lack citizens from service as jurors constitutes a primary

example of the evil the Fourteenth Amendment was designed to cure.” Id. at 85.

Racial discrimination in jury selection, it elaborated, “harms not only the

accused whose life or liberty they are summoned to try . . . [but also] the

excluded juror.” Id. at 87. The Supreme Court has subsequently extended Batson

to civil trials, see Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991),

defense counsel’s use of peremptory challenges, see Georgia v. McCollum, 505 U.S.

42, 59 (1992), and peremptory challenges based on sex, see J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 130–31 (1994); a defendant also has standing to object to the

prosecution striking jurors even when the defendant and excluded jurors do not

share the same race, see Powers v. Ohio, 499 U.S. 400, 415 (1991).

Significantly, although Batson recognized that racially discriminatory

peremptory challenges violate the Fourteenth Amendment, it did not define the

precise contours of an appropriate remedy for such a violation. In a footnote, the

Court stated that it “express[ed] no view on whether it is more appropriate in a

particular case, upon a finding of discrimination against [B]lack jurors, for the

trial court to discharge the venire and select a new jury from a panel not

previously associated with the case, or to disallow the discriminatory challenges

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and resume selection with the improperly challenged jurors reinstated on the

venire.” Batson, 476 U.S. at 99 n. 24 (internal citation omitted). We have

subsequently explained that pursuant to the district court’s broad discretion to

fashion appropriate Batson remedies, Batson errors are “remediable in any one of

a number of ways.” McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996). For

example, abusive peremptory challenges might be disallowed, “additional jurors

might be called to the venire and additional challenges granted to the defendant”

if the challenged jurors have already been released, or “jury selection might

begin anew with a fresh panel.” Id.

Because “the effects of racial discrimination during voir dire may persist

through the whole course of the trial proceedings,” we have held that Batson

errors are “structural,” meaning they are “not subject to harmless error review.”

Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998) (quotation marks omitted).

Consequently, when a Batson error is preserved before the trial court and raised

on direct appeal, the error requires automatic reversal of conviction. See id.; see

also Weaver v. Massachusetts, 582 U.S. 286, 301 (2017). Similarly, on a federal

habeas petition seeking relief from state custody pursuant to 28 U.S.C. § 2254,

where, unlike here, a Batson claim is sufficiently preserved for collateral review,

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that claim—if meritorious—requires habeas relief. See Tankleff, 135 F.3d at 248–50

(on habeas petition, holding that a Batson claim defies harmless error analysis

and directing that the district court, if it cannot determine whether a Batson

violation had occurred, is required to grant the petitioner a new trial); see also

Jordan v. Lefevre, 206 F.3d 196, 201–03 (2d Cir. 2000) (holding that the state trial

court’s failure to make a Batson determination requires the state to grant

petitioner a new trial if the district court cannot determine whether a Batson error

occurred). Relevant to the appeal before us, it is an open question in this Circuit

whether a Batson error is the type of structural error that automatically entitles

the habeas petitioner to relief when the structural error is unpreserved for

collateral review but raised in a claim alleging ineffective assistance of counsel. 6

Weaver, 582 U.S. at 301–03.

6 Weaver—which held that prejudice for the purposes of an ineffective assistance of counsel claim was not presumed where counsel failed to object to the structural error of the closure of the courtroom during jury selection—was raised on direct appeal from a state high court, but it did not address whether structural errors such as Batson violations require automatic relief when “raised instead in an ineffective-assistance claim on collateral review.” 582 U.S. at 294, 301–02.

19 No. 23-7934 Carew v. Morton

III. Analysis We begin with Carew’s claim of ineffective assistance of counsel, which he

attempts to use to overcome the procedural default on his Batson claim. We

assume that an unremedied Batson violation did occur. 7

A. Strickland’s Deficient Performance of Counsel Prong Although we review the district court’s decision to deny habeas relief de

novo, Dolphy, 552 F.3d at 238, it remains an open question whether we apply de

novo review or AEDPA deference to the Appellate Division’s rejection of

7 Although the trial court transcript is arguably unclear as to whether the court actually determined that there was a Batson violation, we may infer the court’s finding from the transcript, even in the absence of a clear Batson ruling. See Messiah v. Duncan, 435 F.3d 186, 199 (2d Cir. 2006). We note, too, that the Appellate Division concluded that the trial court “granted the defendant’s challenge, made pursuant to Batson[], to the prosecutor’s use of peremptory challenges for two potential jurors,” Carew, 88 N.Y.S.3d at 895–96 (internal citation omitted), a conclusion that is entitled to deference under AEPDA, see Tavarez, 814 F.3d at 650 (applying AEDPA deference to state-court decision on the merits of federal constitutional claims that were procedurally barred). If, as Morton suggests, the trial court had denied the Batson motion without determining whether it credited the prosecution’s race-neutral explanations for the challenged peremptory strikes, the trial court would have erred under Batson. See Messiah, 435 F.3d at 198 (“[T]he trial judge must simply make clear whether he credits the non-moving party’s race-neutral explanation for striking the relevant panelist.”); Galarza, 252 F.3d at 636 (“We have repeatedly emphasized that a trial court may not deny a Batson motion without determining whether it credits the race-neutral explanations for the challenged peremptory strikes.” (collecting cases)); Jordan, 206 F.3d at 202 (applying this requirement in the habeas context). 20 No. 23-7934 Carew v. Morton

Carew’s ineffective assistance of counsel claim, 8 see, e.g., Tavarez, 814 F.3d at 650

(noting, but not deciding, the open question because the petitioner’s

procedurally defaulted claims would in any event fail on the merits). This is also

a question that has divided our sister circuits. 9 Because we ultimately conclude

that Carew’s ineffective assistance of counsel claim fails even under de novo

8 The open question is “whether de novo review or AEDPA deference applies when a habeas petitioner advances a claim of ineffective assistance as cause to excuse procedural default (rather than as independent grounds for habeas relief).” Tavarez, 814 F.3d at 650. Because of the exhaustion doctrine, habeas petitioners are generally required to present a claim of ineffective assistance to the state courts as “an independent claim before it may be used to establish cause for a procedural default.” Murray, 477 U.S. at 489. Ordinarily, federal habeas courts must afford AEDPA deference to a state court’s adjudication of “any claim . . . on the merits.” 28 U.S.C. § 2254(d). However, it is unclear whether the state court’s adjudication of the independent ineffective assistance of counsel claim on the merits is entitled to AEDPA deference even when that claim is advanced only to show cause and prejudice on federal habeas review. If not, the pre-AEDPA, de novo standard established in Coleman, 501 U.S. at 755, would apply.

9 Compare Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016) (applying de novo review), Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006) (same), and Fischetti v. Johnson, 384 F.3d 140, 154–55 (3d Cir. 2004) (same) with Richardson v. Lemke, 745 F.3d 258, 273 (7th Cir. 2014) (applying AEDPA deference), and Roberson v. Rudek, 446 F. App’x 107, 109–10 (10th Cir. 2011) (unpublished order) (affirming district court’s application of AEDPA deference). Two of our sister circuits have yet to determine the appropriate standard of review. See Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365 n.16 (11th Cir. 2020) (“We needn’t address the conflict here because even under de novo review, Sealey’s ineffective-assistance-of-appellate-counsel claim fails.”); Janosky v. St. Amand, 594 F.3d 39, 44–45 (1st Cir. 2010).

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review, we again need not resolve this question and instead assume without

deciding that de novo review applies.

We begin with the first of the two prongs of Strickland, deficient

performance of counsel. “To establish deficient performance, [the petitioner]

must show that counsel’s representation fell below an objective standard of

reasonableness.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quotation marks

omitted). At its core, this inquiry is “whether an attorney’s representation

amounted to incompetence under prevailing professional norms, not whether it

deviated from best practices or most common custom.” Id. at 105 (quotation

marks omitted). The Supreme Court has instructed that this prong “sets a high

bar” to relief for a petitioner because it is “only when the lawyer’s errors were so

serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth

Amendment that Strickland’s first prong is satisfied.” Buck v. Davis, 580 U.S. 100,

118–19 (2017) (alteration adopted) (quotation marks omitted).

“Even under de novo review,” we nonetheless apply a “most deferential”

standard for “judging counsel’s representation,” Harrington, 562 U.S. at 105,

because of our “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance,” Strickland, 466 U.S. at 689, which

22 No. 23-7934 Carew v. Morton

extends to counsel’s strategic decisions, Dunn v. Reeves, 594 U.S. 731, 739 (2021).

“The burden of rebutting this presumption [of the reasonableness of counsel’s

decisions] rests squarely on the [petitioner],” who cannot rest on “the absence of

evidence” to sustain it. Id. (quotation marks omitted). “[E]ven if there is reason

to think that counsel’s conduct was far from exemplary, a court still may not

grant relief if the record does not reveal that counsel took an approach that no

competent lawyer would have chosen. Id. (alterations adopted) (quotation marks

omitted). Unreasonable errors by counsel include “omissions that cannot be

explained convincingly as resulting from a sound trial strategy, but instead arose

from oversight, carelessness, ineptitude, or laziness.” Wilson v. Mazzuca, 570 F.3d

490, 502 (2d Cir. 2009) (alteration adopted) (quotation marks omitted).

We turn to whether Kellner’s decision to forgo a Batson remedy deprived

Carew of constitutionally effective representation. 10 On appeal, Carew argues

10 The Appellate Division stated that its “review of the record in its totality establishes that defense counsel provided meaningful representation.” Carew, 88 N.Y.S.3d at 896. While we have said that New York’s totality-of-the-circumstances-based “meaningful representation” standard, properly applied, “is not contrary to Strickland,’” Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010), we assume that the appropriate inquiry for deficient performance here is limited to Kellner’s single decision to forgo a Batson remedy, rather than the entirety of his representation. See Murray, 477 U.S. at 496 (“[E]ven an isolated error of counsel [may constitute ineffective assistance] if that error is sufficiently egregious and prejudicial.”); United States v. Cronic, 466 U.S. 648, 657 n.20

23 No. 23-7934 Carew v. Morton

that “[n]o reasonable attorney would have allowed the Batson violations to go

unremedied.” Appellant’s Br. at 39. Carew contends that Kellner should have

sought some remedy—either selecting a new jury entirely by moving for a

mistrial, “requiring the prosecutor to forfeit remaining peremptory challenges,

awarding additional challenges to the Batson movant, or even trying to locate the

released jurors.” Dkt. No. 50, Appellant’s Fed. R. App. P. 28(j) Letter, at 1 (citing

People v. Luke, 227 N.Y.S.3d 252, 261 (1st Dep’t 2025)). We disagree. Applying

the appropriate deference to Carew’s trial counsel’s strategic decision, we

conclude that a reasonable attorney in Kellner’s circumstances could well have

chosen to forgo a Batson remedy, and Carew has therefore failed to rebut the

presumption that his counsel did so strategically.

Kellner performed reasonably in spotting a potential Batson issue, raising

the challenge, and successfully arguing that two of the prosecution’s three

peremptory strikes were racially discriminatory. The court then proposed the

adequate Batson remedy of seating the struck jurors as alternates, see McCrory, 82

F.3d at 1247 (suggesting that reseating struck jurors to remedy Batson violations

(1984) (“[S]pecific errors and omissions may be the focus of a claim of ineffective assistance as well.” (citing Strickland, 466 U.S. at 693–96)).

24 No. 23-7934 Carew v. Morton

would be an adequate remedy), which Kellner reasonably accepted. However,

when the court announced that it was unable to provide that remedy because of

its own administrative error, Kellner was left with a difficult choice: whether to

press for an alternative remedy or proceed with the jury as selected. We

conclude that it was reasonable for Kellner to proceed with the selected jury as

he did.

Based on the record, Kellner’s decision not to seek an alternative remedy

may very well have been strategic. Assuming arguendo that it was possible for

the trial court to retrieve the two jurors who had been dismissed and sent home,

a reasonable lawyer may have declined to seek their return. Those struck jurors

may have been hostile or resentful toward the defense had they been required to

return and sit for a lengthy trial after they had already been dismissed. As to

“discharg[ing] the venire and select[ing] a new jury from a panel not previously

associated with the case,” the other remedy expressly discussed in Batson, 476

U.S. at 99 n. 24, Kellner may have reasonably preferred the jury that was already

selected to a new, unknown jury, as the district court observed, see Carew, 2023

WL 8258690, at *6. As Carew explains, “counsel may have been reluctant to risk

ending up with a jury he was [even] less satisfied with.” Appellant’s Br. at 47.

25 No. 23-7934 Carew v. Morton

Carew’s speculation about other, alternative remedies that Kellner could have

proposed, such as the court granting additional peremptory challenges to the

defense or removing peremptory challenges from the prosecution, amounts to

the “second-guess[ing]” and employment of the “distorting effects of hindsight”

that Strickland forbids. 466 U.S. at 689. Even if these remedies were available and

beneficial to the defense—on which point the record is unclear 11—Kellner’s

failure to seek what may appear in hindsight as an optimal remedy does not

amount to deficient performance. See Burt v. Titlow, 571 U.S. 12, 24 (2013) (“[T]he

Sixth Amendment does not guarantee the right to perfect counsel . . . . ”).

Instead, on these facts, after Kellner had raised a Batson challenge and accepted a

permissible remedy, and after circumstances beyond his control rendered that

remedy unavailable, it was at least reasonable for Kellner to decline to press the

issue further and proceed with a jury that he may well have preferred to the

unknown.

11 For instance, as to seeking additional peremptory challenges, the record suggests that Carew still had several remaining: He used two after the Batson challenge, App’x at 287, 289, and did not use close to the number provided by New York Criminal Procedural Law for trials in which the highest crime charged is a class A felony, see N.Y. Crim. Proc. Law § 270.25(2)(a) (stating that each side must receive twenty peremptory challenges for the regular jurors and two for each alternate juror to be selected). 26 No. 23-7934 Carew v. Morton

Ultimately, it does not matter which, if any, of these strategic rationales

Kellner may have had in mind; what matters is that Carew has not met his

burden of rebutting our presumption that Kellner’s Batson choices were the result

of sound strategy, rather than of incompetence. See Dunn, 594 U.S. at 739

(explaining that the petitioner cannot overcome the presumption of

reasonableness of defense counsel’s decisions merely based on an “absence of

evidence” that counsel acted for a particular strategic reason). The record does

not support Carew’s contention that no reasonable counsel would have acted as

Kellner did; instead, it shows that Kellner was fully aware of the opportunity to

raise Batson issues and made strategic choices about when and how to do so. Cf.

Drain v. Woods, 595 Fed. App’x 558, 582 (6th Cir. 2014) (unpublished opinion)

(contrasting case in which “[c]ounsel’s passivity in light of an obvious pattern of

strikes against minority prospective jurors fell below an objective standard of

reasonableness and amounted to deficient performance” (quotation marks

omitted)). Applying Strickland deference to Kellner’s decision, we conclude that

a reasonable attorney, acting strategically and in the best interests of his client,

could have chosen, as Kellner did, to forgo continuing to seek a Batson remedy.

27 No. 23-7934 Carew v. Morton

Carew’s reliance on prevailing professional norms to establish deficient

performance is unavailing. Citing the American Bar Association’s (“ABA”)

Criminal Justice Standards for the Defense Function, Carew contends that, under

prevailing professional norms, “counsel was obligated to protect petitioner’s

constitutional rights,” an obligation that, he claims, Kellner breached by

“surrender[ing] petitioner’s equal protection and due process rights.” 12

Appellant’s Br. at 40-41 (citing ABA Criminal Justice Standards for the Defense

Function 4-1.2(b) (4th ed. 2017)). These “prevailing norms of practice as reflected

in American Bar Association standards and the like are guides to determining

what is reasonable” under Strickland. Padilla v. Kentucky, 559 U.S. 356, 366 (2010)

(alterations adopted) (quotation marks omitted).

However, the ABA Standards do not do the heavy work of establishing

trial counsel’s deficient performance as Carew claims. Notwithstanding

counsel’s general obligation to protect a criminal defendant’s constitutional

rights, it is well established that defendants and their counsel may waive those

rights for strategic reasons. For example, with the client’s consent, defense

12 Carew does not appear to argue that trial counsel is required to gain the client’s affirmative consent before waiving a Batson remedy; instead, Carew appears to challenge counsel’s ability to waive a Batson remedy under any circumstances. 28 No. 23-7934 Carew v. Morton

counsel may waive many of a defendant’s fundamental constitutional rights,

such as the rights “to plead guilty, waive a jury, testify in his or her own behalf,

or take an appeal.” Gonzalez v. United States, 553 U.S. 242, 250–51, (2008) (quoting

Florida v. Nixon, 543 U.S. 175, 187 (2004)). Although Carew appears to take issue

with waiver of Batson remedies altogether—an issue we examine further below—

rather than with Kellner’s decision to waive those rights without his client’s

consent, we note that the Supreme Court has repeatedly held that counsel may

also waive certain of their client’s rights without the client’s express consent,

because “[t]he adversary process could not function effectively if every tactical

decision required client approval.” Taylor v. Illinois, 484 U.S. 400, 418 (1988).

These strategic choices generally relate to “how best to achieve a client’s

objectives,” rather than “what the client’s objectives in fact are.” McCoy v.

Louisiana, 584 U.S. 414, 422 (2018). So, for instance, without the client’s express

consent, counsel may consent to a magistrate judge presiding over jury selection

in a felony trial, see Gonzalez, 553 U.S. at 250, waive the speedy trial right, see New

York v. Hill, 528 U.S. 110, 115 (2000), and make certain decisions that implicate

their client’s due-process rights, such as what arguments to make, what

evidentiary objections to raise, and what agreements to make with the

29 No. 23-7934 Carew v. Morton

prosecution regarding the admission of evidence, see id. (collecting cases).

Indeed, the same ABA standards on which Carew relies also recognize that

“[s]trategic and tactical decisions should be made by defense counsel,” including

“what jurors to accept or strike.” ABA Criminal Justice Standards for the

Defense Function 4–5.2(d) (4th ed. 2017). In sum, neither prevailing professional

norms nor the caselaw suggests that Kellner rendered constitutionally deficient

assistance of counsel by declining to seek a Batson remedy for strategic reasons.

B. Whether Counsel’s Failure to Seek a Batson Remedy Amounts to Per Se Ineffective Assistance of Counsel

Carew also argues that, even if Kellner had strategic reasons to forgo a

Batson remedy, “that is not a legitimate reason to let the prosecutor’s racial

discrimination go unremedied” because “there was no legitimate basis to allow

the ‘evil’ of racial discrimination in jury selection to go unremedied.”

Appellant’s Br. at 42, 47. Failing to object to the lack of a Batson remedy, Carew

argues, would be to “take [an] illegal action[], such as sanctioning discrimination

against potential jurors based on race . . . even if counsel believes such

discrimination would benefit his client.” Id. at 48. In effect, Carew argues for a

per se rule that it is ineffective assistance of counsel to fail to pursue a remedy for

the prosecution’s Batson violation, even when a remedy would be deleterious to

30 No. 23-7934 Carew v. Morton

the criminal defendant. 13 We decline to adopt such a rule because it would

impinge upon trial counsel’s principal duty to his client.

As an initial matter, we reject Carew’s attempt to impute the prosecution’s

racially discriminatory exercise of its peremptory challenges to Kellner. Carew

argues that by failing to remedy the violation, defense counsel “effectively, and

impermissibly, sanctioned the prosecutor’s racially discriminatory

peremptories.” Appellant’s Br. at 41. We are unpersuaded for two reasons.

First, it is true that defense counsel is “limited to legitimate, lawful conduct.”

Nix v. Whiteside, 475 U.S. 157, 166 (1986). But the cases on which Carew relies

prohibit defense counsel from affirmatively engaging in prohibited behavior,

rather than failing to correct the prosecution’s unlawful acts. For example, in

Nix, on which Carew relies, the Supreme Court merely explained that “counsel is

precluded from taking steps or in any way assisting the client in presenting false

evidence or otherwise violating the law.” Id. (holding that defense counsel does

not render ineffective assistance when he informs his client that if the client were

13 Our caselaw has repeatedly recognized that counsel’s failure to object to the discriminatory use of peremptory challenges may waive or forfeit the Batson issue, but these cases do not address whether that waiver or forfeiture amounts to ineffective assistance of counsel. See McCrory, 82 F.3d at 1249; United States v. Brown, 352 F.3d 654, 663 (2d Cir. 2003). 31 No. 23-7934 Carew v. Morton

to offer perjured testimony, he would be obligated to disclose the client’s perjury

to the court and move to withdraw from representation). Similarly, in Georgia v.

McCollum, the Supreme Court extended Batson to hold that defense counsel’s

“discriminatory exercise of a peremptory challenge is a violation of equal

protection.” 505 U.S. at 55. But, again, Kellner did not use his peremptory

challenges in a racially discriminatory manner—at most, he failed to seek a

remedy to correct the prosecution’s Batson violation.

Second, although the prosecution may violate Batson by failing to provide

a race-neutral explanation for striking a prospective juror, Batson, 476 U.S. at 97,

it does not follow that defense counsel would necessarily also lack a race-

neutral—and therefore permissible—reason for striking the same juror.

Prospective jurors, like all people, occupy multiple statuses and positions: A

juror may share the same race as the defendant but have some other

characteristics, such as their employment, that make them undesirable for jury

selection from the defendant’s perspective and are legitimate grounds for the

exercise of peremptory challenges. See Jordan, 206 F.3d at 200 (“[N]egative

experience with law enforcement, age, life experience, type of employment, and

32 No. 23-7934 Carew v. Morton

demeanor [] have been found to be acceptable race neutral bases for peremptory

challenges”).

In a hypothetical case—and one not dissimilar from that before us—in

which the defendant is alleged to have shot a police officer, the defendant may

reasonably not want a police officer seated on the jury, even if the defendant and

the police officer share the same race or sex. So, even if the prosecution strikes

the police officer for a racially discriminatory reason, defense counsel would not

violate Batson by not seeking to have that same juror seated, so long as that

decision was based on the juror’s status as a police officer (or on any other

similarly legitimate, non-discriminatory reason for not wanting the juror seated).

Defense counsel’s failure to object, in this hypothetical example, would not be

based on the impermissible use of a juror’s race as “a proxy for determining juror

bias or competence.” Powers, 499 U.S. at 410. Thus, it would not itself violate

Batson.

Most fundamentally, Carew’s proposed rule—requiring counsel to always

pursue a Batson remedy, even where it might harm his client—would swallow

the longstanding principle that an attorney’s principal “duty is not to the public

at large” but to “the undivided interests of his client.” Ferri v. Ackerman, 444 U.S.

33 No. 23-7934 Carew v. Morton

193, 204 (1979). Of course, as discussed above, this rule has limits, as counsel

may not affirmatively engage in prohibited conduct. See, e.g., McCollum, 505 U.S.

at 58 (explaining that “a prohibition of the exercise of discriminatory peremptory

challenges [does not] violate a defendant’s Sixth Amendment right to the

effective assistance of counsel . . . . [because] neither the Sixth Amendment right

nor the attorney-client privilege gives a criminal defendant the right to carry out

through counsel an unlawful course of conduct”). But were the rule that Carew

advances to prevail, defense counsel would need to subordinate his client’s

interests to a broader duty to correct the prosecution’s racially discriminatory use

of peremptory strikes. Indeed, as this hypothetical illustrates, it might be wholly

legitimate for defense counsel not to want a police officer seated as a juror in a

police-shooting case, even if the prosecution strikes that same juror for

impermissible reasons. To conclude, as Carew urges, that defense counsel must

always correct the prosecution’s racially discriminatory exercise of its peremptory

strikes would trap defense counsel between competing obligations—Batson on

the one hand, the client’s best interests on the other. That tension would

undermine the bedrock principles upon which our adversarial system is based,

including the Sixth Amendment right to counsel.

34 No. 23-7934 Carew v. Morton

To be sure, we do not suggest that defense counsel’s failure to object to

racial discrimination in jury composition or to seek a remedy can never be the

basis for a meritorious ineffective assistance of counsel claim. For example, in

Drain v. Woods, 14 after defense counsel failed to object to the prosecutor’s use of

seven of her nine peremptory strikes against Black prospective jurors, the trial

court sua sponte challenged the prosecutor’s use of her peremptory challenges.

595 F. App’x at 561. The trial court rejected the prosecutor’s stated, race-neutral

reasons for striking the jurors and found that the prosecutor “consistently

excluded [B]lack jurors based on their race”; however, the court “took no action

to undo the effects of the prosecutor’s racially-motivated strikes on the

composition of the jury.” Id. at 562–63. Defense counsel was entirely silent

during the court’s colloquy with the prosecutor and did not object to the court’s

failure to impose a Batson remedy. See id. at 561–63. In affirming the district

court’s grant of habeas relief, the Sixth Circuit concluded that defense counsel’s

performance was deficient because “any reasonable attorney would have

objected to the trial court’s decision to proceed without either recalling those

14 The Sixth Circuit has subsequently appeared to back away from portions of Drain, see Parks v. Chapman, 815 F. App’x 937, 943–45 (6th Cir. 2020) (unpublished opinion), but we consider its facts and reasoning illustrative as a point of contrast. 35 No. 23-7934 Carew v. Morton

who were dismissed or beginning voir dire again with an entirely new venire.”

Id. at 583.

As Drain illustrates, where defense counsel’s failure to lodge a Batson

challenge or seek a Batson remedy results from “oversight, carelessness,

ineptitude, or laziness,” Wilson, 570 F.3d at 502 (quotation marks omitted), rather

than sound trial strategy, a successful ineffective assistance of counsel claim may

arise. But, in the appeal before us, we cannot conclude that Kellner lacked

strategic reasons for proceeding as he did.

Nor do we countenance the unremedied Batson violation before the trial

court. Notwithstanding that we conclude that defense counsel may decline to

press for a Batson remedy for strategic reasons, we recognize that the

prosecution’s impermissible exercise of its peremptory challenges violates not

only the defendant’s Fourteenth Amendment equal protection rights but also

those of the struck jurors. Batson, 476 U.S. at 87. But we decline to impose an

obligation on defense counsel to correct the prosecution’s misconduct at the

expense of the criminal defendant’s interests. 15 Instead, we view the ultimate

15 Indeed, application of Carew’s proposed rule, viewed in this light, would be particularly perverse, because the right to effective assistance is a right that, unlike the

36 No. 23-7934 Carew v. Morton

obligation to protect the integrity and fairness of judicial proceedings as residing

with the attorney exercising their peremptory challenges and the trial court. As

such, both the prosecution and defense counsel are prohibited from exercising

their peremptory challenges in a racially discriminatory manner, see Batson, 476

U.S. at 89; McCollum, 505 U.S. at 57, and, by the rules of professional conduct,

from “engag[ing] in conduct that the lawyer knows or reasonably should know

is . . . discrimination on the basis of race . . . in conduct related to the practice of

law.” ABA Model Rule of Professional Conduct 8.4(g); see also New York Rule of

Professional Conduct 8.4(g)(1) (prohibiting a lawyer from “engag[ing] in conduct

in the practice of law that the lawyer . . . knows or reasonably should know

constitutes . . . unlawful discrimination”). And the trial court is the ultimate

guarantor of the integrity of its proceedings. When a court is confronted with an

attorney’s racially discriminatory exercise of their peremptory challenges, it has

broad discretion to fashion a remedy. See Batson, 476 U.S. at 99 n. 24 (leaving to

trial courts the task of determining how to remedy Batson violations); McCrory,

equal protection right protected by Batson, belongs to the defendant alone and is designed to provide the defendant with the services of legal counsel who can effectively contest the prosecution’s case to protect the defendant from an unjust conviction. It would be peculiar to hold that a defendant was denied his personal right to effective assistance of counsel because counsel failed to protect a separate right held by a potential juror in order to secure the defendant’s best chance of avoiding a conviction. 37 No. 23-7934 Carew v. Morton

82 F.3d at 1247 (discussing possible remedies). But it must impose some remedy,

lest it be automatically reversed on direct appeal without recourse to harmless

error review. See Rivera v. Illinois, 556 U.S. 148, 161 (2009).

Based on the record before us, it seems that both the prosecution and the

trial court breached their respective obligations to remove the taint of racial

discrimination in jury compositions, “a primary example of the evil the

Fourteenth Amendment was designed to cure.” Batson, 476 U.S. at 85. It is a

peculiarity of the strictures of habeas, however, that Carew must press an

argument against his own trial counsel—who ultimately succeeded in securing

an acquittal for Carew on the most serious charges—to challenge the

prosecution’s and trial court’s failures under Batson. 16 It was not defense counsel

16 Notwithstanding the unremedied violation of the prospective jurors’ rights, we think that the denial of habeas relief is sensible on these facts because granting Carew’s habeas petition would allow him to get a second bite at the apple by receiving the benefit of two trials. In the context of a Batson challenge, “the nature of the peremptory challenge mandates that any objection to its use be raised and ruled upon promptly” so that the judge can properly assess the challenge and fashion a remedy if appropriate. McCrory, 82 F.3d at 1247. If the defendant fails to object but could nonetheless later bring the Batson claim, “the defendant may have the opportunity to test his fortunes with the first jury, preserving the opportunity for a mistrial and a second round in the event of a conviction.” Id. This would not only consume judicial time and resources and induce defendants to not press challenges when the court can properly remedy the constitutional violations, see id., but it would also disparately treat other criminal defendants who properly preserved their Batson objections and would not receive the benefit of a second trial. In sum, because we conclude that Kellner acted strategically, it

38 No. 23-7934 Carew v. Morton

who exercised his peremptory challenges in a racially discriminatory manner—it

was the prosecution. Nor was it defense counsel who erroneously sent struck

prospective jurors home or failed to fashion an adequate remedy—it was the trial

court. That the prosecution and trial court breached their Batson duties does not,

however, establish that Kellner breached his duty to Carew, at least on these

facts.

Because Carew has failed to establish deficient performance of counsel

under the first prong of Strickland—which he identifies as the sole error on

appeal—he has not shown the ineffective assistance of counsel needed to

overcome his procedural default and permit us to consider his Batson claim on its

merits. Consequently, he cannot obtain habeas relief. 17 We decline to accept

would make little sense to allow Carew to have a first trial before a jury that his counsel may have preferred and a second trial thereafter. 17 Because Carew failed to meet the first prong of Strickland, deficient performance of

counsel, we need not decide whether a meritorious Batson claim automatically establishes prejudice under the second prong of Strickland, a question that has split our sister circuits. Because a Batson error is structural, the “effect of [which] cannot be ascertained,” Vasquez v. Hillery, 474 U.S. 254, 263 (1986), without assuming that “the race of jurors affects their thinking as jurors,” Eagle v. Linahan, 279 F.3d 926, 943 n.22 (11th Cir. 2001)—an inquiry that Batson forbids—the majority of courts of appeals have concluded that a meritorious Batson claim automatically establishes prejudice under Strickland, see, e.g., Juniper v. Davis, No. 16-2, 2023 WL 3050984, at *3 (4th Cir. Apr. 24, 2023) (unpublished opinion); Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir. 2011); Eagle, 279 F.3d at 943 n.22. However, in two recent unpublished decisions, the Third and Sixth Circuits have required a habeas petitioner to show that the result of the trial

39 No. 23-7934 Carew v. Morton

Carew’s invitation to impose upon defense counsel the obligation to correct the

prosecution’s Batson violation even where strategic considerations may militate

against doing so.

CONCLUSION Based on the foregoing, we conclude that Carew has failed to demonstrate

ineffective assistance of trial counsel to overcome procedural default on his

Batson claim. The judgment of the district court denying Carew’s habeas petition

is therefore AFFIRMED.

would have been different absent the Batson violation, rather than merely a successful Batson claim. See Hutchinson v. Superintendent Greene SCI, 860 F. App’x 246, 249–50 (3d Cir. 2021) (unpublished opinion) (denying habeas petition and holding that there was “no reason to relieve [petitioner] of the obligation to demonstrate prejudice” when arguing that his attorney’s failure to pursue a Batson challenge amounted to ineffective assistance of counsel); Parks, 815 F. App’x at 943–45 (denying habeas petition and concluding that petitioner failed to prove prejudice associated with procedurally defaulted Batson challenge).

40 LOHIER, Circuit Judge, concurring:

I join the panel’s excellent opinion in full. I write separately only to note

that the petitioner’s unexcused procedural default prevents us from directly

reviewing the trial court’s decision. As a result, it remains an open question in

this Circuit whether a trial court faced with and aware of an unquestionably clear

Batson violation must of its own accord attempt to find a remedy even in the

absence of an objection by either party. In my view, the logic of Batson and its

progeny virtually compels the conclusion that the trial court has an independent

obligation to “eliminate the taint of racial discrimination” in the jury selection

process, Powers v. Ohio, 499 U.S. 400, 402 (1991); see Georgia v. McCollum, 505 U.S.

42, 49–50 (1992), which “harms not only the accused” when the Government

promotes it but also “the excluded juror,” Batson v. Kentucky, 476 U.S. 79, 87

(1986). “[R]acial discrimination in jury selection ‘casts doubt on the integrity of

the judicial process and places the fairness of a criminal proceeding in doubt.’”

Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998) (quoting Powers, 499 U.S. at

411). That is partly why a Batson violation “is a structural error that is not subject

to harmless error review.” Id.; see also Rivera v. Illinois, 556 U.S. 148, 161 (2009).

“Be it at the hands of the State or the defense, if a court allows jurors to be

1 excluded because of group bias, it is a willing participant in a scheme that could

only undermine the very foundation of our system of justice — our citizens’

confidence in it.” McCollum, 505 U.S. at 49–50 (cleaned up). If that is true, then it

seems to me that the responsibility to uphold Batson’s core constitutional

principles, if abdicated by both parties, must fall to the trial court. What if any

remedy the trial court should consider or undertake under those circumstances is

also a question for another day.