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November 15, 1996


The opinion of the court was delivered by: CONLON

 Dwayne Coulter ("Coulter") petitions for habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in state court, Coulter was convicted of first degree murder of a police officer and conspiracy to murder another man. Coulter was sentenced to natural life imprisonment. The Illinois appellate court affirmed the conviction, and the Illinois Supreme Court denied Coulter's petition for leave to appeal. Coulter's petition for habeas corpus was dismissed with prejudice on procedural grounds by this court. The Seventh Circuit reversed and remanded. The State of Illinois ("the State") opposes Coulter's petition.


 The jury at Coulter's trial included three African-Americans and two African-American alternates. Coulter moved for a mistrial because the State had exercised its first six peremptory challenges to exclude African-Americans. The trial court denied this motion and two subsequent motions aimed at the State's alleged discriminatory action. The jury convicted Coulter, and he was sentenced to imprisonment for natural life. Coulter appealed his conviction to the Illinois appellate court, claiming a violation of Batson as one ground for relief.

 The state appellate court remanded the case for clarification of the record concerning jury selection. On remand, the trial court decided not to hold a hearing. Instead, it proceeded exclusively on the basis of written arguments. Without a written opinion, the court held that Coulter failed to establish a prima facie case under Batson. The court reached this conclusion before Coulter had an opportunity to respond to the State's reasons for the strikes. Coulter then filed a motion to reconsider in which he responded to the State's arguments. The trial court denied Coulter's motion.

 The Illinois appellate court found that the trial court's procedure on remand had been "less than ideal," and that the record indicated "open hostility" toward Coulter. People v. Coulter, 230 Ill. App. 3d 209, 594 N.E.2d 1163, 1171, 171 Ill. Dec. 643 (1992). Nonetheless, the appellate court concluded that the trial court's hostility did not amount to prejudgment of the issue. 594 N.E.2d at 1172. The appellate court did find, however, that Coulter had established a prima facie case of discrimination. The appellate court then addressed the State's reasons for its strikes juror by juror, id. at 1174-1176, but found that the State had presented reasonably specific, legitimate, and race-neutral explanations for its strikes. Id. at 1176.

 Following the appellate court's decision, Coulter filed a timely motion for leave to appeal to the Illinois Supreme Court. In that motion, Coulter claimed that the State's explanations for its strikes were pretextual. The Illinois Supreme Court denied the motion. This court rejected Coulter's Batson argument on procedural grounds. The Seventh Circuit reversed and remanded for further proceedings on the merits of this issue. Coulter v. Gramley, 93 F.3d 394, 397 (7th Cir. 1996).



 Coulter must clear two procedural hurdles before the court can address the merits of his petition for habeas corpus: exhaustion of remedies and procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995); Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994), cert. denied, 129 L. Ed. 2d 870, 114 S. Ct. 2753 (1994). To satisfy the exhaustion requirement, Coulter must have exhausted all state appellate procedures. Id. ; Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), cert. denied sub nom., Farrell v. McGinnis, 502 U.S. 944, 116 L. Ed. 2d 337, 112 S. Ct. 387 (1991). To avoid procedural default, Coulter must have fairly and properly presented each issue to a state court on either direct appeal or post-conviction review. Rodriguez, 63 F.3d at 555; Jones, 15 F.3d at 674.

 If Coulter's claims survive both procedural barriers, Coulter has the burden of showing that either: (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" 28 U.S.C. 2254(d)(1), or (2) the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(2). *fn1"


 The Seventh Circuit has already found that Coulter's petition was not procedurally barred as to the Batson claim. Coulter, 93 F.3d at 397. Coulter does not challenge the factual record. As for the merits of the claim, Coulter argues that the prosecution's use of peremptory challenges and the content of the prosecution's voir ...

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